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California DUI Lawyers Association. v. California Department of Motor Vehicles

California Court of Appeals, Second District, Fourth Division

March 2, 2018

CALIFORNIA DUI LAWYERS ASSOCIATION et. al., Plaintiffs and Appellants,
CALIFORNIA DEPARTMENT OF MOTOR VEHICLES et. al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No.BC553552, Rita J. Miller, Judge. Reversed with directions.

          Law Office of Robert S. Gerstein, Robert S. Gerstein; Law Office of Joshua C. Needle, Joshua C. Needle for Plaintiffs and Appellants.

          Xavier Becerra, Attorney General, Chris A. Knudsen Assistant Attorney General, Jacqueline P. Hoang and Gary S. Balekjian, Deputy Attorneys General, for Defendants and Respondents.

          COLLINS, J.


         The California DUI Lawyers Association and attorney Stephen R. Mandell (collectively, CDLA) brought a taxpayer action against the California Department of Motor Vehicles and Jean Shiomoto, director of the Department (collectively, DMV). CDLA alleged that the DMV conducts administrative hearings to determine whether automatic suspension of a driver's license is warranted after the driver has been arrested for driving under the influence. CDLA alleged that at these hearings, the hearing officers simultaneously act as advocates for DMV and as triers of fact. CDLA alleged that the lack of a neutral hearing officer violates drivers' rights to procedural due process under the California and United States Constitutions.

         In deciding motions for summary judgment filed by both parties, the trial court held that CDLA did not have taxpayer standing to assert its claims. The court granted DMV's motion for summary judgment on that basis, and denied CDLA's motion for summary judgment. The trial court did not address the substance of CDLA's claims. CDLA appealed, and we reverse. Taxpayer standing under Code of Civil Procedure section 526a is appropriate under the circumstances of this case, in which a group of taxpayers has alleged that a government entity is engaging in “waste” by implementing and maintaining a hearing system that violates drivers' procedural due process rights. We therefore reverse the judgment and remand the case for further proceedings.


         Statutory Background

         This action involves the “administrative per se” or “APS” system used to suspend a driver's license following an arrest for driving under the influence. “Under the administrative per se law, DMV must immediately suspend the driver's license of a person who is driving with.08 percent or more, by weight, of alcohol in his or her blood. ([Veh. Code, ] § 13353.2, subd. (a)(1).) The procedure is called ‘administrative per se' because it does not impose criminal penalties, but simply suspends a person's driver's license as an administrative matter upon a showing the person was arrested for driving with a certain blood-alcohol concentration....” (MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 155.)

         “When a driver is arrested for driving under the influence and is determined to have a prohibited blood-alcohol content (BAC), the arresting officer or DMV serves the driver with a ‘notice of [an] order of suspension or revocation' of his or her driver's license, advising that the suspension will become effective 30 days from the date of service. (Veh. Code, §§ 13353.2, subds. (b) & (c); 13353.3, subd. (a).) The notice explains the driver's right to an administrative hearing before the effective date of the suspension if the driver requests a hearing within 10 days of receipt of the notice. (Id., §§ 13353.2, subd. (c); 13558, subd. (b).)” (Brown v. Valverde (2010) 183 Cal.App.4th 1531, 1536-1537 (Brown).)

         At the hearing, “[t]he sole task of the hearing officer is to determine whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with a BAC of 0.08 percent or higher. If the hearing officer determines that the evidence establishes these three facts by a preponderance of the evidence, the license will be suspended. (Veh. Code, §§ 13558, subd. (c)(1); 13557, subd. (b)(2); 14104.2, subd. (a).” (Brown, supra, 183 Cal.App.4th at pp. 1537-1538 [fn. omitted].) DMV bears the burden of proof. (Petrus v. State Dept. of Motor Vehicles (2011) 194 Cal.App.4th 1240, 1244 (Petrus).)

