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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Titus v. State, Dept. of Administration, Division of Motor Vehicles (4/12/2013) sp-6773
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER . Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email firstname.lastname@example.org. THE SUPREME COURT OF THE STATE OF ALASKA THOMAS TITUS, ) ) Supreme Court No. S-14177 Appellant, ) ) Superior Court No. 4FA-09-01083 CI v. ) ) O P I N I O N STATE OF ALASKA, DEPARTMENT ) OF ADMINISTRATION, DIVISION OF ) MOTOR VEHICLES, ) ) [No. 6773 - April 12, 2013] Appellee. ) ) Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Raymond Funk, Judge pro tem. Appearances: Robert John, Law Office of Robert John, Fairbanks, for Appellant. Erling T. Johansen, Assistant Attorney General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee. Before: Fabe, Chief Justice, Winfree, Stowers, and Maassen, Justices. [Carpeneti, Justice, not participating.] WINFREE, Justice. I. INTRODUCTION A motorcyclist was involved in a single-vehicle accident resulting in a cut on his head and minor damage to his motorcycle. The accident involved no other ----------------------- Page 2----------------------- drivers, vehicles, or property. Because the motorcycle was not insured at the time of the accident, the State of Alaska, Department of Administration, Division of Motor Vehicles (DMV) suspended the driverâ€™s license. The motorcyclist appealed the suspension to the superior court, arguing that the suspension violated his equal protection and due process rights under the Alaska Constitution and was precluded by the de minimis nature of the accident. The superior court rejected the motorcyclistâ€™s arguments and awarded attorneyâ€™s fees to DMV. The motorcyclist appeals, raising the same substantive arguments and challenging the award of attorneyâ€™s fees. We conclude that the motorcyclistâ€™s constitutional and common law arguments do not compel reversal of the administrative suspension. However, we vacate the entry of attorneyâ€™s fees and remand to the superior court to determine how the motorcyclistâ€™s constitutional challenges should impact the award. II. FACTS AND PROCEEDINGS A. Facts In May 2008 Thomas Titus was riding his motorcycle with a group of riders. As the riders turned onto a main expressway from a side street, Titus looked back to make sure that others had made the turn. When Titus looked forward, he noticed the surrounding traffic was slowing down. He applied his brakes and his motorcycle fishtailed. Titus, who was not wearing a helmet, fell to the ground and his head hit the pavement. Only Titus was injured and only Titusâ€™s motorcycle was damaged; the accident involved no other drivers, vehicles, or property. Titus was transported by ambulance to the local hospital. Titus suffered only a cut on his head, which the doctor sealed with four staples. Titus suffered no lasting injury and the cost of his treatment was paid through his health care coverage. The accident bent the handlebar of Titusâ€™s motorcycle and scratched the exhaust pipe. Titus asserted that he could have bent the handlebar back into place -2- 6773 ----------------------- Page 3----------------------- himself, but chose to order and personally install a new one. Estimating the value of his labor at $20 an hour, Titus asserted the total value of the parts and labor required to repair the motorcycle was $216.95. Titus told the responding officer that he had insurance coverage and later testified that he â€śthought for sure that [the motorcycle] was insured.â€ť But after the accident he called his insurance company and was told that although his wifeâ€™s motorcycle recently had been added to their coverage, Titusâ€™s motorcycle had not. Titus asserted he â€śjust didnâ€™t understand that, because [he had] been pretty good with [his] insurance, and [had] always paid everything on time.â€ť Titusâ€™s motorcycle had been insured from 2004 to 2007; he removed the coverage at the end of the 2007 riding season. In 2008, about two weeks before the accident, the Tituses switched insurance companies. Titusâ€™s wife testified that she had called the new insurance company and added her motorcycle to the insurance plan; she attempted to add Titusâ€™s motorcycle to the plan but she could not find the vehicle identification number (VIN) for it. Titus had been out of town for work at the time, and when he returned home for a few days she told him in passing that he â€śneeded to get his VIN number and to call in his bike to be insured.â€ť She asserted that she thought Titus â€śknew we needed to call the insurance company to supply the VIN but [she] also believe[d] he thought [she] had insured the bike.â€ť Titus testified that he had to leave town shortly after the accident, did not have the opportunity to repair or ride the motorcycle during the following summer, and did not re-insure it. B. Proceedings 1. Administrative hearing Approximately three months after the accident, DMV informed Titus that his driverâ€™s license would be suspended for 90 days for failing to comply with proof-ofÂ -3- 6773 ----------------------- Page 4----------------------- insurance laws.1 DMV explained that it pursued suspension because Titusâ€™s vehicle was uninsured during a â€ścollision which resulted in injury, death, or property damage . . . exceeding $501.00,â€ť and because the â€śexceptions provided by Alaska Statute 28.22.041(h) do not apply.