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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Patrick v. Municipality of Anchorage, Anchorage Transportation Commission (7/19/2013) sp-6798

Patrick v. Municipality of Anchorage, Anchorage Transportation Commission (7/19/2013) sp-6798

        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  


MEGAN PATRICK,                                 ) 

                                               )       Supreme Court No. S-14360 

                        Appellant,             ) 

                                               )       Superior Court No. 3AN-10-05483 CI 

        v.                                     ) 

                                               )       O P I N I O N 


ANCHORAGE TRANSPORTATION   )                           No. 6798 - July 19, 2013 

COMMISSION,                                    ) 


                        Appellee.              )


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

                Judicial District, Anchorage, Fred Torrisi, Judge. 

                Appearances:      Charles W. Coe, Law Office of Charles W. 

                Coe, Anchorage, for Appellant.          Dean T. Gates, Assistant 

                Municipal     Attorney,    and   Dennis    A.  Wheeler,    Municipal 

                Attorney, Anchorage, for Appellee. 

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

                Stowers, Justices. 

                CARPENETI, Chief Justice. 


                 A taxi driver was cited for driving with a suspended chauffeur's license. 

She asserted that she was not driving the cab on the night in question.  Because she had 

several other violations her license was revoked under the relevant municipal code.  The 

taxi driver filed a timely appeal to contest the revocation of her license.  An evidentiary 

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

hearing     was   held  and   the  hearing    officer   forwarded    a  proposed     decision   to the 

transportation commission, recommending that the license revocation should be upheld. 

The transportation commission adopted the hearing officer's proposed decision. The taxi 

driver appealed to the superior court, arguing that the revocation was in error and that 

her due process rights were violated. The superior court affirmed the Commission.  The 

taxi driver reiterates these arguments on appeal before us.   Because the taxi driver's due 

process rights were not violated and there is sufficient evidence to revoke her license, we 



        A.      Facts 

                Megan Patrick held chauffeur's license number 7880. On May 5, 2009, the 

Anchorage Transportation Commission suspended her license because she failed to pay 

fines arising from two prior traffic violations.  Patrick asserted that she failed to pay the 

fines or otherwise appeal them because the transportation inspector advised her that no 

action would be taken against her license.   Patrick sought to file an appeal regarding the 

previous violations but it was rejected as untimely.           She then appealed to the superior 

court,   in Patrick   v.   Municipality   of   Anchorage ,1   arguing   that   she   should   have   been 

allowed an opportunity   to   show good cause for her late appeal.               The superior court 

agreed.   During the pendency of the appeal, Patrick did not seek to stay the suspension 

or revocation.  Her chauffeur's license was later revoked in part due to these violations. 

                The present case arises from the revocation of Patrick's license following 

an incident on May 22, 2009.  The actual events are vigorously disputed by the parties. 

It is agreed that Patrick was cited for driving with a suspended license because she was 

operating a taxicab without a current, valid chauffeur's license.             The ticket was issued 

        1       No. 3AN-09-08829 CI (Alaska Super., Dec. 15, 2010). 

                                                  -2-                                               6798 

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after a fellow taxi driver, who knew Patrick's license was suspended, saw her driving a 

taxi and called dispatch to report that she was driving cab 131 at the airport. The cab was 

signed in to the dispatch system under the name of Baltazar Arias, but he was not driving 

the cab.2  Patrick testified that her friend Claire Goldsmith was driving the cab that night. 

Patrick suggested that Goldsmith use Arias's sign-in since Arias wanted hours counted 

towards a new permit.  The dispatcher deauthorized the sign-in and called the owner of 

the   taxi,   Julio   Guerro.3  Guerro   then   called   Patrick   and   requested   that   she   park   the 


                 Patrick was issued a citation.        Because of the previous violations she was 

considered a "chronic violator"5 and her license was revoked on June 4, 2009.  Prior to 

the revocation, Patrick had several conversations with Brent Fraser, the transportation 

inspector,   in   which   she   claimed   she   had   not   been   operating   the   taxi   and   had   been 

        2        Each driver has a unique sign-in that allows the driver to receive dispatches; 

drivers must sign on at the   beginning of their shifts and sign off at the end.                     Claire 

Goldsmith, who claimed to be the person actually driving the cab that evening, testified 

that she used Baltazar's sign-in because her own sign-in was inactive. 

        3        Guerro owned cab 131.  He usually drove it during the day but leased it to 

other drivers during evening shifts. 

