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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Winterrowd v. State, Dept. of Administration, Division of Motor Vehicles (11/2/2012) sp-6719

Winterrowd v. State, Dept. of Administration, Division of Motor Vehicles (11/2/2012) sp-6719

        Notice: This opinion is subject to correction before publication in the PACIFIC  REPORTER . 

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RALPH KERMIT WINTERROWD,                        ) 

II,                                             )       Supreme Court No. S-14043 


                        Appellant,              )       Superior Court No. 3PA-10-02010 CI 


        v.                                      )      O P I N I O N 


STATE OF ALASKA,                                )      No. 6719 - November 2, 2012 

DEPARTMENT OF                                   ) 

ADMINISTRATION, DIVISION                        ) 

OF MOTOR VEHICLES, and                          ) 

JOHN DOES 1-10,                                 ) 


                        Appellees.              ) 


                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Palmer, Kari Kristiansen, Judge. 

                Appearances:   Ralph Kermit Winterrowd II, pro se, Wasilla, 

                Appellant.    Erling T. Johansen, Assistant Attorney General, 

                Anchorage, and John J. Burns, Attorney General, Juneau, for 


                Before:       Carpeneti,    Chief   Justice,   Fabe,   Winfree,     and 

                Stowers, Justices, and Eastaugh, Senior Justice.* 

                EASTAUGH, Senior Justice. 

        *       Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska 

Constitution and Alaska Administrative Rule 23(a). 

----------------------- Page 2-----------------------


                After   a   van   driven   by   Ralph   Kermit   Winterrowd   II   was   damaged   in   a 

collision    with   a   moose,   the   Alaska  Division    of   Motor   Vehicles   (DMV)   proposed 

suspending Winterrowd's driver's license because he did not provide proof of liability 

insurance.     Winterrowd   opposed         suspension    and   then   filed   suit   to   enjoin   DMV's 

suspension action.      Treating Winterrowd's opposition as a request for hearing, DMV 

scheduled an administrative licensing hearing for September 1, 2010.                   On motion by 

DMV,   the   superior   court   dismissed   Winterrowd's   complaint   on   August   31.          DMV 

suspended Winterrowd's license on September 1 after he failed to attend the September 1 

licensing hearing.     Winterrowd       appeals the dismissal of his superior court complaint. 

We affirm, because Winterrowd had not exhausted his administrative remedies as of 

August 31, when the court dismissed his complaint. 


                Ralph Kermit Winterrowd II was driving a 1994 Dodge van on March 1, 

2010,   when     it   collided  with  a  moose    and   was   damaged.       On   May    7  DMV     sent 

Winterrowd a notice stating that he was a driver in a crash resulting in property damage 

exceeding $501, and that DMV had not received proof the van had been covered by the 

motor vehicle liability insurance required by statute.           The notice also stated that DMV 

would   suspend   Winterrowd's   driver's   license   unless   he   provided,   within   30   days, 

verification that he had the required insurance.1        The notice informed Winterrowd of the 

        1       The   notice   referred   to   AS   28.22.031   as   the   statute   requiring   proof   of 

insurance in this instance.      AS 28.22.031(a) provides in relevant part: 

                A   person   involved   in   an   accident   who   is   required   under 

                AS 28.22.021 to prove that a motor vehicle liability policy or 

                a certificate of self-insurance was in effect shall, within 15 

                days after the accident, (1) present a copy of the insurance 


                                                  -2-                                             6719

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right to dispute the proposed suspension.   It also informed him of a statute that provides 

for an exception to suspension if the accident results in property damage of less than 

$2,000 and only the property of the person who is required to register is damaged.2 

                 Winterrowd responded with two letters disputing the amount of damage and 

asserting that he was therefore exempt.            In reply, DMV told him he needed to supply 

specified   information   to   prove   his   eligibility   for   an   exemption   from   the   insurance 

requirement.       On   June   9,   2010,   DMV      issued   a   Notice   and  Order   of   Suspension, 

informing Winterrowd of the factual basis for its decision.               It also informed him of the 

process needed to request an administrative hearing. 

                 Winterrowd sent DMV a letter and two affidavits on June 28.  A mechanic 

executed one of the affidavits.   His affidavit stated that the van was worth less than $350 


                policy . . . that was in effect at the time of the accident . . . . 

