MILTON BARDEN JR V SECRETARY OF STATE
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STATE OF MICHIGAN
COURT OF APPEALS
MILTON BARDEN, JR.,
UNPUBLISHED
September 14, 2001
Petitioner-Appellee,
v
No. 221609
Wayne Circuit Court
LC No. 99-907527-AL
SECRETARY OF STATE,
Respondent-Appellant.
Before: Jansen, P.J., and Collins and Cooper, JJ.
PER CURIAM.
Respondent appeals by leave granted from a circuit court order that reversed the decision
of the Driver’s License Appeal Division (DLAD), and restored petitioner’s driver’s license. We
reverse the circuit court’s order and reinstate the administrative decision.
Petitioner was convicted of the following three alcohol-related driving offenses within a
ten-year period: (1) operating while impaired by liquor on November 3, 1989, (2) unlawful
bodily alcohol content on September 10, 1991, and (3) unlawful bodily alcohol content on
December 12, 1996. After the third conviction, petitioner’s driver’s license was revoked for a
minimum of one year beginning on December 12, 1996, under the mandatory habitual violator
provision of the Michigan Vehicle Code. MCL 257.303(2)(f).1
Petitioner became eligible for reinstatement of his driver’s license on December 11, 1997.
A petition was filed that resulted in denial for another year, with eligibility for review on
December 23, 1998. The current action arises out of petitioner’s second petition for review that
led to a January 4, 1999, administrative hearing before respondent. Petitioner appeared at the
hearing and provided a current substance abuse evaluation, letters from acquaintances and family
members attesting to petitioner’s abstinence from alcohol, and Alcoholics Anonymous (AA)
attendance sheets. Further, petitioner testified that he had not consumed alcohol in
approximately twenty months, and that he attended AA meetings two or three times a week. The
attendance sheets showed that he had attended from February to December 1998, usually four or
1
The statute has undergone revisions since the time of the administrative hearing and we will
refer to the most current subsections in this opinion.
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five times a month. The letters submitted to the hearing officer also attested to sobriety for a year
or more.
Additionally, the substance abuse evaluation stated that petitioner met the criteria for
alcohol dependence, but the evaluation also stated that petitioner’s alcohol dependence was in
full remission. The evaluation stated that petitioner’s prognosis was good based on the length of
his sobriety, his participation in AA, his successful completion of various hospital treatments,
and his desire and motivation for continued sobriety. The evaluation also noted that petitioner
had a previous episode of relapse after maintaining sobriety on his own for approximately one
year in 1993, but petitioner did not display evidence that was indicative of relapse behavior at the
time of the interview. Overall, the evaluation gave petitioner a good prognosis provided he
continued his involvement with AA and continued to abstain from alcohol. However, when
questioned by the hearing officer, petitioner could not recite any of AA’s twelve steps of
recovery. Additionally, the evaluation indicated that petitioner drank to the point of alcohol
poisoning in April 1997.
In a written order dated January 5, 1999, the hearing officer denied petitioner’s
application for reinstatement of his license finding that petitioner:
failed to establish by clear and convincing evidence that their [sic] substance
abuse problem is under control and likely to remain under control. Petitioner is
alcohol dependent and has a history of relapsing after one year of abstinence.
Petitioner is recommended to attend AA meetings regularly but could not
document regular AA attendance and he could not verbalize any of the AA
principles to recovery. Petitioner admits to drinking on a daily basis for thirty
years and having had an alcohol poisoning episode last year.
Petitioner appealed the decision to the circuit court. The circuit court reversed the
decision of the DLAD and ordered petitioner’s license to be restored in full. That order followed
the circuit court’s determination that it was not limited on appeal to a review of the
administrative record, and after considering all of the evidence presented, the circuit court found
that the DLAD hearing officer’s determination was not supported by material, competent, and
substantial evidence and was arbitrary, capricious, and an unwarranted exercise of discretion.
Respondent first argues that the circuit court erred when it considered evidence presented
on appeal to the circuit court that was not presented to the hearing officer.
Under MCL 257.323(6), the circuit court shall confine its consideration of the DLAD’s
determination to a review of the administrative record. “The use of the word ‘shall’ in a statute
connotes a mandatory duty or requirement.” Depyper v Safeco Ins Co of America, 232 Mich App
433, 438; 591 NW2d 344 (1998). Under the clear and unambiguous terms of the statute, the
circuit court could not consider evidence that was not presented to the hearing officer. Further,
the circuit court’s reliance on Roman v Secretary of State, 213 Mich App 592; 540 NW2d 474
(1995), was misplaced inasmuch as that case did not hold that a circuit court may rely on
evidence outside of the administrative record in reviewing the decision of the DLAD. Rather,
this Court in Roman held that the circuit court erred in reviewing the decision of the DLAD
without the record of the administrative hearing or the petitioner’s driving record. Id. at 596.