â€ť2 Titus holds a class A commercial driverâ€™s license and drives commercial and heavy equipment trucks; he asserted that if his license were suspended, he would be 1 AS 28.22.021 provides: The owner or operator of a motor vehicle required to have motor vehicle liability insurance that complies with this chapter or a certificate of self-insurance that complies with AS 28.20.400, shall show proof of this insurance when that person is involved in an accident that results in bodily injury to or death of a person, or damage to the property of a person exceeding $501. Under AS 28.22.041, â€śif a person fails to provide proof required under AS 28.22.021 . . . the department shall suspend the driverâ€™s license of that person for . . . not less than 90 days . . . .â€ť 2 AS 28.22.041(h) provides that a license will not be suspended 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 person. -4- 6773 ----------------------- Page 5----------------------- unable to work. Titus requested an administrative hearing, asserting that his livelihood depended upon his commercial driverâ€™s license and that he had been consistently insured in the past. Appearing telephonically before a DMV hearing officer, Titus raised three main arguments. First, Titus argued that his accident did not require proof of insurance under AS 28.22.021 because the statuteâ€™s $501 threshold applies to both bodily injury and property damage, which combined did not cost him more than $501 to remedy. Second, Titus argued that his health coverage satisfied the statuteâ€™s insurance requirement because it paid for the actual physical injury caused by the accident. Third, Titus argued that DMV should recognize a de minimis exception because minimal harm to the driver was â€śnot the sort of situation that the law was intended to protect against and prevent.â€ť The hearing officer found that Titus was involved in an accident without carrying liability insurance. The hearing officer accepted that the damage to the motorcycle was under $501, but concluded that the $501 threshold applied only to property damage â€” it did not matter if the bodily injury was treated for less than $501. The hearing officer rejected Titusâ€™s de minimis theory, but explained that even if it applied, Titusâ€™s injury was not de minimis. Finally, the hearing officer found Titus did not qualify for an exemption under AS 28.22.041(h). Though she found the first element for the exemption (property damage less than $2,000) was satisfied, she found the second (proof of insurance within 15 days) and third (lack of insurance caused by circumstances beyond driverâ€™s control) were not met. The hearing officer suspended Titusâ€™s license for 90 days. 2. Appeal to the superior court Titus appealed to the superior court. Titus argued that the suspension violated the Alaska Constitutionâ€™s guarantees of equal protection, substantive due -5- 6773 ----------------------- Page 6----------------------- process, and procedural due process, and that DMV erred in rejecting the de minimis theory. Both Titus and DMV requested oral argument, but DMV subsequently moved to withdraw its request. The superior court issued a decision without oral argument, and then granted as moot DMVâ€™s motion to withdraw its request. The superior court rejected Titusâ€™s constitutional arguments and concluded a de minimis exception was legally and factually inapplicable. The court upheld DMVâ€™s decision and ordered the suspension. DMV moved for $5,922 in attorneyâ€™s fees, 30% of the fees DMV asserted it incurred. Titus challenged the reasonableness of DMVâ€™s attorneyâ€™s logged hours and also argued that AS 09.60.010(c)(2)3 precluded the award because he had raised constitutional challenges that were neither frivolous nor economically motivated. The superior court rejected Titusâ€™s arguments without comment and awarded DMV $5,922. Titus appeals. He raises the same constitutional and de minimis arguments made to the superior court, challenges the superior courtâ€™s entry of a decision without the requested oral argument, and disputes the award of attorneyâ€™s fees. III. STANDARD OF REVIEW â€śWhen a superior court acts as an intermediate court of appeals, we 3 AS 09.60.010(c) provides: In a civil action or appeal concerning the establishment, protection, or enforcement of a right under . . . the Constitution of the State of Alaska, the court . . . . (2) may not order a claimant to pay the attorney fees of the opposing party devoted to claims concerning constitutional rights if the claimant . . . did not prevail in asserting the right, the action or appeal asserting the right was not frivolous, and the claimant did not have sufficient economic incentive to bring the action or appeal regardless of the constitutional claims involved. -6- 6773 ----------------------- Page 7----------------------- independently review the administrative decision.