Opinion
No. 107,870.
2013-04-12
Joseph W. HALL, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge. John T. Bird and Carol M. Park, of Glassman, Bird, Schwartz & Park, L.L.P., of Hays, for appellant. John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Appeal from Ellis District Court; Thomas L. Toepfer, Judge.
John T. Bird and Carol M. Park, of Glassman, Bird, Schwartz & Park, L.L.P., of Hays, for appellant. John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joseph W. Hall appeals from a judgment of the trial court upholding the administrative suspension of his driving privileges by the Kansas Department of Revenue (KDR). Hall raises the following arguments: (1) that his license suspension action should have been dismissed because there was an unreasonable delay in setting his administrative hearing in violation of K.S.A.2009 Supp. 8–1020(d); (2) that his inability “to present all desired evidence” to the trial court and the restrictions placed on the presentation of his defense at the administrative hearing violated his due process rights; and (3) that he was denied equal protection of the law because he was precluded “from calling any witnesses at the administrative hearing that could provide information on the reliability of the testing equipment and processes and the qualifications of the persons performing that test.” Because none of Hall's statutory or constitutional rights were violated, we affirm.
Facts
On March 25, 2010, Hall was involved in a single-vehicle collision in rural Ellis County. Local police and emergency medical services were dispatched to the scene of the accident. Once at the collision site, Tim Deines, a deputy with the Ellis County Sherriff's Office, asked Hall to submit to a blood-alcohol test. Hall complied and took the test.
On May 14, 2010, Hall was served by mail with an “Officer's Certification and Notice of Suspension,” which is commonly referred to as the DC–27 form. Five days later, Hall filed a request for a hearing, seeking review of the suspension of his driving privileges. Hall's request asked that Deputy Deines be subpoenaed to appear at the hearing. Hall's request also asked that “all and any other law enforcement officers or individuals having or possessing material, relevant knowledge or information of this alleged offense” also be subpoenaed.
KDR responded to Hall's letter on June 16, 2010, informing him that it had received his hearing request and that he would be notified of a hearing date by a separate letter. KDR also informed Hall that his driving privileges would remain valid until after his hearing was held. On June 30, 2010, KDR sent Hall another letter telling him that his administrative hearing must be conducted by telephone. The letter asked Hall to provide a telephone number for the hearing. On July 15, 2010, Hall responded with the telephone number of his attorney.
Several months later—on November 24, 2010—Hall received a notice stating that his hearing had been scheduled for December 22, 2010. For whatever reason, Hall's hearing had been scheduled as an in-person hearing at the Ellis County Courthouse instead of a hearing by telephone. On December 2, 2010, Hall's attorney wrote a letter to KDR seeking dismissal of his license suspension because of KDR's “ ‘unreasonable delay’ in setting this matter for hearing.” In the alternative, Hall's attorney asked for Hall's hearing to be rescheduled because he already had been scheduled to appear in Harper County for a different matter. Approximately a week later, KDR replied to Hall's dismissal letter. KDR declined to dismiss Hall's suspension and later rescheduled his hearing for February 23, 2011.
Hall's hearing was held, as scheduled, on February 23, 2011. At the hearing, Hall again sought dismissal of the suspension by arguing that KDR had failed to “set his hearing in a timely manner.” The hearing officer disagreed and affirmed the administrative action suspending Hall's driving privileges. Later, Hall filed a petition for review with the trial court.
After Hall's case was scheduled for trial, he attempted to obtain discovery from KDR. Specifically, Hall wanted to gather information from Joshua T. Oakes, the forensic toxicologist who signed the Kansas Bureau of Investigation (KBI) forensic laboratory report. Oakes, who was employed by the KBI, was the forensic toxicologist who had performed the analysis of Hall's blood.
Because Hall was unable to receive this information, he moved to compel. In response, KDR moved for continuance of trial and requested a pretrial conference. The trial court ruled that Hall was entitled to take depositions of the arresting officer and of Oakes in Ellis County.
Because Oakes no longer worked for the KBI and resided in Sand Springs, Oklahoma, KDR moved to reconsider alleging that it could not produce Oakes in Ellis County. Thus, KDR asked the trial court to set aside its previous order. The trial court ordered the parties to submit briefs on the legal issue for ruling.
