Summary
In State v. Carlile, 31 Or. App. 1065, 1069, 572 P.2d 629 (1977), we held that notice must be sent by registered mail, addressee only, return receipt requested.
Summary of this case from State v. DennisonOpinion
No. 76-11-26, CA 8148
Submitted on record and appellant's brief September 9, resubmitted in banc without argument November 2, affirmed December 12, 1977
Appeal from Circuit Court, Clackamas County.
Patrick D. Gilroy, Judge.
James A. Redden, Attorney General, W. Michael Gillette, Solicitor General, and Donald L. Paillette, Assistant Attorney General, Salem, filed the brief for appellant.
No appearance for respondent.
Gillette, J., did not participate in this decision.
Affirmed.
SCHWAB, C. J.
Tanzer, J., specially concurring opinion.
Buttler, J., dissenting opinion.
This is an appeal by the state from an order that dismissed its complaint against defendant under the Habitual Traffic Offenders Act, ORS 484.700 et seq, on the ground that the Motor Vehicles Division had failed to adequately "notify the licensee" as required by ORS 484.715. The question is what does "notify" mean in ORS 484.715.
Notification is required when another conviction will expose a licensee to possible revocation as a habitual offender. The Motor Vehicles Division sent such a statement to defendant by registered mail to the last address defendant had given the Division. For reasons not here relevant, defendant never received this letter. The trial court reasoned that the quality of ORS 484.715-notice should be no less than that which the legislature required for notice of suspension of a license, i.e., personal service or registered mail addressee only, return receipt requested.
We generally agree with the trial court's approach: the answer to what "notify" means in ORS 484.715 can best be found in analogous statutes. ORS 482.430 to 482.570 specify a variety of additional grounds for revocation, suspension and cancellation of a driver's license. ORS 482.570 provides that when the Motor Vehicles Division does so, "it shall give notice of such action to the person whose license or right is affected." The balance of ORS 482.570 and 487.560(3), read together, provide: (1) notification is accomplished by mailing by certified mail addressee only, return receipt requested; (2) if the addressee refuses to accept delivery, notification is nevertheless effective; and (3) if the notice is not delivered because the addressee has failed to inform the Motor Vehicles Division of a change of address, notification is nevertheless effective.
ORS 484.715 provides:
"When the division receives an abstract of the conviction or bail forfeiture, under ORS 484.240, and the conviction or bail forfeiture is the second one of those described by paragraph (a) of subsection (1) of ORS 484.705 for the convicted person, the division immediately shall notify the licensee and offer him an opportunity of an advisory meeting with a representative of the division in the county wherein the licensee resides. At such a meeting, the division shall advise the licensee of the provisions of ORS 484.700 to 484.750 and of the availability of educational programs for driver improvement."
ORS 482.570 provides:
"When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail addressee only, return receipt requested, to the person's address as shown by division records, or, by personal service in the same manner as a summons is served in an action at law."
ORS 487.560(3) provides:
"(3) The affirmative defense under paragraph (b) of subsection (2) of this section shall not be available to the defendant if:
"(a) The defendant refused to sign a receipt for the certified mail containing the notice;
"(b) The notice could not be delivered to the defendant because he had not notified the division of a change in his residence as required by subsection (2) of ORS 482.290; or
"(c) At a previous court appearance, the defendant had been informed by a trial judge that the judge was ordering a suspension of the defendant's license, permit or right to apply."
We hold the same provisions govern the nature of notification required by ORS 484.715. Admittedly, the statutes do not explicitly so state. But the revocation procedures in ORS ch 482 and the revocation procedures in ORS ch 484 cover the same subject and should be construed together. This may be a situation where "the legislature probably never considered our present problem." State v. Welch, 264 Or. 388, 393-94, 505 P.2d 910 (1973). But had the legislature considered the problem, we believe it would have required the same notice procedure under ORS 484.715 as is required under ORS 482.570 and ORS 487.560(3), read together.