â€ť4 We â€śuse the substantial evidence test to review an agencyâ€™s factual findings. Substantial evidence to support an agencyâ€™s findings exists when there is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.â€ť5 We review questions of law involving agency expertise under the reasonable basis test and where no expertise is involved under the substitution of judgment test.6 Questions of law where no expertise is involved encompass questions such as â€śstatutory interpretation or other analysis of legal relationships about which courts have specialized knowledge and experience.â€ť7 â€śThe substitution of judgment test is equivalent to de novo review and requires that we adopt the rule of law that is most persuasive in light of precedent, reason, and policy.â€ť8 â€śConstitutional issues are questions of law subject to independent review.â€ť9 4 Alaska Exch. Carriers Assâ€™n, Inc. v. Regulatory Commâ€™n of Alaska , 202 P.3d 458, 460 (Alaska 2009). 5 Lightle v. State, Real Estate Commâ€™n , 146 P.3d 980, 982 (Alaska 2006) (quoting Yoon v. Alaska Real Estate Commâ€™n, 17 P.3d 779, 782 (Alaska 2001)) (internal quotation marks omitted). 6 State, Depâ€™t of Health & Soc. Servs. v. N. Star Hosp., 280 P.3d 575, 579 (Alaska 2012) (citing Handley v. State, Depâ€™t of Revenue , 838 P.2d 1231, 1233 (Alaska 1992)). 7 Samissa Anchorage, Inc. v. State, Depâ€™t of Health & Soc. Servs., 57 P.3d 676, 678 (Alaska 2002) (quoting Justice v. RMH Aero Logging, Inc. , 42 P.3d 549, 552 (Alaska 2002)) (internal quotation marks omitted). 8 Oels v. Anchorage Police Depâ€™t, Emps. Assâ€™n, 279 P.3d 589, 595 (Alaska 2012) (quoting Kingik v. State, Depâ€™t of Admin., Div. of Ret. & Benefits , 239 P.3d 1243, 1248 (Alaska 2010)) (internal quotation marks omitted) (citing Griswold v. City of Homer , 252 P.3d 1020, 1025 n.6 (Alaska 2011)). 9 Ross v. State, Depâ€™t of Revenue , 292 P.3d 906, 909 (Alaska 2012) (quoting (continued...) -7- 6773 ----------------------- Page 8----------------------- We review an award of attorneyâ€™s fees for abuse of discretion, which â€śexists if an award is arbitrary, capricious, manifestly unreasonable, or improperly motivated.â€ť10 However, whether the superior court correctly applied the law allowing or prohibiting an award is a question of law reviewed de novo.11 IV. DISCUSSION A. The Suspension Did Not Violate Equal Protection. Titus argues that suspending his driverâ€™s license under AS 28.22.021 and AS 28.22.041 violated the equal protection clause of the Alaska Constitution.12 Under the proof-of-insurance statutes, DMV must suspend a driverâ€™s license if the driver failed to provide proof of insurance after an accident â€śresult[ing] in bodily injury to or death of a person, or damage to the property of a person exceeding $501.â€ť13 Titus asserts this discriminates against drivers who are involved in accidents that injure only the driver or the driverâ€™s property, but cause no harm to others. â€śThe constitutional right to equal protection is a command to state and local governments to treat those who are similarly situated alike. The common question in equal protection cases is whether two groups of people who are treated differently are 9 (...continued) Harrod v. State, Depâ€™t of Revenue , 255 P.3d 991, 995 (Alaska 2011)). 10 Okagawa v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010) (quoting Cook Schuhmann & Groseclose, Inc. v. Brown & Root, Inc., 116 P.3d 592, 597 (Alaska 2005)) (internal quotation marks omitted). 11 Id. (quoting Krone v. State, Depâ€™t of Health & Soc. Servs. , 222 P.3d 250, 252 (Alaska 2009)). 12 Alaska Const. art. I, Â§ 1 (â€ś[A]ll persons are equal and entitled to equal rights, opportunities, and protection under the law.â€ť). 13 AS 28.22.021 (proof of insurance); AS 28.22.041 (suspension). -8- 6773 ----------------------- Page 9----------------------- similarly situated and thus entitled to equal treatment.â€ť14 DMV argues there is no equal protection issue because the proof-of-insurance statutes treat similarly situated persons alike by requiring all drivers to carry insurance. But DMVâ€™s perspective is too broad. Here, similarly situated uninsured motorists are treated differently. Alaska Statute 28.22.021 bases the proof-of-insurance requirement, and ultimately suspension, on the results of a motor vehicle accident: If an uninsured motorist is in an accident causing death, bodily injury, or over $501 in property damage, DMV must suspend the motoristâ€™s license, but an uninsured motorist involved in an accident not causing one of those enumerated results does not face license suspension. In requiring proof of insurance and suspension for some, but not all, uninsured motorists, the statutes treat similarly situated persons differently. We ordinarily review different legal treatment under the equal protection clause.15 We apply a flexible sliding-scale analysis to state equal protection claims.16 This involves a three-step process under which we â€śdetermine the weight of the individual interest at stake, the importance of the governmentâ€™s interest, and the closeness of the fit between the statute and the governmentâ€™s objective.