Gargagliano v. Secretary of State

Sec of State 1975] GARGAGLIANOv SECRETARYOF STATE

Opinion J.N. Appeal 1. and Error —Constitutional Law —Constitutional Questions. questions appellate Constitutional will not be considered grounds court disposing where there exist other decisive a case. Hospitals—Michigan 2. Mental Health — Vehicle Code —Conva- Legal Custody- lescent Status — —Statutes. person hospital A released from a mental on convalescent status legal custody hospital hospital- remains in the and is still (MCLA purposes ized for 257.303a). of a section of the vehicle code Property Deprivation 3. Constitutional —Ex Parte Pro- Law — Emergency cedures —Crucial Need — Need. crucial, perhaps emergency, A state must justify show a need to parte procedures deprivation impor- the use of ex for the of an tant interest. Summary Suspension 4. Automobiles —Drivers’ Licenses — —Secre- tary System Judgment. of State —Point —Final Secretary summary suspension of State’s of the driver’s person license who has accumulated a certain number of "points’’ through driving proper several convictions is where it ^{[1] [2]} [3] [4-6, ^{[7] [8] [11] [12]} [13, ^[14] Jur 73 Am Jur 73 Am 41 Am Jur 16 Am Jur 4 Am Jur and Error 73 Am Jur 73 Am Jur 16 Am Jur 124. 7 Am Jur 10] 7 Am Jur 2d, Incompetent 2d, 2d, 2d, 2d, Appeal §§ 2d, 2d, 2d, References 873, 2d, Statutes Statutes 412. Constitutional Law 367. Statutes 390. Statutes 158. Constitutional Law Automobiles and 874. 2d, and Error § §§ Automobiles and § for Points 164, 165, 180, Persons §§ § §§ Highway §§ in Headnotes 13, 14; 44r-47. 192. Highway 559. 5 Am Jur Traffic 106. Traffic 2d, §§ Appeal 109- 62 judgments is founded on the ñnal of trials in which the given presentation opportunity was make a full and to him, fully allegations rulings contest the the court speciñc driving general concerned disabilities rather than a physical or mental status. Suspension op 5. Statutes —Automobiles—Drivers’ Licenses — Hearing—Prior Hearing Drivers’ Licenses — —Constitu- tional Law. requires suspension person's A statute which of a driver’s license hospital after upon admission to a for mental illness and superintendent Department notiñcation the medical to the person of State that the has become afñicted with mental or physical rendering inñrmities or disabilities it unsafe for the person drive, is unconstitutional where the statute fails to hearing prior person’s accord a to the driver’s (MCLA257.303a). license by Allen, P. J. Concurrence in Result 6. Automobiles —Drivers’ Licenses —Mental Patients —Ex Parte Suspensions Secretary Hearing — of State —Probate Court Safeguards —Procedural —Constitutional Law. impediment There is no temporary parte constitutional ex suspension by Secretary of State of the driver’s license of a person mentally found hospital ill and committed to a state following probate hearing complied court which with all of procedural safeguards required by law. 7. Statutes —Construction—Priorities. presumed recently

It is that the more enacted section of a statute priority has over another section where two sections are mutu- ally incompatible. Construction—Specific 8. Statutes — Provisions —General Provi- sions. Speciñc provisions prevail general provisions of a statute over of the same statute. Suspen- 9. Statutes —Automobiles—Drivers’ Licenses—Ex Parte Hearing—Post-Termination Hearing sions — —Due Process. A temporary parte taking statute which authorizes the ex of a process driver’s license is violative of due where it does not (MCLA provide speedy post-termination hearing for a 257.303a). v Sec of State by O’Hara, J. Dissent Suspension 10. of Drivers’ Li- Automobiles —Drivers’ Licenses — Hearing. Right censes —Constitutional Law — process requires Due whose driver’s that a license has Secretary suspended by been of State be afforded the opportunity arguments or for a at which defenses can Secretary response decision. raised in to the State’s Construction—Subject—Purpose—Consistency— 11. Statutes — Conflict. general relating subject having Statutes to the same matter or purpose compli- basic same are construed consistent and mentary appearance to each other to avoid the so as irrecon- cilable conñict. Appeals 12. Statutes —Construction—Courts—Court —Consti- Duty. tutional Law — Appeals duty The Court has a construe statutes as constitu- tional, ifpossible. Suspen- 13. Automobiles —Mental Patients —Drivers’ Licenses — Appeal Setting Suspension sion —License Board — Aside— Statutes. appeal may modify The license board or set aside ñnal license, suspend to including determination or revoke a driver’s suspension by Secretary person of State of the license of a hospital illness; to a may admitted for mental and board superintendent act in such cases without notice from a medical (MCLA longer 257.303a, that mental illness no exists. 257.322). States—Summary 14. Constitutional Law —Due Process — Action Right Hearing. —-Public Interest — to justiñed acting summarily, A state in and hence does so denying process, acting without due when its interest protect promptly public against a serious threat to its health, safety, well-being outweighs or economic the individu- having opportunity al’s interest in to be heard before the acts, error, perhaps ways state cause him signiñcant injury. 15. Automobiles —Mental Patients —Drivers’ Licenses—Ex Parte Suspensions Right Hearing — —Constitutional Law. impediment parte There temporary is no constitutional ex person’s license, of a driver’s after medical superintendent hospital patient at which the is a 62 Kaufman, Opinion by N. J. for care and treatment of a mental illness has certiñed that the

