MOTOR VEHICLE ADMINISTRATION v. Bruce Clayton SHRADER; MOTOR VEHICLE ADMINISTRATION v. Sharon Lee KELLER; Jeffrey Paul LARKIN v. MOTOR VEHICLE ADMINISTRATION
Nos. 4, 5 and 49 Sept. Term, 1991
Court of Appeals of Maryland
Oct. 31, 1991
597 A.2d 939
No brief filed for Shrader.
Corrie S. Galvin, Cohen, Snyder, McClellan, Eisenberg & Katzenberg, P.A., on brief, Baltimore, for Keller.
Karl H. Gordon, Robert A. Ades & Associates, on brief, Landover, for Larkin.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, MCAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.
KARWACKI, Judge.
These three cases require our construction of
I.
On June 17, 1990 at 3:07 a.m., Appellant, Jeffrey Paul Larkin, was stopped by a Maryland State Trooper in Prince George‘s County for suspected drunken driving. Larkin was advised of his right under
Larkin timely completed a request for a hearing to challenge the suspension of his license and mailed it to the MVA. That request was received by the MVA on June 25, 1990. A hearing was scheduled before an administrative law judge of the OAH for July 27, 1990, 32 days after MVA‘s receipt of Larkin‘s hearing request. Larkin‘s temporary license was scheduled to expire August 1, 1990, five days after his administrative hearing was held.
Larkin filed an appeal to the Circuit Court for Prince George‘s County and the suspension was stayed pending the outcome of the appeal. The circuit court judge affirmed both the denial of the motion to dismiss and the decision of the administrative law judge to suspend Larkin‘s license.
The case involving Appellee, Bruce Clayton Shrader, followed a similar course. On the night of April 20, 1990 at 10:44 p.m., Shrader was detained by a police officer for suspected drunken driving in Harford County. Shrader was advised of his rights with regard to taking a chemical test and refused to submit to the test. As a result, the trooper seized Shrader‘s driver‘s license and served him an order of suspension and a temporary license authorizing him to drive for 45 days аfter its issuance, or until completion of an administrative hearing to determine whether the suspension was warranted.
Shrader filed a timely request for an administrative hearing which was received by MVA on April 24, 1990. The MVA scheduled the hearing regarding Shrader‘s refusal to take the test on May 25, 1990, 31 days after MVA had received the request for hearing. At the administrative hearing, Shrader moved to dismiss the order of suspension on the basis that the hearing was not held within 30 days of the date that the request was received, as provided in
Similarly, late in the evening of April 20, 1990 and the early morning of April 21, 1990, Appellee, Sharon Lee Keller, was detained by a police officer for suspected drunken driving in Anne Arundel County. Keller was advised of her right to take or refuse a chemical test, and the attendant administrative consequences. She declined to take such a test, and as a result, her driver‘s license was confiscated and she was presented an order of suspension and a temporary license, which authorized her to drive for 45 days or until completion of an administrative hearing to determine the validity of the suspension.
Keller timely requested an administrative hearing which was received by the MVA on April 23, 1990. Her hearing was scheduled for May 25, 1990, 32 days after MVA had received the request for hearing. At the administrative hearing, Keller moved to dismiss the suspension on the ground that the hearing had not been scheduled within the requisite 30 days, as provided in
On appeal to the Circuit Court for Anne Arundel County, the court ruled that the requirement that a hearing be scheduled within 30 days of the receipt of the request was mandatory and that MVA‘s non-compliance required a dismissal of the suspension, even though Keller had not been prejudiced by the delay.
We granted certiorari to review the judgments of the circuit courts in these cases to determine whether dismissal is the proper sanction for the MVA‘s failure to provide a hearing to challenge the order of suspension within 30 days.
In 1988, the General Assembly established a Task Force on Drunk and Drugged Driving because “[t]he problem of drunk and drugged driving is of continuing concern to the citizens of the State of Maryland.” Joint Resolution No. 15 of the Acts of 1988. The Task Force was charged, inter alia, with:
“(1) Examining methods of increasing the effectiveness of the remedies currently available for combatting drunk and drugged driving;
“(2) Examining remedies developed by other states and jurisdictions to deal with the problem of drunk and drugged drivers; [and]
“(3) Recommending changes and additions to current laws and regulations dealing with drunk and drugged drivers.”
Id.
In its interim report issued in December of 1988, the Task Force recommended that the General Assembly enact what it referred to as an administrative per se law which would provide “for the prompt suspension of the driver‘s license of an individual who, upon being detained by a police officer on suspicion of driving or attempting to drive while under the influence of alсohol or while intoxicated, either: 1) Refused to take a BAC [blood alcohol concentration] test; or 2) Submitted to the BAC test, and the results exceeded a statutorily defined limit.” Task Force on Drunk and Drugged Driving, Interim Report to the General Assembly, at 6 (1988). The General Assembly responded during its next session by amending
“If the person requests a hearing at the time of or within 10 days after the issuancе of the order of suspension ... the Administration shall set a hearing for a date within 30 days of the receipt of the request.”
