Cole v. State

473 P.3d 467

Michael Antwaun COLE, Plaintiff/Appellant,

v.STATE of Oklahoma, EX REL., DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellee.

No. 117,424

Supreme Court of Oklahoma.

FILED SEPTEMBER 15, 2020

Elliot Z. Smith, Tulsa, Oklahoma, for Plaintiff/Appellant.

Mark Edward Bright, Assistant General Counsel, Oklahoma Department of Public Safety, Oklahoma City, Oklahoma, for Defendant/Appellee.

Winchester, J. ¶1 Plaintiff/Appellant Michael Antwaun Cole appeals from a district court order remanding a driver's license revocation proceeding for hearing following his due process challenge. Cole violated Oklahoma's implied consent law after his arrest for suspicion of driving under the influence.¹ Cole attempted to contest the revocation of his driver's license by requesting an administrative hearing from Defendant/Appellee State of Oklahoma ex rel . Department of Public Safety (DPS). However, DPS determined that Cole's hearing request was insufficient and revoked Cole's license for one year.

¶2 The issue before the Court is whether DPS violated Cole's procedural due process rights in declining to hold a hearing when Cole failed to follow DPS's rule in submitting his hearing request. We hold DPS may designate how it receives hearing requests by administrative rule and DPS did not violate Cole's procedural due process rights when Cole failed to properly request an administrative hearing pursuant to Okla. Admin. Code § 595:1-3-7 (2017).

I. FACTS AND PROCEDURE

¶3 On February 18, 2018, the Oklahoma State University-Tulsa Police Department arrested Cole on suspicion of driving under the influence of alcohol. Cole refused to submit to a breath or blood alcohol concentration test to determine if he was intoxicated at the time of his arrest. The arresting officer served Cole with a notice of the revocation of his driver's license due to violating the implied consent law, which states that a driver gives consent to submit to a breath or blood alcohol concentration test when suspected of driving under the influence. On February 26, 2018, Cole, through his counsel, requested an administrative hearing by fax to DPS to contest the revocation. DPS deemed the request by fax insufficient under its rule regarding hearing requests, Okla. Admin. Code § 595:1-3-7. Within a week of receipt of this request, a DPS representative called Cole's counsel and advised him that DPS no longer accepted hearing requests made by fax. The DPS representative instructed Cole's counsel to submit the request by mail or in person.

¶4 On March 27, 2018, DPS sent a courtesy letter to Cole advising it received his faxed hearing request but that DPS deemed the request insufficient because DPS's rules had changed. The courtesy letter specifically stated that Cole should make the request by mail or in person and "faxed requests are no longer accepted." DPS instructed Cole to submit a corrected hearing request with the letter.² DPS was not required by law nor had any obligation to make the courtesy call or send the courtesy letter. Cole, however, did not address the deficiency in his request. On March 31, 2018, DPS sent a letter to Cole stating it had revoked Cole's driver's license for one year. Cole appealed the matter to the District Court of Tulsa County.

¶5 The district court held Cole timely requested an administrative hearing and DPS deprived Cole of due process when DPS denied him a hearing. The district court remanded the case and ordered DPS to provide Cole with an administrative hearing. Cole appealed, contending the district court did not have the authority to remand the case for an administrative hearing. The Court of Civil Appeals affirmed the district court's determination that DPS violated Cole's due process by not granting him an administrative hearing. However, the Court of Civil Appeals reversed the district court's order directing DPS to provide Cole an administrative hearing and determined that the only appropriate remedy was for the district court to set aside the revocation. This Court granted certiorari.

II. STANDARD OF REVIEW

¶6 On appeal from orders of implied consent revocations, the appellate courts may not reverse or disturb the findings below unless the lower court's determinations are found to be erroneous as a matter of law or lacking sufficient evidentiary foundation. Hollis v. State ex rel. Dep't of Pub. Safety , 2008 OK 31, ¶ 10 n.4, 183 P.3d 996, 999 n.4. Questions of law—including whether an individual's due process rights have been violated—are reviewed de novo , meaning they are subject to an appellate court's plenary, independent, and nondeferential re-examination. Jobe v. State ex rel. Dep't of Pub. Safety , 2010 OK 50, ¶ 13, 243 P.3d 1171, 1175 ; In re A.M. and R.W. , 2000 OK 82, ¶ 6, 13 P.3d 484, 486-87. "[I]t is the duty of this court on appeal to apply the law to such facts as a court of first instance and direct judgment accordingly." Rist v. Westhoma Oil Co. , 1963 OK 126, ¶ 7, 385 P.2d 791, 793.

