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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

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 . 

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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                       ) 


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. 


               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 driver’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  motorcyclist’s     arguments     and   awarded 

attorney’s     fees  to  DMV.     The    motorcyclist   appeals,   raising     the  same    substantive 

arguments and challenging the award of attorney’s fees. 

                We     conclude    that  the  motorcyclist’s     constitutional    and   common      law 

arguments do not compel reversal of the administrative suspension. However, we vacate 

the   entry   of   attorney’s   fees   and   remand   to   the   superior   court   to   determine   how   the 

motorcyclist’s constitutional challenges should impact the award. 


        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   Titus’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 Titus’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 “thought for sure that [the motorcycle] was insured.”                  But after the 

accident     he  called   his  insurance    company     and   was   told   that  although    his  wife’s 

motorcycle recently had been added to their coverage, Titus’s motorcycle had not. Titus 

asserted he “just didn’t understand that, because [he had] been pretty good with [his] 

insurance, and [had] always paid everything on time.” 

                Titus’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.  Titus’s wife  testified that she had 

called the new insurance company and added her motorcycle to the insurance plan; she 

attempted   to   add   Titus’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 “needed to get his 

VIN number and to call in his bike to be insured.”            She asserted that she thought Titus 

“knew   we   needed   to   call   the   insurance   company   to   supply   the   VIN   but   [she]   also 

believe[d] he thought [she] had insured the bike.” 

                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 driver’s license would be suspended for 90 days for failing to comply with proof-of­ 

                                                  -3-                                             6773

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insurance laws.1    DMV explained that it pursued suspension because Titus’s vehicle was 

uninsured during a “collision which resulted in injury, death, or property damage . . . 

exceeding       $501.00,”     and   because     the  “exceptions      provided    by   Alaska     Statute 

28.22.041(h) do not apply.”2 

                Titus holds a class A commercial driver’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, “if a person fails to provide proof required under 

AS 28.22.021 . . . the department shall suspend the driver’s license of that person for . . . 

not less than 90 days . . . .” 

        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 


                                                   -4-                                             6773

----------------------- Page 5-----------------------

unable to work.  Titus requested an administrative hearing, asserting that his livelihood 

depended upon his commercial driver’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 statute’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   statute’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 “not the sort of situation that the law was intended to protect against 

and prevent.” 

                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 — it did not matter if the bodily injury was treated for less than $501. 

The   hearing officer rejected Titus’s  de minimis  theory, but explained   that even   if   it 

applied, Titus’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 driver’s control) were not met. The hearing officer suspended Titus’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   Constitution’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 DMV’s motion to withdraw its request. The superior court rejected 

Titus’s constitutional arguments and concluded a de minimis exception was legally and 

factually inapplicable.      The court upheld DMV’s decision and ordered the suspension. 

                 DMV moved for $5,922 in attorney’s fees, 30% of the fees DMV asserted 

it incurred.   Titus challenged the reasonableness of DMV’s attorney’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 Titus’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 court’s entry of a decision without the 

requested oral argument, and disputes the award of attorney’s fees. 


                 “When   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.”4             We   “use the substantial evidence 

test to review an agency’s factual findings.   Substantial evidence to support an agency’s 

findings exists when there is such relevant evidence as a reasonable mind might accept 

as adequate to support the conclusion.”5  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   “statutory   interpretation    or  other   analysis   of  legal 

relationships about which courts have specialized knowledge and experience.”7                     “The 

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.”8 

“Constitutional issues are questions of law subject to independent review.”9 

        4       Alaska Exch. Carriers Ass’n, Inc. v. Regulatory Comm’n of Alaska , 202 

P.3d 458, 460 (Alaska 2009). 

        5       Lightle v. State, Real Estate Comm’n , 146 P.3d 980, 982 (Alaska 2006) 

(quoting Yoon v. Alaska Real Estate Comm’n, 17 P.3d 779, 782 (Alaska 2001)) (internal 

quotation marks omitted). 

        6       State, Dep’t of Health & Soc. Servs. v. N. Star Hosp., 280 P.3d 575, 579 

(Alaska 2012) (citing Handley v. State, Dep’t of Revenue , 838 P.2d 1231, 1233 (Alaska 


        7       Samissa Anchorage, Inc. v. State, Dep’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 Dep’t, Emps. Ass’n, 279 P.3d 589, 595 (Alaska 

2012) (quoting Kingik v. State, Dep’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, Dep’t of Revenue , 292 P.3d 906, 909 (Alaska 2012) (quoting 


                                                  -7-                                             6773

----------------------- Page 8-----------------------

                We   review   an   award   of   attorney’s   fees   for   abuse   of   discretion,   which 

“exists   if   an   award   is   arbitrary,   capricious,   manifestly   unreasonable,   or   improperly 

motivated.”10    However, whether the superior court correctly applied the law allowing 

or prohibiting an award is a question of law reviewed de novo.11 


        A.      The Suspension Did Not Violate Equal Protection. 

                Titus argues that suspending his driver’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 driver’s license if the driver failed 

to provide proof of insurance after an accident “result[ing] in bodily injury to or death 

of a person, or damage to the property of a person exceeding $501.”13              Titus asserts this 

discriminates against drivers who are involved in accidents that injure only the driver or 

the driver’s property, but cause no harm to others. 