The licensees in the instant cases filed a hearing request within 10 days of the issuance of the order of suspension and were provided a hearing 31 or 32 days after the MVA received the requests, rather than within 30 days. The MVA admits that although it formerly made, and OAH now makes, every effort to comply with the mandatory duty to schedule a hearing within 30 days, occasionally, due to a backlog in scheduling or administrative oversight, the 30 day requirement cannot be met.
III.
While a statute or rule may dictate a mandatory duty on the part of any agency or party, non-compliance with that statute or rule does not necessarily require a dismissal of the case. In re Keith W., 310 Md. 99, 104, 527 A.2d 35, 37 (1987). Thus, we must examine the provisions of
The cardinal rule of statutory construction is to ascertain and effectuate legislative intent. Jones v. State, 311 Md. 398, 405, 535 A.2d 471, 474 (1988). Because the language of the statute is the primary source of legislative intent, State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976), the words of the statute must be given their ordinary and natural meaning. NCR Corp. v. Comptroller, 313 Md. 118, 124, 544 A.2d 764, 767 (1988).
In any event, “results that are unreasonable, illogical or inconsistent with common sense should be avoided whenever possible consistent with the statutory language, with the real legislative intention prevailing over the intention indicated by the literal meaning.” Potter v. Bethesda Fire Dep‘t, 309 Md. 347, 353, 524 A.2d 61, 64 (1987) (quoting Fabritz, 276 Md. at 422, 348 A.2d at 279).
Furthermore, when determining whether a case should be dismissed for non-compliance with a statute or rule, we have established a number of factors to be included in the analysis. First and foremost, the purpose and policy of the statute or rule must be considered in determining the appropriate sanction. Gaetano v. Calvert County, 310 Md. 121, 125-26, 527 A.2d 46, 48 (1987); State v. Werkheiser, 299 Md. 529, 533, 474 A.2d 898, 900 (1984); Maryland St. Bar Ass‘n v. Frank, 272 Md. 528, 533, 325 A.2d 718, 721 (1974).
In 1989, the General Assembly enacted the administrative per se law recommended by the Task Force, rewriting
“You have ... asked whether any provision is made for a stay of suspension if the hearing cannot be held within 45 days.... [N]o stay of suspension is provided if the hearing cannot be held within 45 days because the licensee is unable to attend. A stay is available, however, if the Administration is unable to provide a hearing within
45 days.... The administration ‘shall’ set the hearing for a dаte within 30 days of the receipt of the request, but if a hearing cannot be provided within 30 days, the suspension is stayed until a hearing is provided.”
Letter from Assistant Attorney General Kathryn M. Rowe to Delegate David B. Shapiro (Feb. 10, 1989), on file with the Department of Legislative Reference, Annapolis, Legislative History file of House Bill 556. This letter strongly indicates that the General Assembly contemplated the possibility that the MVA would not be able to schedule a hearing within 30 days, but only meant to provide a remedy (a stay of suspension) where prejudice would arise to the licensee.
On behalf of the Mayor of Baltimore‘s Task Force for Liaison with the General Assembly, Colonel Joseph Cooke of the Baltimore City Police Department wrote to the House Judiciary Committee to express Baltimore City‘s support for House Bill 556. Cooke indicated that:
“Previous legislative efforts in this area have raised questions regarding the administration of our on the site confiscation program. Our department has contacted ... the Nevada Highway Patrol regarding their license confiscation programs, similar to the one proposed in House Bill 556.... Nevada officials indicated that their seven day temporary license is too short and has caused administrative problems for them. They indicated that the proposed 45 day validity period is more appropriate to meet the administrative needs of the Motor Vehicle Administration.”
Letter from Colonel Joseph Cooke to the House Judiciary Committee (Feb. 15, 1989), on file with the Department of Legislative Reference, Annapolis, Legislative History file of House Bill 556. Thus, the 45 day period was contemplated as part of an overall administrative plan. This conclusion is logical when viewed in the context of the entire scheme of
The General Assembly, in determining the appropriate period for driving on the temporary license, recognized that not all hearing requests would be received by the 10th day,
This intent is explicit in the 1990 amendment to
“If the person refuses to take the test or takes a test which results in an alcohol concentration of 0.10 or more at the time of testing, the police officer shall ... [i]nform the person that ... the hearing will be scheduled within 45 days ...”
In this context, it is inappropriate to invoke a dismissal sanction becausе a hearing was held 31 or 32 days, instead of 30 days, after receipt of the licensee‘s request for a hearing. The reason for the prompt hearing is not for the benefit of the licensee; rather, the expedited hearing is
IV.