â€ť17 The requisite government interest and tailoring depend on the nature of the impaired interest. Individual interests that are not recognized as important require the statute to bear a fair 14 Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994). 15 Id. at 396. 16 Ross v. State, Depâ€™t of Revenue , 292 P.3d 906, 909 (Alaska 2012) (quoting Harrod v. State, Depâ€™t of Revenue , 255 P.3d 991, 1001 (Alaska 2011)). 17 Schiel v. Union Oil Co. of Calif., 219 P.3d 1025, 1030 (Alaska 2009) (citing Glover v. State, Depâ€™t of Transp., Alaska Marine Highway Sys., 175 P.3d 1240, 1256 (Alaska 2008)). -9- 6773 ----------------------- Page 10----------------------- and substantial relationship to a legitimate state interest.18 Important individual interests require the statute to have a close relationship to an important state interest.19 The most important individual interests require the statute to be the least restrictive means to further a compelling state interest.20 Titus asserts he has an important interest in his driverâ€™s license and the right to drive. We agree. In Whitesides v. State, Department of Public Safety, a case involving a procedural due process challenge, we held that a driverâ€™s license is an important property interest.21 Our reasoning in Whitesides remains persuasive in the equal protection context.22 Because the proof-of-insurance statutes impact an important individual interest, they must bear a close relationship to an important state interest. The state interest in the proof-of-insurance statutes is set out in the legislatureâ€™s declaration of purpose: The legislature determines that it is a matter of grave concern that motorists be financially responsible for their negligent acts so that innocent victims of motor vehicle accidents may be recompensed for the injury and financial loss inflicted 18 Id. ; see also Glover, 175 P.3d at 1258 (examining â€śfair and substantialâ€ť relationship between statute and state objective when only individual economic interest impacted). 19 Schiel, 219 P.3d at 1030 (citing Malabed v. N. Slope Borough , 70 P.3d 416, 421 (Alaska 2003)). 20 Id. (citing C.J. v. State, Depâ€™t of Corr., 151 P.3d 373, 378 (Alaska 2006)). 21 20 P.3d 1130, 1135 (Alaska 2001) (citing Champion v. Depâ€™t of Pub. Safety, 721 P.2d 131, 133 (Alaska 1986); Berlinghieri v. Depâ€™t of Motor Vehicles , 657 P.2d 383, 387-88 (Cal. 1983)). 22 See Valentine v. State, 155 P.3d 331, 347 (Alaska App. 2007) (noting, in equal protection context, that right to drive is an important interest), revâ€™d on other grounds , 215 P.3d 319 (Alaska 2009). -10- 6773 ----------------------- Page 11----------------------- upon them. The legislature finds and declares that the public interest can best be served by the requirements that the operator of a motor vehicle involved in an accident respond for damages and show proof of financial ability to respond for damages in future accidents as a prerequisite to the personâ€™s exercise of the privilege of operating a motor vehicle in the state. The State has an important interest in protecting the public from uninsured motorists. Titus does not dispute the Stateâ€™s interest, but argues the interest in protecting the public is not furthered by requiring proof of insurance after single-vehicle accidents. He concedes it is logical to suspend an uninsured driverâ€™s license after an accident harming others,24 but argues suspension makes little sense in a single-vehicle accident because the statutorily required insurance would not cover the damages. We are not persuaded. As indicated in the legislatureâ€™s declaration of purpose, the proof-ofÂ insurance statutes are designed to discover and deter uninsured driving and require â€śproof of financial ability to respond for damages in future accidents.â€ť25 Because the purpose is forward-looking, it is irrelevant whether liability insurance would apply to the accident triggering the proof-of-insurance requirement. The public is protected by encouraging uninsured motorists to carry insurance in the future, and this is furthered by requiring proof of insurance after an accident, even if it is a single-vehicle accident, and by suspending a driverâ€™s license if the vehicle is uninsured. 23 AS 28.20.010. 24 See, e.g., State, Depâ€™t of Public Safety, Div. of Motor Vehicles v. Fernandes, 946 P.2d 1259, 1259 (Alaska 1997) (affirming suspension where driver â€śdid not have automobile liability insurance when he caused substantial property damage while operating his vehicleâ€ť). 