        4        Patrick does not dispute that Guerro called her and asked her to park the 

car, but she claims she forwarded the message to Goldsmith, who she claims was actually 

driving the car. 

        5        Anchorage Municipal Code (AMC) 11.10.110(A)(4) provides in relevant 


                 The    transportation     inspector    may    suspend     or  revoke    the 

                 chauffeur's   license   of   a   chronic   violator.   As   used   in   this 

                 section, "chronic violator" means a chauffeur for which four 

                 citations have been issued during a period of 12 consecutive 

                 months . . . . Citations which have been dismissed on appeal 

                 do not count towards the sum of the four citations. 

                                                    -3-                                               6798

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working a different job that evening. She produced no documentation indicating that she 

had    been   working     elsewhere.6      Her   license   was   revoked     and   she  requested    an 

administrative hearing to review the revocation. 

        B.      Anchorage Municipal Code Background 

                The administrative proceedings were governed by the Anchorage Municipal 

Code (AMC) provisions relating to the Anchorage Transportation Commission, which 

regulates vehicles for hire.7    The transportation inspector investigates and enforces these 

regulations.8    When a taxi driver is issued a citation, notice and appeal procedures are 

provided by the Commission:  Once a citation is issued, the driver has 15 days to file an 

appeal requesting a hearing in front of "the chairman of the commission or his or her 

designee" (a hearing officer).9       Pursuant to AMC 11.10.030(D), Patrick's appeal was 

held before a hearing officer, who accordingly had the power to 

                conduct hearings, to make rulings regarding the admission of 

                evidence and procedure, and to prepare a proposed decision, 

                with findings of facts and conclusions of law, which may be 

                adopted   by   the   designated   member   of   the   [Transportation 

                Commission] charged with making such decisions under this 

                section.   The   designated   member   of   the   commission   may 

                adopt   the   hearing   officer's   decision   or   decide   the   matter 

                himself or herself based upon the record. 

        6       Patrick testified that her supervisor and a friend called the transportation 

inspector   to   inform   him   that   she   had   been   at   work   that   evening,   but   he   would   not 

consider the calls. 

        7       AMC 11.10.030(A). 

        8       AMC 11.10.070, .090, .110. 

        9       AMC 11.10.100(E). 

                                                  -4-                                            6798

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Once the transportation commissioner adopts the hearing officer's decision or makes an 

independent decision, the driver may appeal to the superior court within 30 days.10 

                When   a   chauffeur's   license   has   been   revoked   for   a   reason   set   out   in 

AMC   11.10.110(A),11         a   similar   procedure   is   available   under   AMC   11.10.100(C).12 

However, in the case of a revocation, the commissioner not only may adopt the hearing 

officer's   decision   or   independently   decide   the   issue   under   AMC   11.10.030(D),   but 

pursuant to AMC 11.10.100(C) also may 

                authorize      the  conditional     or   unconditional     issuance     or 

                reinstatement   of   a   denied,   suspended,   or   revoked   license 

                upon an affirmative showing at a hearing by the appellant that 

                he or she has been rehabilitated and has the ability to assume 

                the responsibilities of a chauffeur, or that the transportation 

                inspector   exceeded   his   or   her   authority,   or   that   continued 

                suspension of or refusal to issue or reinstate the license would 

                otherwise work a substantial injustice. 

The decision may then be appealed to the superior court.13 

        C.       Proceedings 

                After she received the citation, Patrick had numerous conversations with 

the transportation inspector, who ultimately revoked her license. She then requested and 

        10      AMC 11.10.100(D). 

        11      AMC       11.10.110(A)       contains    several    justifications    for   revoking     a 

chauffeur's license, including, as relevant here, being a "chronic violator." 

        12      AMC 11.10.100(C) provides: 

                A person aggrieved by the denial, suspension, or revocation 

                of a chauffeur's license . . . may, within 15 days of the denial, 

                suspension, or revocation decision . . . appeal that decision to 

                the chairman of the commission or his or her designee. 

        13      AMC 11.10.100(D). 

                                                   -5-                                             6798

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was given an administrative hearing. At that hearing, both Patrick and the transportation 

inspector presented evidence regarding the events of May 22. Following the hearing the 

hearing officer submitted a proposed decision, which concluded that Patrick was driving 

the    taxi  that  evening    and    recommended       affirming    her   license   revocation;    the 

commissioner adopted the decision.   Patrick appealed to the superior court and asserted 

that the procedures followed in her case violated her due process rights.  Superior Court 

Judge Fred Torrisi affirmed the Commission's decision; he concluded that, on the facts 

presented, no due process violation had occurred. 