        2        AS 28.22.041(h) provides in relevant part: 

                 Subsection (a) does not apply to a person who is required to 

                provide proof under AS 28.22.021 if the person 

                 (1) is involved in an accident that results in property damage 

                 of   less  than   $2,000    and   the  damage     occurs    only   to  the 

                property of the person required to show proof of insurance; 

                 (2) not later than 15 days after the accident, provides proof of 

                 motor    vehicle    liability  insurance    that   complies    with   this 

                 chapter or a certificate of self-insurance that complies with 

                 AS 28.20.400 to the department; and 

                 (3) establishes by a preponderance of the evidence that the 

                 failure to have in effect motor vehicle liability insurance or to 

                 self-insure   as   required   by   this   chapter   at   the   time   of   the 

                 accident was due to circumstances beyond the control of the 


                                                    -3-                                              6719

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and was not worth repairing, and that the damage to the van was less than $500 because 

of the van's low value. 

                Treating the submission of these documents as an opposition to suspension 

and as a request for hearing, DMV scheduled an administrative hearing on the licensing 

action for September 1, 2010.          DMV sent the hearing notice to Winterrowd on July 6; 

the notice informed him that if he failed to appear or contact DMV, he would waive his 

right to contest DMV's action. 

                On July 2, four days before DMV sent the hearing notice, Winterrowd filed 

a   complaint   in   the   superior   court   to   enjoin   DMV   from   suspending   his   license.  In 

response,   DMV       moved   under   Alaska   Civil   Rules   4(d)(8)   and   12(b)(6)     to   dismiss 

Winterrowd's superior court complaint. DMV's motion argued that Winterrowd had not 

stated a claim on which relief could be granted, had not provided sufficient service, and 

had not exhausted his administrative remedies.             It informed the superior court that an 

administrative hearing on the pending suspension was scheduled for September 1. It also 

informed the court that suspension of Winterrowd's license had been stayed pending the 

September 1 administrative hearing. 

                On August 31 the superior court granted DMV's motion to dismiss.  The 

dismissal order did not state the basis for dismissal.           Winterrowd did not appear at or 

participate in the DMV hearing scheduled for September 1.                  Noting that Winterrowd 

failed   to   participate   in   the   September   1   hearing,   the   DMV   hearing   officer   issued   a 

decision affirming the suspension of his license. 

                The superior court denied reconsideration of its dismissal order. 

                Winterrowd appeals the dismissal of his superior court complaint.3 

        3       The caption of Winterrowd's complaint also lists "The Department" and 

"John Does 1-10."  The superior court's caption lists the State of Alaska, the Department 


                                                  -4-                                               6719 

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                Several different standards of review could potentially apply here, because 

DMV moved for dismissal of Winterrowd's complaint on alternative grounds, including 

failure to exhaust administrative remedies and failure to state a claim, and because the 

superior court's dismissal order did not state the ground for dismissal. 

                For reasons we discuss in Part IV.A, the exhaustion issue resolves this 

appeal.   We consequently only need to identify the standards of review applicable in 

deciding whether it was error to hold that a plaintiff's failure to exhaust administrative 

remedies required dismissal of plaintiff's complaint. 

                Two different standards apply when reviewing a dismissal for a failure to 

exhaust administrative remedies: 

                Whether   a   type   of   claim   generally   requires   exhaustion   of 

                administrative remedies is a legal question that we review de 

                novo .   We review for abuse of discretion a superior court's 

                determination of whether a plaintiff exhausted those remedies 

                or whether the failure to exhaust should be excused.[4] 

                In accordance with the first sentence of this quotation, we review de novo 

the legal question whether Winterrowd's defense to DMV's licensing action was the type 

of claim that required Winterrowd to exhaust his administrative remedies. 

                But we conclude that the abuse-of-discretion standard of review described 

in the second sentence of the quotation does not apply in this appeal.  The superior court 


of Administration, and the Division of Motor Vehicles as the "Appellees."  Our caption 

includes the Doe parties, although the Department of Law's brief does not undertake to 

represent them, and there is no indication any Doe party was served with Winterrowd's 


        4       Smart v. State, Dep't of Health & Soc. Servs., 237 P.3d 1010, 1014 (Alaska 

2010) (internal citations omitted). 

                                                  -5-                                            6719

----------------------- Page 6-----------------------

dismissal order does not expressly determine whether Winterrowd had exhausted his 

administrative remedies or whether a failure to exhaust should be excused, and therefore 

does not reflect any exercise of judicial discretion as to those issues.            Nonetheless, we 

conclude that there is no possible legal or factual dispute about whether Winterrowd 

failed    to  exhaust    his  administrative     remedies    and    about   whether    his   failure  is 

inexcusable.     As a result, the only standard of review applicable here is the de novo 

standard for reviewing legal determinations. 