III. DISCUSSION

¶7 The issue before the Court is whether DPS violated Cole's due process rights in not granting him a hearing when Cole failed to follow DPS's rule in submitting his hearing request. We first address DPS's authority to promulgate rules as to how it receives administrative hearing requests.

¶8 Pursuant to the Administrative Procedures Act, 75 O.S.2011, §§ 250 - 323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law. Estes v. ConocoPhillips Co. , 2008 OK 21, ¶ 10, 184 P.3d 518, 523. Specifically, 75 O.S.2011, § 308.2(C) states:

Rules shall be valid and binding on persons they affect, and shall have the force of law unless amended or revised or unless a court of competent jurisdiction determines otherwise. Except as otherwise provided by law, rules shall be prima facie evidence of the proper interpretation of the matter to which they refer.

¶9 Administrative rules, like statutes, are to be given a sensible construction. McClure v. ConocoPhillips Co. , 2006 OK 42, ¶ 17, 142 P.3d 390, 396. Statutory construction by agencies charged with the law's enforcement is given persuasive effect especially when it is made shortly after the statute's enactment. Id . ¶ 19, 142 P.3d at 396. If the Legislature disagrees with an agency's interpretation, the Legislature can take certain actions according to 75 O.S.2011, § 250.2(B).³

¶10 The Legislature has delegated rulemaking authority to DPS. See 75 O.S.2011, §§ 250 - 323. The purpose of this delegation is to eliminate the necessity of establishing every administrative aspect of general public policy by legislation. See 27 O.S.2011, § 250.2(b). As part of its rulemaking authority, DPS can designate how it receives hearing requests. DPS's general rule regarding a request for an administrative hearing found in Okla. Admin. Code § 595:1-3-4(d) (2017) states:

(d) Any person requesting a hearing must request the hearing in writing on a form prescribed by the Department of Public Safety and in compliance with this chapter. This form may be obtained from the Department's principal place of business at 3600 North Martin Luther King Avenue, Oklahoma City, OK or at www.ok.gov/DPS. A request that does not comply with these rules shall be rejected and shall not stay further action by the Department

¶11 On September 11, 2017, DPS amended its rule titled "Request for Hearing," which sets out the specific procedures to request a hearing:

A request for a hearing must be in writing, on a form prescribed by the Department of Public Safety. This form is available at the Department's principal place of business at 3600 North Martin Luther King Avenue, Oklahoma City, OK or at www.ok.gov/DPS. The request shall be submitted to the Department of Public Safety. Hearing requests may only be submitted in person at the Department's principal place of business, or by mail to the address below. Hearing requests submitted other than in person or by mail will not be accepted and a hearing will not be granted. Hearing request forms mailed via the U.S. Postal Service shall be addressed to the Department of Public Safety, Legal Division, P.O. Box 11415, Oklahoma City, OK 73136.

Okla. Admin. Code § 595:1-3-7 (2017) (emphasis added).

¶12 Based on these rules, DPS determined that Cole's hearing request was insufficient because it was not submitted in person or by mail. DPS amended the rule setting forth the procedure to request a hearing over five months prior to Cole's arrest. The Legislature took no action concerning Okla. Admin. Code § 595:1-3-7 ; the Legislature's silence is evidence of its consent and adoption of DPS's construction.⁴

¶13 We hold it was within DPS's rulemaking authority to determine how it receives hearing requests. DPS, acting within its rulemaking authority, promulgated a rule disallowing hearing requests by fax, and Cole's faxed request was insufficient.⁵ Cole failed to submit a proper hearing request and was, therefore, not granted a hearing. See 47 O.S.2005, § 754(D) (superceded Nov. 1, 2019).

¶14 We next address Cole's due process challenge. Relying on Pierce v. State ex rel. Department of Public Safety , 2014 OK 37, ¶ 8, 327 P.3d 530, 532, Cole urges that DPS denied him due process through no fault of his own, requiring his revocation be set aside. In Pierce , the sole issue was whether a delay of approximately twenty months in scheduling a revocation hearing was a violation of the constitutional right to a speedy trial. Id . ¶ 1, 327 P.3d at 531. The Court noted in Pierce that the driver acted in a timely fashion from the date of his arrest until the time of filing for certiorari to have this matter resolved at the first opportunity. Id . ¶ 14, 327 P.3d at 534. We do not find Pierce persuasive in this matter. The reason Cole did not receive a hearing from DPS was that Cole refused to properly submit a hearing...