Appeal from the District Court of Hettinger County, Southwest Judicial District, the Honorable Zane Anderson, Judge.
The opinion of the court was delivered by: Kapsner, Justice.
Baesler v. N.D. Department of Transportation, 2012 ND 39
This opinion is subject to petition for rehearing. [Go to Documents]
[Download as WordPerfect]
Opinion of the Court by Kapsner, Justice.
[¶1] Wade Baesler appeals from a district court judgment affirming a Department of Transportation order suspending his driving privileges for 180 days. Because the Department failed to transmit a record compiled in the administrative proceedings, there is no evidence to support the Department's exercise of jurisdiction to suspend Baesler's license. We reverse.
[¶2] According to the Department's hearing officer's decision, on December 24, 2010, the Hettinger County Sheriff's Office issued Baesler a temporary operator's permit based on an alcohol-related traffic offense that occurred in Hettinger County. On January 3, 2011, Baesler requested an administrative hearing on the suspension or revocation of his driving privileges. On January 7, 2011, the hearing officer scheduled the hearing for January 24, 2011. The record indicates Baesler's counsel had requested a different date in emailed correspondence. On the date set for the hearing, neither Baesler nor his attorney attended. The hearing officer issued a decision suspending Baesler's driving privileges for 180 days. The hearing officer found that "[n]either the Petitioner nor his counsel attended the hearing nor contacted the hearing officer about their non-attendance," and concluded "[t]here [was] an adequate basis in the record to warrant suspension of [Baesler's] driving privileges."
[¶3] Baesler appealed the Department's decision to the district court, but the Department failed to transmit the record of the administrative proceedings to the court. Baesler requested the court grant him leave to supplement the record with the correspondence exchanged between the hearing officer and his counsel relating to the scheduling of the administrative hearing. The court granted Baesler's request to supplement the record and affirmed the hearing officer's decision.
[¶4] This Court's review of an administrative agency decision to suspend a person's driving privileges is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Berger v. North Dakota Dep't of Transp., 2011 ND 55, ¶ 5, 795 N.W.2d 707. On Appeal from the district court, this Court reviews the agency's decision. Berger, at ¶ 5; Masset v. Director, North Dakota Dep't of Transp., 2010 ND 211, ¶ 6, 790 N.W.2d 481. "Courts exercise limited review in appeals from administrative agency decisions, and the agency's decision is accorded great deference." Berger, at ¶ 5. We review an administrative agency decision under N.D.C.C. § 28-32-49 in the same manner as the district court under N.D.C.C. § 28-32-46. Berger, at ¶ 5. We must affirm the decision of the agency unless:
1. The order is not in accordance with the law. 2. The order is in violation of the constitutional rights of the appellant. 3. The provisions of this chapter have not been complied with in the proceedings before the agency. 4. The rules or procedure of the agency have not afforded the appellant a fair hearing. 5. The findings of fact made by the agency are not supported by a preponderance of the evidence. 6. The conclusions of law and order of the agency are not supported by its findings of fact. 7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant. 8. The conclusions of law and order of the agency do ...