Based on the trial court's request, Hall moved for summary judgment. Hall's summary judgment argued that he was denied due process of law because there was an unreasonable delay in setting his administrative hearing. Moreover, Hall argued that delay ultimately prevented him from testing the reliability of the qualifications of the lab technician and the procedures and equipment used to test his blood. After KDR responded to Hall's motion, the trial court upheld the administrative decision.
The trial court reasoned that Hall had not been deprived due process because it could not “as a matter of law say that 172 days does not comply with the ‘forthwith’ “ requirement under K.S.A.2009 Supp. 8–1020(d). The trial court also reasoned that there was no guarantee that Oakes would have remained employed and a resident of Kansas for any length of time, which would be true of any witness. Finally, the trial court reasoned that Hall could have hired an independent forensic examiner to contest the validity of the process or could have called other KBI lab personnel to testify regarding the protocols and procedures used. Were Hall's statutory or constitutional rights violated based on the actions taken by the trial court and the Kansas Department of Revenue? A. Statutory Argument
Hall first argues that the trial court erred in rejecting the statutory argument that he presented in support of the dismissal of his license suspension action. Specifically, Hall contends that his license suspension action should have been dismissed because there was an unreasonable delay in setting his administrative hearing in violation of K.S.A.2009 Supp. 8–1020(d). Conversely, KDR contends that it complied with K.S.A.2009 Supp. 8–1020(d) because Hall “failed to prove that the delay in setting the hearing was unnecessary or that KDR did not act with due diligence.” Because the evidence presented on appeal consists of documents and facts that are undisputed, we apply a de novo standard of review. Cf. State v. Barnes, 293 Kan. 240, 260, 262 P.3d 297 (2011).
The statute at issue in this case, K.S.A.2009 Supp. 8–1020(d), reads as follows:
“Upon receipt of a timely request for a hearing, the division shall forthwith set the matter for hearing before a representative of the director and provide notice of the extension of temporary driving privileges. The hearing shall be held by telephone conference call unless the hearing request includes a request that the hearing be held in person before a representative of the director. The officer's certification and notice of suspension shall inform the licensee of the availability of a hearing before a representative of the director. Except for a hearing conducted by telephone conference call, the hearing shall be conducted in the county where the arrest occurred or a county adjacent thereto.” (Emphasis added.)
To support its argument, KDR relies on Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374–80, 130 P.3d 560 (2006). In Foster, our Supreme Court held that before a court can set aside a license suspension based upon KDR's failure to “forthwith set” an administrative hearing, a petitioner must show there was unnecessary delay in scheduling the hearing and that the petitioner was prejudiced by the delay. If the delay in scheduling the administrative hearing was necessary and did not result from a lack of due diligence or reasonable exertion on the part of KDR, “then the setting is forthwith and complies with the statute.” 281 Kan. at 377.
In this case, Hall requested an administrative hearing to challenge the suspension of his driving privileges on May 19, 2010. Although Hall communicated with KDR multiple times over the next several months, his hearing was not set until November 24, 2010. Thus, a total of 189 days passed between the time Hall requested his administrative hearing and the time that his hearing was set. Hall maintains that KDR failed to comply with the requirement of K.S .A.2009 Supp. 8–1020(d) based on this 189–day delay.
Hall's argument is misplaced. Although Hall notes that KDR held hearings in Ellis County on several occasions between the time that he requested his hearing and when his hearing was held, Hall has failed to show that the delay was unnecessary. Indeed, KDR correctly points out that the delay in scheduling Hall's in-person administrative hearing was necessary and did not result from a lack of due diligence or reasonable exertion on its part.
After Hall sent KDR a letter seeking dismissal of his license suspension action or, in the alternative, a rescheduling of his hearing, KDR sent him a response letter concerning his hearing date. KDR's letter informed Hall that his hearing had been set “forthwith according to the available schedule.” In other words, Hall's hearing was not set until December 2010 because of the large number of hearings which had already been scheduled and because of the infrequency of the hearings held in Ellis County. Thus, we are unable to conclude that KDR's delay in setting Hall's hearing resulted from a lack of due diligence or reasonable exertion because other hearings had been set for the dates between Hall's request and the setting of his hearing.