25 AS 28.20.010. -11- 6773 ----------------------- Page 12----------------------- The question remains whether there is a sufficient nexus between protecting the public and the distinction drawn in the proof-of-insurance statutes in which some, but not all, uninsured motorists may face suspension. In drafting the proof-of-insurance statutes, the legislature established different sanctions for different circumstances. The gravity of the sanctions roughly follow the gravity of the circumstances. On the minor side, an uninsured driver involved in an accident with minimal harm (property damage under $501 and neither bodily injury nor death) is not required to show proof of insurance and therefore will not face suspension.26 On the severe side, an uninsured driver involved in an accident with serious harm (property damage over $501, bodily injury, or death) must show proof of insurance and may face a 90-day license suspension.27 And under any circumstances, an uninsured driver may face an infraction and a fine if the driver cannot show proof of insurance upon a peace officerâ€™s request.28 While the provisions may not precisely fit every situation, determining which triggering events implicate public safety and warrant sanctions is the province of the legislature, and as long as the lines drawn bear a close fit to the state interest in preventing uninsured driving, the statutory scheme survives equal protection scrutiny. Tying an uninsured driving suspension to the accidentâ€™s gravity bears a constitutionally adequate nexus to the state interest. We therefore conclude that the distinctions at issue here do not violate the Alaska Constitutionâ€™s guarantee of equal protection. B. The Suspension Did Not Violate Due Process. Titus argues the proof-of-insurance statutes violate the Alaska 26 AS 28.22.021; AS 28.22.041. 27 AS 28.22.021; AS 28.22.041. 28 AS 28.22.019. -12Â 6773 ----------------------- Page 13----------------------- Constitutionâ€™s due process guarantee.29 Titus asserts the license suspension was not based on a finding of unfitness to drive and was therefore not a remedial administrative action. Rather, he argues it was a criminal sanction entitling him to safeguards of criminal due process, including proof of criminal intent. Titus also argues that even if the suspension were remedial, due process requires that he have an opportunity to remedy his noncompliance before his driverâ€™s license is suspended. 1. Criminal due process is not required here. Titus argues that for a remedial administrative suspension to satisfy due process, the suspension must be premised on the driverâ€™s unfitness to drive. He contends that absent a direct connection to fitness to drive, a suspension is not a remedial administrative action, but a criminal sanction. He asserts that because his suspension was based on inadvertent noncompliance, not on unfitness to drive, the suspension was a punitive criminal sanction requiring criminal due process and proof of criminal intent. Titusâ€™s argument is based on our procedural due process analysis in State v. Niedermeyer .30 There, a minorâ€™s driverâ€™s license was revoked after the minor was arrested for underage drinking, even though there was no allegation that the minor had driven or intended to drive.31 The minor challenged the revocation as a violation of procedural due process, arguing it was a criminal sanction imposed without adequate process.32 We explained that an agency revocation of a driverâ€™s license can be either a 29 Alaska Const. art. I, Â§ 7 (â€śNo person shall be deprived of life, liberty, or property, without due process of law. The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed.â€ť). 30 14 P.3d 264, 268-70 (Alaska 2000). 31 Id. at 266, 270. 32 Id. at 268-69. -13- 6773 ----------------------- Page 14----------------------- criminal sanction or an administrative measure.33 If the revocation is based solely on a criminal offense, then it is a criminal sanction, but if the revocation is based on conduct demonstrating unfitness to drive, it is a remedial administrative measure.34 Because there was not a direct connection between a minorâ€™s consumption or possession of alcohol and the minorâ€™s fitness to drive, the revocation was not a remedial action, but a criminal sanction requiring criminal due process.35 Unlike underage drinking or possession of alcohol, failure to carry liability insurance is related to a personâ€™s fitness to drive. The purpose of the proof-of-insurance statutes is to ensure that drivers are financially responsible and can â€śshow proof of financial ability to respond for damages in future accidents.â€ť36 Suspending a driverâ€™s license for failure to show proof of insurance enforces that degree of financial responsibility that the legislature has required of drivers. Because the suspension is directly related to unfitness to drive, it is a remedial action. The punitive and deterrent effects of the administrative suspension do not negate the suspensionâ€™s remedial nature.37 33 Id. at 269. 34 Id. (citing Baker v. City of Fairbanks , 471 P.2d 386, 402 n.28 (Alaska 1970)). 35 Id. at 270. 36 AS 28.20.010. 37 See Niedermeyer, 14 P.3d at 270 (citing State v. Zerkel, 900 P.2d 744, 755Â 58 (Alaska App. 1995)); Baker , 471 P.2d at 402 & n.28 (noting administrative revocation or suspension of license where â€śbasis . . . is not that one has committed a criminal offense, but that the individual is not fit to be licensed,â€ť are not criminal prosecutions). -14- 6773 ----------------------- Page 15----------------------- Therefore Titus was not entitled to criminal due process and proof of criminal intent.38 2. Due process does not require that Titus have an opportunity to remedy. Titus argues that if the suspension were remedial in nature, then due process requires that he be given an opportunity to remedy his noncompliance prior to suspending his license. Titus reasons that because a driverâ€™s license is an important property interest, it would be fundamentally unfair to deprive him of that interest without first alerting him of his noncompliance and providing him a reasonable time to remedy it. We apply the Mathews v. Eldridge39 framework to determine if a government action satisfies due process.40 â€śWe consider (1) the private interest that the official action affects, (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value, if any, of additional safeguards, and (3) the governmentâ€™s interest, including fiscal and administrative burdens, in implementing additional safeguards.