        A.      Winterrowd Failed To Exhaust His Administrative Remedies. 

                We read Winterrowd's appeal to argue that the superior court improperly 

dismissed his lawsuit against DMV.            DMV argues that dismissal was proper because 

Winterrowd failed to exhaust his administrative remedies. 

                We    cannot   tell   from  the  dismissal   order   which    of  the  three  grounds 

advanced below by DMV was the reason for dismissal.  But DMV squarely argued the 

exhaustion ground in the superior court, and Winterrowd had full opportunity to oppose 

dismissal on that ground.        "We may affirm a judgment on any grounds that the record 

supports, even grounds not relied on by the superior court."5           Therefore, even though we 

        5       Van Sickle v. McGraw, 134 P.3d 338, 341 n.10 (Alaska 2006).                  This rule 

"applies only to issues of law that find support in settled facts.  It does not extend to new 

theories that would normally be resolved by discretionary powers traditionally reserved 

for trial courts - powers relying on case-specific consideration of disputed or disputable 

issues   of   fact." Vaska   v.   State,   135   P.3d   1011,   1019   (Alaska   2006). The   rule   has 

primarily been used in cases involving summary judgment.  See, e.g., Young v. Embley, 

143 P.3d 939, 940 (Alaska 2006).   But we have also employed it in cases not involving 

summary       judgment.    See,   e.g.,  State  v.   Jacob,   214  P.3d   353,   362   (Alaska   2009) 

(observing, in an appeal of an attorney's fees award, that "[t]he superior court did not 

articulate this rationale for relying on factor (F), but we believe it is clear that the record 

supports reliance on this factor"); Maness v. Daily , 184 P.3d 1, 7 (Alaska 2008) (holding 


                                                  -6-                                            6719

----------------------- Page 7-----------------------

cannot   tell   which   ground   the   court   relied   on,   we   choose   to   determine   whether   the 

dismissal was required on the failure-to-exhaust ground.  As we noted above in Part III, 

normally a ruling that a complainant has not exhausted available administrative remedies 

in part turns on rulings involving exercise of judicial discretion. But here, for reasons 

discussed in Parts IV.A.2 and .3, the motion and opposition raised no exhaustion issue 

that required the superior court to exercise its discretion. 

                In general, a party may not seek relief in a judicial forum until that party has 

exhausted his or her available administrative remedies:               "The exhaustion of remedies 

doctrine is well established in the field of administrative law.  A central principle of this 

doctrine is that a party is not entitled to seek judicial relief for a supposed or threatened 

injury until the available administrative remedies have been exhausted."6 

                Exhaustion is required if a statute or regulation provides for administrative 

review.   "[If] . . . a regulation provides for administrative review of an agency decision, 

a person ordinarily must exhaust such administrative remedies before bringing an action 

in superior court challenging the decision."7         Exhaustion is similarly required if a statute 

provides for administrative remedies.8 


that the dismissal of an excessive-force claim could be affirmed on grounds not relied on 

by the superior court). 

        6       Eidelson v. Archer , 645 P.2d 171, 176 (Alaska 1982) (internal citations 


        7       Smart, 237 P.3d at 1015 (citing Matanuska Elec. Ass'n, Inc. v. Chugach 

Elec. Ass'n, Inc., 99 P.3d 553, 560 (Alaska 2004)). 

        8       See Mount Juneau Enters., Inc. v. City & Borough of Juneau , 923 P.2d 768, 

777 (Alaska 1996) ("The City has an ordinance specifically providing for an independent 

Board of Appeals to review disputed decisions or orders of the City building official. 


                                                   -7-                                              6719

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                In   deciding   whether   a   complaint   was   correctly   dismissed   for   failure   to 

exhaust administrative remedies, we must decide whether (a) exhaustion of remedies was 

required; (b) the complainant exhausted those remedies; and (c) the failure to exhaust 

remedies was excused.9 

                1.      Exhaustion of administrative remedies was required. 

                The     statutes   pertinent   to  the   proposed    administrative      suspension     of 

Winterrowd's   license   provided   for   administrative   hearings.        The   statute   authorizing 

suspension of drivers' licenses for failing to provide proof of insurance, AS 28.22.041, 

requires   the   "opportunity   for   a   hearing   under   AS   28.05.121-28.05.141."10         Alaska 

Statute 28.05.141(a) provides that "all hearings required under this title . . . shall be 

conducted by the Department of Public Safety."11             And if DMV suspends a license, the 

driver may file an administrative appeal.12 

                Because a driver who is the subject of a proposed administrative suspension 

for failure to provide proof of insurance has a right to oppose the suspension   of his 

license and a right to an administrative hearing, he has administrative remedies that, if 

exercised, might permit him to retain his license.             Winterrowd could administratively 

oppose DMV's proposed suspension of his license and could appeal a suspension.  He 


See CBJ Ordinance 19.02.010. . . .          Since an administrative appeal is clearly provided 

for, exhaustion of remedies is required in this case."). 

