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Div. of Motor Vehicles v. Fann (12/3/93), 864 P 2d 533
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, Department )
of Public Safety, Division of ) Supreme Court File No. S-5143
Motor Vehicles, ) Superior Court File No.
) 3PA-89-340 Civil
v. ) O P I N I O N
KIM E. FANN, ) [No. 4031 - December 3, 1993]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Elizabeth Vazquez,
Assistant Attorney General, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellant. L. Andrew Robinson, Hartig,
Rhodes, Norman, Mahoney & Edwards, Palmer,
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
MOORE, Chief Justice.
The Department of Public Safety (DPS) appeals the
superior court's reversal of Kim E. Fann's license revocation for
driving while intoxicated. The administrative hearing officer
revoked the license for ten years, based on prior convictions in
Wyoming and Alaska. The superior court reversed the
administrative hearing officer, holding DPS had not met its
burden of proving the constitutional validity of Fann's Wyoming
conviction. We reverse the superior court, which misallocated
the burden of proof.
I. FACTS AND PROCEEDINGS
Kim E. Fann has been arrested and convicted several
times for driving under the influence of alcohol (DUI) or driving
while intoxicated (DWI). In January 1982, Fann was arrested for
and pleaded guilty to DUI in Wyoming. He was fined $390 plus $10
in court costs, his driver's license was suspended for 90 days,
and he was placed on probation for two years.1 In March 1986,
Fann was convicted of DWI in Alaska. In 1988, Fann again was
arrested for DWI in Alaska.
Based on Fann's intoximeter reading of .210, the Palmer
Police Department provided him with written notice of the DPS's
intent to revoke his license, pursuant to AS 28.15.165(a). Fann
requested an administrative review of his license revocation.
Fann's administrative hearing was held in early 1989. At the
hearing, he contested the validity of the prior Wyoming
conviction. Fann asserted that he was not informed of his
constitutional rights prior to entering his guilty plea. He also
argued that the Wyoming and Alaska DWI statutes were not
substantially similar. Nonetheless, the administrative hearing
officer found the statutes were substantially similar and
affirmed DPS's action revoking Fann's license for ten years based
on the 1986 and 1988 Alaska convictions and the 1982 Wyoming
Fann appealed the administrative hearing officer's
decision to the superior court. He argued the Wyoming conviction
should not have been considered because the Wyoming statute was
dissimilar to the Alaska statute, and because his prior
conviction had been obtained in violation of his due process
rights. The superior court found that the statutes were similar.
The court remanded the case, directing the hearing officer "to
make specific legal and factual findings regarding the validity
of Fann's Wyoming conviction under Wyoming law." Because the
Division of Motor Vehicles did not schedule another hearing on
remand, the court issued a sua sponte order stating its intention
to affirm the hearing officer's decision unless Fann supplemented
his record with material that supported a different conclusion.
After Fann moved for reconsideration, the court ruled that DPS
had the burden of proving the validity of Fann's Wyoming
conviction. DPS submitted documents it had received from the
Wyoming court which indicated that "Mr. Fann was present, in
custody, when the rights were read"; however, the court ruled
DPS had not met its burden of proof to show the constitutionality
of the Wyoming conviction. Therefore, the court vacated the
hearing officer's decision.
DPS appeals the superior court's decision on several
grounds. First, DPS argues that the superior court should not
have addressed the legitimacy of Fann's Wyoming conviction. DPS
contends that article IV, section 1 of the United States
Constitution, the "full faith and credit" clause, barred the
superior court from questioning the validity of the prior Wyoming
conviction. DPS also maintains that the superior court was
without jurisdiction to consider the legality of the out-of-state
conviction. In addition, DPS argues that the superior court
improperly placed the burden of proving the validity of this
conviction on DPS. Finally, DPS asserts that Fann's claim is
barred by the equitable doctrine of laches.3
A. Standard of Review
Where the superior court has acted as an
intermediate appellate court, we give no deference to
the superior court's decision. Public Safety Employees
Ass'n v. State, 799 P.2d 315, 318 n.3 (Alaska 1990).
When reviewing an agency's resolution of questions of
law not involving agency expertise, we use the
substitution of judgment standard. Earth Resources Co.
v. State, Dep't of Revenue, 665 P.2d 960, 965 (Alaska
B. Should the superior court have considered the validity
of Fann's Wyoming conviction?
DPS argues the superior court should not have
questioned the validity of Fann's Wyoming DWI conviction. DPS
supports its position with two arguments. First, DPS argues the
full faith and credit clause of the United States Constitution
bars the court from examining the Wyoming judgment. Secondly,
DPS argues the superior court did not have jurisdiction over this
1. Full Faith and Credit
DPS argues the full faith and credit clause, U.S.
Const. art. IV, 1,4 bars the superior court from considering
the validity of Fann's guilty plea in Wyoming. We disagree. The
full faith and credit clause does not apply directly here. Only
if DPS had sought enforcement of the Wyoming judgment in Alaska
would we have had to decide whether the full faith and credit
clause mandated the enforcement.5 Here, DPS has not sought to
enforce the Wyoming conviction, but instead sought to use it to
enhance Fann's license revocation in Alaska.
