Metropolitan News-Enterprise


Monday, March 5, 2018


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C.A. Reinstates Action to Declare DMV Hearings Unlawful

Says Taxpayer Suit May Be Maintained to Assail System Under Which Hearing Officer Acts Both as Advocate and Adjudicator


By a MetNews Staff Writer


The Court of Appeal for this district on Friday reinstated a taxpayers’ action against the California Department of Motor Vehicles and its director which alleges that the agency unlawfully conducts hearings on license revocations where the same person acts both as an advocate for revocation and as the adjudicator.

Los Angeles Superior Court Judge Rita J. Miller granted summary judgment to the defendants on the ground that the plaintiffs, California DUI Lawyers Association and attorney Stephen R. Mandell, lacked standing to sue. Disagreeing, Justice Audrey Collins of Div. Four wrote:

“Taxpayer standing under Code of Civil Procedure section 526a is appropriate under the circumstances of this case, in which a group of taxpayers has alleged that a government entity is engaging in ‘waste’ by implementing and maintaining a hearing system that violates drivers’ procedural due process rights. We therefore reverse the judgment and remand the case for further proceedings.”

Under the Vehicle Code, when a person is arrested for driving under the influence and is determined to have a blood alcohol content of .08 percent or more, he or she is given a notice that license suspension will take place in 30 days, unless a hearing is requested within 10 days of receiving that notice.

A hearing officer must determine, by a preponderance of the evidence, whether the arresting officer had reasonable cause to believe the person had been driving, whether the person was in fact arrested, and whether that person had a blood alcohol content of .08 or more.

Plaintiffs’ Contentions

The plaintiffs alleged that the system “requires the Hearing Officers to act both as advocate for the DMV and arbiter/decision maker, creating an obvious and inherent conflict of interest and bias favoring one party over the other” and that the hearings “violate the State and Federal Due Process rights...of license holders by failing to provide a fair, neutral and impartial Hearing Officer.”

Holding a driver’s license, the pleading averred, is a fundamental property right that cannot be denied in the absence of due process.

Also sets forth in the complaint that the “system unconstitutionally allows DMV managers, executives, and/or administrators ex parte communications with the Hearing Officers and direct control over the decision-making process.” It adds:

“These procedures and practices are unconstitutional on their face and as applied.”

Miller’s Ruling

In granting summary judgment in favor of the defendants, Miller declared the plaintiffs have no standing under §526a, which states, in part:

“An action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.”

Miller pointed out that Vehicle Code does not require that one person function both as advocate and adjudicator. She wrote:

 “Plaintiffs’ challenge is not to the legality of the statutes themselves, but rather, to the manner in which DMV implements the statutory scheme....[A] taxpayer does not have standing to challenge the manner in which a governmental body implements an otherwise valid statute.”

Miller added:

 “It is possible that the manner in which DMV is implementing the statute violates due process of law. But it is the manner in which DMV is implementing it, rather than the statute itself, that arguably violates the law. Taxpayers do not have standing to challenge the manner of implementation, which is what the plaintiffs are attempting to do here.”

Collins’s Opinion

The DMV and director Jean Shiomoto asserted on appeal that the plaintiff had shown neither “waste” nor “illegal expenditure.”

Collins responded that if the system the DMV uses “violates drivers’ due process rights,” as the plaintiffs allege, “it is illegal and a waste under section 526a.”

The defendants have acknowledged that the DMV “is a party” to the hearings, Collins noted, and that “the hearing is adversarial, and the hearing officer’s role involves both advocating on behalf of DMV and acting as factfinder.” The plaintiffs assert “that this violates the irreducible minimums of procedural due process, and is therefore illegal,” she recited,

The plaintiffs have “thus asserted a claim of waste that fits the parameters of section 526a,” the jurist declared, and have asserted illegality.

Won’t Decide Merits

The plaintiffs contended that if the court reverses the summary judgment in favor of the defendants, it should also reverse the denial of their summary judgment motion. Collins said:

“Without the benefit of decisions from the trial court regarding the merits of the motions or the parties’ objections, we decline to consider the parties’ motions for summary judgment on appeal in the first instance. We express no opinion on the issues that remain for determination.”

The case is California DUI Lawyers Assn. v. California Department of Motor Vehicles, B278092.

Robert S. Gerstein and Joshua C. Needle represented the plaintiffs and Deputy Attorneys General Jacqueline P. Hoang and Gary S. Balekjian acted for the defendants.


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