        9       Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater Util. , 

32 P.3d 362, 367 (Alaska 2001). 

        10      AS 28.22.041(g). 

        11      See also 2 Alaska Administrative Code (AAC) 93.010 (2006). 

        12      Id. 

                                                   -8-                                             6719

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would therefore ordinarily be required to exhaust his administrative remedies before 

suing DMV to prevent it from suspending his license. 

                2.      Winterrowd did not exhaust his administrative remedies. 

                As of July 2, 2010, when he sued DMV, Winterrowd had not yet exhausted 

his administrative remedies.        He was entitled by statute and regulation to a hearing on 

DMV's   proposed   suspension.13         It   is   irrelevant   that   as   of   July   2,   when   he   filed   his 

complaint,   DMV   had   not   yet   scheduled   his   hearing.     DMV's   July   6   hearing   notice 

confirmed Winterrowd's right to oppose suspension and also informed   him that his 

failure   to   appear   at   the   scheduled   hearing   would   waive   his   right   to   contest   DMV's 

proposed action.      In effect, the notice informed him that a failure to appear and contest 

the   proposed   suspension   would   result   in   a   suspension   without   consideration   of   his 

written opposition to suspension.         This made Winterrowd aware that he could lose his 

opportunity for administratively challenging the agency's proposed action if he did not 

appear or call DMV on September 1. 

                Therefore, so long as the hearing and administrative appeal opportunities 

remained      available   to  him,   Winterrowd      had   not   yet  exhausted     his  administrative 


                As of August 31, 2010, when the superior court dismissed his complaint, 

Winterrowd had not yet attended the hearing scheduled for  September 1, and DMV had 

not yet ruled on the proposed suspension. And as of August 31, he had not yet exhausted 

his right to administratively challenge any suspension order that DMV might enter. 

Therefore, as of August 31, when the court entered the dismissal order, Winterrowd had 

not   exhausted     his   administrative   remedies   and   had   not   raised   any   contention    that 

exhaustion was not required. 

        13      AS 28.22.041(g); 2 AAC 93.010. 

                                                   -9-                                               6719 

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                We   recognize   that   the   superior   court   might   have   chosen      to  hold   the 

dismissal motion in abeyance pending the outcome of the September 1 hearing and 

perhaps also pending the outcome of any administrative appeal.14                     Had Winterrowd 

prevailed at the licensing hearing, it would likely have mooted his lawsuit.  And had he 

appeared   at   the   hearing   and   lost,   the   basis   for   the   loss   and   the   availability   of   an 

administrative appeal might have been relevant to the exhaustion issue.                   The dismissal 

motion then easily could have been resurrected in the superior court, or the lawsuit could 

have been converted to an administrative appeal. 

                But   the   superior   court   was   not   obliged    to  hold   Winterrowd's   pro     se 

dismissal motion in abeyance.           And, as it soon turned out, the events of September 1 

confirmed the justification for dismissing the lawsuit for failure to exhaust administrative 

remedies.    Winterrowd did not appear at the September 1 hearing, and DMV's hearing 

officer ordered Winterrowd's license suspended.               The suspension was consistent with 

DMV's authority under AS 28.05.141(b), which states:                  "If a person fails to attend or 

appear for the hearing . . . the person's failure to attend or appear is considered a waiver 

of the hearing and the appropriate department may take appropriate action with respect 

to the person." 

                Winterrowd        does   not   argue   that   the  superior    court's   dismissal    was 

premature.     And even if the superior court had held the case in abeyance pending the 

September 1 hearing, Winterrowd's failure to attend was itself a failure to exhaust his 

administrative remedies.        One purpose of the exhaustion requirement is to allow the 

agency   to   "apply[]   its   special   expertise,   correct[]   its   own   errors,   [and]   develop[]   a 

        14      The superior court's August 31 dismissal order bore the court's handwritten 

note referring to Winterrowd's August 30 opposition to DMV's motion to dismiss.  That 

opposition referred to the licensing hearing scheduled for September 1. 