Moreover, Hall's timeliness argument is also without merit because he has failed to establish the second prong of the analysis, i.e., that he was prejudiced by the delay in setting his hearing. Hall contends that he was prejudiced by not being able to call Oakes as a witness because he was no longer employed by the KBI and had left the state before Hall's hearing was held. The trial court correctly rejected this argument below when it stated the following:
“[T]here were never any guarantees that Oakes would remain in employment and within the State for any length of time. This would also be true of any other witness. Nor was there anything to prevent the plaintiff from hiring an independent forensic examiner to test the blood or contest the validity of the testing procedures for use at trial if the administrative decision was not favorable.... Additionally, ... other lab personnel would be available to testify at the review level regarding the protocols and procedures used and the qualifications of Oakes.”
The trial court's reasoning is sound. Consequently, we determine that there was no violation of K.S.A.2009 Supp. 8–1020(d) in setting Hall's hearing.
B. Constitutional Argument
Hall next argues that the trial court erred in rejecting the constitutional argument that he presented in support of the dismissal of his license suspension action. In particular, Hall argues that his inability “to present all desired evidence to the District Court, the restrictions placed upon the presentation of his defense at the administrative hearing now amount to a denial of due process, requiring his license suspension to be set aside.”
The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires that a person be afforded a right to be heard in a meaningful way before being deprived of “life, liberty, or property.” U.S. Const. Amend. XIV, § 1; Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ “ [Citations omitted.] ); Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (The Due Process Clause “at a minimum” requires that “deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”). Kansas courts define due process rights in a similar fashion. State v. King, 288 Kan. 333, 354, 204 P.3d 585 (2009); Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 776, 133 P.3d 104 (2006).
Our Supreme Court has recognized that a driver's license entails a sufficiently substantial interest to require some measure of due process—a forum in which to be heard by a detached official—before a person suffers a loss or material impairment of that interest. Kempke, 281 Kan. 770, Syl. ¶ 2. The Kempke court also recognized that the combination of the administrative hearing with de novo judicial review provides sufficient constitutional due process in the context of suspension of driving privileges. See 281 Kan. at 795–97.
Before a person can establish a denial of due process, he or she must show a State-sanctioned loss of a constitutionally protected property or liberty interest. Hogue v. Bruce, 279 Kan. 848, 850–51, 113 P.3d 234 (2005) (“The first inquiry is whether the State has deprived [the petitioner] of life, liberty, or property.”); Williams v. DesLauriers, 38 Kan.App.2d 629, 636–37, 172 P.3d 42 (2007); accord Boutwell v. Keating, 399 F.3d 1203, 1211 (10th Cir.2005) (“[T]o establish a due process violation, Mr. Boutwell must first demonstrate that he has been deprived of a constitutionally protected liberty or property interest.”).
KDR argues that Hall has failed to show a loss of a constitutionally protected property interest because his driving privileges had not been suspended during this judicial process. To support its argument, KDR relies on DeLong v. Kansas Dept. of Revenue, 45 Kan.App.2d 454, 457–58, 252 P.3d 582 (2011). In DeLong, this court held that a driver's due process rights were not implicated when her driving privileges were temporarily extended pending the outcome of the agency action and judicial proceedings. 45 Kan.App.2d at 457–58. Other panels of our court have agreed with DeLong's holding. See, e.g., Britton v. Kansas Dept. of Revenue, No. 108,203, 2013 WL 518138, at *4 (Kan.App.2013) (unpublished opinion) (“Britton received an administrative hearing and an opportunity for a bench trial on his petition for review, and his driving privileges remained intact throughout the proceedings. Accordingly, none of his legal rights were prejudiced,” citing DeLong, 45 Kan.App.2d at 457–58.);Pratt v. Kansas Dept. of Revenue, No. 108,204, 2013 WL 475206, at *4 (Kan.App.2013) (same).
Based on DeLong, Hall has not shown that any of his legal interests were impaired or diminished because his license was not suspended or restricted during these legal proceedings. But even if Hall could show a State-sanctioned loss of a constitutionally protected property or liberty interest, his due process argument still would fail.
