Opinion
No. S-07-530.
Filed December 12, 2008.
1. Administrative Law: Motor Vehicles: Jurisdiction: Proof: Appeal and Error. Whether the sworn report of a law enforcement officer is sufficient to confer jurisdiction on the Department of Motor Vehicles is a question of law, and an appellate court reaches a conclusion independent of that reached by the lower court.
2. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation: Police Officers and Sheriffs. In an administrative license revocation proceeding, the sworn report of the arresting officer must, at a minimum, contain the information specified in the applicable statute, in order to confer jurisdiction.
3. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation: Affidavits: Words and Phrases. Sworn reports in administrative license revocation proceedings are, by definition, affidavits.
4. Affidavits: Words and Phrases. An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it.
5. Affidavits: Proof: Public Officers and Employees. An affidavit must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same.
6. Public Officers and Employees: Evidence. The certification of a notary public's official duties, over his or her signature and official seal, is received by the courts as presumptive evidence of the facts certified therein.
7. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation: Jurisdiction. A sworn report that fails to fully comply with the requirements of the administrative license revocation statutes does not confer jurisdiction upon the director of the Department of Motor Vehicles to revoke a motorist's license.
Appeal from the District Court for Buffalo County: JOHN P. ICENOGLE, Judge. Affirmed.
Jon Bruning, Attorney General, and Milissa Johnson-Wiles for appellant.
Greg C. Harris for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ.
NATURE OF CASE
The director of the Nebraska Department of Motor Vehicles (DMV) appeals from the judgment of the Buffalo County District Court which vacated the director's order revoking the driver's license of Jeremiah C. Johnson. The court found that because the notary failed to insert the name of the acknowledging party in the attestation clause on the sworn report, the DMV did not have jurisdiction to proceed with the administrative license revocation procedures. We affirm.
SCOPE OF REVIEW
Whether the sworn report of a law enforcement officer is sufficient to confer jurisdiction on the DMV is a question of law, and an appellate court reaches a conclusion independent of that reached by the lower court. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008).
FACTS
On December 17, 2006, Johnson was stopped by Sgt. Colin Wilke, a police officer with the Kearney Police Department, after Johnson made an improper U-turn. Upon contacting Johnson, Wilke noticed that the odor of an alcoholic beverage was coming from the vehicle and that Johnson's eyes were glassy and watery. Wilke asked Johnson to submit to field sobriety tests. While Wilke was explaining the "one-leg stand," Johnson repeatedly picked up his foot, even after Wilke told him to wait for the explanation. On the nine-step, heel-to-toe test, Johnson took nine steps in each direction, but Wilke said Johnson did not turn as asked and did not touch heel-to-toe at least two or three times. Johnson was able to correctly recite the alphabet.
Based on Johnson's driving, the appearance of his eyes, the field sobriety tests, and the odor of alcohol, Wilke asked Johnson to submit to a preliminary breath test and explained that if Johnson refused, he would be arrested. Johnson refused. Wilke arrested Johnson, read the postarrest chemical advisement form, and asked him to submit to a blood test. Wilke explained that refusal to submit to a blood test would result in a separate charge. Johnson indicated that he understood, and he refused to submit to the test. Wilke took Johnson to jail.
Wilke completed a "Notice/Sworn Report/Temporary License" (sworn report). He testified that he signed it in the presence of a notary. The notary placed her seal on the original. Wilke read the verbal notice of revocation to Johnson and placed a copy of the sworn report with Johnson's property at the jail. The sworn report was received by the DMV within the 10-day statutory timeframe.
Johnson filed a petition for an administrative hearing, at which hearing the sworn report was received into evidence. It indicates that Johnson was arrested because he made an improper U-turn, smelled of alcoholic beverage, failed field sobriety tests, and refused preliminary breath and blood tests. The form also indicates that Johnson refused to submit to a chemical test and was read the verbal notice of revocation. The attestation block states:
This foregoing instrument was acknowledged before me this 17 day of Dec, 2006 by
Peace Officer name and badge number
Peace Officer name and badge number
NOTARY PUBLIC'S SIGNATURE /s/ Robbi L. DeWeese
The notary seal is stamped beneath the signature and states that her commission expires October 20, 2008.
The hearing officer recommended that the director revoke Johnson's driver's license for the statutory period. The director adopted the recommendation and ordered Johnson's license revoked for 1 year, effective January 16, 2007.