                                                  -10-                                                6719 

----------------------- Page 11-----------------------

record . . . ."15 Winterrowd did not present any of his defenses at the hearing scheduled 

for   September   1;   his   failure   to   do   so   prevented   DMV   from   applying   its   expertise, 

correcting its own errors, or developing a record. 

                 Because it was undisputed that at least one administrative step was pending 

when   the   superior   court   entered   the   dismissal   on   August   31,   Winterrowd   failed   to 

exhaust his administrative remedies. 

                3.      Winterrowd's failure to exhaust is not excused. 

                Courts     have   recognized     numerous     excuses    for  the  failure  to  exhaust 

remedies.16    But none of these excuses is alleged to apply here, and Winterrowd has not 

argued on appeal that he was excused from exhausting his administrative remedies. And 

because he did not attend the administrative hearing scheduled on September 1, he lost 

the   opportunity     to  oppose    suspension;   he    consequently     waived    his  administrative 


                 Dismissal for failure to exhaust was therefore justified. The superior court 

permissibly dismissed his complaint. 

        B.      We Do Not Reach Winterrowd's Other Arguments. 

                Winterrowd's brief raises many other issues. It argues that his fundamental 

rights as a citizen are being denied.  It argues that he has a right to a jury trial.  It argues 

that this case implicates his right to own property and travel.   It raises other contentions 

        15      Eidelson v. Archer , 645 P.2d 171, 176 (Alaska 1982). 

        16      See Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater 

Util., 32 P.3d at 371 n.46 (Alaska 2001) (citing McCarthy v. Madigan , 503 U.S. 140, 148 

(1992)) (bias in the administrative process).          See also Bowen v. City of New York, 476 

U.S. 467, 483-84 (1986) (danger of irreparable harm from the administrative process); 

Robyns v. Reliance Standard Life Ins. Co. , 130 F.3d 1231, 1236 (7th Cir. 1997) ("lack 

of meaningful access to the review procedures"). 

                                                  -11-                                            6719

----------------------- Page 12-----------------------

as well.   Because Winterrowd failed to exhaust his administrative remedies, we do not 

need to reach any of these issues.17 

                Winterrowd argued in a letter to the agency that AS 28.22.021 was not 

triggered because the vehicle he was driving was not worth more than $501, and thus 

could not have suffered more than $501 in damage, the threshold amount for requiring 

proof of insurance.      He later supported this contention with the affidavit of a mechanic 

who asserted expertise in valuing vehicles.           Winterrowd argued before the agency that 

if  he   had   not  violated    AS   28.22.021,     his  license   could   not   be  suspended     under 

AS 28.22.041. DMV responded to Winterrowd's argument by stating that AS 28.22.021 

refers to vehicle damage, not vehicle value.   Although it is an interesting question how 

a vehicle allegedly worth no more than $350 could suffer more than $501 in damage, our 

conclusion   that   Winterrowd   failed   to   exhaust   his   administrative   remedies   makes   it 

unnecessary for us to reach that question here.18 

        17      Likewise, we do not need to reach the State's appellate contention that 

dismissal was proper because Winterrowd's complaint failed to state a claim upon which 

relief could be granted. 

        18      The mechanic's affidavit does not make it clear whether the vehicle was 

worth $350 before it hit the moose, or after.          That it was worth $350 after the collision 

would not have established that the van could not have suffered damage exceeding $501. 

Winterrowd   had   asserted   in   a   letter   that   the   van   had   a   value   of   $350   when   it   was 

purchased in 2009 at an auction.          But his letter was unsworn and did not say whether 

$350 was the van's purchase price or the value placed on it at auction.  Winterrowd later 

offered his own affidavit, but it did not attribute any particular value to the van, and it did 

not discuss the $350 figure or the origin of that figure.   By failing to attend the hearing, 

Winterrowd lost the opportunity to prove that the van's pre-collision value was less than 

$501.    He therefore lost the opportunity to prove the facts that potentially might have 

supported his legal argument.          We do not mean to suggest that his argument would 

necessarily have succeeded if he had proved that the van's pre-collision value was less 

than $501; we decide only that, having failed to offer admissible evidence of value, he 


                                                  -12-                                             6719

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              We AFFIRM the dismissal of Winterrowd's complaint. 


failed to exhaust his administrative remedies as to this issue, and also failed to preserve 

the issue for appellate review. 

                                            -13-                                        6719 

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