         CDLA's Complaint

         CDLA filed a complaint on August 1, 2014, alleging that the APS hearing system is unfair and unconstitutional. CDLA alleged that continued possession of a driver's license is a vital property right that cannot be suspended without due process of law. According to the complaint, “[T]he APS system... requires the Hearing Officers to act both as advocate for the DMV and arbiter/decision maker, creating an obvious and inherent conflict of interest and bias favoring one party over the other.” CDLA alleged that as a result, the “APS hearings violate the State and Federal Due Process rights... of license holders by failing to provide a fair, neutral and impartial Hearing Officer.” In addition, “the APS system unconstitutionally allows DMV managers, executives, and/or administrators ex parte communications with the Hearing Officers and direct control over the decision-making process.” CDLA asserted that “[t]hese procedures and practices are unconstitutional on their face and as applied.”

         CDLA alleged that according to DMV written materials, the hearing officer at each APS hearing acts as investigator, advocate for DMV, and factfinder. CDLA's complaint noted that California's Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.) states that a person may not serve as a presiding officer in an adjudicative proceeding where “[t]he person has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage, ” or “[t]he person is subject to the authority, direction, or discretion of a person who has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1) & (2).) However, the Vehicle Code “specifically exempts the APS adjudicative hearings from the prophylactic separation of functions mechanism set forth in the APA.” CDLA also alleged that hearing officers' “initial... decision to set aside a suspension is subject to ex parte review, criticism, and unilateral reversal” by DMV management, “prior to it being issued to the licensee, without notice or input from the licensee.”

         CDLA stated that it is “a non-profit association of California lawyers who defend those accused of driving under the influence.” It alleged that its members “reside, practice, and pay property taxes in Los Angeles County and throughout the State of California.” Individual plaintiff Mandell is a licensed attorney, not a member of CDLA, who also paid property taxes in Los Angeles County.

         CDLA asserted three causes of action: violation of 42 U.S.C. § 1983 (section 1983) affecting due process rights under the Fourteenth Amendment to the United States Constitution, violation of due process rights under California Constitution Article I, Section 7, and “illegal expenditure of funds.” CDLA sought declaratory and injunctive relief, costs, and attorney fees.

         CDLA's Motion For Summary Judgment

         CDLA and DMV each moved for summary judgment. We address CDLA's motion first.

         CDLA asserted that DMV had admitted the following facts in discovery: APS hearings are “adversarial” and “adjudicative”; the hearing officer's role at an APS hearing is “trier of fact as well as an advocate for the department and driver safety”; and a hearing officer's APS decision is subject to review by a manager, and subject to alteration by that manager, without notice to a driver or the driver's attorney.

         CDLA argued that continued possession of a driver's license was a fundamental property right that could not be suspended or revoked without due process protections. It asserted that the combination of advocate and adjudication roles in a single, subordinate DMV employee violated required due process protections. CDLA pointed to the provision of the APA that bars a person from serving as a presiding officer in an adjudicative proceeding if that person “has served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage.” (Gov. Code, § 11425.30, subd. (a)(1).) CDLA noted that Vehicle Code section 14112, subdivision (b), specifically exempts APS hearings from this requirement: “Subdivision (a) of Section 11425.30 of the Government Code does not apply to a proceeding for issuance, denial, revocation, or suspension of a driver's license pursuant to this division.” (Veh. Code, § 14112, subd. (b).)

         CDLA argued, “Exceeding their statutory license under Veh. C. § 14112(b), and their constitutional obligations, DMV has designed and implemented the current APS system where the presiding Driver Safety Hearing Officer is (1) subordinate to the ex parte command influence of the Department and (2) acts as both adjudicator and advocate for the Department.” CDLA argued that these procedures were constitutionally inadequate as applied, and “[i]f the Department responds that this system is what the Legislature mandated or is the only one they can devise[, ] then the statutory exemption is constitutionally infirm on its face.”

         With its motion, CDLA submitted evidence including DMV's Driver Safety Manual (which CDLA characterized as “an important reference tool for the Drive[r] Safety Hearing Officers in the conduct of their jobs”); an article in which DMV describes the APS system; legislative history for the APA statutory scheme; excerpts of deposition transcripts of two DMV employees; and the DMV's responses to written discovery requests.

         The DMV's Motion For Summary Judgment

         In its motion for summary judgment, DMV asserted that the first cause of action based on section 1983 and the second cause of action based on the California Constitution failed because CDLA was not directly affected by the APS system and therefore lacked standing to challenge it. DMV also contended that with respect to all three causes of action, CDLA could not assert taxpayer standing because the challenged conduct complied with the Vehicle Code and was therefore legal, ...

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