Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
Danny L. Herbel, Bismarck, N.D., for appellant and cross-appellee.
Douglas B. Anderson, Office of Attorney General, Bismarck, N.D., for appellee and cross-appellant.
Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.
Dale V. Sandstrom, Justice.
[¶1] Teresa Schlittenhart appeals and the Department of Transportation cross-appeals from a district court judgment that reversed a hearing officer's order suspending her driving privileges and remanding to the Department for a new hearing. We conclude the hearing officer did not abuse her discretion in scheduling a hearing for a date on which both the arresting officer and Schlittenhart could be personally present or in allowing Schlittenhart's attorney to appear telephonically at the hearing. We further conclude the hearing officer did not deny Schlittenhart due process by continuing with the hearing after Schlittenhart's attorney had disconnected from the telephone call during the hearing. We reverse the judgment and
reinstate the Department's order suspending Schlittenhart's driving privileges for 91 days.
[¶2] On September 29, 2013, a North Dakota highway patrol officer arrested Schlittenhart for driving a vehicle while under the influence of intoxicating liquor. After arrest she was given a chemical blood test. On October 15, 2013, after receiving the results of Schlittenhart's blood test, the officer mailed the report and notice form with the temporary operator's permit to Schlittenhart. The report and notice listed her chemical test result as .086 alcohol concentration by weight, which is over the legal limit. On October 23, 2013, Schlittenhart requested a hearing on the Department's proposed suspension of her driving privileges.
[¶3] On November 4, 2013, the hearing officer sent Schlittenhart a notice of administrative hearing for November 13. On November 6, 2013, the hearing officer sent Schlittenhart an amended notice of administrative hearing, rescheduling the hearing for November 14, having been informed the patrol officer would be out of the state for training on November 13 and unavailable to appear in person at the hearing. The hearing officer rescheduled the hearing for November 14, when both Schlittenhart and the patrol officer could be present in person. Because Schlittenhart's attorney said he would be out of town for a medical procedure on November 14, the hearing officer allowed Schlittenhart's attorney to either appear telephonically or associate with another attorney to appear at the hearing.
[¶4] On November 14, 2013, the hearing officer held the hearing on the proposed suspension of Schlittenhart's driving privileges for the alcohol-related traffic offense. Schlittenhart and the patrol officer appeared in person, and Schlittenhart's attorney initially appeared by telephone. The patrol officer testified at the hearing. Approximately forty-six minutes into the hearing, however, Schlittenhart's attorney disconnected from the call during his cross-examination of the patrol officer. The hearing officer called the attorney, unsuccessfully attempting to reestablish contact, and left a voice message for him. After receiving no response, the hearing officer proceeded with the hearing with Schlittenhart present, but without her attorney, leaving the record open until 5 p.m. that day. The hearing officer issued findings of fact, conclusions of law, and a decision suspending Schlittenhart's driving privileges for a period of 91 days.
[¶5] In November 2013, Schlittenhart appealed the Department's decision to the district court, arguing " irregularities and deficiencies" in the notice and conduct of the telephonic hearing denied her procedural and substantive due process. On June 18, 2014, the court reversed the Department's decision and remanded for a new hearing. The court held that while the hearing officer had properly rescheduled the hearing to a time when both Schlittenhart and the patrol officer could be personally present, the hearing officer denied Schlittenhart due process by continuing to conduct the hearing after Schlittenhart's attorney had disconnected.
[¶6] On July 21, 2014, Schlittenhart appealed from the district court's June 2014 order. On September 3, 2014, the court entered judgment consistent with the court's earlier June 2014 order, reversing the hearing officer's November 2013 decision and remanding to the Department. On September 9, 2014, the Department cross-appealed from the court's September 2014 judgment. On September 12, 2014, Schlittenhart also filed an amended
notice of appeal from the September 2014 judgment.
[¶7] We initially address whether Schlittenhart's appeal and the Department's cross-appeal are properly before us.