K.S.A.2009 Supp. 8–1020(h)(3) defines the scope of an administrative hearing when an officer certifies that a person has failed a blood test. This statute reads as follows:
“If the officer certifies that the person failed a blood test, the scope of the hearing shall be limited to whether:
“(A) A law enforcement officer had reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol or drugs, or both, or had been driving a commercial motor vehicle, as defined in K.S.A. 8–2,128, and amendments thereto, while having alcohol or other drugs in such person's system;
“(B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, persona! injury or death;
“(C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8–1001, and amendments thereto;
“(D) the testing equipment used was reliable;
“(E) the person who operated the testing equipment was qualified;
“(F) the testing procedures used were reliable;
“(G) the test result determined that the person had an alcohol concentration of .08 or greater in such person's blood; and
“(H) the person was operating or attempting to operate a vehicle.”
Moreover, K.S.A.2009 Supp. 8–1020(j) explains the admissibility of blood test results:
“At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, in which the report of blood test results have been prepared by the Kansas bureau of investigation or other forensic laboratory of a state or local law enforcement agency are to be introduced as evidence, the report, or a copy of the report, of the findings of the forensic examiner shall be admissible into evidence in the same manner and with the same force and effect as if the forensic examiner who performed such examination, analysis, comparison or identification and prepared the report thereon had testified in person.”
The statutes listed previously, along with Hall's de novo judicial review, sufficiently provided him with due process. See Kempke, 281 Kan. at 795–97. While Hall might not have been able to call Oakes as a witness because he no longer lived in Kansas, his inability to call him as a witness did not deprive him of due process. In fact, the blood-test report that Oakes completed was “admissible into evidence in the same manner and with the same force and effect as if [he] ... had testified in person.” K.S.A.2009 Supp. 8–1020(j). Simply put, Hall's inability to call Oakes as a witness did not deprive him of due process; Hall was provided with an opportunity to be heard at a meaningful time and in a meaningful manner. Consequently, Hall's constitutional argument fails.
Was Hall denied equal protection of the law under K.S.A.2009 Supp. 8–1002 because he was unable to challenge the reliability of the testing procedures and the training and qualifications of the tester at his administrative hearing?
Next, Hall argues that he was “denied equal protection of the law under K.S.A.2009 Supp. 8–1002.” Specifically, Hall contends the following:
“K.S.A. 8–1002 precluded [Hall] from calling any witnesses at the administrative hearing that could provide information on the reliability of the testing equipment and processes and the qualifications of the persons performing that test.... The denial of this opportunity, which is available to individuals subjected to a breath test, amounted to a violation of [Hall's] right to ... equal protection of law.”
In other words, Hall argues that he was denied equal protection because he was unable to challenge the validity of the procedures used to test his blood at his administrative hearing even though this right is given to individuals who are subjected to a breath test. KDR disagrees and argues that “[t]here is a reasonable basis for [the] statute and the actions taken by KDR and [Hall] has not met his burden to negate any, much less every conceivable basis, which might support the classification.”
The Fourteenth Amendment guarantees equal protection of the laws, and § 1 of the Kansas Constitution Bill of Rights provides the same protection. See State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). In reviewing whether K.S.A.2009 Supp. 8–1002 violated Hall's equal protection rights, we must consider the following:
“[U]nder the separation of powers doctrine, this court presumes statutes are constitutional and resolves all doubts in favor of a statute's validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature's apparent intent.” Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 450, 264 P.3d 102 (2011) (citing State v. Laturner, 289 Kan. 727, 735, 218 P.3d 23 [2009] ).
As a result, our Supreme Court has held that the burden on the party claiming unconstitutionality is a “weighty” one. See Steffes v. City of Lawrence, 284 Kan. 380, 388, 160 P.3d 843 (2007).
Our Supreme Court recently reiterated the stair-step analysis of an equal protection claim. See Board of Miami County Comm'rs v. Kanza Rail–Trails Conservancy, Inc., 292 Kan. 285, 315–16, 255 P.3d 1186 (2011). The stair-step analysis contained in Kanza Rail is as follows:
“The first step of an equal protection analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently....
“After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied. [Citations omitted.] ...
“The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny. [Citation omitted.]” Kanza Rail, 292 Kan. at 315–16.
In this case, Hall maintains that individuals who are asked to submit to a blood test are similarly situated to those individuals who are asked to submit to a breath test. KDR does not dispute this classification. K.S.A.2009 Supp. 8–1001 states that any person who operates or attempts to operate a vehicle in Kansas consents to submit to one or more tests of that person's “blood, breath, urine, or other bodily substance.” Thus, regardless of the type of test used, the appropriate classification consists of the individuals who have been asked to submit to alcohol testing by a law enforcement officer. In other words, individuals who are asked to submit to a blood test are similarly situated to those individuals who are asked to submit to a breath test for the purpose of determining their blood-alcohol content.
