Pope v. Department of Motor Vehicles
310 Neb. 971
| Neb. | 2022Background
- On July 11, 2020, Pope was stopped, arrested on suspicion of DUI, and refused a chemical breath test.
- The arresting officer completed a sworn report; Pope received a copy signed by the officer but not notarized at arrest.
- The Department later received a copy of the report signed by the officer in a different location and bearing a notary signature and stamp.
- An administrative revocation hearing was held August 11; the hearing record was later held open and continued, and a second hearing occurred August 25 where the officer testified about notarization.
- The Department revoked Pope’s operator’s license (order issued August 27); the district court affirmed, and Pope appealed to the Nebraska Supreme Court.
- Central legal dispute: whether the sworn report as submitted to the Department conferred jurisdiction and whether procedural actions (reopening/continuance) violated Pope’s rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction: whether the sworn report conferred jurisdiction because it was not notarized on the copy given to Pope | Pope: initial copy lacked notary signature so report was not properly sworn and could not confer jurisdiction | Dept: jurisdiction is determined by the report submitted to the Department; a notarized copy bearing required info was in the record before hearing | Court: affirmed Dept had jurisdiction — the notarized copy submitted to the Dept before hearing satisfied statutory requirements |
| Reopening/continuance: whether reopening the hearing violated due process | Pope: Dept compelled reopening without notice of behind‑closed‑door communications, depriving him of process | Dept: Pope received notice of hearings and opportunity to be heard; hearing officer and director have authority to hold record open/order continuance | Court: no due process violation; Pope had notice and opportunity to participate; no proof of bias or prejudicial communication |
| Authority to reopen: whether Dept exceeded its authority by ordering hearing reopened | Pope: Dept lacked statutory/regulatory authority and should have appealed the hearing officer’s decision instead of reopening | Dept: hearing officer may hold record open; director may order continuance; director not bound by hearing officer recommendations | Court: Dept acted within agency powers; reopening/continuance permissible and did not require appeal |
| Timeliness and stay of revocation: whether director failed to decide timely or stay revocation during continuance | Pope: decision deadline ran from first hearing; revocation should have been stayed during continuance beyond temporary license | Dept: timing measured from hearing officer recommendations as filed; statutory stay applies only when director requests continuance | Court: director’s order was timely based on recommendation filing date; automatic revocation had already occurred and statutory stay did not apply here |
Key Cases Cited
- Travis v. Lahm, 306 Neb. 418 (2020) (standard of review for Administrative Procedure Act appeals)
- Betterman v. Department of Motor Vehicles, 273 Neb. 178 (2007) (jurisdictional questions not involving facts are matters of law)
- Hahn v. Neth, 270 Neb. 164 (2005) (sworn report must contain statutory information to confer jurisdiction)
- Murray v. Neth, 279 Neb. 947 (2010) (agency may seek supplemental sworn report to obtain jurisdiction)
- Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688 (2008) (officer signature plus notarization suffices for sworn report)
- Johnson v. Neth, 276 Neb. 886 (2008) (failure to include required officer identification in acknowledgment can prevent jurisdiction)