Johnson appealed from the order of revocation to the Buffalo County District Court. He alleged that the officer lacked probable cause to require him to submit to a chemical test or to arrest him. Johnson also alleged that the sworn report was not completed in conformity with the statutory laws applicable to notarized documents.
During the administrative hearing, the DMV offered the testimony of Wilke, the arresting officer, who testified that he was physically in the presence of the notary when he signed the sworn report. The district court found that although Wilke stated that the notary acknowledged his signature, the notary made no specific reference to the person who appeared before her. The court concluded that without the testimony of the notary, the State was, in effect, offering evidence that allowed Wilke to serve as his own notary. "It is the officer testifying as to the acts and intents of the notary and not the notary." It found that the failure to properly complete the notary requirements was not a minor error. The court vacated the director's order revoking Johnson's driving privileges, and the director appeals.
ASSIGNMENT OF ERROR
The director assigns as error the district court's vacating the order revoking Johnson's driving privileges.
ANALYSIS
The issue is whether the sworn report was properly acknowledged, because the notary did not insert the acknowledging party's name in the attestation clause.
A sworn report must be forwarded to the director by the arresting officer if a person who has consented to chemical testing is found to be under the influence of alcohol or if a person refuses to consent to chemical testing. See Neb. Rev. Stat. § 60-498.01 (Reissue 2004). The sworn report must state that the person was arrested pursuant to Neb. Rev. Stat. § 60-6,197(2) (Reissue 2004) and the reason for the arrest, that the person was requested to submit to the required test, and either that the person submitted to the required test and the results of the test or that the person refused to submit to the required test. See § 60-498.01.
In an administrative license revocation proceeding, the sworn report of the arresting officer must, at a minimum, contain the information specified in the applicable statute, in order to confer jurisdiction. Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005). Johnson argued, and the district court agreed, that the report was not properly sworn because it did not state that Wilke had acknowledged it before the notary.
Sworn reports in administrative license revocation proceedings are, by definition, affidavits. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008). An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it. Id. An affidavit must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same. Id. However, an affidavit does not require a notary to confirm the truth of the facts stated in the affidavit; rather, the certificate, also known as a jurat, confirms only that the affiant appeared before the notary, attested to the truth of his or her statements, and signed the affidavit. Id. See, also, In re Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006). The certification of a notary public's official duties, over his or her signature and official seal, is received by the courts as presumptive evidence of the facts certified therein. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003). See, also, Neb. Rev. Stat. § 64-107 (Reissue 2003).
In Moyer, supra, the district court determined that the "sworn report" was never sworn because the notary did not place the arresting officer under oath. This court held that the signature of the arresting officer and the notarization of the signature were sufficient to make the sworn report valid. We noted that the arresting officer signed the report and testified it was signed in the presence of a notary and that the report was notarized.
No other action was required by either [the arresting officer] or the notary. The notary was not required to confirm the truth of the statements; the very fact that [the arresting officer] signed the report in the presence of a notary and that her signature was in fact notarized was sufficient as an oath or affirmation.
Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. at 692, 747 N.W.2d at 927.
The case at bar presents a different question: Did the failure to include the name of Wilke as the acknowledging party invalidate the sworn report? We conclude that it did. Wilke signed the report, as did the notary. The notary affixed a stamp indicating her name and the expiration date of her commission. She indicated that the "foregoing instrument was acknowledged before me this 17 day of Dec,2006 by." Between the acknowledgment phrase and the notary's signature are two lines which are labeled "Peace Officer name and badge number." These lines are blank.
A sworn report that fails to fully comply with the requirements of the administrative license revocation statutes does not confer jurisdiction upon the director to revoke a motorist's license. See Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005). There, the arresting officer did not check the box stating that the driver was requested to submit to the required test and we found that the report did not comply with the requirements of Neb. Rev. Stat. § 60-6,205(3) (Cum. Supp. 2002) (now at § 60-498.01). In considering at what point an omission on a sworn report becomes a jurisdictional defect, as opposed to a technical one, we concluded that "the test should be whether, notwithstanding the omission, the sworn report conveys the information required by the applicable statute." Hahn v. Neth, 270 Neb. at 171, 699 N.W.2d at 38. Therefore, the sworn report must, at a minimum, contain the information specified in the applicable statute in order to confer jurisdiction. "The statutory requirements are not onerous; an arresting officer need only complete a form designed to convey the required information and swear to the information thus conveyed." Id.
In this case, the attestation clause is not complete because there is no name listed in the acknowledgment. Statutes governing acknowledgments provide that the person taking an acknowledgment shall certify that
(1) [t]he person acknowledging appeared before him and acknowledged he executed the instrument; and
(2) [t]he person acknowledging was known to the person taking the acknowledgment or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument.