                Patrick appeals, arguing that the Commission's decision must be overturned 

because there was insufficient evidence to prove that she was driving the taxi on the 

night of May 22.  She also argues that the municipal license revocation process violated 

her due process rights, notably by revoking her license without a hearing, and by failing 

to provide her notice and an opportunity to respond to the hearing officer's proposed 

decision   before   the   Commission   adopted   the   findings.     Finally,   she   argues   that   the 

Commission and the superior court erroneously considered her prior tickets that were 

still in the appeals process. 


                "When the superior court acts as an intermediate court of appeal in an 

administrative matter, we independently review and directly scrutinize the merits of the 

[administrative] decision."14      We apply a four-part standard, using "(1) the substantial 

evidence test for questions of fact; (2) the reasonable basis test for questions of law 

involving agency expertise; (3) the substitution of judgment test for questions of law 

        14       Kingik v. State, Dep't of Admin., Div. of Ret. & Benefits, 239 P.3d 1243, 

1247-48 (Alaska 2010) (alteration in original). 

                                                 -6-                                              6798 

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where no expertise is involved; and (4) the reasonable and not arbitrary test for review 

of administrative regulations."15 

                Because Patrick challenges the Commission's findings of fact, this case 

implicates the substantial evidence test.  Substantial evidence is "such relevant evidence 

as a reasonable mind might accept as adequate to support the . . .             conclusion."16  "We 

determine only whether such evidence exists and do not choose between competing 

inferences or evaluate the strength of the evidence."17         Whether there was a violation of 

due process is a question of law, which we review de novo.18 


        A.	     The   Superior   Court   Did   Not   Err   In   Affirming   The   Commission's 

                Finding That Patrick Was Driving The Taxi On The Night Of May 22. 

                Patrick argues that the Commission's decision that she was driving the taxi 

must be overturned because it is not supported by sufficient evidence.               She argues that 

the   hearing   officer,   and   by   extension   the   Commission,   did   not   properly   value   the 

evidence she presented, that the superior court relied too heavily on the hearing officer's 

        15	     Griswold v. City of Homer, 252 P.3d 1020, 1025 (Alaska 2011). 

        16      Lopez v. Adm'r, Pub. Emps. Ret. Sys. , 20 P.3d 568, 570 (Alaska 2001) 

(quoting Hester v. State, Pub. Emps. Ret. Bd. , 817 P.2d 472, 476 (Alaska 1991)). 

        17      Id. 

        18      D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207 (Alaska 


                                                  -7-	                                           6798

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

credibility determination,19 and that the superior court failed to analyze why her evidence 

was rejected but the transportation inspector's evidence was accepted as true. 

                We conclude that the superior court properly affirmed the Commission's 

decision. In this case, the factual findings rely heavily on the credibility of the witnesses, 

which is properly determined by the hearing officer.20            We have held that "it is not our 

task    on   review    to   reweigh    [credibility    decisions]."21     Rather,     we   review    the 

Commission's factual determination to ensure that it is based upon substantial evidence, 

that   is,  "evidence    that  a  reasonable    mind    might   accept   as  adequate    to  support    a 


                The conclusion that Patrick was driving the cab is supported by substantial 

evidence.     The     fact  that  there  was   conflicting    testimony    does   not   mean    that  the 

transportation inspector failed to prove that Patrick was driving the taxi that evening.  It 

means     the  hearing    officer   needed    to  weigh    the  evidence    and   make    a  credibility 

assessment   of   the   witnesses.    He   did   so. Although   not   required   to   make   extensive 

findings of fact regarding conflicting witness testimony,23 the hearing officer articulated 

        19      Patrick suggests that when the superior court considered the credibility of 

the witnesses it made a credibility determination.            The context in which the superior 

court discussed the credibility of the witnesses was when Patrick raised the issue of the 

inconsistency of the witness statements and the superior court remarked that Patrick's 

witnesses' credibility was undermined by their actions. 

        20      West v. Municipality of Anchorage, 174 P.3d 224, 230 (Alaska 2007). 

        21      Id. (quoting    Whaley v. Alaska Workers' Comp. Bd., 648 P.2d 955, 958 

(Alaska 1982)). 