â€ť41 As to the first factor, Titus has an important property interest in his driverâ€™s license.42 As to the second factor, the absence of a right to remedy 38 Titus also briefly argues that the license suspension violates equal protection because there is not a direct connection to unfitness to drive. Because we conclude that the suspension for failure to show proof of insurance is directly related to unfitness to drive, we reject Titusâ€™s additional equal protection argument. 39 424 U.S. 319, 339-49 (1976). 40 Alvarez v. State, Depâ€™t of Admin., Div. of Motor Vehicles , 249 P.3d 286, 292 (Alaska 2011) (citing Whitesides v. State, Depâ€™t of Pub. Safety, Div. of Motor Vehicles, 20 P.3d 1130, 1134-35 (Alaska 2001)). 41 Id. 42 Id. -15- 6773 ----------------------- Page 16----------------------- noncompliance does not increase the risk of an erroneous deprivation. As to the third factor, a right to remedy noncompliance under Titusâ€™s circumstances would frustrate the government interest in heightening awareness of insurance requirements and deterring drivers from future failure to carry liability insurance.43 The legislature contemplated that some drivers may find themselves uninsured by no fault of their own and exempted those drivers if they meet certain criteria.44 However where the failure to carry insurance was not beyond the driverâ€™s control, allowing the driver to avoid suspension by purchasing insurance after an accident would promote laxity where the legislature desired awareness. Because a right to remedy undermines the government interest in deterring future uninsured driving and because the absence of a right to remedy does not increase the risk of an erroneous deprivation, we conclude that due process does not require that procedure. In further support of his argument that due process requires a right to remedy, Titus cites to Balough v. Fairbanks North Star Borough .45 But Balough does not stand for the proposition that due process requires an opportunity to remedy any inadvertent noncompliance in order to avoid deprivation of a significant property interest. There, a landowner worked with the borough in an attempt to bring her 43 See AS 28.20.010 (declaring that public interest is best served by requiring drivers involved in accidents to â€śshow proof of financial ability to respond for damages in future accidents â€ť) (emphasis added). 44 AS 28.22.041(h) (exempting uninsured driver from suspension if accident caused less than $2,000 in damages and only to driverâ€™s property, driver provides proof of insurance within 15 days of the accident, and driver establishes that failure to carry insurance was beyond the driverâ€™s control). 45 995 P.2d 245, 263 (Alaska 2000). -16- 6773 ----------------------- Page 17----------------------- junkyard into compliance with a fencing ordinance. 46 Because of noncompliance with the ordinance, the landowner was denied grandfather rights when the land was rezoned.47 We explained that under the ordinance, noncompliance did not automatically make the junkyard unlawful, but instead required that it be brought into compliance. 48 Because the landowner was attempting to bring the junkyard into compliance and because it was not until the rezoning that the landowner learned her attempt fell short, we concluded due process required the landowner have an opportunity to remedy the deficiencies in her attempted compliance.49 Titus asserts that his â€śinadvertent noncompliance was capable of being remedied [and] would have [been] remedied had Titus been given the option to do so.â€ť But unlike the landowner in Balough , Titus was not working with a regulatory entity to come into compliance with the law, he merely thought that his motorcycle was insured when it was not. Further, the fencing ordinance is distinguishable from the proof-ofÂ insurance statutes. We explained in Balough that noncompliance with the fencing ordinance â€śdoes not automatically lead to the conclusion that [the landownerâ€™s] junkyard was unlawful and hence not entitled to [grandfather rights]â€ť; it was therefore appropriate to contemplate the immediate prospect of compliance.50 In contrast, failure to carry liability insurance during an accident causing bodily injury automatically triggers a 46 Id. at 248-49. 47 Id. at 249-52. 48 Id. at 259. 49 Id. at 263. 