Neb. Rev. Stat. § 64-203 (Reissue 2003).
The form of a certificate of acknowledgment used by a notary is recognized in Nebraska if the certificate is in a form prescribed by the laws of this state or of the place in which the acknowledgment is taken, or the certificate contains the words "acknowledged before me," or their substantial equivalent. Neb. Rev. Stat. § 64-204 (Reissue 2003). The words "acknowledged before me" mean that the person acknowledging appeared before the person taking the acknowledgment, that he or she acknowledged he or she executed the instrument, that the instrument was executed for the purposes stated in the instrument, and that the person taking the acknowledgment either knew or had satisfactory evidence that the person acknowledging was the person named in the instrument or certificate. Neb. Rev. Stat. § 64-205 (Reissue 2003).
State law also prescribes the forms to be used for acknowledgment in Neb. Rev. Stat. § 64-206 (Reissue 2003). An acknowledgment completed by a public officer should state:
State of _____
County of _____
The foregoing instrument was acknowledged before me this (date) by (name and title of position).
(Signature of Person Taking Acknowledgment)
(Title or Rank)
(Serial Number, if any)
This court has not previously addressed the requirements for proper acknowledgment of a signature. The U.S. Court of Appeals for the Sixth Circuit held that an acknowledgment for a deed of trust was invalid because the bankruptcy debtors' names were omitted from the notarization section. In re Biggs, 377 F.3d 515 (6th Cir. 2004). The In re Biggs court cited In re Crim, 81 S.W.3d 764 (Tenn. 2002), a Tennessee case in which a wife attempted to sign a deed of trust on behalf of her husband using a power of attorney. There, the notary used an acknowledgment form indicating that both the husband and the wife had personally appeared before him and that the notary had acknowledged their signatures. In re Crim, supra. The Tennessee Supreme Court found that because the notary did not use the prescribed statutory form, the certificate of acknowledgment did not comply with state law. Id.
The In re Biggs court stated that the omission of the names in the acknowledgment form placed in doubt the integrity of the acknowledgment. "[W]ho, if anyone, is doing the acknowledging? Failing to name the individuals who signed the deed of trust bears directly on the ability of a subsequent purchaser of real property to verify that the instrument was signed by the true property owners." In re Biggs, 377 F.3d at 519. The acknowledgment did not comply with Tennessee law. "The `substantial compliance' test `addresses the unintentional omission of words by the officer taking an acknowledgment,' [citation omitted], not the unintentional omission of the names of the acknowledging individuals." Id. (emphasis in original).
The argument was made that the names of the individuals were included in the deed of trust, which should satisfy the requirement of including the names in the acknowledgment. The Court of Appeals disagreed, finding that allowing such omission would eliminate the acknowledgment requirement.
No one doubts that the names of the individuals on the deed of trust are the names of the individuals who should appear on the acknowledgment. The very point of the acknowledgment is to have their signatures confirmed in the presence of a notary. When notaries, however, merely take pre-printed forms and purport to notarize them without stating whose signatures they have notarized and who, if anyone, appeared before them, they not only undermine the Tennessee legislature's salutary purpose in creating statutorily-approved forms but also fail to accomplish the signal reason for having an acknowledgment in the first place.
In re Biggs, 377 F.3d at 520 (emphasis in original).
Recognizing the presumption that a sworn public official has acted lawfully, the Sixth Circuit determined that the presumption applies "when notaries perform the core functions of their job, not when they fail to perform them." Id. The court held that the deed of trust could be voided because the acknowledgment was not valid.
Whether the sworn report of a law enforcement officer is sufficient to confer jurisdiction on the DMV is a question of law, and an appellate court reaches a conclusion independent of that reached by the lower court. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008). As noted earlier, a sworn report in an administrative license revocation proceeding is, by definition, an affidavit, which must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same. See id. The report in this case does not show that it was sworn to by the law enforcement officer.
We conclude that the acknowledgment on the sworn report, which did not set forth the name of the individual making the acknowledgment, i.e., the arresting officer, did not substantially comply with the requirements of Nebraska law, and therefore, the acknowledgment was fatally defective. Because the report was not properly acknowledged, it is not a sworn report as required by statute. Thus, the DMV has not made a prima facie case for license revocation.
CONCLUSION
For the reasons set forth herein, we affirm the judgment of the district court.
AFFIRMED.