        22      Id. (quoting  Whaley, 648 P.2d at 958). 

        23      Whaley, 648 P.2d at 958 (explaining that there is less need for extensive 

findings   of   fact   regarding   witness   credibility   because   credibility   decisions   are   not 


                                                  -8-                                             6798

----------------------- Page 9-----------------------

his reasons for crediting the transportation inspector's witnesses over Patrick's.  These 

reasons   are   borne   out   in   the   record   and   there   is   more   than   enough   evidence   for   a 

reasonable mind to find that Patrick was driving the taxi. 

                The transportation inspector presented several drivers who stated that they 

saw Patrick driving cab 131 on May 22.              Felix Saavadra, the driver who reported the 

incident to dispatch, testified that he saw Patrick in line at the airport pick-up area,where 

passengers were getting into the cab, and   in   another part of town with the light off, 

indicating she was carrying passengers. Mexhit Limani also testified that he saw Patrick 

at the airport, they chatted, and she complained about dispatch and told him she was 

driving cab 131. Finally, Guerro, the taxicab owner, testified that, after he received a call 

from dispatch regarding Patrick driving the cab with a suspended license, he called her 

and she sounded alarmed and did not deny driving the cab.  This evidence supports the 

finding that Patrick was driving the cab. 

                On the other hand, Patrick's evidence consisted of the testimony of (1) a 

very   close   friend,   (2)   her   brother,   and   (3)   a   cab   driver   who   admitted   he   had   not 

remembered the date without prompting from a lawyer, as well as Patrick's statement 

that she had worked another job that night.  The testimony supported Patrick's position 

that   she   was   not   driving    the  taxi.   However,       Patrick   failed  to   present   credible 

documentation that she worked for another employer, failed to deny driving the cab 

when Guerro called, and alleged that she told Goldsmith to sign into the cab under 

another driver's name unlawfully. The transportation inspector's evidence came from 

presumably unbiased sources, including two drivers who were friendly with Patrick, and 

        23      (...continued) 

reweighed on appeal). 

                                                   -9-                                                6798 

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Patrick presented no evidence that the drivers had any reason to lie or were mistaken in 

their testimony. 

                 We conclude that substantial evidence supports the finding that Patrick was 

driving the taxi. Accordingly, the superior court did not err in affirming the Commission 

on this issue. 

        B.	      Due Process And Taxi License Revocation 

                 The Alaska Constitution provides that "[n]o person shall be deprived of life, 

liberty, or property, without due process of law,"24 and the United States Constitution 

provides   similar   protection.25      We   have   held   that   "[t]he   crux   of   due   process   is   [the] 

opportunity to be heard and the right to adequately represent one's interests."26                     There 

is   no   dispute   that   Patrick   was   entitled   to   due   process   in   regards   to   her   taxi   license 

revocation   hearings.       Thus,   we   focus   on   whether   the   procedure   afforded         her   was 

sufficient to meet due process dictates.             Patrick contends that several aspects of the 

Transportation Commission's procedure surrounding license revocation violated her due 

process rights. 

                 1.	     The superior court did not err in finding that there was no due 

                         process   violation   when   the   transportation   inspector   revoked 

                         Patrick's taxi license after she received the final citation. 

                 Patrick     argues    that  her   due   process     rights   were    violated    when    the 

transportation   inspector   revoked   her   license,   based   on   his   classification   of   her   as   a 

chronic   violator,   without   notice   or   a   pre-revocation   hearing.        The   Municipality   of 

        24       Alaska Const. art. I,  7. 

        25       U.S. Const. amend. XIV,  1. 

        26       D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 213-14 (Alaska 

2000)   (quoting  Matanuska   Maid,   Inc.   v.   State ,   620   P.2d   182,   192   (Alaska   1980)) 

(internal quotation marks omitted). 

                                                    -10-	                                              6798

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Anchorage   argues   that   the   existing   procedures   are   sufficient   to   "establish   a   reliable 

'initial check against mistaken decisions,' " which is all that is required to satisfy due 

process.    We agree with the Municipality. 

                 "Due process requires that any action involving deprivation of life, liberty 

or property by adjudication must be preceded by notice and opportunity for hearing 

appropriate to the nature of the case."27         Patrick argues that she did not have notice that 

her chauffeur's license would be revoked.              This is incorrect.    Patrick was cited on May 

22,   2009,   for   violating   the   terms   of   her   license   suspension   and   the   transportation 

inspector notified her that revocation of her license was being considered on May 26. 