A comparison of the conseqences of notice in the two contexts indicates nothing more could have been intended. Notification under ORS 482.570 has immediate and significant legal consequences: it informs the licensee of the availability of an administrative appeal, and informs the licensee that he will be guilty of a crime if he drives beyond a stated date. Notification under ORS 484.715 is substantially less significant: it is only a warning and statement of the availability of remedial driver education programs. See State v. Wells, 27 Or. App. 537, 556 P.2d 727 (1976). A respectable argument can be made that the legislature may have intended more notice under ORS 482.570 than under ORS 484.715. But the statutory scheme suggests no rational way the legislature could have contemplated the converse: more notice under ORS 484.715 than under ORS 482.570.
Yet the concurring opinion would interpret ORS 484.715 as requiring actual notice, even though ORS 482.570 does not. Thus, the concurring view would permit a driver to avoid habitual-offender revocation on grounds of lack of ORS 484.715-notice when the driver refused to accept delivery of registered-mail notice, or when the notice failed to reach him because he had not informed the Division of a change of address. Reading all of the relevant statutes together, we are satisfied the legislature did not intend such results.
We affirm because the record discloses that the Motor Vehicles Division did not send an ORS 484.715-notice to defendant by registered mail addressee only, return receipt requested. Had the Division done so, the act of mailing would be sufficient ORS 484.715-notice, and actual receipt or actual notice would be irrelevant.
Affirmed.
The issue in this case is simple: Does the word "notify" in a statute mean "notify"? The secondary issue, generated by the majority, is not nearly so simple: To what extent may a court construe an unambiguous statute in order to achieve a procedural result which it deems more reasonable, i.e., more like that which the court would have legislated than that which is achieved if words of the statute are directly applied.
I respectfully believe that the majority goes too far down the legislative path. The majority analysis is like a two-legged stool, neither leg of which is sufficient to support the weight thrust upon it, and both of which together are insufficient to provide balance, particularly since they point in different directions.
I
The first leg relied upon by the majority is: ORS 484.715, read together with ORS 482.570, means what ORS 482.570 says. This is patently fallacious. If a court looks at an apple together with a pear, the apple does not become a pear. The two remain distinct. Similarily, ORS chapters 482 and 484 are distinct.
ORS 484.715 is part of the Habitual Traffic Offenders Act. The purpose of the Act is to protect the public safety by retraining potentially competent drivers who are convicted of multiple traffic infractions. State v. Wells, 27 Or. 537, 556 P.2d 727 (1976). Education is its strategy; long-term (10 year) judicial suspension is the enforcement tactic. The notice section of the Act provides simply that prior to initiation of judicial habitual traffic offender proceedings, the Motor Vehicles Division "shall notify" the licensee:
"When the division receives an abstract of the conviction or bail forfeiture, under ORS 484.240, and the conviction or bail forfeiture is the second one of those described by paragraph (a) of subsection (1) of ORS 484.705 for the convicted person, the division immediately shall notify the licensee and offer him an opportunity of an advisory meeting with a representative of the division in the county wherein the licensee resides. At such a meeting, the division shall advise the licensee of the provisions of ORS 484.700 to 484.750 and of the availability of educational programs for driver improvement." (Emphasis supplied.)
ORS chapter 482 is a much broader body of statute than the Habitual Traffic Offenders Act. Among other things, it deals with administrative suspension and revocation of operator's and chauffeur's licenses — a separate, though related, subject from the Habitual Traffic Offenders Act. ORS 482.430 provides for mandatory license revocation for one or more convictions of certain enumerated traffic and and other crimes. ORS 482.450 and 482.520(1) provide for discretionary administrative cancellation for convictions of certain lesser offenses, incompetency, nonqualification or false use of license. ORS 482.540 provides for suspension for refusal under certain conditions to take a breath test for alcohol detection. The duration of suspensions under ORS chapter 482 is generally six months, but can be as long as three years. The notice section, ORS 482.570, provides for actual or constructive notice.