We have previously held that dismissal is not the required sanction if a statute or rule does not state that dismissal will result from non-compliance; the statute or rule must be reviewed to determine whether a sanction for non-compliance is specified. Gaetano, 310 Md. at 125, 527 A.2d at 48; Werkheiser, 299 Md. at 537, 474 A.2d at 902; Resetar v. State Bd. of Education, 284 Md. 537, 548, 399 A.2d 225, 231 (1979); Maryland St. Bar Ass‘n v. Frank, 272 Md. at 533, 325 A.2d at 721; Director v. Cash, 269 Md. 331, 345, 305 A.2d 833, 841 (1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974).
The MVA argues that
“A postponement of a hearing described under this paragraph shall extend the period for which the person is authorized to drive if:
1. Both the person and the Administration agree to the postponement;
2. The Administration cannot provide a hearing within the period required under this paragraph; or ...”
Thus, the MVA asserts that failure to provide a hearing within 30 days from receipt of the request for hearing is sanctioned by extending the period for which the person is authorized to drive.
First, legislative history indicates that subsections 1. and 2. should be read disjunctively, not conjunctively; when the MVA cannot provide a hearing within the prescribed period, it may postpone the hearing despite the licensee‘s objection. The Floor Report on House Bill 556 by the Senate Judicial Proceedings Committee indicates that “[any] postponement of the hearing does not extend the period for which the person may drive under the 45-day temporary license unless (1) the MVA cannot provide a hearing within the prescribed period, or (2) the MVA and the person both agree to the postponement.”4 Senаte Judicial Proceedings Committee, Floor Report on House Bill 556 to the General Assembly of 1989, at 1-2 (emphasis added). See also Senate Judicial Proceedings Committee, Bill Analysis on House Bill 556 to the General Assembly of 1989, at 1. Thus, the fact that a licensee did not agree that the delay was acceptable to him or her does not prevent the MVA obtaining a postponement when it cannot provide a hearing within the prescribed period.
Moreover, in this case, the term “postponement” should not be read narrowly. A postponement means to “put off; defer; delay ... as when a hearing is postponed.” Black‘s Law Dictionary 1168 (6th ed. 1990) (emphasis in original). Indeed, in the context of
It would be ludicrous for us to read
V.
Finally, the sanction to be imposed for non-compliance in a specific case may depend upon whether the party seeking dismissal can demonstrate prejudice from the non-compliance. Gaetano, 310 Md. at 127, 527 A.2d at 49; Resetar, 284 Md. at 550, 399 A.2d at 232.
In Resetar, the appellant was terminated by the Montgomery County Board of Education. He argued that the case should have been dismissed because the Board did not render its decision within 30 days of receiving the hearing examiner‘s findings, as was required by the Board‘s own rule. As one of its reasons not to dismiss the case, we stated:
“The County Board‘s regulation provides no penalty and makes no provision in the event of a violation of the limit imposed. Resetar has suffered no prejudice. He received pay which he might not otherwise have received. The delay was brief. We are of the view that neither the delay nor the temporary reinstatement had the effect of stripping the County Board of authority to dismiss Resetar. The purpose of the provision no doubt was, as said by the Court in McCall‘s Ferry Power Co. v. Price, 108 Md. 96, 69 A. 832 (1908), ‘to have prompt decisions of causes.‘”
Likewise, in the cases at bar, the delay in scheduling the administrative hearing beyond the 30 days had no prejudiciаl impact on the licensees. Our predecessors observed that:
“Just what amounts to prejudice ... naturally depends upon the facts of the particular case, but, generally speaking, it may be said to be anything which places the person affected in a more unfavorable or disadvantageous position than he would otherwise have occupied.”
Roberto v. Catino, 140 Md. 38, 43-44, 116 A. 873, 875 (1922). These licensees were not placed in a more unfavorable or disadvantageous position; instead, they benefitted in that they were permitted to drive for a period of time that they might not otherwise have been allowed.
For these reasons, the administrative law judges who heard the instant cases properly ruled that dismissal of the suspension was not the appropriate sanction for the MVA‘s non-compliance with
JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE‘S COUNTY IN No. 49 AFFIRMED; COSTS TO BE PAID BY APPELLANT.
ROBERT M. BELL, Judge, dissenting.
I respectfully dissent. Contrary to the majority‘s view, I believe that dismissаl is the proper sanction for violation of that provision of
I agree with much of the majority‘s analysis. It is correct that
There is no doubt but that, so long as the request is postmarked ten days or less after issuance of the оrder of suspension,5 MVA is required to set a hearing within thirty days of receipt.