person’s physical mental or condition it makes unsafe for him drive, prompt appeal where before the license (MCLA upon timely request board 257.322, is available 257.303a). Appeal Kent, Letts, from John T. J. Submitted 14, 1975, Division 3 (Docket at Grand January Rapids. 19759.) No. Decided June 1975. Complaint by Victoria

Secretary of State for a declaratory judgment a section of the Motor Vehicle Code is unconstitu- tional, an injunction prohibiting enforcement that section by against plaintiff, defendant and for revocation of defendant’s order suspending plain- tiff’s driver’s Judgment license. for plaintiff. De- fendant appeals. Affirmed.

Legal Aid and Defender Association of Kent Kravitz), (by Norman K. County plaintiff. Frank J. Kelley, Attorney General, Robert A. Derengoski, Fink, General, Solicitor and Varda N. General, Assistant Attorney for defendant. J., Before: P. and N. J. Kaufman Allen, JJ.

O’Hara,* J.N. J. This is an by defend- ant Secretary of State from a declaratory judg- ment and permanent injunction entered by Kent County Circuit Court Judge John T. Letts.

The court ruled that 303a of the Michigan § Code, 300, Vehicle 1949 PA is unconstitutional and permanently enjoined the defendant from enforc- ing 303a plaintiff. The court § also revoked * Supreme Justice, sitting Former Court Appeals by on the'Court of assignment pursuant 1963, 6, to Const art 23 as § amended in 1968. Sec of State Opinion J. N. suspended

the order defendant had with which pursuant license to the terms plaintiffs driver’s of 9.2003(1). 303a, 257.303a; MSA MCLA Section requires: 303a

"(1) Upon any person hospital of the admission for care of a mental illness or at any and treatment person longer hospital- time thereafter until is no illness, ized for treatment superintendent of a mental the medical hospital person at which the is a patient person notify department treatment shall if the operator’s has an or chauffeur’s license and has physical become afflicted with mental or infirmities or rendering Upon disabilities it unsafe for him to drive. receipt department suspend such notice the shall person. license of The license shall remain sus- pended and no renewal license shall be issued until the superintendent hospital medical at which the person patient is a for care and treatment of a mental notify department illness shall the condition longer no exists. "(2) Any person adjudicated mentally prior ill to the. amendatory eligi- effective date of this section shall be driving privileges ble to have his restored or a renewal operator’s of his or chauffeur’s if license the medical superintendent for care and from any hospital patient at which he is a treatment, physician or if the licensed treatment, receiving whom the shall certify department longer to the that he is no afflicted physical with mental or infirmities or disabilities ren- dering (Emphasis it unsafe for him to drive.” supplied.)

Plaintiff was released from Kalamazoo State placed and on Hospital convalescent status on 7, 12, 1973, December 1973. On December superintendent medical of the hospital notified the pursuant of State Department 303a. On Janh- plaintiff received a ary notification from that her department operator’s license would suspended indefinitely January suspended would remain until require- she met the Kaufman, Opinion by J. N. J. authority. of licensing ments The notice stated the appealed that could be to the li- cense must be appealed board and within days of Instead of suspension. filing brought appeal, administrative plaintiff suit There, Kent County Circuit Court. she does here, plaintiff 303a claimed that of violative § (1) the Fourteenth Amendment for two reasons: because it deprived her of without (2) procedural process required due because provides standards it so vague are as to pro- guidance vide no for administrative decision-mak- ing and no notice driver when his license might be suspended.

Before we make any can determination concern- ing 303a, constitutionality we must con- § sider significant defendant’s claim that there are grounds on nonconstitutional which this case can be decided. cites the well established .Defendant judicial rule of construction that constitutional questions will not be considered where there exist other grounds decisive disposing the case. Hill, Brown v NW Defendant contends that the trial court could have held that the defendant had complied not with 303a and avoided a on ruling constitutional- ity of that section. Defendant claims that section does not allow a medical superintendent send notice to the Department of State after patient has been released from his In care. case, instant defendant admits it erred by taking congnizance of the notice because the no- tice sent days plaintiff was five after was released. responds by

Plaintiff arguing the nonconsti- grounds urged tutional by defendant do not exist. that, claims Plaintiff the time the notice was sent, was still "hospitalized” she under the terms of State Sec Opinion by J. N. agree 303a and not been "released”. We had released, plaintiff. plaintiff was she

with When was notes, plaintiff on convalescent status. As under on Michigan jurisprudence, a convalescent legal custody hospital remains in the of the status hospitalized. and is therefore still Convalescent by including status has been defined law any patient discharged, permit "who is not but who is by superintendent apart ted the medical to live * * * from hospital special the state under regulations superintendent”. of the medical MCLA 258.) 330.54; 1974 PA (Repealed by MSA 14.844. Further, 330.37a; MSA 14.837a provided MCLA that an on individual convalescent status "shall be subject at time taken back any to be within the hospital enclosure of said reason that may (Re superintendent medical satisfactory to the 258.)”-.1 fact, 1974 PA In pealed by plaintiff had hospital prior been returned to the on one occa sion.