50 Id. at 259. -17- 6773 ----------------------- Page 18----------------------- license suspension.51 Aside from a limited exemption for drivers whose failure to carry insurance was beyond their control and a provision for a limited license for medical or work needs â€” neither of which are at issue in Titusâ€™s due process claim â€” the relevant proof-of-insurance statutes do not contemplate the prospect of immediate compliance with insurance requirements.52 Our reasoning in Balough does not apply here. C. A Common Law De Minimis Exception Is Inapplicable. Titus next argues that DMVâ€™s hearing officer erred in declining to apply a de minimis exception. Whether to recognize this common law defense requires an analysis of the proof-of-insurance statutes and the common law. Titus therefore raises a legal question not requiring the expertise of DMV, to which we apply our independent judgment. 53 Titus asserts there is no statute pertaining to a de minimis exception to the proof-of-insurance requirements and, in the absence of a statute, this court has the authority to declare common law. As the basis of his de minimis theory, Titus cites to an annotation discussing the defense in criminal prosecutions.54 There, de minimis is discussed as a defense available when â€śthe violation of the law in question was so trivial 51 AS 28.22.021; AS 28.22.041(a). 52 AS 28.22.021; AS 28.22.041. 53 See Samissa Anchorage, Inc. v. State, Depâ€™t of Health & Soc. Servs., 57 P.3d 676, 678 (Alaska 2002) (â€śWe apply the substitution of judgment test to legal questions where no agency expertise is involved . . . .â€ť); Mukluk Freight Lines, Inc. v. Nabors Alaska Drilling, Inc. , 516 P.2d 408, 412 (Alaska 1973) (â€śCourts are the experts in such areas as . . . common law, . . . judgemade law developed through statutory interpretation, . . . and problems transcending the agencyâ€™s field . . . .â€ť (quoting 4 K. DAVIS , ADMINISTRATIVE LAW TREATISE Â§ 30.14, at 269 (1958))). 54 Brent G. Filbert, Annotation, Defense of Inconsequential or De Minimis Violation in Criminal Prosecution, 68 A.L.R. 5th 299 (1999). -18- 6773 ----------------------- Page 19----------------------- or so far afield from the harm imagined by the legislature that the defendant should not be held criminally culpable.â€ť55 DMVâ€™s hearing officer considered whether Titusâ€™s violation was in fact de minimis. The hearing officer concluded that Titusâ€™s injuries would not qualify for a de minimis exception because they required ambulance transportation and several staples to the head. Titus argues, however, that the hearing officer â€śrefused to consider the [de minimis] doctrine as a defense.â€ť He asserts that in order to analyze the de minimis defense, the hearing officer was required to look at evidence of Titusâ€™s good faith, character, and experience.56 Titus thus raises the issue of whether we must recognize and define a de minimis exception to the proof-of-insurance statutes. We have authority to apply common law doctrines â€śin the absence of a statute directing a contrary rule.â€ť57 But in AS 28.22.041(h), the legislature crafted a three-part test to define circumstances in which a violation of the proof-of-insurance statutes would be inconsequential and provided a mechanism to consider the harm and the driverâ€™s culpability. The legislature exempted violations if a driver is involved in an accident causing property damage less than $2,000 only to the driver, provided proof of insurance within 15 days of the accident, and established that the failure to provide 55 Id. at 308. 56 See id. at 299 (â€śIn determining whether to apply the doctrine courts have looked to such factors as the defendantâ€™s experience and character . . . .â€ť). 57 Bauman v. Day , 892 P.2d 817, 828 (Alaska 1995) (applying common law discovery rule to contract case); see also Hosier v. State, 957 P.2d 1360, 1363 (Alaska App. 1998) (â€ś[I]n the absence of a governing statute or constitutional provision, the judiciary retains the power to declare the common law . . . .â€ť). -19- 6773 ----------------------- Page 20----------------------- insurance was beyond the driverâ€™s control.58 Because a statute defines minimal violations to the proof-of-insurance statutes, we decline to adopt a common law de minimis exception in this instance. D. Titusâ€™s Constitutional Claims May Impact The Attorneyâ€™s Fees Calculation. Pursuant to Alaska Rules of Appellate Procedure 508(e)59 and 601(c),60 DMV moved for $5,922 in attorneyâ€™s fees, 30% of the fees it asserted it incurred in the superior court proceedings. Titus opposed, arguing that DMVâ€™s attorney billed an excessive number of hours and that Titusâ€™s constitutional challenges precluded an award of attorneyâ€™s fees under AS 09.60.010(c).61 The superior court awarded DMV the 58 AS 28.22.041(h). 59 Alaska R. App. P. 508(e) provides â€śAttorneyâ€™s fees may be allowed in an amount to be determined by the court.â€ť 60 Alaska R. App. P. 601(c) provides that procedures not addressed in the rules governing appeals to the superior court are governed by the general provisions of the Rules of Appellate Procedure. 