ORS 482.570 provides:
"When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail addressee only, return receipt requested, to the person's address as shown by the division records, or, by personal service in the same manner as a summons is served in an action at law."
ORS 482.570 does not stand by itself as a procedural entity, although the majority deals with it alone. It operates conjointly with ORS 487.560, which provides that in a prosecution for driving while one's license is suspended or revoked, lack of actual notice is an affirmative defense which is not available if defendant protected himself from mail notice or if the license was suspended in court. The two statutes operate together. It would be illogical to engraft one onto the Habitual Traffic Offenders Act and not the other. Yet it would be equally illogical to hold that a statute providing a restricted affirmative defense to a crime also applied to civil habitual traffic offender proceedings. The point is clear: the two statutes go together and neither of them is applicable to the Habitual Traffic Offenders Act.
ORS 487.560 provides in pertinent part:
"(1) A person commits the crime of driving while suspended if he drives a motor vehicle upon a highway during a period when his license or permit to drive a motor vehicle or his right to apply for a license to drive a motor vehicle in this state has been suspended by a court or by the division or revoked by the division.
"(2) In a prosecution under subsection (1) of this section, it is an affirmative defense that:
"* * * * *
"(b) The defendant had not received notice of his suspension or revocation as required by ORS 482.570 or in the manner provided in paragraph (c) of subsection (3) of this section.
"(3) The affirmative defense under paragraph (b) of subsection (2) of this section shall not be available to the defendant if:
"(a) The defendant refused to sign a receipt for the certified mail containing the notice;
"(b) The notice could not be delivered to the defendant because he had not notified the division of a change in his residence as required by subsection (2) of ORS 482.290; or
"(c) At a previous court appearance, the defendant had been informed by a trial judge that the judge was ordering a suspension of the defendant's license, permit or right to apply.
"(4) Any of the evidence specified in subsection (3) of this section may be offered in the prosecution's case in chief.
"* * * * *."
There is a danger of the majority going too far. Under ORS 486.221 the division must "immediately notify" a licensee of suspension or revocation of a vehicle license or registration. Does the constructive notice provision of ORS 482.570 also regulate notice under ORS 486.221? If not, why not? If so, to which notice statutes in which other chapters of the Motor Vehicle Code does it not apply?
In sum, ORS chapter 484 controls judicial long-term suspension for certain prior convictions and ORS chapter 482 controls substantial but much shorter term administrative suspensions based upon a broad variety of grounds. These separate sets of statutes are sufficiently different in purpose, scope and grant of authority that they give no reason for us to impute to one the meaning of the other. Therefore, I cannot agree with the first leg of the majority analysis which states that
"* * * the revocation procedures in ORS ch 482 and the revocation procedures in ORS ch 484 cover the same subject and should be construed together. * * *"
II
The second argument of the majority is equally fallacious:
"* * * This may be a situation where 'the legislature probably never considered our present problem.' State v. Welch, 264 Or. 388, 393-94, 505 P.2d 910 (1973). But had the legislature considered the problem, we believe it would have required the same notice procedure under ORS 484.715 as is required under ORS 482.570 and ORS 487.560(3), read together."
The civil code concept of the court qua legislature where the legislature has not acted is appealing, particularly where interstitial backfilling fails to resolve an issue satisfactorily. This quasi-legislative approach, first articulated in State v. Welch, 264 Or. 388, 393-4, 505 P.2d 910 (1973), should be resorted to, I believe, with great restraint. Its application should be restricted to instances where we can say with reasonable certainty that there is an actual legislative omission. Such an omission will normally be evidenced by an absence of pertinent statutory language, by ambiguous statutory language, or by legislative history demonstrating an oversight. None of these normal evidences of legislative omission is present here.
There is no absence of pertinent statutory language. ORS 484.715 requires that the division "notify" the licensee. The word is not only present, but it is not ambiguous. We normally give to a word its ordinary meaning and "notify" has one: "to give notice." In no way can "notify" mean "to mail an intercepted letter." The word "notify" standing alone does not authorize constructive notification.