Indeed, this the best factual situation may be on may which we consider the constitutionality 303a. Where an individual is confined to a hospi- tal, license, operator’s of an which he use, cannot may fact not be a severe depriva- Where, however, tion. the individual is on conva- lescent status and to function in trying society, the summary mobility loss of be a severe depriva- procedure tion. The utilized in the latter case thus requires scrutiny. careful parties

Both arguments concerning base their the constitutionality Supreme of 303a on the US Billingsley Birzgalis, 279, 281-282; App See also NW2d 18-19 where this Court held that an individual on standing convalescent status continues to have a denial of petition corpus his for a writ of habeas since he within the is still legal custody liberty”; Op. hospital, being "sufficiently thus restrained of his 1961-62, Atty. p. Gen. No. 1. Opinion N. J. Burson, Court case of Bell v US 29 L Ed Plaintiff 2d claims that an application of the standards set forth Bell man- date the provide hearing prior law to to suspen- sion of a agrees driver’s license. Defendant process due standards to this apply case but argues a hearing held after the license has been suspended meets the Bell v Burson due process standards. Such hearing, notes, defendant was made plaintiff Department available to of State regulations. Bell,

In supra, the Court examined Georgia’s Motor Vehicle Safety Responsibility Act which required that unless an uninsured motorist "in volved” in an posted accident a security to cover damages by aggrieved parties, claimed his vehicle registration and operator’s license would be sus was, pended. A hearing provided prior to suspen sion but any consideration of the driver’s "fault” was that, excluded. The Court held since "fault” significant was a element in the decision to de prive a license, motorist of his "before the State may deprive of his driver’s license and vehi [him] registration cle it must provide a forum for the determination question whether there is a reasonable of a possibility judgment being ren against dered him as a result of the accident”.2 In determining the timing of a process due hearing, the Court set out guideline: as a " * * * it is fundamental except emergency * * * process situations due requires that when a State seeks to terminate an interest such as in that here volved, it must afford 'notice and opportunity for hear ing appropriate to the nature of the case’ before termination becomes (Emphasis effective.” original.)3

2 US-535, 542; 1586, 1591; 90, 91 S Ct 29 L Ed 2d 3Id., citations omitted. Sec of State v Opinion by N. J. Shevin, of Fuentes case 407 US 67; later 1983; (1972), 32 L Ed reaffirmed 2d Bell its explained concept standards and "emer- gency prior hearing situations” where a would not required: 'extraordinary post

"There are situations’ that justify poning opportunity hearing. notice and for a Boddie v Connecticut, 379; [371, 786; 401 US S Ct 28 L Ed situations, (1971)]. 2d These however must be truly Only unusual. in a few limited situations has this outright Court allowed seizure without opportunity for case, prior hearing. First, a directly necessary in each the seizure has been important governmental to secure general public Second, or special interest. there has been a very prompt Third, need for action. the State kept has legitimate strict control over its monopoly of person initiating force: government the seizure has been a responsible determining, official under statute, standards of a narrowly drawn it was necessary justified particular Thus, instance. the Court has summary allowed seizure of States, collect the internal revenue of the United meet effort, the needs of a protect national war failure, the economic disaster a bank and to protect public from drugs misbranded and contami (Footnotes omitted.)4 nated food.” Bell, on

Relying plaintiff both and defendant analyses focus their on whether or not the instant presents case an "emergency However, situation”. Co, in Mitchell v W T Grant Court, the Supreme 94 S US Ct 40 L Ed 2d 406 has apparently abandoned the definite more "emergency situation” standard in of favor the more "balancing traditional test. In interests” Mitchell, Court, quoting pre-Bell case, the a stated very nature process of due negates "[t]he 4 67, 90-92; 1983, 556, 1999-2000; US S Ct 32 L Ed 2d 575- (1972). App 1 Opinion N. J. universally appli concept procedures of inflexible imaginable every situation”.5 The Court cable to upheld sequestration statute which Louisiana’s sequestration a writ allows a creditor to obtain prior hearing. notice or It a debtor without balancing using test. Under balanc so test, the validity did ing procedure parte an ex will by comparing the extent to which it determined be arbitrary wrong may subject or to an a defendant deprivation property interests with the ful of his procedure in order to need of the state to use protect. it of those seeks further the interests strong had that Louisiana The Court found by protecting preserving dis interest commerce possible puted sale or collateral from destruction avoiding potentially danger by the debtor and self-help The interest of creditor methods. ous debtor was seen to be weak since the collateral ownership interest in it. not full he did Further, have a the debtor’s the Court found that inter protected by statutory sufficiently ests were scheme. The Court stressed parte the ex supervision, proceeding judicial that the issues had uncomplicated lent themselves to docu were provided proof, mentary statute and that damages. protect from It con the debtor bond has reached a constitutional cluded "that State respective [the interests of accommodation parties]”.6 may, Bell, how Fuentes and Mitchell tests conceptually