61 AS 09.60.010(c) provides: In a civil action or appeal concerning the establishment, protection, or enforcement of a right under . . . the Constitution of the State of Alaska, the court . . . . (2) may not order a claimant to pay the attorney fees of the opposing party devoted to claims concerning constitutional rights if the claimant . . . did not prevail in asserting the right, the action or appeal asserting the right was not frivolous, and the claimant did not have sufficient economic incentive to bring the action or appeal regardless of the constitutional claims involved. -20- 6773 ----------------------- Page 21----------------------- requested $5,922 without addressing either of Titusâ€™s arguments. Titus reiterates his argument that DMVâ€™s attorney billed an excessive number of hours â€” 98.7 hours compared to Titusâ€™s counselâ€™s 51.9 hours â€” and that entering attorneyâ€™s fees based on those hours is an abuse of discretion. The amount of attorneyâ€™s fees to award under Rule 508(e) is â€śa matter committed to the sound discretion of [the] trial courts, when sitting as intermediate appellate tribunals.â€ť62 We will not overturn an award unless it is â€śmanifestly unreasonable.â€ť63 Titus argues that reasonable hours for DMVâ€™s defense would be between approximately 25 and 40 hours; that is, between the hours spent on Titusâ€™s opening brief and the time spent on both his opening and reply briefs. Aside from comparing the attorneysâ€™ reported hours, Titus raises no particularized challenges to DMVâ€™s billing statement or DMVâ€™s attorneyâ€™s affidavit. In awarding fees based on DMVâ€™s reported hours, the superior court could properly have looked to the billing statement and the assertion in DMVâ€™s attorneyâ€™s affidavit that the hours were â€śactually and necessarily expended in the development of [DMVâ€™s] defense.â€ť The record does not indicate that the superior court based the award on excessive or unreasonable hours; therefore there was no abuse of discretion on those grounds. Titus also asserts it was legal error not to apply AS 09.60.010(c). The application of a statute governing attorneyâ€™s fees is not committed to the superior courtâ€™s discretion, but is a question of law reviewed de novo.64 DMV did not attempt to rebut Titusâ€™s statutory argument before the superior court, and the superior court did not 62 Rosen v. State Bd. of Pub. Accountacy , 689 P.2d 478, 482 (Alaska 1984). 63 Laidlaw Transit, Inc. v. Anchorage Sch. Dist. , 118 P.3d 1018, 1038 (Alaska 2005) (quoting D.H. Blattner & Sons, Inc. v. N.M. Rothschild & Sons, Ltd. , 55 P.3d 37, 56 (Alaska 2002)). 64 Okagawa v. Yaple, 234 P.3d 1278, 1280 (Alaska 2010). -21- 6773 ----------------------- Page 22----------------------- discuss AS 09.60.010(c) in its award of attorneyâ€™s fees. DMV avoids the issue in its briefing to us. Alaska Statute 09.60.010(c) precludes an adverse attorneyâ€™s fees award where a claimant asserts non-frivolous constitutional claims without sufficient economic interest to bring the action or appeal otherwise.65 And even if a constitutional claimant does not qualify for protection under AS 09.60.010(c), the claimant may seek abatement of an adverse attorneyâ€™s fee award under AS 09.60.010(e). Titus asserted that the proofÂ of-insurance statutes violated his constitutional rights to equal protection and due process; his only claim that was not constitutionally based was his assertion that a de minimis exception applied.66 It was error not to consider Titusâ€™s AS 09.60.010 arguments. We therefore vacate the attorneyâ€™s fee award and remand to the superior court for renewed consideration of the issue, taking into account Titusâ€™s reliance on AS 09.60.010. E. Failure To Hold Oral Argument Was Error. The parties agree that it was error for the superior court to issue a decision without first holding the requested oral argument,67 but also agree that the error is harmless in light of our independent review of the administrative decision and the 65 AS 09.60.010(c). See Tracy v. State, Depâ€™t of Health & Soc. Servs.,Office of Children Servs., 279 P.3d 613, 619 (Alaska 2012) (vacating attorneyâ€™s fee award on unsuccessful constitutional claims). 66 Cf. Lentine v. State, 282 P.3d 369, 381 (Alaska 2012) (affirming attorneyâ€™s fees award where, in contrast to Titus, claimant raised constitutional claims only tangentially and in passing). 67 Alaska R. App. P. 605.5(b) (in appeals, other than civil cases concerning less than $300 or minor offenses, â€śoral argument will be scheduled automatically if timely requested by either partyâ€ť). -22- 6773 ----------------------- Page 23----------------------- opportunity for oral argument before us. Because the parties agree the error was harmless, there is no need to remand on that ground.68 We note, however, that should we need to address a pattern of disregard for procedural rules, we may â€śdevise necessary remedial steps in each case under [our] supervisory power to protect the rights of litigants.â€ť69 V. CONCLUSION For the foregoing reasons we AFFIRM the administrative suspension of Titusâ€™s driverâ€™s license, VACATE the award of attorneyâ€™s fees, and REMAND for a new attorneyâ€™s fees determination. 68 See Alaska R. Civ. P. 61 (â€śThe court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.â€ť). 69 McCracken v. Davis , 560 P.2d 771, 774 (Alaska 1977) (citations omitted). -23- 6773
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