The majority acknowledges as much, but reads into the word an authorization for constructive notice because, it asserts, the legislature would have done so had it thought of the problem. The legislative history of the two sections, however, leads inescapably to the conclusion that it is far more likely that the legislature considered the problem than that it failed to do so.
ORS 484.715 was enacted in 1973 as a part of the Habitual Traffic Offenders Act. It was considered in the course of passage by the Judiciary Committee of the House of Representatives and both the Transportation and Judiciary Committees of the Senate. The notice provisions of ORS chapter 482 have long been problematical and they have been amended several times, including 1973. The 1973 amendment followed disposition of a series of more substantial proposed amendments. In the course of passage, amendments to ORS 482.570 were considered by the Transportation Committee of the House, but in the Senate the amendments were thrashed out by the same two committees that approved ORS 484.715, Transportation and Judiciary. In view of the heated rites of passage of the notice-of-suspension statute, we cannot fairly infer legislative ignorance of the same issue in a similar statute approved not only by the same session of the legislature, but by majorities of the same two Senate committees. Nor, given the political variety of the members of the legislature and the compromises which are often necessary for passage of traffic legislation, would I concur in the majority's conclusion that
Oregon Laws 1973, ch 301, § 4.
Senate and House Journal, 382 (1973).
ORS 482.570 was originally enacted in 1965, Oregon Laws 1965, ch 321, § 2. The notice provisions were amended in 1971 and 1973. Oregon Laws 1971, ch 428, § 1; Oregon Laws 1973, ch 643, § 1.
Senate and House Journal, 202-3 (1973).
"* * * the statutory scheme suggests no rational way the legislature could have contemplated * * * more notice under ORS 484.715 than under ORS 482.570."
There are assuredly reasons for the disparity — and they need not be rational to us — which would have been completely appealing to some legislators whose votes were needed for passage of the acts. It is not for us to squeeze legislation into meanings which we consider to be most rational when the statutory words dictate otherwise.
Therefore, I also disagree with the majority's second theory that the legislature would have authorized constructive notice had it thought of it.
I would hold simply that the requirement of notice requires notice and if the result displeases the legislature it can modify or repeal the requirement, for, as Chief Judge Schwab has written on behalf of the court in the course of applying the plain words of a different statute and reaching a plainly unreasonable result:
"For those who believe a result such as the one reached here is not equitable, the forum in which to seek a different rule is the legislature, not the courts." Rak v. SAIF, 31 Or. App. 125, 129, 570 P.2d 384 (1977).
Good advice. We should follow it.
I am unable to concur with either the majority or the specially concurring opinions because I think that a reasonable reading of the Act (ORS 484.700- 484.750) compels the conclusion that all ORS 484.715 requires is that the Motor Vehicles Division (MVD) take steps reasonably calculated to apprise the licensee that he has been convicted of two of the described offenses and to offer him an opportunity to meet with a representative of MVD. In my opinion, the letter sent by MVD to defendant by certified mail to the last address defendant had given the Division fulfilled that requirement.
ORS 482.290 requires a licensee to notify MVD of any change in address within 30 days after the date of change.
It must be kept in mind that the ORS 484.715 notice does not advise the licensee of a suspension or a revocation of his license, nor does it advise the licensee of a right to a hearing. Further, it does not require the licensee to do anything in default of which certain consequences will follow. It is an invitation; in the words of ORS 484.715, it is to "offer him an opportunity of an advisory meeting with a representative of the Division * * *." The statute does not require that the notice advise the licensee that a third conviction of one of the described offenses will result in a loss of his driving privileges. If, however, the licensee accepts the invitation, the statute provides: "At such meeting, the Division shall advise the licensee of the provisions of ORS 484.700- 484.750 and of the availability of educational programs for driver improvement." If no such meeting takes place, there is no warning required. Regardless of whether the meeting takes place, there is no requirement that the licensee take advantage of the educational programs for driver improvement.