                “The 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, Dep’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, Dep’t of Health & Soc. Servs. , 222 P.3d 250, 

252 (Alaska 2009)). 

        12      Alaska Const. art. I, § 1 (“[A]ll persons are equal and entitled to equal 

rights, opportunities, and protection under the law.”). 

        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.”14         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 DMV’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 motorist’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   “determine[]   the   weight   of   the 

individual     interest  at  stake,  the  importance     of  the   government’s      interest,  and   the 

closeness of the fit between the statute and the government’s objective.”17  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, Dep’t of Revenue , 292 P.3d 906, 909 (Alaska 2012) (quoting 

Harrod v. State, Dep’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, Dep’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 driver’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   driver’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 

legislature’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 “fair and substantial” 

relationship between statute and state objective when only individual economic interest 


         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, Dep’t of Corr., 151 P.3d 373, 378 (Alaska 2006)). 

         21      20   P.3d   1130,   1135   (Alaska   2001)   (citing  Champion   v.   Dep’t   of   Pub. 

Safety, 721 P.2d 131, 133 (Alaska 1986); Berlinghieri v. Dep’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), rev’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 

                 person’s     exercise    of  the   privilege    of  operating     a  motor 

                 vehicle in the state.[23] 

                 The State has an important interest in protecting the public from uninsured 

motorists. Titus does not dispute the State’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   driver’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 


                 As   indicated   in   the   legislature’s   declaration   of   purpose,   the   proof-of­ 

insurance   statutes   are   designed   to   discover   and   deter   uninsured   driving   and   require 

“proof of financial ability to respond for damages in future accidents.”25                    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 driver’s license if the vehicle is uninsured. 

        23       AS 28.20.010. 

        24       See, e.g., State, Dep’t of Public Safety, Div. of Motor Vehicles v. Fernandes, 

946 P.2d 1259, 1259 (Alaska 1997) (affirming suspension where driver “did not have 

automobile       liability  insurance     when    he   caused    substantial    property    damage     while 

operating his vehicle”). 

        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 officer’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 accident’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 Constitution’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. 

                                                  -12­                                              6773 

----------------------- Page 13-----------------------

Constitution’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 driver’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 driver’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. 

                 Titus’s argument is based on our procedural due process analysis in State 

v. Niedermeyer .30      There, a minor’s driver’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 driver’s license can be either a 

        29       Alaska Const. art. I, § 7 (“No 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.”). 

        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 minor’s consumption or possession of alcohol and 

the minor’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 person’s fitness to drive.  The purpose of the proof-of-insurance 

statutes is to   ensure   that drivers are financially responsible and can “show proof of 

financial ability to respond for damages in future accidents.”36                Suspending a driver’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 suspension’s remedial nature.37 

        33      Id. at 269. 

        34      Id. (citing Baker v. City of Fairbanks , 471 P.2d 386, 402 n.28 (Alaska 


        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, 755­ 

58   (Alaska     App.    1995));   Baker ,   471    P.2d   at  402   &   n.28   (noting    administrative 

revocation or suspension of license where “basis . . . is not that one has committed a 

criminal   offense,   but   that   the   individual   is   not   fit   to   be   licensed,”   are   not   criminal 


                                                   -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 


                 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 driver’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 


                 We     apply    the  Mathews        v.  Eldridge39     framework       to  determine      if  a 

government action satisfies due process.40             “We 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 

government’s   interest,   including   fiscal   and   administrative   burdens,   in   implementing 

additional safeguards.”41        As to the first factor, Titus has an important property interest 

in   his   driver’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 Titus’s additional equal protection argument. 

         39	     424 U.S. 319, 339-49 (1976). 

         40      Alvarez v. State, Dep’t of Admin., Div. of Motor Vehicles , 249 P.3d 286, 

292   (Alaska   2011)   (citing     Whitesides   v.   State,   Dep’t   of   Pub.   Safety,   Div.   of   Motor 

Vehicles, 20 P.3d 1130, 1134-35 (Alaska 2001)). 

         41	     Id. 

         42	     Id. 

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noncompliance does not increase the risk of an erroneous deprivation.                    As to the third 

factor, a right to remedy noncompliance under Titus’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   driver’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 “show proof of financial ability to respond for damages 

in future accidents ”) (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 driver’s property, driver provides proof 

of insurance within 15 days of the accident, and driver establishes that failure to carry 

insurance was beyond the driver’s control). 

        45       995 P.2d 245, 263 (Alaska 2000). 

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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 “inadvertent noncompliance was capable of being 

remedied [and] would have [been] remedied had Titus been given the option to do so.” 