Revocation did not occur until June 6, after several conversations between Patrick and 

the transportation inspector.  We thus conclude that Patrick received notice prior to the 

revocation of her license. 

                 Patrick next argues that she did not receive a pre-revocation hearing.  We 

interpret this as an argument that Patrick was entitled to a full evidentiary hearing  before 

her    license   could   be  revoked.     The     Municipality     contends     that   because   there   are 

significant public safety concerns with taxi drivers who do not adhere to regulations, due 

process does not require a formal, pre-revocation evidentiary hearing. 

                 Due process does not require any specific type of hearing.  The necessary 

opportunity to be heard depends on the nature of the case; it is "not fixed in form."28  We 

        27       Philip J. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 

264 P.3d 842, 846 (Alaska 2011) (quoting In re Estate of Fields , 219 P.3d 995, 1009 

(Alaska 2009)) (alteration omitted). 

        28       Boddie v. Connecticut , 401 U.S. 371, 378-79 (1971). 

                                                   -11-                                                 6798 

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

look to the test set forth by the United States Supreme Court in Mathews v. Eldridge29 

to determine the requirements of due process: 

                 [The] identification of the   specific dictates of due process 

                 generally     requires    consideration     of   three   distinct   factors: 

                 First, the private interest that will be affected by the official 

                 action; second, the risk of an erroneous deprivation of such 

                 interest through the procedures used, and the probable value, 

                 if any, of additional or substitute procedural safeguards; and 

                 finally,   the   Government's   interest,   including   the   function 

                 involved and the fiscal and administrative burdens that the 

                 additional      or   substitute    procedural      requirement      would 


The   revocation   of   a   taxi   license   deprives   Patrick   of   her   means   of   support.   She   is 

therefore   entitled   to   some   form   of   hearing   appropriate   to   the   circumstances  before 

revocation,31      absent   an   emergency      situation    or  a  public    safety   concern    requiring 

summary  action.32        Although   the   government   has   a   high   interest   in   regulating   taxi 

         29      424 U.S. 319 (1976). 

         30      Id. at 335; see also D.M., 995 P.2d at 212 (relying on Mathews balancing 

test to determine requirements of due process). 

         31      Gottstein v. State, Dep't of Natural Res., 223 P.3d 609, 622 (Alaska 2010) 

("[D]ue process requires notice and an opportunity to be heard prior to governmental 

deprivation or infringement of valuable property rights . . . .") (citing Heitz v. State, 

Dep't of Health & Soc. Servs. , 215 P.3d 302, 305 (Alaska 2009)). 

        32       Graham v. State, 633 P.2d 211, 216 (Alaska 1981) ("We have consistently 

held that before the state may deprive a person of a protected property interest there must 

be a hearing, except in emergency situations, as where a debtor is about to transfer or 

conceal property in order to defraud creditors, or where 'the public health, safety, or 

welfare require summary action.' ") (citations omitted); see also Hoffman v. State, Dep't 

of   Commerce        &  Econ.    Dev.,    834   P.2d   1218,    1219    (Alaska     1992)    ("Even    when 

emergencies allow the State to seize property before a hearing, due process requires the 

State   to   provide   an   opportunity   for   a   post-seizure   hearing   at   a   meaningful   time   to 


                                                    -12-                                               6798

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

drivers, this does not appear to have been an emergency situation in which Patrick posed 

an immediate threat; thus, some level of review was necessary before her license was 


                 But we conclude that the procedures in place provided adequate review for 

the purposes of due process.          Lack of a full pre-revocation evidentiary hearing could 

theoretically cause an erroneous revocation of a chauffeur's license, but the "probable 

value"   of   providing   such   a   hearing   is   small.   The   transportation   inspector   does   not 

automatically revoke licenses - he is charged with investigating violations of the code.33 

Through this investigation, Patrick had an opportunity to respond to the evidence against 

her, albeit in an informal setting.         The transportation inspector's letter revoking her 

license stated that she "[had] previously been made aware of the allegation that [she] 

operated taxicab #131," after which she had several conversations with the transportation 

inspector prior to the revocation.        In those conversations he requested that she provide 

some evidence to support her contention that she was not driving the taxicab.                     Patrick 

failed to do so.  This informal contact with the affected driver and investigation into the 

citation shows the flexible and ongoing nature of the process and satisfies the dictates of 

due process.34    It provided Patrick a meaningful opportunity to contest the veracity of the 


        32       (...continued) 

minimize possible injury." (citing F/V Am. Eagle v. State , 620 P.2d 657, 666-67 (Alaska 


        33      AMC 11.10.070(C). 

        34      See Goldberg v. Kelly, 397 U.S. 254, 269 (1970) ("Informal procedures will 

suffice . . . ."). 