This provision of the Act is a salutary one, and the statutory scheme reflects the legislative desire that the licensee will attend both an advisory meeting and the educational programs, anticipating that by doing so the licensee may improve his driving habits and thereby avoid further convictions resulting in the loss of his driving privileges. This aspect of the Act, however, is precatory, not mandatory.
In spite of this fact, the majority would impress the same notice requirement under ORS 484.715 as the legislature specifically imposed with respect to a notice of suspension, revocation or cancellation of a driver's license. ORS 482.570. The only significant difference, under the majority view, is that notification would be accomplished by certified mail addressee only, return receipt requested. The extent to which such additional requirement would assure actual notice to the licensee is problematical; its principal achievement would be in establishing that the licensee did, in fact, receive the envelope, which is important with respect to suspensions, etc. See ORS 487.560. If he refuses to accept delivery, the notice is nevertheless effective, and if the notice is not delivered because the licensee has failed to inform MVD of a change of address, the notice is also effective, according to the majority's construction of the section.
The route which the majority takes to arrive at that conclusion is analyzed by Judge Tanzer in his specially concurring opinion, and I agree with that analysis. To it, I would add that the majority readily concedes that, "A respectable argument can be made that the legislature may have intended more notice under 482.570 than under 484.715." To me, it is apparent that the legislature did so intend, and I would not try to rewrite the statute when there is no ambiguity.
On the other hand, the specially concurring opinion would require that the licensee receive actual notice, regardless of where he might be, in the absence of which no subsequent proceedings under ORS 484.720 et seq may take place. To attribute such a restricted meaning to the word is unnecessary, and I agree with the majority's statement that there is "no rational way" the legislature could have intended more notice here than in the case of a revocation.
Both the majority and specially concurring opinions would affirm the trial court's dismissal of these proceedings because this court held in State v. Wells, 27 Or. App. 537, 556 P.2d 727 (1976), that the giving of the notice under ORS 484.715 after conviction of the second described offense is a condition precedent to bringing civil proceedings under ORS 484.720, et seq., after the third such conviction. In my view, assuming that Wells was correctly decided, the notice given in this case complied with the requirements of ORS 484.715, and we should reverse the dismissal.
However, if I am incorrect in concluding that MVD "notified" the defendant within the meaning of the statute, I would still reverse the dismissal because I do not think the giving of the notice under ORS 484.715 after the second conviction is a condition precedent to maintaining this proceeding commenced under ORS 484.720, et seq., after the third conviction. Such a result would require overruling Wells, but I am persuaded it was not correctly decided.
While it is true that ORS 484.715 evidences a legislative intent to train or retrain potentially competent drivers who have been convicted of multiple serious traffic offenses, the procedure set forth in that section is not the exclusive method of carrying out the legislative intent. ORS 484.735 permits one who has been judicially determined to be a habitual offender to obtain a one-year renewable probationary license conditioned, among other things, on his successful completion of a defensive driving course conducted by the Division. The training, etc., may be either before or after a determination that the licensee is a habitual offender, and while it is hoped that something can be done after the second conviction and before the third to avoid such determination, there is no assurance that the licensee will accept the Division's help even if the ORS 484.715 notice is given. There is, however, virtual assurance that he will do so after he is judicially determined to be a habitual offender.
The principal purpose of the Act is to protect the public (ORS 484.710) not the multiple offender. The effect of Wells is to do the latter, particularly in view of this court's decision today. The sections of the Act which follow ORS 484.715 are mandatory, without reference to the ORS 484.715 notice: ORS 484.720 requires the MVD to certify the operating record of an habitual offender to the district attorney of the county in which the offender resides, and further requires the district attorney to file a complaint against that person, charging him with being a habitual offender. ORS 484.725 requires the court in which the complaint is filed to enter an order directed to the person named therein to show cause why he should not be barred as a habitual offender from operating a motor vehicle on the highways of this state. Under ORS 484.730, the only bases on which the court may dismiss the proceedings are expressly stated: if the court finds that the person before the court is not the person named in the abstract, or that he is not a habitual offender. But if the court finds that the person before the court is the person named in the abstract and that the person is a habitual offender, the court shall so find and by appropriate order direct the person not to operate a motor vehicle on the highways of this state, etc.