ever, into one basic reconciled analyzed more Commentators have standard. hearing prior rigid rule of notice and Fuentes-Bell containing deprivation an im 886, 1743, 1748; v McElroy, Workers Cafeteria 367 US 81 S Ct 1895, 600, quoted at 416 6 L Ed 2d US 1901; 40 L Ed 2d 6 Id, 610; 1901; 415. 11 of State v Sec Kaufman, by Opinion J. N. J.

plicit balancing implied Court test.7 The that be importance of cause the attached societal driver’s license in Bell the harsh effect of the replevin poor society on law the members of in weighted heavily Fuentes, the balance would be parte remedy. justify Thus, the ex use of parte procedures ex where there is involved the deprivation important property anof interest in significant opposing party stake, which the has a perhaps crucial, the state must still show a emer gency, need. justification

We have defendant’s examined parte procedure question, light the ex in in of the significance property involved and interest Having in the context of relevant decisions. done so, we find that 303a is unconstitutional because prior it fails to accord of a driver’s plaintiff’s license, and that license was wrongly suspended. clearly important enough

A is driver’s license require showing by interest to the state justify parte suspens need, of a crucial an ex significance ion.8 We need not further the stress society, of a in driver’s license a mobile nor its importance plaintiff, individual, to an like who trying society. justi to reenter that Defendant 7 Note, e.g., Hearing See Procedural Due Process —The Prior Rule Remedies, 41, and the Demise of Ex Parte 53 L 52 77 U Rev Boston Note, (1973); (1974). Supreme Court, Term, 1973 88 Harv L Rev Note, Changing Concepts See also of Consumer Due Process Supreme Majority Court —The New Conservative Bids Farewell to Fuentes, (1974), L Rev 297 Iowa which author contends that, Shevin, v while Mitchell W T Grant Co overruled Fuentes principles published vBell Burson remained viable. The note was Georgia Di-Chem, Inc, Finishing, of North before the release US Inc v 719; Supreme 42 L Ed 2d in which the Georgia’s prejudgment garnish Court used Fuentes to strike down reports ment statute and which Justice Stewart noted greatly exaggerated”. of Fuentes "have been death State, v Secretary See Hurt 202 NW2d 554 App Opinion N. J. 303a claiming summary procedures fies that: legislative determination

"This statute reflects illness is so mental serious that an individual whose drive not fit to when required is hospitalization is that the medical hospital at which superintendent of with in consultation his patient, presumably person is a person staff, for such to it is unsafe determines probable there is cause to In such circumstances drive. endangered by continu- safety is public that the believe driving privi- to exercise ing to allow such leges.” as well argument,

The with defendant’s problem 303a, does not hospitalization with is dangerous a driver is mean that every case Court noted in Supreme As the safety. public Mitchell, prelimi are "ill-suited some issues Section 303a re parte ex determination”.9 nary in that, superintendent the medical when quires State, shall the license Department forms be, in a case where such an There must suspended. stake, is at some inde property interest important official, governmental aby determination pendent rubber-stamping statutorily-mandated not a determination. superintendent’s of State to a Secretary reduces the The statute task, clerk who much as the court ministerial orders found unconstitutional replevin signed appeal, which postsuspension The in Fuentes.10 motorist, mean makes available defendant restore the if defendant wanted to Even ingless. license, doing it from so. prevent 303a would only superin if the medical be restored license can has no choice. Again, defendant approves. tendent 1895, 406, 617; 1905; L 2d 40 Ed 9 416 US Id, fn 94 S Ct at 40 L Ed 2d at 419. See Sec of State Opinion by N. J. Relevant militate decisions also defend argument. ant’s Federal court decisions have al most uniformly required notice and hearing prior suspension.11 persuasive Most is the recent case (MD 1974). NC, of Jones v 387 F Penny, Supp There, the court down a struck North Carolina statute which summary allowed revocation of an involuntarily committed individual’s license. In Jones, the revocation place following took an ad ministrative into the inquiry driver’s competence. Burson, The Court cited Bell v supra, and noted Bell, "In infirmity the constitutional lay in the fact that, while provided], consideration [was Here, essential element was excluded. while the * * * crucial ered —driving competence element consid- —is prior suspension, given the licensee is no notice and is excluded from participation in any way unless request and until a posi-revocation review is submit- Supp ted.” 387 F 393. There are no state court cases in directly point. A few state cases have upheld summary license suspensions, but each challenged procedure con- tained one element which 303a does not § contain. each, In the administrative body specific had evi- dence which indicated the specific driver might pose a danger. case, In each the motorist’s bespoke acts a disability directly related to his ability to case, drive. In each only the most brief of 11See, eg., Parker, (DSD, Supp 1973), Holland v 354 F (holding 196 implied South Dakota’s consent statute unconstitutional for lack of prior hearing); (D Malloy, Supp Vt, McNamara v 1971); 337 F 732 Kaye, (1971), Pratt v 40 Law requiring reasons”; prior Week 2197 hearing a before termination of Kassab, license for "medical Reese v (WD Supp Pa, 1971), 334 F requiring 744 prior hearing a before Pennsylvania termination of license "point” system; based on Slone v Kentucky Dept Transportation, (ED Supp 1974), 379 F Ky, 652 holding implied Burson, consent supra. law invalid under Bell v Campbell, (D Ariz, Cf. Supp 1972); Christenson v 347 F 82 Sandoval Heckers, (D 1972). Colo, Supp v 350 F 127 App Opinion by N. J. In Gleason v Wisconsin

