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Bollerud v. Alaska Dep't. of Public Safety. (1/10/97), 929 P 2d 1283
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Notice: This opinion is subject to formal 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) 264-0607, fax (907)
264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES R. BOLLERUD, )
) Supreme Court No. S-6950
Appellant, )
) Superior Court No.
v. ) 3AN-93-10583 CIV
)
STATE OF ALASKA, DEPARTMENT )
OF PUBLIC SAFETY, ) O P I N I O N
)
Appellee. ) [No. 4460 - January 10, 1997]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
John Reese, Judge.
Appearances: A. Lee Petersen, Law Offices of
A. Lee Petersen, P.C., Anchorage, for
Appellant. Dianne Olsen, Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
COMPTON, Chief Justice.
I. INTRODUCTION
James R. Bollerud appeals the suspension of his driver's
license. He argues that the Department of Public Safety hearing
officer lacked substantial evidence to find that damages to the
truck with which he allegedly collided exceeded $500, and that he
was the driver of the truck which caused the accident. He also
alleges he was denied due process of law. We affirm the judgment
of the superior court, which upheld the suspension order.
II. FACTS AND PROCEEDINGS
Thomas Boylan's truck was damaged in an accident with
another truck. The driver of the other truck would not show Boylan
his driver's license, but did say that his name was Jim Bollerud.
(EN 1) Boylan wrote down the name and the license number of the truck.
Motor vehicle records verified that Bollerud owned a truck with the
license number Boylan had written down.
Boylan filled out a motor vehicle accident report and
filed it with the Department of Public Safety (DOPS), along with a
letter from State Farm Insurance Company (State Farm) indicating
that his truck sustained damages in excess of $1,400 and that
Bollerud was uninsured. DOPS then sent Bollerud a notice of
suspension of his driver's license, basing the suspension on safety
responsibility (EN 2 ) and mandatory insurance laws. (EN 3)
Bollerud requested a hearing to contest this suspension of his
driver's license.
The DOPS hearing officer upheld the suspension. Pursuant
to Appellate Rule 601(b), Bollerud appealed to the superior court,
which upheld the decision of the hearing officer. Bollerud appeals
the decision of the superior court.
III. DISCUSSION
Bollerud challenges two findings by the DOPS hearing
officer. First, he challenges the jurisdiction of DOPS over his
case, claiming there was not substantial evidence supporting the
hearing officer's determination of damage. Second, he claims there
was not substantial evidence supporting the finding that he and his
truck were involved in the accident. Bollerud also alleges two
violations of his right to due process of law.
A. Erroneous Factual Findings
Bollerud first contends that DOPS lacked jurisdiction
over the case because "[t]here was no evidence in this case to
support a finding that there was damage to property exceeding
$500." The hearing officer found that the damage to Boylan's truck
exceeded $500. We review the findings of an administrative agency
to determine whether they are supported by substantial evidence.
Handley v. State, Dep't of Revenue, 838 P.2d 1231, 1233 (Alaska
1992). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Miller v. ITT Arctic Servs., 577 P.2d 1044, 1046 (Alaska 1978)
(internal citation omitted).
The hearing officer had before her Boylan's accident
report and State Farm's subrogation form, both of which indicated
damages of $1,408. Also, Boylan testified as to the nature and
amount of the damage to his truck, as well as the repair work that
was done to it. This evidence is relevant evidence a reasonable
mind might accept as adequate to support the hearing officer's
conclusion that Boylan's truck suffered damages in excess of $500.
Bollerud also argues that there was not substantial
evidence to support the hearing officer's finding that he and his
truck were involved in the accident. He claims that Boylan's
description of the driver and the truck involved were vague and
imprecise, and that "[t]he only positive testimony by Boylan was a
name and a license plate number."(EN 4)
Boylan testified that the driver had given him the name
"Bollerud,"and that he wrote down both that name and the truck's
license number. The hearing officer found Boylan the most credible
of the witnesses before her. She did not find it unusual that
Boylan might be unable to specify the tonnage of the truck that hit
him. She noted that Bollerud himself had chosen to be absent from
the hearing, thereby leaving open the question of whether Boylan
would have been able to identify him.
In applying the substantial evidence test, the reviewing
court may not reweigh the evidence or choose between competing
inferences reasonably drawn from the evidence. Wilson v. Erickson,
477 P.2d 998, 999 (Alaska 1970). The hearing officer weighed the
credibility of the testimony and concluded that "Mr. Bollerud was
more likely than not the driver of the vehicle." Her conclusion
that Bollerud was the other driver in the accident was supported by
relevant evidence a reasonable mind might accept as adequate.
B. Due Process Claims
Bollerud contends that he was denied a meaningful hearing
in violation of the Due Process Clause of the Alaska Constitution.
(EN 5) A driver's license "constitutes an important property interest
which is protected under the state due process clause." Thorne v.
Department of Pub. Safety, 774 P.2d 1326, 1329 (Alaska 1989)
(internal citation omitted).
Bollerud claims that the hearing he received was
defective because (1) he was denied the opportunity to meaningfully
confront and cross-examine witnesses, and (2) he was denied an
impartial hearing officer. "Issues of constitutional
interpretation are questions of law which this court reviews de
novo." Revelle v. Marston, 898 P.2d 917, 925 n.13 (Alaska 1995).