Under the second step, both federal and Kansas law identify three levels of scrutiny that may be applied in equal protection claims:
“(1) the rational basis standard to determine whether a statutory classification bears some rational relationship to a valid legislative purpose; (2) the heightened or intermediate scrutiny standard to determine whether a statutory classification substantially furthers a legitimate legislative purpose; and (3) the strict scrutiny standard to determine whether a statutory classification is necessary to serve some compelling state interest.” Kanza Rail, 292 Kan. at 316 (citing Limon, 280 Kan. at 283–84; [citations omitted] ).
The particular level of scrutiny that applies depends upon the nature of the rights involved. Here, the parties agree that the applicable level of scrutiny is rational basis. Because Hall is not a member of a suspect class and his argument does not involve a fundamental right, the parties are correct that the applicable level of scrutiny is rational basis. See Limon, 280 Kan. at 275.
Our Supreme Court has recognized that the rational basis standard is a “very lenient standard.” Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 258, 930 P.2d 1 (1996), cert. denied520 U.S. 1229 (1997). Indeed, the limits of this very lenient standard were defined in Kanza Rail as follows:
“Where, as in this case, a party attacks a statute as facially unconstitutional under the Equal Protection Clause for failing to satisfy the rational basis standard, the party must demonstrate that ‘no set of circumstances exist’ that survive constitutional muster. Injured Workers of Kansas [v. Franklin ], 262 Kan. [840,] at 850[, 942 P.2d 591 (1997) ]. For this reason, it is not enough to ‘[s]imply point[ ] out that [a statute] might not be rationally related to the state objectives sought under one set of facts.’ Injured Workers of Kansas, 262 Kan. at 851.Instead, a party ‘asserting the unconstitutionality of a statute under the rational basis standard “ha[s] the burden ‘to negative every conceivable basis which might support [ the classification ].’ “ [Citations omitted.]' “ (Emphasis added.) 292 Kan. at 316–17.
Moreover, the United States Supreme Court has explained that “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Consequently, “[i]t is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. [Citation omitted.]” In re Tax Appeal of Weisgerber, 285 Kan. 98, 108–09, 169 P.3d 321 (2007).
Here, Hall's equal protection argument fails for a couple of reasons. First, there are facts that reasonably may be conceived to justify the different treatment. Under K.S.A.2009 Supp. 8–1001(c), the withdrawal of blood at the direction of a law enforcement officer may be performed only by the following:
“(1) A person licensed to practice medicine and surgery, licensed as a physician's assistant, or a person acting under the direction of any such licensed person; (2) a registered nurse or a licensed practical nurse; (3) any qualified medical technician, including, but not limited to, an emergency medical technician-intermediate or mobile intensive care technician, as those terms are defined in K.S.A. 65–6112, and amendments thereto, authorized by medical protocol; or (4) a phlebotomist.”
Because blood may only be withdrawn by a medical professional, who already must abide by strict procedures and protocols, it is conceivable that the legislature thought that blood tests were more reliable than breath tests. It is conceivable that a breath test might not be as reliable because the officer must rely on the breath device to determine if an individual's blood-alcohol concentration is above the legal limit. If the officer errs in conducting the breath test or if the breath device malfunctions, then the accuracy of the test is in doubt. Thus, it makes sense for an individual to be able to challenge the breath test procedures at the administrative level.
Apparently, the legislature did not believe that the same concerns apply to blood tests. While it is possible that a medical professional might err in conducting a blood test, the probability of error arguably is less than with a breath test. Thus, there is rational basis for treating blood tests differently than breath tests for purposes of challenges at administrative hearings. Moreover, and as mentioned earlier, the rational basis standard is a very lenient standard and “a party ‘asserting the unconstitutionality of a statute under the rational basis standard “ha[s] the burden ‘to negative every conceivable basis which might support [the classification].” ‘ “ Kanza Rail, 292 Kan. at 316–17. Here, Hall simply has failed to meet his high burden of negating every conceivable basis which might support the classification. Consequently, Hall's equal protection argument fails.
Affirmed.