suspensions was allowed. Dept Transportation, 61 Wis 2d NW2d (1973), suspended plaintiffs the defendant li recently cense who had plaintiff, after suffered a injury, lapsed head had into unconsciousness while driving period. Twice, three in a six-month times as a he was involved in accidents result. In (Del Warren, Broughton v Ch, 1971), 281 A2d 625 Weedlun, and Stauffer v 188 Neb 195 NW2d license was suspended the driver’s pending "points” after a number of had through driving been accumulated several convict court, however, ions.12 A struck Federal down that based on the Bell v system Pennsylvania, same Kassab, Burson Reese standards, 334 F Supp (WD 1971). Pa, event, summary suspensions In point distinguishable under are systems from sum mary suspensions cases, under 303a. In "point” is not body making administrative its decision a vacuum. The is not based on unverified information one supplied by individual but is founded on the judgments final of trials in given which the motorist was the opportunity presentation make a full fully contest allegations Additionally, him. the trial rulings specific disabilities, court concern driving general not a or mental physical status. only possible judicial involvement where, here, 303a case is the motorist has

been committed a court. Such a commitment not, conviction, as would a driving represent does any judicial finding kind of a indi- concerning the addition, to drive. In ability vidual’s the time by 303a, is sent under judgment notice the court’s § may by years well have been vitiated of treatment. 12 also, Schaffner, (Mo, 1974); See Jones v v Daneault 509 72 SW2d Clarke, 481; Roberge, (1973); State v 113 NH 309 A2d 884 A2d 13 Sinner, 1973). (Me, 1973); (ND, State v 207 NW2d 495 of State v Sec by Opinion N. J. of conceive individual situa-

Certainly, we could dangerous of a specifically tions where evidence the Department be to of provided individual could suspension pending and could a brief justify State However, provide 303a does not hearing. a for § decisions, it does allow for any such individual nor in administrative flexibility decision-making. all claim, We find that second that 303a plaintiffs § vagueness, is facially is unconstitutional with Legislature very out merit. The could not be much specific required more when it the Secretary one suspend of State license of found to be an "mental "unsafe” driver because of or physical infirmities or disabilities”. Some is nec flexibility essary for administrative In decision-making. pro viding flexibility, legislature this a always sacri fices some specificity language. We must be sure, however, flexibility this does not result arbitrary capricious in or action administrative end, To agencies. procedural this safeguards must assured, we have discussed above.13 Once instituted, procedures proper are a motorist will be to able raise and cure at his hearing any such problems resulting from application incorrect statute.14 plaintiff.

Affirmed. Costs (3d Davis, ed), 2.06, pp See Administrative Law Text 36-41. Cf. Saginaw Budd, 173, City 906, v 381 Mich 160 NW2d municipal standards, lacking which found a ordinance with Governor, City Ridge 625, Pleasant 169 NW2d (1969), which, although incorporated by it reference standards statute, quoted approval language: following from another with always necessary prescribe specific "It not action rule of conferred, govern powers particularly the exercise of where a stan- implied conferring power. dard is or the statute ordinance guide particular standard to act which terms is not limited specific may standard be found within the framework performed, may statute under which the act is to be subject or inhere in its purpose, clearly matter or and a defined field of action implicitly govern (Quota- contain the criteria which must the action.” 920.) 2d, Law, 116, pp tion from 1 Am Jur Administrative Burson, 2, supra, vBell fn and the cases cited in footnotes App 1 16 by Allen P. J. Concurrence result). Allen, in I both (concurring agree P. J. opinions of Judges in with disagree part and agree Judge I with Kaufman and O’Hara. impediment is no constitutional O’Hara that there plaintiff’s suspension parte to the ex temporary Burson, Bell v true that driver’s license. It is (1971), 2d 90 535; 1586; 29 L Ed 91 S Ct US Shevin, 1983; 407 US 32 L Fuentes v most recent United Ed 2d and case, Georgia North Finish Supreme States Court Di-Chem, Inc, 601; 95 S Inc 419 US Ct ing, v (1975), held that an ex parte 42 L Ed 2d 751 right of a without opportunity seizure safeguards other prior hearing for a or is violative of the 14th repossession mistaken predicated decisions were Amendment. But those in present of a fact which is upon absence us, there case. In the case before was a instant court of Kent at hearing probate County in the ill mentally time was found and plaintiff which Hospital. to the Kalamazoo State This committed hearing compliance a conducted judicially was safeguards” required by "other law. with all of hearing having completed A been judicial having mentally been determined to be plaintiff ill, acting justified summarily the State is so as least, the entrustment deny, temporarily high speed of a motor vehicle. It is a well- her fact, notice, judicial we take known which frequently by are caused mental disturb- accidents validity might questions to the the section of also raise § provides appellate procedure and the motor vehicle act which Judge controlling cases O’Hara cites as 303a. If Bell and the which 11) (fn require hearing prior govern, a to license which then the postsuspension hearing authorized be invalid hearing many required prior in (fn 12) cases. Those cases which have not specific statutory provisions guarantee a have relied on which hearing, generally days. speedy has no such within Section 322 requires request guarantee. It the licensee to within require hearing. days not an immediate but does Sec of State P. J. Concurrence Allen requiring far than those anees less serious medical consultation or confinement an institution. Fuentes, supra, recognized that there are "ex- traordinary justify situations” which postpone- of ment notice and until after seizure of the property interest: "Thus, summary the Court has allowed seizure of