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-of­ 

insurance   statutes.    We   explained   in Balough  that       noncompliance   with   the   fencing 

ordinance “does not automatically lead to the conclusion that [the landowner’s] junkyard 

was unlawful and hence not entitled to [grandfather rights]”; 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. 

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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 — neither of which are at issue in Titus’s due process claim — 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 DMV’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 “the 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, Dep’t of Health & Soc. Servs., 57 

P.3d   676,   678   (Alaska   2002)   (“We   apply   the   substitution   of   judgment   test   to   legal 

questions where no agency expertise is involved . . . .”); Mukluk Freight Lines, Inc. v. 

Nabors Alaska Drilling, Inc. , 516 P.2d 408, 412 (Alaska 1973) (“Courts are the experts 

in such areas as . . . common law, . . . judgemade   law   developed through statutory 

interpretation, . . . and problems transcending the agency’s field . . . .” (quoting 4 K. 

DAVIS , ADMINISTRATIVE LAW  TREATISE § 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). 

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or so far afield from the harm imagined by the legislature that the defendant should not 

be held criminally culpable.”55 

                DMV’s hearing officer considered whether Titus’s violation was in fact de 

minimis.   The hearing officer concluded that Titus’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 “refused to consider the [de 

minimis] doctrine as a defense.”          He asserts that in order to analyze the  de minimis 

defense,   the   hearing   officer   was   required   to   look   at   evidence   of   Titus’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 “in the absence of a 

statute directing a contrary rule.”57        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 driver’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 (“In determining whether to apply the doctrine courts have 

looked to such factors as the defendant’s experience and character . . . .”). 

        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) (“[I]n the absence of a governing statute or constitutional provision, the 

judiciary retains the power to declare the common law . . . .”). 

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insurance      was   beyond     the   driver’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.	      Titus’s     Constitutional       Claims     May     Impact      The    Attorney’s      Fees 


                 Pursuant to Alaska Rules of Appellate Procedure 508(e)59 and 601(c),60 

DMV moved for $5,922 in attorney’s fees, 30% of the fees it asserted it incurred in the 

superior   court   proceedings.       Titus   opposed,   arguing   that   DMV’s   attorney   billed   an 

excessive number of hours and that Titus’s constitutional challenges precluded an award 

of   attorney’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 “Attorney’s fees may be allowed in an 

amount to be determined by the court.” 

        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 Titus’s arguments. 

                Titus   reiterates   his   argument   that   DMV’s   attorney   billed   an   excessive 

number of hours — 98.7 hours compared to Titus’s counsel’s 51.9 hours — and that 

entering attorney’s fees based on those hours is an abuse of discretion.                The amount of 

attorney’s fees to award under Rule 508(e) is “a matter committed to the sound discretion 

of [the] trial courts, when sitting as intermediate appellate tribunals.”62              We will not 

overturn an award unless it is “manifestly unreasonable.”63            Titus argues that reasonable 

hours for DMV’s defense would be between approximately 25 and 40 hours; that is, 

between the hours spent on Titus’s opening brief and the time spent on both his opening 

and reply briefs.     Aside from comparing the attorneys’ reported hours, Titus raises no 

particularized challenges to DMV’s billing statement or DMV’s attorney’s affidavit.  In 

awarding fees based on DMV’s reported hours, the superior court could properly have 

looked to the billing statement and the assertion in DMV’s attorney’s affidavit that the 

hours were “actually and necessarily expended in the development of [DMV’s] defense.” 

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 attorney’s fees is not committed to the superior court’s 

discretion, but is a question of law reviewed de novo.64   DMV did not attempt to rebut 

Titus’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 attorney’s fees.               DMV avoids the issue in its 

briefing to us. 

                Alaska Statute 09.60.010(c) precludes an adverse attorney’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 attorney’s fee award under AS 09.60.010(e).   Titus asserted that the proof­ 

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   Titus’s   AS      09.60.010 


                We therefore vacate the attorney’s fee award and remand to the superior 

court for renewed consideration of the issue, taking into account Titus’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, Dep’t of Health & Soc. Servs.,Office 

of Children Servs., 279 P.3d 613, 619 (Alaska 2012) (vacating attorney’s fee award on 

unsuccessful constitutional claims). 

        66      Cf. Lentine v. State, 282 P.3d 369, 381 (Alaska 2012) (affirming attorney’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, “oral argument will be scheduled   automatically if 

timely requested by either party”). 

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----------------------- 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 “devise necessary 

remedial   steps   in   each   case   under   [our]   supervisory   power   to   protect   the   rights   of 



                For the foregoing reasons we AFFIRM the administrative suspension of 

Titus’s driver’s license, VACATE the award of attorney’s fees, and REMAND for a new 

attorney’s fees determination. 

        68      See Alaska R. Civ. P. 61 (“The 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.”). 

        69      McCracken v. Davis , 560 P.2d 771, 774 (Alaska 1977) (citations omitted). 

                                                  -23-                                              6773 

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