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Consequently, the circuit court erred as a matter of law in determining that its review was not
limited to the administrative record compiled before the DLAD hearing officer and in
considering evidence beyond both the hearing record or the driving record.
Respondent also argues that the circuit court clearly erred in finding that the hearing
officer’s decision was not supported by competent, material, and substantial evidence and in
finding that the decision was arbitrary, capricious, and an unwarranted exercise of discretion.
When reviewing a lower court’s review of an administrative agency, this Court must determine
whether the lower court applied correct legal principles and whether it misapprehended or grossly
misapplied the substantial evidence test to the administrative agency’s factual findings. Boyd v
Civil Service Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996). This latter standard is the
same as the clearly erroneous standard of review. Id.
The DLAD’s decision was guided by the administrative rule, 1992 AACS, R 257.313,
which sets forth the standards for license revocations under MCL 257.303(2)(f). R 257.313
requires the petitioner to rebut by clear and convincing evidence the presumption of MCL
257.303 that petitioner should not be granted a license. Evidence relevant to the rebuttal
includes:
(i) That the petitioner’s alcohol or substance abuse problems, if any, are under
control and likely to remain under control.
(ii) That the petitioner represents a low or minimal risk of repeating his or her past
abusive behaviors.
(iii) That the petitioner represents a low or minimal risk of repeating the act of
operating a motor vehicle while impaired by, or under the influence of, alcohol . .
..
(iv) That the petitioner has the ability and motivation to drive safely and within
the law.
(v) Such other showings as are relevant to the issues identified in paragraphs (i) to
(iv) of this subdivision. [1992 AACS, R 257.313(1)(a).]
Additionally, petitioner must prove by clear and convincing evidence that he has
completely abstained from the use of alcohol and controlled substances for a minimum period of
six months. More than six months of abstinence may be required if, as in this case, the evidence
shows that petitioner has three or more convictions of alcohol-related offenses, petitioner has
suffered relapses after trying to bring his substance abuse problem under control, or an alcohol
abuse evaluation of petitioner reveals a diagnosis of alcohol abuse or dependency. 1992 AACS,
R 257.313(1)(b).
MCL 257.323(4) provides the circuit court’s reviewing role of the DLAD’s decision:
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The court shall set aside the secretary of state’s determination only if the
petitioner’s substantial rights have been prejudiced because the determination is
any of the following:
(a) In violation of the Constitution of the United States, the state
constitution of 1963, or a statute.
(b) In excess of the secretary of state’s statutory authority or jurisdiction.
(c) Made upon unlawful procedure resulting in material prejudice to the
petitioner.
(d) Not supported by competent, material, and substantial evidence on the
whole record.
(e) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of
discretion.
(f) Affected by other substantial and material error of law.
The circuit court found that the DLAD’s decision was not supported by competent,
material, and substantial evidence on the whole record and was an arbitrary, capricious, and
clearly unwarranted exercise of discretion. We disagree on both points and reverse the circuit
court. We emphasize that “even if the circuit court would have arrived at a contrary conclusion if
it had been in the hearing referee’s place, the court was nonetheless bound to affirm the [hearing
officer’s] decision as long as the decision was sufficiently supported.” Michigan Educ Ass’n
Political Action Committee v Secretary of State, 241 Mich App 432, 445-446; 616 NW2d 234
(2000).
In the present case, the hearing officer’s findings are clearly supported by competent,
material, and substantial evidence on the whole record. The findings by the hearing officer that
petitioner had previously relapsed after a year of sobriety and that he could not state any of the
AA steps to recovery are both relevant to and evidence of meaningful participation in recovery
programs and his risk of repeating past alcoholic behaviors. The hearing officer further based his
determination that petitioner failed to meet his burden of proof by clear and convincing evidence
on the following evidence: petitioner had been diagnosed as an alcoholic; he had admittedly
consumed significant amounts of alcohol on a daily basis for about thirty years; he had relapsed
in 1993 after a year of sobriety and continued to drink until an episode of life-threatening alcohol
poisoning in 1997; and he could not verbalize any of the AA principles despite assertedly
attending AA meetings three times a week. In reviewing the determination by the DLAD hearing
officer, we also cannot conclude that this decision was in any way arbitrary, capricious, or an
unwarranted abuse of discretion.
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Reversed and remanded for reinstatement of the administrative decision. Jurisdiction is
not retained.
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
/s/ Jessica R. Cooper
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