[¶8] The right to appeal is statutory and is a jurisdictional matter we may consider on our own motion. See Siewert v. N.D. Workers Comp. Bur., 554 N.W.2d 465, 466 n.1 (N.D. 1996). Section 28-32-49, N.D.C.C., governs administrative agency appeals to this Court and authorizes appeals only from judgments. See Rist v. N.D. Dep't of Transp., 2003 ND 113,
¶ 1 n.1, 665 N.W.2d 45; Sowatzki v. N.D. Workers Comp. Bur., 1997 ND 137,
¶¶ 10-11, 567 N.W.2d 189. " [A]n administrative agency appeal from an order is properly before this Court if the record contains a judgment consistent with the order." Rist, at
¶ 1 n.1 (citing Olson v. Job Serv. North Dakota, 379 N.W.2d 285, 287 (N.D. 1985)).
[¶9] Here Schlittenhart filed her initial notice of appeal from the district court's June 2014 order on July 21, 2014. On September 3, 2014, the district court entered a judgment consistent with its earlier order, and a notice of entry of judgment was served and filed on September 11, 2014. We therefore treat Schlittenhart's July 2014 appeal as being from the subsequent, consistent judgment and conclude her appeal is properly before us. Similarly, we conclude the Department's cross-appeal, filed on September 9, 2014, was also timely because it was filed within 14 days from Schlittenhart's perfected appeal from the September 3, 2014, judgment and even before entry of the notice of entry of judgment. See N.D.R.Civ.P. 4(a)(1) and (2). On the basis of this conclusion, we need not address whether the Department's appeal was actually the first appeal, with Schlittenhart's amended notice of appeal designated as a cross-appeal.
[¶10] We next address whether the district court's September 2014 judgment remanding the case to the Department for a new hearing is a final, appealable judgment. In
Siewert, 554 N.W.2d at 466 n.1, this Court held the district court's judgment remanding a case back to the administrative agency was appealable. We explained " the court did not expressly retain jurisdiction for the Bureau to receive and consider additional evidence under NDCC 28-32-18 [presently at N.D.C.C. § 28-32-45]."
Siewert, at 466 n.1. We therefore concluded the district court had nothing more to do in the case and its judgment was both final and appealable. Id.
[¶11] Likewise, in Municipal Servs. Corp. v. State, 483 N.W.2d 560, 561 (N.D. 1992), this Court concluded a district court judgment vacating an agency decision and remanding to the agency for further proceedings was appealable. As this Court stated, " [T]he district court decided the appeal, vacated the Department's decision, and remanded the matter to the Department to affirm, reverse, amend or modify its decision." Id. " The district court had nothing more to do in the case. . . . To adopt MSC's argument [that the order was not appealable] would render many district court decisions on legal questions 'effectively unreviewable.'" Id.
[¶12] Here the district court's September 2014 judgment reversed the hearing officer's November 2013 decision and remanded to the Department for a new hearing. In its judgment, the district court did not specifically retain jurisdiction for further proceedings or remand the matter to the Department for receiving and considering additional evidence under N.D.C.C. § 28-32-45. See also N.D.C.C. § 39-20-06 (" The court may direct that
the matter be returned to the director or hearing officer for rehearing and the presentation of additional evidence." ) Rather, the court remanded to the Department for a completely new hearing. As in Siewert and Municipal Servs. Corp., the district court's judgment here left nothing more for the court to do. To hold that the judgment remanding the case for a completely new hearing was not final would, as a practical matter, foreclose our review of Schlittenhart's due process claims from the first hearing. We therefore conclude the district court's September 2014 judgment was a final, appealable judgment and is properly before us for review.
[¶13] The appeal from the administrative agency decision to the district court was timely under N.D.C.C. § 39-20-06. The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 28-32-46. The appeal and cross-appeal from the district court were timely under N.D.C.C. § 28-32-49. This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-32-49.
[¶14] We review the administrative revocation of a driver's license under N.D.C.C. § 28-32-46. This Court must affirm an agency's order 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 ...