Construing the statutory scheme as contemplating that hearings would be scheduled within 45 days of the issuance of the order of suspension, as opposed to within 30 days of receipt of a request for hearing, does not promote expeditious hearings and, moreover, is productive of potentially illogical results. MVA need not comply with the 30 day scheduling requirement in the case of drivers whose requests for hearings are received less than 15 days from detention; it could schedule those hearing after 30 days, but still within 45 days. On the other hand, timely requests received on the 15th day would have to be honored within 30 days, or be dismissed; failure to schedule within 30 days would mean thаt the temporary license would have expired. In the former case, a violation would result in no sanction; in the latter, a violation of the same length would require dismissal. It is not at all clear that the Legislature intended that MVA set a hearing at any time within the 45 day period rather than within the 30 day mandatory scheduling period, whatever the timing of its receipt of the request for hearing.
Issuance of a 45 day temporary license ensures, whether the request for a hearing is made on the first day, or on the tenth day, allowing for necessary postal delivery, that MVA will have 30 days in which to schedule the hearing. The majority does not dispute that this is so, but says that the administrative scheme does not permit dismissal where there is non-compliance so long as the hearing is scheduled within the life of the temporary license, within 45 days.
Given the legislation‘s purpose, it is unlikely that the Legislature intended that the entire 45 day life of a temporary license, or even most of it, would be used, as a matter of course, in every, or virtually every, case. To the contrary, I suspect that it intended that, only in the unusual case, where the request is rеceived after the 10th day, thus requiring scheduling of the hearing toward the end of the 45 day period, would it be necessary that most, or all, of the life of the temporary license be utilized; only a request made on the 10th day, and received by MVA on the 15th day, could consume the entire 45 day life of the temporary license. It is safe to assume, I believe, that the Legislature‘s preference would be to have the hearing scheduled, and held, and, possibly, the driver removed from the road, all prior to expiration of the temporary license. Thus, consistent with the legislation‘s primary purpose to protect the public, expedition in scheduling and in holding a hearing is to be encouraged.
MVA argues that
Interpreting “postponement“, as used in
There is another reason that I do not believe the Legislature intended that MVA‘s unilateral failure promptly to schedule the hearing within the mandated period be included in the term “postponement.” When a hearing has been scheduled within the prescribed period, it may be postponed, of course, but only by the administrative law judge assigned to conduct it. Unilateral action by MVA is inconsistent with the administrative law judge‘s role in the process.8
By enacting
Requiring MVA to extend the right to drive of a driver presumed to be a drunk driver is not an appropriate sanction for a violation of the scheduling provision. It does not encourage MVA to act morе expeditiously. It does punish the public by permitting that driver to drive for a longer period. And what‘s worse, the period can be extended indefinitely, in MVA‘s sole, unreviewable discretion. There is no guidance given by the statute as to what constitutes a sufficient basis for the conclusion that MVA cannot provide a hearing. It must be recalled that it is MVA that determines its own inability and extends the driving privilege. As the majority interprets the statutory scheme, what it characterizes as a sanction gives MVA the unfettered right to extend indefinitely the driving privileges of a driver awaiting a suspension hearing; indeed, MVA, and MVA alone, determines both when the hearing will be initially scheduled and whether there can ever be a sanction.
MVA has successfully argued that it would be ludicrous to go through a subterfuge, i.e., set a hearing that it knows
Although I start from the same premise, I emphasize the need for compliance with the mandatory scheduling provision, rather than that provision that permits extension of the temporary license. The latter is, tо my mind, important only when it is objectively demonstrable that MVA cannot provide a hearing within the time prescribed. Focusing on the scheduling requirement and sanctioning its violation by dismissing the suspension order has the virtue of requiring MVA to comply with the legislatively mandated scheduling provision, rather than encouraging its disregard, of emphasizing promptness, rather than delay, and of furthering the public interest. The majority‘s argument that, so long as a hearing is held within 45 days, the maximum life of the temporary license, or such period thereafter during which a driver‘s privilege to drive is extended by MVA gives MVA unreviewable discretion to allow a driver to continue to drive until MVA decides that it is time to hold a hearing. This is in derogation of the Legislature‘s concern with
Nor am I persuaded by the majority‘s argument that, to justify dismissal, a driver must show prejudice. Again, the primary beneficiary of the statutory schemе is the public, not the drivers. Looking “to the purpose of the rule or statute in either of the circumstances of its violation to determine the appropriate sanction for violation of its provisions,” Gaetano v. Calvert County, 310 Md. 121, 126, 527 A.2d 46, 48 (1987), makes clear that the critical consideration is not prejudice, but whether the sanction furthers the legislation‘s purpose. Viewed from the correct perspective, i.e., “the consequences of the non-compliance in light of the totality of the circumstances,” Gaetano, 310 Md. at 127, 527 A.2d at 48, I believe the answer is obvious. Unless the sanction for failure to set an administrative hearing within the mandatory time period prescribed by
Judges ELDRIDGE and CHASANOW have authorized me to state that they join in the views expressed herein.