Pope v. Department of Motor Vehicles, 310 Neb. 971

Background:

On July 11, 2020, Colt Pope was stopped for a traffic infraction, arrested on suspicion of DUI, and refused a breath test.
The arresting officer completed an administrative sworn report; Pope received a copy at arrest that bore the officer’s signature but was not notarized.
The Department received a copy of the report (around July 20) that included the officer’s signature in a different location and a notary’s signature and stamp; Pope received that notarized copy before the hearing.
An administrative license revocation hearing occurred (issues over scheduling/continuances: hearings on Aug 11 and Aug 25; the hearing officer held the record open and granted a continuance), the officer testified the signature by the notary was made in the notary’s presence.
The hearing officer recommended revocation; the Department (director) revoked Pope’s operator’s license; the district court affirmed, and Pope appealed to the Nebraska Supreme Court.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Department had jurisdiction because the sworn report lacked an original notarized signature when given to Pope	Pope: report given at arrest lacked notary and thus did not establish a prima facie sworn report to confer jurisdiction	Dept: jurisdiction is determined by the sworn report before the hearing; the Department possessed a notarized, signed copy before hearing	Held: Jurisdiction exists — the notarized copy submitted to the Department before hearing satisfied statutory requirements
Whether officer testimony or other supplementation can cure defects or authenticity concerns in the report	Pope: officer testimony and similarity of handwriting suggest notary didn’t acknowledge in person; hearing testimony cannot cure initial defect	Dept: testimony and the notarized copy (or supplemental report) may be used to clarify the record; the notarized copy demonstrates acknowledgment	Held: Officer testimony and the notarized copy supported authenticity; lack of notary on the copy given at arrest did not defeat jurisdiction
Whether reopening/continuance and any off-record meeting violated due process or exceeded Department authority	Pope: Department improperly compelled reopening, held a behind-closed-doors meeting, denied notice and an opportunity to be heard; Department exceeded authority and should have appealed hearing officer’s decision instead	Dept: hearing officers make recommendations; director has authority to order continuances and to consider additional record evidence; Pope had notice and opportunity to participate in hearings	Held: No due process violation; director and hearing officer acted within regulatory/ statutory authority; no proof of bias or prejudicial ex parte decisioning
Whether director’s revocation was untimely or should have been stayed during the continuance	Pope: director failed to decide within 7 days of the hearing and should have stayed revocation during continuance	Dept: the 7-day clock runs from filing of hearing officer recommendations; continuance stay applies only when director requests it; license had already automatically revoked after 15 days	Held: Director’s order was timely; statute does not require staying a license already automatically revoked absent director-requested continuance

Key Cases Cited

Hahn v. Neth, 270 Neb. 164 (2005) (an administrative sworn report must contain the statutory information to confer Department jurisdiction)
Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688 (2008) (officer signature plus notarization suffices for a valid sworn report; statute need not require notary to administer oath)
Johnson v. Neth, 276 Neb. 886 (2008) (failure to substantially comply with acknowledgment/statutory form can deny jurisdiction)
Murray v. Neth, 279 Neb. 947 (2010) (Department may seek supplemental sworn reports to obtain jurisdiction)
Travis v. Lahm, 306 Neb. 418 (2020) (standard of review for Administrative Procedure Act decisions: conformity to law, supported by competent evidence, not arbitrary or capricious)
Betterman v. Department of Motor Vehicles, 273 Neb. 178 (2007) (jurisdictional questions presenting no factual dispute are matters of law for independent appellate review)