It is significant that nothing in any of these sections even suggests that the notice under ORS 484.715 be given as a condition precedent thereto; in particular, ORS 484.730 does not authorize, much less direct, dismissal of the proceedings for failure to give that notice. To the contrary, the proceedings following the third conviction or bail forfeiture are mandatory on the MVD, the district attorney, and the court. If this were not the case, what course is MVD to follow after the third conviction, but before notification under ORS 484.715? Presumably, it would be required to give the notice and then wait for a fourth conviction, which would not only be directly contrary to the Act, but would not "provide maximum safety for all persons who travel or otherwise use the public highways * * *," or carry out the other expressly stated policies of the Act. ORS 484.710. Is this what the legislature intended? I think not. Rather, it intended that the third conviction of the defined offenses result in a mandatory determination that the licensee is a habitual offender and that he lose his driving privileges, subject to the provisions of ORS 484.735, under which driver training is available as a condition of a probationary license. Additionally, ORS 484.745 permits a person, at the expiration of ten days after the date of the order finding him to be a habitual offender, to petition the court for restoration of his driving privileges, and for good cause shown, the court may, in its discretion, restore such privileges upon such terms and conditions as the court may prescribe. Presumably, failure of MVD to give the ORS 484.715 notice would be a factor in determining good cause. But in the meantime the highway users need not wait for the next shoe to drop, and the habitual offender's right to operate an automobile would be subject to the court's jurisdiction, which is the purpose of the Act.
ORS 484.710 provides:
"It is hereby declared to be the policy of this state:
"(1) To provide maximum safety for all persons who travel or otherwise use the public highways of this state;
"(2) To deny the privilege of operating motor vehicles on the public highways to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state, the orders of her courts and the statutorily required acts of her administrative agencies; and
"(3) To discourage repetition of criminal acts by individuals against the peace and dignity of the state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws."
ORS 484.735 provides:
"(1) Except as provided in subsection (2) of this section, a license to operate motor vehicles in this state shall not be issued to a habitual offender:
"(a) For a period of 10 years after the date of the order of the court finding a person to be a habitual offender; and
"(b) Until the privilege of the person to operate a motor vehicle in this state has been restored by order of a court of record entered in a proceeding as provided by ORS 484.745.
"(2) A one-year, renewable probationary license may be issued to a habitual offender if he:
"(a) Successfully completes a defensive driving course conducted by the division;
"(b) Continually satisfies the conditions of the probationary license; and
"(c) Submits a report of a diagnostic examination conducted by a private physician showing to the satisfaction of the State Health Officer that he is physically and mentally competent to drive.
"(3) The conditions of a probationary license shall include that if a habitual offender is convicted of more than one moving violation within any 12-month period the probationary license shall be revoked and may not be reinstated for one year from the date of last conviction.
"(4) The division may establish by rule additional conditions of a probationary license."
ORS 484.745 provides:
"At the expiration of 10 years after the date of any final order finding a person to be a habitual offender the person may petition any court of record in the county in which he then resides, for restoration of his privilege to operate a motor vehicle in this state. Upon such petition, and for good cause shown, the court may, in its discretion, restore to the person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators' or chauffeurs' licenses."
There are other methods of enforcing the informal procedures encompassed by ORS 484.715, if the director ignores its requirements, such as mandamus or removal of the director from office. Emasculating the Act is not necessary. Our function is to enforce the Act as written if there is a reasonable way to do so without doing violence to the purposes of the Act. It is up to the legislature, not this court, to rewrite it.
I would reverse and remand for further proceedings.
Therefore, I respectfully dissent.
Richardson and Joseph, Judges, join in this dissent.