With regard to Bollerud's first claim, he asserts he was
denied due process of law because (1) he was denied the opportunity
to confront the estimator from State Farm, and (2) he was denied
the right to cross-examine Boylan effectively, completely, and
meaningfully on the amount of actual damage.
Bollerud's claim he was denied the opportunity to
confront the State Farm estimator fails. At the hearing, he could
have called the estimator, or any other expert, to rebut the damage
claim. He simply failed to avail himself of this opportunity.
Bollerud also asserts he was not allowed to confront
Boylan on the issue of damage. In defending against the loss of
his driver's license, a driver should be able to present evidence
regarding the amount of damage, since this evidence is relevant to
establishing DOPS authority to suspend his license.
While the hearing officer improperly limited Bollerud's
cross-examination of Boylan on the issue of whether Boylan's damage
exceeded $500, Bollerud was able to ask some questions regarding
damage, including the type of damage the truck sustained, where it
was repaired, and the cost of the repairs. We conclude that the
error by the hearing officer is harmless error in the evidentiary
context of this case. Bollerud never contested the amount actually
paid for work on the truck, never contested the estimate contained
in the subrogation claim, and made no offer of proof that the
damage was less than $500. He had the opportunity to confront
Boylan, but chose not to raise certain issues relating to the
amount of damages. Bollerud's counsel stated to the hearing
officer that he was "through with the area"when the hearing
officer moved the proceedings on to the next issue.
Bollerud's due process claim that the hearing officer
acted "as both prosecutor and judge"also fails. A hearing officer
"must be impartial." AS 28.05.141(a). However, it is appropriate
for a hearing officer to question witnesses, especially since the
state itself is not represented by counsel at revocation hearings.
Borrego v. State, Dep't of Pub. Safety, 815 P.2d 360, 365 (Alaska
1991). "The hearing officer question[s] the witnesses in an
attempt to get the full story . . . in an effort both to fill in
the gaps of the story and to measure the credibility of the
witnesses." Thorne, 774 P.2d at 1333. Our review of the hearing
transcript leads us to the same conclusion we reached in Borrego:
"A fair reading of the hearing transcript suggests that the hearing
officer was simply concerned with getting at the facts." Borrego,
815 P.2d at 365. We perceive no bias.
IV. CONCLUSION
The judgment of the superior court is AFFIRMED.
ENDNOTES:
1. AS 28.35.060(a) provides:
The operator of a vehicle involved in an
accident resulting in . . . damage to a
vehicle that is driven or attended by a person
shall give the operator's name, address, and
vehicle license number to the person . . .
collided with . . .
2. Chapter 20 has been referred to as the financial
responsibility law by both the superior court and DOPS. The
correct short title, found in AS 28.20.640, is the Motor Vehicle
Safety Responsibility Act. Thus we refer to Chapter 20's
provisions as safety responsibility laws.
AS 28.20.050(d) provides:
Within 30 days after receipt of report of an
accident and upon determining the amount of
security to be required of any person involved
in the accident or to be required of the owner
of any vehicle involved in the accident, the
department shall give to every person written
notice of the amount of security required to
be deposited by the person and stating that an
order of suspension will be made upon the
expiration of 10 days after the notice is sent
unless within that time security is deposited
as required. A license may not be suspended
unless the licensee is afforded a hearing by
the department at which it is determined that
there is a reasonable possibility of a
judgment being rendered holding the licensee
liable.
AS 28.20.090(a) provides:
If a person required to deposit security under
this chapter fails to deposit security within
10 days after the department sends notice, the
department shall suspend (1) the license of
each driver involved in the accident. . . .
AS 28.20.260(a) provides:
Upon receipt by the department of the report
of an accident resulting in . . . property
damage to any one person exceeding $500, the
department shall suspend the license of the
driver of a motor vehicle involved in the
accident . . .
3. The mandatory insurance laws are found in Chapter 22.
AS 28.22.011(a) provides:
The operator or owner of a motor vehicle
subject to registration under AS 28.10.011
when driven on a highway, vehicular way or
area, or on other public property in the
state, shall be insured under a motor vehicle
liability policy that complies with this
chapter . . .
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
. . . shall show proof of this insurance when
that person is involved in an accident that
results in . . . damage to the property of a
person exceeding $500.
AS 28.22.041 provides:
. . . if a person fails to provide proof [of
insurance] required . . . the department shall
suspend the driver's license of that
person. . .
4. Bollerud's own description of himself when he was
telephonically questioned was vague and imprecise:
Q What's your hair coloring, sir?
A Red.
Q Your hair coloring is red? Have you dyed
it, sir?
A No, I -- I have brown hair -- brown hair
-- brown and a red beard. My hair turns
red in the springtime.
Q So your hair is . . .
A Currently red. I had a light color
blonde and --and -- and it changes color
in the springtime.
Q Is it blonde, is it brown, or is it red,
sir? What color's your hair?
A Currently red.
Q Currently red.
A It's -- it's not a full shade of red.
Q In the winter, is it brown?
A . . . red. Beg your pardon?
Q Normally in the winter, is it brown
coloring?
A In -- in -- later in the winter, it gets
browner, yeah.
Q Okay. So in March, it's usually brown?
A No. By then it's turned. It's lighter.
Q In March?
A End of March, yeah, in that vicinity. A
light-colored hair, it's not a dark brown
at all.
Q It's not red-red, though?
A No.
Q Okay.
A And I got a -- a bright red beard.
5. The Due Process Clause of the Alaska Constitution, art. I.,
sec. 7, provides:
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.
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