        35       In the public employment context, an employee is not entitled to a full scale 


                                                   -13-                                              6798

----------------------- Page 14-----------------------

                Finally, although Patrick contends that her receipt of the Commission's 

ruling seven months after revocation was not sufficiently prompt, she cites no authority 

for the proposition and, in light of the protections provided to her, we do not find seven 

months to be an unduly long time.            And the availability of a post-deprivation hearing 

further supports our conclusion that Patrick's due process rights were not violated.36                In 

sum,    we    conclude    that  Patrick's   due   process    rights  were    not  violated   when     the 

transportation inspector revoked her license after she received the final citation. 

                2.	     The superior court did not err in finding that there was no due 

                        process violation when the hearing officer submitted a report 

                        and it was accepted by the Commission. 

                Patrick next argues that the process by which the hearing officer submits 

a report and the Commission accepts or rejects the report is a violation of due process. 

Specifically, she argues that she is entitled to a copy of the hearing officer's report and 

the opportunity to respond to that report.         Additionally, she claims she was entitled to 

notice that the Commission was going to meet and decide her appeal so that she could 

present evidence to refute the hearing officer's recommendation.                 She claims that the 

process in place prevented her from challenging any erroneous findings in the hearing 

officer's   report   and   the   revocation   of   her   license   based   on   tickets   that   were   being 

        35      (...continued) 

evidentiary forum prior to termination but is entitled to "oral or written notice of the 

charges against him, an explanation . . . and an opportunity to present his side of the 

story."  Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); City of N. Pole 

v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997). 

        36      See Cleveland Bd. of Educ., 470 U.S. at 547-48 ("We conclude that all the 

process that is due is provided by a pretermination opportunity to respond, coupled with 

post-termination administrative procedures . . . ."); see also City of N. Pole, 934 P.2d at 

1298 ("A failure to provide sufficient pre-termination process may be corrected by a 

curative post-termination hearing in which due process is provided."). 

                                                  -14-	                                           6798

----------------------- Page 15-----------------------

appealed. The Municipality admits that there is no other hearing after the hearing officer 

submits a report to the Commission but argues that none is required.               It argues that the 

process does not violate due process and that Patrick mischaracterizes the Commission's 

role by asserting that it (1) makes the actual decision to revoke her license when in fact 

it is part of an appeals process beginning with the hearing officer; and (2) meets as a 

commission to review the hearing officer's recommended decision. 

                Patrick argues that there is a due process right to be heard again when the 

hearing   officer   submits   a   report   and   proposed   decision   to   the   Commission,   but   we 

disagree.     We     have    previously    held   that  where    "[a]ll  evidence    bearing    on   the 

Commission's ultimate decision was presented at the hearing, and the parties had an 

opportunity to rebut it . . . it cannot be said that the hearing violated due process."37            In 

several   other   contexts,   we   have   found   no   issue   with   a   commission's   adoption   of   a 

proposed order from a hearing officer.38           There is no reason Patrick should have an 

additional opportunity to reargue the evidence presented at the administrative hearing in 

front of the Commission or the designated member of the Commission. 

                However, we note that the ordinance does not require that the proposed 

decision be served on the parties.39     In Alaska Transportation Commission v. Gandia , we 

        37      Alaska Transp. Comm'n v. Gandia , 602 P.2d 402, 406 (Alaska 1979). 

        38      Kimble v. State, Dep't of Commerce & Econ. Dev., Bd. of Nursing , 928 P.2d 

1201 (Alaska 1996) (Board of Nursing adopted proposed decision of hearing officer); 

Grunert v. State, Commercial Fisheries Entry Comm'n, 735 P.2d 118 (Alaska 1987) 

(Commercial Fisheries Entry Commission affirmed decision of hearing officer); Storrs 

v. State Med. Bd., 664 P.2d 547 (Alaska 1983) (Board of Nursing adopted proposed 


        39      See AMC 11.10.030(D). 

                                                 -15-                                            6798

----------------------- Page 16-----------------------

left open the question of whether due process required notice of the proposed decision.40 

While in other circumstances this lack of service might be problematic, we again decline 

to answer this question because Patrick fails to show how the process prejudiced her. 

