Summary
In Marr and Donelson the driver was required to surrender his license but was authorized by court order to drive for employment purposes.
Summary of this case from Tomasi v. ThompsonOpinion
No. 79CA0157
Decided July 5, 1979.
Plaintiff appealed the affirmance of the Department of Revenue's order revoking his driver's license for a period of three months, and after the matter was at issue in the Court of Appeals, filed a Motion for Determination of Mootness.
Appeal Dismissed
1. APPEAL AND ERROR — Driver's License Revocation — Stayed by Trial Court — Subsequent Order — Operated to Vacate Stay — Period of Revocation Expired — Matter Moot. Where trial court stayed a Department of Revenue driver's license revocation order "pending the final determination of the review" of such order, but subsequently, the trial court entered an order permitting the driver to drive for purposes of his employment and also ordered the driver to return his license to the Department of Revenue, this latter order operated to vacate the earlier stay; thus, three month period of the revocation expired during pendency of the appeal, and the matter became moot as of that date.
2. ADMINISTRATIVE LAW AND PROCEDURE — Action for Judicial Review — Commenced — Department of Revenue — Loses Jurisdiction — Until Remand. Once an action for judicial review of a Department of Revenue revocation order is commenced in the district court, the department has no jurisdiction to enter any further orders in the matter until the final disposition of the judicial proceedings and remand of the case to the department.
Appeal from the District Court of Jefferson County, Honorable Winston Wolvington, Judge.
O'Connor, Miller, Doores, Root Bogue, P.C., James R. Miller, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Assistant Attorney General, Edward G. Donovan, Special Assistant Attorney General, Richard H. Forman, Assistant Attorney General, for defendants-appellees.
On September 22, 1978, plaintiff's driver's license was revoked by the Department of Revenue for a period of three months, for refusal to submit to a chemical sobriety test. On the same day, plaintiff sought review of the Department's order in the district court, and that court entered its order staying the Department's revocation order "pending the final determination of this review."
On January 29, 1979, the court affirmed the Department's order revoking plaintiff's driver's license. Plaintiff then moved for emergency relief concerning his driving privilege. After an evidentiary hearing, the court on February 21 entered an order permitting plaintiff to drive within the scope and for the purpose of his employment. However, the court also ordered that plaintiff's driver's license be returned to and remain in the possession of the Department. After surrender of his license, plaintiff appealed.
Whether the trial court had the authority to enter such an order was not raised as an issue in this case. See Creech v. State, 190 Colo. 174, 544 P.2d 633 (1976); Donelson v. Colorado Department of Revenue, infra.
On May 24, 1979, after the matter was at issue in this court, plaintiff filed a "Motion for Determination of Mootness." He contends that the trial court's February 21 order compelling him to return his driver's license to the Department vacated the previous stay order, that the Department's three month revocation order was reinstated effective that date, and that the three month revocation period expired May 21, 1979, rendering the matter moot as of that date. We agree and dismiss the appeal.
[1] By affirming the Department's revocation order and requiring plaintiff to surrender his license, the court vacated its stay. Having served the three-month revocation period without a license, plaintiff has been entitled to apply for the return of his license since May 21, 1979, and this appeal is now moot. See § 42-2-124, C.R.S. 1973; Donelson v. Colorado Department of Revenue, 38 Colo. App. 354, 561 P.2d 345 (1976).
The Department contends that the revocation period has not expired because, pursuant to § 24-4-106(5), C.R.S. 1973, the Department on its own motion subsequent to the district court action stayed its order of revocation pending resolution of this appeal. As authority for this action, it cites Donelson v. Colorado Department of Revenue, supra, in which the court stated:
There was no showing that plaintiff or his counsel were ever advised of this action by the Department.
"Furthermore, if in the Department's view, the issuance of such an order [granting the licensee permission to drive within the scope of and for the purposes of his employment, but declining to order the return of his license to him] vitiates its power to revoke a license, it may avoid that effect by restoring the license pending judicial review, thereby insuring that the full six-month revocation period would follow upon affirmation of the revocation by the district court. See § 24-4-106(5), C.R.S. 1973."
[2] Assuming arguendo that a supplemental record would support the Department's assertion that it stayed its revocation order, such action would not affect our disposition of this appeal. Both the above quotation from Donelson and § 24-4-106(5), C.R.S. 1973, pertain to what the Department could have done prior to judicial review in the district court. Once the action for judicial review had been commenced in the district court, the Department had no jurisdiction to enter any further orders in this case until final disposition of the judicial proceedings and remand of the case to the Department. Colorado Anti-Discrimination Commission v. Continental Air Lines, Inc., 143 Colo. 590, 355 P.2d 83 (1960).
The appeal is dismissed.
JUDGE COYTE and JUDGE STERNBERG concur.