Nonetheless, where DPS seeks to use a foreign judgment
to enhance a license revocation period in Alaska, we analogize to
the full faith and credit clause to give presumptive validity to
the foreign judgment. For example, we analogized to the full
faith and credit clause in Sather v. State, Div. of Motor
Vehicles, 776 P.2d 1055, 1057 (Alaska 1989), where we held that
[a]rticle IV, 1 of the United States
Constitution requires that the courts of
Alaska give full faith and credit to the
judgment of another state's court.
Therefore, unless there is reason to believe
that Sather's California conviction is
somehow "constitutionally infirm," an
assertion which Sather has not made, the
hearing officer did not err in considering
the California conviction.
Here, we analogize to the full faith and credit clause to give
presumptive validity to Fann's Wyoming conviction.
DPS next argues that the superior court did not have
jurisdiction to review the validity of the Wyoming judgment. DPS
argues that the proper forum for contesting the Wyoming
conviction would be Wyoming. To reach this conclusion, DPS
relies on Alaska Criminal Rule 35.1,6 which states that post-
conviction procedures must be filed with the clerk of court in
which the conviction occurred. DPS also cites case law from
other jurisdictions. For example, the Supreme Court of Appeals
in West Virginia has held that
[t]he proper forum for attacking the
constitutional validity of a prior traffic
offense conviction when that offense is the
foundation for adverse administrative action
by the commissioner of motor vehicles is
. . . the state courts of the state in which
the conviction was initially rendered if it
is an out-of-state conviction.
Shell v. Bechtold, 338 S.E.2d 393, 395 (W. Va. 1985) (quoting
Stalnaker v. Roberts, 287 S.E.2d 166, 166 (W. Va. 1981)) (court
refused to address Shell's collateral challenge of Florida DUI
conviction and held that the conviction could be used to enhance
Shell's license revocation).
Although we have not directly decided this issue, in
Sather we implicitly rejected West Virginia's approach. 776 P.2d
at 1057. In Sather, we implied that if a reason exists to
believe that a conviction is constitutionally infirm, the
superior court may consider the infirmity in deciding whether to
use the prior conviction to enhance a license revocation period.
Allowing the superior court to consider the validity of
the conviction is sound. If an out-of-state DWI conviction truly
were entered in violation of a driver's fundamental rights, it
would be manifestly unjust to allow that conviction to be used to
enhance the license revocation. This approach also corresponds
with the sentencing procedures used for criminal DWI
prosecutions. See Pananen v. State, 711 P.2d 528 (Alaska App.
1985) (Wisconsin DWI conviction could not be used to enhance
criminal sentence for Alaska DWI because Wisconsin law did not
provide defendant the right to court-appointed counsel for his
first offense); State v. Peel, 843 P.2d 1249 (Alaska App. 1992)
(Louisiana DWI conviction could not be used to enhance criminal
sentence for Alaska DWI because Louisiana law did not authorize
jury trials for criminal offenses carrying a penalty of no more
than six months in jail). We have recognized the similarity
between the criminal sentencing and civil license revocation
procedures in Barcott v. State, Dep't of Pub. Safety, 741 P.2d
226, 228 (Alaska 1987) and Champion v. Department of Pub. Safety,
721 P.2d 131, 133 (Alaska 1986).
For these reasons, we hold that the superior court had
jurisdiction to consider the validity of Fann's Wyoming
C. Burden of proof.
The superior court held that DPS did "not carry its
burden of proof as to the constitutionality of [Fann's] 1982
Wyoming conviction for use in triggering third-offender status
for purposes of a State of Alaska administrative ten-year license
revocation."7 In its brief, DPS argues the court misallocated
the burden. We agree.
The superior court appears to have followed a rule used
by some jurisdictions in the habitual offender criminal context.
Under this rule, the defendant must make a prima facie showing of
the constitutional infirmity of a prior conviction. Upon such a
showing, the burden shifts to the prosecution to prove the prior
conviction's validity by a preponderance of the evidence. City
of Laramie v. Cowden, 777 P.2d 1089, 1091 (Wyoming 1989); People
v. Shaver, 630 P.2d 600, 605-06 (Colo. 1981).
We decline to adopt such a rule. Instead, we hold that
where DPS seeks to use a prior foreign conviction to enhance a
license revocation, it must prove by a preponderance of the
evidence that the prior conviction occurred and that the statutes
were substantially similar. See AS 28.15.181(c). If the
defendant alleges the prior conviction was void due to a
constitutional infirmity, this allegation is an affirmative
defense which the defendant must prove by a preponderance of the
evidence.8 Morrow v. New Moon Homes, Inc., 548 P.2d 279, 294
(Alaska 1976) ("The party raising the affirmative defense
generally bears the burden of proof as to that issue.").9
DPS also argues that Fann's challenge of his
prior Wyoming conviction is barred by the equitable
doctrine of laches. Because DPS did not raise this
claim before the superior court, we will not consider
it here. Williams v. Alyeska Pipeline Serv. Co., 650
P.2d 343, 351 (Alaska 1982).