property to collect the internal revenue of the United States, effort, to meet needs a national war protect against failure, the economic disaster of a bank protect and to public from drugs misbranded and 91-92; contaminated 407 food.” US at 92 S Ct at 32 L Ed 2d at 576.

The judicially recognized state concern protect- ing public from misbranded foods or contami- not, nated foods is in my opinion, significantly different from the concern of protecting public from the hazards adjudged drivers mentally disturbed.

However, I cannot subscribe to Judge O’Hara’s innovative suggestion that, constructive by construction, judicial 303a is absorbed 322. by § § This interpretation well-intended runs contrary to well-recognized two rules of statutory construction. Where two sections of a statute are mutually incompatible, one of which is enacted than later other, it presumed is the second enact ment takes priority over the first. Southward Co, 138, Wabash R 331 Mich 145-147; 49 NW2d (1951), 109 Locke v Macomb County, App Mich 22, 25; (1971), aff'd, NW2d 500 634, 387 Mich 639; 199 NW2d Section 322 was en 300, acted 1949 PA 23, September effective 303a, 1949. Section relating to forfeiture of a driver’s license upon notice from the medical su perintendent, appeared 123, first in 1961 PA effec- by Allen P. J.

Concurrence tive September By subsequent act, 1961. this Legislature removed from the clearly license ap- peal power might board latent it otherwise have then restore a ill mentally person’s had to driver’s practice It has been the license. never the license appeal board construe 303a as § falling jurisdic- the license board’s within tion under Department 322. The of State has § that, position taken the consistently because of the 303a, specific language a license may not be restored until so authorized the medical super- bringing intendent. Accordingly, matter before the license appeal board is an exercise in futility. Furthermore, specific 303a provision. Specific provisions prevail of a general provi- statute over MESC, sions. Linski v 244-245; Bachman, People v NW2d 582 50 Mich App 682, 687; den, lv (1973), 213 NW2d 800 (1974). view, my

In the problem constitutional lies not in taking license, the of the driver’s but in the absence of provisions permitting early determi- nation as to its Nothing restoration. 303a how, states when or if the superintendent medical to appear is board, before the license appeal or modified, how his determination be overruled or even disputed. Assuming that the aggrieved person appeared before the license appeal board with medical witnesses who would testify that the applicant had sufficiently recovered to be able to drive with safety, board lacks power to Thus, make a effect, restoration. the statute fails provide post-restoration a hearing. Co,

Mitchell v W T Grant 600; 416 US 1895; (1974), 40 L Ed 2d 406 Georgia North and Finishing, supra, come down necessity hard on the of statutory provisions permitting a speedy deter-

1975] Sec of State v by Allen P. J. Concurrence right temporarily taken. mination of the Mitchell, upheld constitutionality Court In parte an ex permitting a Louisiana statute so, In doing appliances. seizure of household out the statute "entitles pointed Court writ, debtor to seek dissolution immediately unless the creditor proves which must ordered be issued, grounds the writ was upon which * * * ”. on to distinguish The Court then went Fuentes saying: right hearing his