Due process requires that there be some actual prejudice,41 not merely the "theoretical 

possibility of prejudice."42      Patrick's arguments are theoretical.         She shows no factual 

error in the hearing officer's proposed decision that would render any decision by the 

commissioner erroneous, nor does she suggest that she would have done anything other 

than restate her arguments presented in the hearing.             Further, Patrick was not without 

recourse to attack the ultimate decision.         She can - as she did - appeal it.           Because 

Patrick failed to show actual prejudice, we decline to consider this issue further.43 

        C.	     The Superior Court Did Not Err In Affirming The Commission Where 

                Both   Entities   Failed   To   Consider   That   Patrick   Had   Appealed   The 

                Tickets Upon Which The Revocation Was Based. 

                Finally,   Patrick   argues   that   her   license   should   not   have   been   revoked 

because she was appealing the prior citations.  She claims that there was no method for 

her to request a stay of the revocation in the administrative proceedings and that the 

        40      Gandia, 602 P.2d at 406 n.5 (declining to consider whether notice of the 

proposed decision is required by procedural due process). 

        41      See Paula E. v. State, Dep't of Health & Soc. Servs., Office of Children's 

Servs., 276 P.3d 422, 433 (Alaska 2012) ("Although the due process analysis is a flexible 

and contextual one focusing on the interest and not the outcome, there must be some 

actual prejudice under the second prong and not merely the 'theoretical possibility of 

prejudice.' "). 

        42      D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212 (Alaska 


        43      It   may   be   a   better   practice   to   provide   parties   a   copy   of   the   proposed 

decision and allow for reconsideration based on factual or legal errors, but in this case, 

the failure to do so is not a violation of due process. 

                                                  -16-	                                           6798

----------------------- Page 17-----------------------

hearing officer's, Commission's, and superior court's failure to consider the impact of 

the prior tickets on her revocation hearing was a violation of due process. 

                If Patrick's earlier citations are dismissed, then a prerequisite to her license 

revocation no longer exists.       The Anchorage Municipal Code provides that tickets that 

are dismissed upon appeal do not count towards the chronic violator determination.44                   It 

does   not   address   tickets   that   are   pending   appeal.   The   Municipality   argues   that   this 

omission means that all other citations, including those pending appeal, count towards 

the chronic violator designation. 

                We conclude that the Municipality is correct.  Citations pending appeal are 

effective for the purposes of chronic violator designation, and thus they were properly 

considered by the Commission and the superior court in affirming the revocation.  We 

are   convinced     that  policy    considerations     cited  by   the  superior   court   support    this 

conclusion: "if the mere possibility that an offender might someday overturn a prior 

conviction operated to bar reliance upon it, then all of the many such statutory schemes 

now in place would be of no effect."45          The possibility of appeal rendering the citation 

ineffective would all but obliterate the chronic violator designation.               This is especially 

true in this case, where the citations were issued and the time for appeal had passed.46 

Accordingly, the late-filed appeal of the citations does not render the prior citations 


        44      AMC 11.10.110(A)(4). 

        45      For   example,   AS   28.15.181   lists   several   criminal   convictions   that   are 

grounds for "immediate revocation of a drivers license." 

        46      Patrick filed an untimely appeal on her other citations and the superior court 

found only that there must be some procedure through which she could argue that there 

was good cause for delay. 

                                                  -17-                                             6798

----------------------- Page 18-----------------------

                However, this is not to say Patrick had to stand idly by while she appealed 

her other tickets.     She could have sought a stay in the appeal of those tickets under 

Alaska Appellate Rules 603(a) and 205.  These rules provide the appropriate method to 

ensure that citations that are appealed, but not yet decided, do not count towards the 

chronic violator designation.  She does not dispute that she never requested a stay of the 

citations   in   her   appeal   of   those   citations.  Accordingly,   we   conclude   that   the   prior 

citations were properly considered. 


                Because there is substantial evidence supporting the finding that Patrick 

was driving the taxi on the night in question, because the process for appeal of a license 

revocation did not violate her right to due process, and because Patrick's due process 

rights   were   not   otherwise   violated,   we   AFFIRM   the   decision   of   the   superior   court 

affirming the Commission's decision in all respects. 

                                                 -18-                                            6798

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