REVERSED and REMANDED.
1. During the same period as the Wyoming charge, Fann also
was arrested in Idaho. The record is unclear as to the exact
date of this offense, but it appears to have occurred in 1981.
For this charge, he received a $250 fine and his license was
suspended for 90 days. The Idaho arrest was not considered in
determining Fann's license revocation in Alaska.
2. Alaska Statute 28.15.181 was amended effective January
1, 1991. The new statute mandates a minimum five year revocation
if a person has two previous DWI convictions, rather than the ten
year minimum found in the previous statute.
3. In its appeal, DPS also argued that the Wyoming statute
was substantially similar to the Alaska statute. DPS prevailed
on this issue before both the administrative hearing officer and
the superior court. Fann does not contest the superior court's
ruling on appeal; therefore, this issue is not before us.
4. The full faith and credit clause provides: "Full Faith
and Credit shall be given in each State to the public Acts,
Records, and Judicial Proceedings of every other State." U.S.
Const. art. IV, 1.
5. We note that the full faith and credit clause would not
mandate enforcement in all cases. For example, the clause would
not preclude a challenge to the constitutional validity of a
The requirement of full faith and credit
is to be read and interpreted in the light of
well-established principles of justice,
protected by other constitutional provisions
which it was never intended to modify or
override. . . . [N]o state may obtain, in
the tribunals of another jurisdiction, full
faith and credit for a judgment which is
based upon an unconstitutional law, or is
rendered in a proceeding wanting in due
process of law enjoined by the fundamental
law. Indeed, due process requires that no
other jurisdiction shall give effect, even as
a matter of comity, to a judgment elsewhere
acquired without due process.
47 Am. Jur. 2d Judgments 1221 (1969)(footnotes omitted).
6. Alaska Statute 35.1(c) reads, in part:
A proceeding is commenced by filing an
application with the clerk of the court in
which the conviction occurred.
7. The superior court did not indicate why it placed the
burden of proving the constitutionality of Fann's Wyoming
conviction on DPS. The court may have been misled by Fann's
counsel. In Fann's Motion for Reconsideration, his counsel
informed the court that Sather stood for the proposition that if
a defendant makes a prima facie showing of constitutional
infirmity, the state must come forward with a showing of
constitutional validity, and the hearing officer must determine
the validity issue. Specifically, Fann's counsel averred that
"the Supreme Court explicitly stated that the state would be
required to justify the constitutional integrity of an out of
state conviction at the administrative level if a proper showing
of infirmity was asserted by the defendant." This assertion was
To justify his conclusion, Fann's counsel provided the
following quote from Sather, 776 P.2d at 1057:
In other circumstances where a person is
challenging the accuracy of the information,
it may well be that the state should be
required to come forward with further
evidence. (Footnote omitted) [sic]
However, given the fact that Sather has never
raised such a challenge, along with the
identifying information that was provided, it
was not error for the hearing officer to find
that the person in the California conviction
and Sather were one and the same. . . .
[U]nless there is a reason to believe
that Sather's California conviction was
somehow "constitutionally infirm," an
assertion which Sather has not made, the
hearing officer did not err in considering
the California conviction.
This quote appears to support Fann's contention;
however, Fann's counsel failed to disclose to the superior court
that the quoted paragraphs were unrelated. Actually, the
paragraphs concerned two discrete issues. The ellipsis
represents the transition between the two. The first quoted
paragraph refers to the issue of whether the state had the burden
of proving Fann's identity. The second paragraph refers to
whether the state had the burden of proving the conviction was
constitutionally sound. Contrary to Fann's counsel's assertion,
this court did not "explicitly state"that the state would be
required to justify the constitutional integrity of a foreign
conviction if a proper showing of infirmity were made.
8. Our conclusion is consistent with the approach taken
under the Federal Sentencing Guidelines relating to the
enhancement of punishment by prior convictions challenged as
unconstitutional. See Federal Sentencing Guidelines 4A1
(1993). Under the guidelines, the defendant bears the burden of
establishing the invalidity of the prior conviction. United
States v. Davenport, 884 F.2d 121, 124 (4th Cir. 1989); United
States v. Dickens, 879 F.2d 410, 412 (8th Cir. 1989). This
burden is met by a preponderance of the evidence. See 1 Phylis
Skloot Bamberger & David J. Gottlieb, Practice Under the Federal
Sentencing Guidelines, 3[C], at 3-15 (1993).
9. DPS argues the superior court erred in finding Fann was
not present at the Wyoming advisement of legal rights proceedings
and that Criminal Rule 11 was violated. Because we are remanding
for further proceedings under the appropriate burdens of proof,
we need not review these contentions at this time.