"Petitioner asserts that before possession any way disturbed is his is in nonetheless Court, long mandated line of in this culmi- cases Corp, nating Family Finance 395 US 337 Sniadach 1820; S L and Ct Ed 2d Fuentes v [89 349] Shevin, 32 L Ed 2d US 67 S Ct [92 pre-Sniadach by petitioner cases are said to hold precede opportunity 'the to be heard must private property.’ import, deprivation actual Their however, petitioner is not so clear as would have it: they merely proposition hearing for the that a stand deprived finally prop- must had one before is his erty pretermi- do not deal at all with the need for a hearing post-termi- nation where a full and immediate provided.” 416 US at 94 Ct at nation S 1902; 40 L Ed 2d at 415-416. Finishing, Georgia supra, North In Court parte garnishment ex Georgia stat- struck down ute, saying: more "Nor is the statute saved the recent decision Co,

in Mitchell v W T Grant 416 US 600 S Ct [94 upheld 40 L 2d That case Ed Louisiana permitted sequestration statute which the seller-credi holding sequestra tor a vendor’s lien to secure a writ of and, bond, having tion filed a to cause the sheriff to writ, of the possession take however, issue. The only by judge upon filing

was issuable App 1 Dissent O’Hara J. conclusory going beyond allegations an affidavit mere entitling clearly setting and sequestration. out the facts creditor to expressly law also The Louisiana entitled the debtor to an immediate dissolution of after seizure and to proof by absent the writ creditor of grounds issued. on which the writ was Georgia garnishment "The statute has none of the (Em- saving characteristics of the Louisiana statute.” 606-607; phasis supplied.) 419 US at S Ct at L Ed 2d at 757. before, As noted 303a has none of the saving § characteristics in the nature of a post-termination hearing, important so determined in the True, cases mentioned above. 322 of the statute § permits person aggrieved to ask for a hearing fact, before the license board. In forms were plaintiff furnished so as to facilitate such an appeal. But provision this and proc- administrative meaningless ess become view the express language 303a that license only be upon restored the affirmative statement medical superintendent of the state hospital applicant which the had been confined.

I agree Judge therefore with that Kaufman 303a is violative of due process suggest matter be called to Legislature the attention of the that appropriate so amendments may be made to properly process safeguards assure due allowing a determination on the return of the license.

Affirmed. (dissenting).

O’Hara, opinion This was as- signed Judge preparation Kaufman opinion. the Court’s I accept its his entirety recitation of facts and his statement of the proce- sequence dural in this case. agree

I further my colleague with the con- guarantee stitutional process due requires of State Sec J. Dissent O’Hara for a opportunity plaintiff be afforded the arguments whatever or which she can raise to the response Secretary chooses in defenses she suspend driving privi- her of State’s decision to leges. am, however, with his agree

I conclu- unable unconstitutionality to the MCLA sion 9.2003(1). 257.303a; MSA requires The instant this Court at- case glance first are tempt to reconcile what at two expressions legislative ostensibly inconsistent Michigan intent contained in the Vehicle Code. code, Section 303a vehicle MCLA 257.303a, supra, part: in relevant provides

"Upon person hospital any the admission of for care and treatment of a mental illness or at time person longer hospitalized until thereafter is no for illness, superintend- treatment of a mental the medical any hospital person patient ent at which the is a for notify department person treatment shall if the has operator’s an or and chauffeur’s license has become physical afflicted with mental or infirmities or disabili- rendering Upon receipt ties it unsafe for him to drive. department suspend of such notice the shall the license person. suspended of the The license shall remain no renewal superintendent shall until license be issued the medical hospital

of the at which the is a patient for care and treatment of a mental illness shall notify department longer the condition no ” added.) (Emphasis exists. provision

In contrast with this code, 9.2022, 257.322; vehicle same MCLA MSA to the relating appeal license board and which purposes: states as relevant to our person, conceiving "Any aggrieved by any himself denying final determination of the commissioner an Dissent O’Hara application or operator’s chauffeur’s or license suspending operator’s or revoking or chauffeur’s license of person, such therefrom to the power board and shall have the and authority board affirm, aside, modify, any to or set hearing after fínal commissioner denying determination the an applica- of operator’s tion for an or chauffeur’s or suspend- license ing license* revoking or operator’s or chauffeur’s * * added.) ."(Emphasis When to interpreting relating statutes the same general subject having matter or the same basic purpose, they should be construed as consistent and complimentary other each so as to avoid appearance the of irreconcilable DeVito v conflict. Blenc, 524; App (1973), 209 NW2d 728 Ransom, People v 738; App 54 Mich 221 NW2d (1974). this has Additionally, Court a duty to constitutional, construe possible. statutes if Mobarak, Highway State Commission 115; NW2d hand, the Legislature On one the has said that when the Secretary of suspended State has driver’s of license a a institutionalized hospital mental because the superintendent has given notice it that is unsafe for that individual operate a motor vehicle the license shall suspended remain until superintendent gives notice that the condition no longer exists. Per contra, our lawmaking body provided also a has general procedure parties whereby aggrieved by the revocation or suspension driving their privi- leges board, may appeal appeal which or turn modify vacate final determination of the commissioner relative to or revo- a cation of driver’s license. literally, 257.303a,

Taken supra, would MCLA of reducing have the effect before of State v Sec O’Hara Dissent appeal since the or a farce to a sham appeal board driving privileges could not order reinstated board institution certi- superintendent unless the longer under a no disabil- patient was fied the statute would ren- Such a construction ity. in MCLA provision totally nugatory der 257.322, to the board supra, respect with to reinstate license having right power and the commissioner. Nor suspended or revoked Burson, Bell v comport with procedure would this (1971), 1586; 29 L Ed 2d 90 91 S Ct US Co, 416 US Mitchell v W T Grant plethora 1895; 40 L Ed 2d Judge Kaufman’s authority other case cited process to the due opinion, well-reasoned relative to be deprived of a where he stands rights party rights. substantial Legislature an inten- I attribute to the cannot is, substance, no provide hearing tion to which law-making body all. the Presumptively it clearly pro- what it said when precisely meant or set "modify, that the board could vided aside, final determination of the commissioner any * * * * * * operator’s suspending revoking or added.) case, I (Emphasis being That the license”. 257.322, supra, controls would hold MCLA in MCLA 257.303a relative provision and that hospitalized for to renewal drivers’ licenses naught. By excising is patients mental offending provision, I would reconcile otherwise of the vehicle code and provisions inconsistent simultaneously give policy objectives effect to the statute. This construction meets the behind each challenges by plaintiff- raised constitutional appellee. there remains to meet the contention only

Now it due colleague process is a denial of my Dissent O’Hara suspend one’s where driver’s license there has not been a prior for a opportunity hearing on the merits.

This precise recently issue was summarized con- cisely in these terms: question "The ultimate in Burson was the nature of governmental justifying interest the use of sum- mary authority in the of drivers’ licenses. The suspension only purpose’ Court found that 'the of summary help private was to individuals to secure

judgment they might recover from the uninsured mo- torist. It authority well be that such a use of summary legitimate governmental

serves a purpose, especially since accident victims who do not receive compensation from those who have caused inju- their may require ries public assistance. But the legitimacy government’s interest does not necessarily justify protecting was, it summary action. If there in Bur- son, an emergency necessitating action, summary state attempt made no to demonstrate it. "The decisions in these four Goldberg Kelly, cases— Family Corp,2 Sniadach v Finance Wisconsin v Constanti neau,3 and Bell v Supreme Burson4—indicate that the prepared, Court override a weighing factors, after certain legislative determination that summary ac tion is necessary permissible. or The factors to be considered severity include the impact of sum mary action on survival, the individual’s means for his livelihood, reputation; and his the likelihood that summary action will be taken erroneously; to which it will disable the individual degree participat from ing subsequent hearing subsequent in a hearing; and the adequacy of the protect his interests. 1 Goldberg Kelly, 254; (1970). 1011; 397 US 90 S Ct L25 Ed 2d 287 Family Corp, 337; 1820; Sniadach v Finance 395 US 89 S Ct 23 L (1969). Ed 2d 349 Constantineau, 433; 507; Wisconsin v 400 US 91 S Ct 27 L Ed 2d (1971). Burson, (1971). Bell v 402 US 29 L Ed 2d 90 v Sec of State Dissent O’Hara

"Although summary striking action remains a excep- process requirement prior tion to the due of a hearing, Supreme the Court has indicated that the state is justiñed acting in summarily, and hence does so with- denying process, out due when the state’s interest acting promptly protect public against to a serious health, threat safety, its or economic well-being outweighs the having individual’s interest oppor- tunity acts, to be heard before the state perhaps in error, ways signiñcant cause him injury.” added.) (Emphasis Freedman, Summary Action by Ad- Agencies, Chicago ministrative U L Rev 25-26 Irrespective of whether the "emergency situa- tion” standard or "balancing test, interests” alluded to in Judge opinion, is applied Kaufamn’s case, to the facts the instant I see no constitu- impediment tional ex temporary parte suspen- sion of the driver’s license of a hospitalized mental patient when the superintendent, pursuant 257.303a, MCLA supra, has certified that per- son’s mental physical or condition it renders un- safe for him to drive. The statute evidences a purpose protect public from a con- cerning whom there a reasonable ground to operation believe of a motor vehicle would create a risk injury to himself or others. Obviously, interest of the state in protecting the public is substantial, and it is not unreasonable under circumstances to permit summary action to the limited extent of temporarily suspending the right of a mental patient to drive pending prompt hearing before the appeal board upon timely re- quest by petitioner. procedure as visual- 257.322, ized in MCLA supra, would adequately protect petitioner’s rights while, at the same time, affording public the protection to which it is reasonably entitled. Dissent O’Hara given

Because of notice deficiencies plaintiff-appellee relating suspension to the of her license, with which defendant concedes admirable candor, professional the initial proceeding was infirm ab initio.

I would reverse the order of the trial judge setting suspension aside the plaintiff-appellee’s license, and remand the cause further proceed- ings before appéal adequate board after notice to plaintiff-appellee right of her order of Secretary of State which solely was based on the determination of the medi- superintendent. cal

Case Details

Case Name: Gargagliano v. Secretary of State

Court Name: Michigan Court of Appeals

Date Published: Jun 10, 1975

Citation: 233 N.W.2d 159

Docket Number: Docket 19759

Court Abbreviation: Mich. Ct. App.