Weiss v. Johnson

Richard WEISS, Director, Department of
Finance and Administration, State of Arkansas
v. Patricia G. JOHNSON

97-565                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 12, 1998


1.   Administrative law & procedure -- Ark. Code Ann.  5-65-104 -- temporary
     suspension of drivers' licenses -- de novo petition for review. -- Act
     802 of 1995, codified in part at Ark. Code Ann.  5-65-104
     (Repl. 1997), generally governs the temporary suspension of
     drivers' licenses held by those persons arrested for driving
     while intoxicated; the statute directs the arresting officer
     to seize the arrestee's license, subject to that individual's
     right to a hearing before the Office of Driver Services of the
     Revenue Division of the Department of Finance &
     Administration; following an adverse determination, a person
     may file a de novo petition for review within thirty days in
     the circuit court in the county in which the offense took
     place; on review to circuit court, the trial court is directed
     to hear the case de novo to determine whether, based on a
     preponderance of the evidence, grounds exist for revocation,
     suspension, or denial of the person's privilege to drive.

2.   Administrative law & procedure -- hearings under Ark. Code Ann.  5-65-104
     exempt from APA -- statute silent on applicability of service provision of
     Ark. R. Civ. P. 4 to circuit court review. -- While administrative
     hearings held pursuant to Ark. Code Ann.  5-65-104 are exempt
     from the Arkansas Administrative Procedure Act, there is
     noticeably absent from Ark. Code Ann.  5-65-104 (Repl. 1997)
     any indication whether the service provision of Ark. R. Civ.
     P. 4 apply on review to circuit court.

3.   Civil procedure -- application of rules to all civil proceedings --
     statutory "different procedure" exception. -- The Arkansas Rules of
     Civil Procedure apply to all civil proceedings cognizable in
     the circuit, chancery, and probate courts except in those
     instances, stated in Ark. R. Civ. P. 81(a), where a statute
     that creates a right, remedy, or proceeding specifically
     provides a different procedure, which then applies.

4.   Statutes -- right to judicial review of suspension of driver's license --
     special proceeding created by statute. -- The right to judicial
     review of an administrative agency's temporary suspension of
     a driver's license is a right created by statute as that term
     is used in Ark. R. Civ. P. 81(a); such a right to review has
     no origins in the common law; driving itself is a privilege,
     not a right; in that sense, the right to review in circuit
     court under Ark. Code Ann.  5-65-104(c) is a statutory
     "special proceeding." 

5.   Civil procedure -- rules govern judicial review of suspension of driver's
     license -- "different procedure" exception did not apply. -- Given the
     silence of Ark. Code Ann.  5-65-104(c) on the subject of
     notice or service of process and therefore the lack of a
     "different procedure" that conflicted with the rules, the
     supreme court was left with no choice but to conclude that the
     rules of civil procedure govern the judicial review of a
     temporary suspension of a driver's license because the Rule
     81(a) exception does not apply.

6.   Civil procedure -- "original" character of circuit court proceeding
     mandated requiring challenging party to give notice through traditional
     means of service. -- While labeled a "petition for review," the
     appeal of an administrative temporary suspension of a driver's
     license is heard by the circuit court de novo; thus, the
     circuit court is in no way bound by the administrative
     decision below and assumes the case as if it were originally
     filed in circuit court; given the "original" character of the
     circuit court action due to the de novo review, it seemed
     consistent to require the challenging party to give the
     administrative agency notice through traditional means of
     service of process. 

7.   Civil procedure -- Ark. R. Civ. P. 4 governed petition for review --
     agency not properly served -- trial court abused discretion in denying
     appellant's motion to set aside -- reversed and dismissed without
     prejudice. -- Because Ark. R. Civ. P. 4 governed service of
     appellee's petition for review, the administrative agency was
     not properly served; the abstract reflected that appellee had
     simply mailed a copy of her petition to the referee who had
     suspended appellee's license at the referee's business address
     and that appellee had also mailed the referee a letter
     informing her that the matter was set for a hearing; the
     record failed to show that appellant director was ever named
     as a party to the lawsuit or that the agency was properly
     served with the petition and a summons; because appellant
     failed to properly serve the agency under Rule 4, the trial
     court lacked jurisdiction to enter an order reinstating
     appellee's license; the supreme court held that the trial
     court abused its discretion in denying the agency's motion to
     set aside and reversed and dismissed without prejudice.


     Appeal from Benton Circuit Court; David S. Clinger, Judge;
reversed and dismissed.
     Mark S. Ferguson, for appellant.
     Ray Bunch, for appellee.

     Annabelle Clinton Imber, Justice.
     The appellee's driver's license was suspended by the Office
of Driver Services of the Revenue Division of the Department of
Finance & Administration pending the adjudication of her DWI
charge.  Pursuant to Act 802 of 1995, the appellee filed a "de
novo petition for review" of the agency determination in circuit
court.  DF&A failed to appear at the hearing, and the trial court
entered a judgment in favor of appellee.  DF&A moved to set aside
the judgment, alleging that it was not served with appellee's
petition in compliance with Ark. R. Civ. P. 4.  The trial court
denied the motion, finding that the hearing was a "special
hearing" and that the rule was not applicable.  We reverse and
dismiss, holding that the service provisions of Rule 4 are
applicable because the statutory procedure at issue is silent on
notice or service of process at the circuit court level.
     On September 23, 1996, Patricia Johnson filed a petition in
the Benton County Circuit Court for de novo review of a decision
by the Office of Driver Services to suspend her driver's license. 
Johnson styled the petition "PATRICIA G. JOHNSON vs. STATE OF
ARKANSAS, OFFICE OF DRIVER SERVICES, REVENUE DIVISION OF THE
DEPARTMENT OF FINANCE AND ADMINISTRATION."  According to the
facts as set forth in her petition, Johnson had been arrested on
July 13, 1996, for DWI second offense and driving on a suspended
driver's license, resulting in the suspension of her license.  On
September 18, 1996, the Office of Driver Services held a hearing
and sustained the suspension of Johnson's license. The
certificate of service attached to the petition indicated that
Johnson "served a copy of the. . . Petition for Relief Concerning
Suppression of Driver's License. . . on Toni Boone, Driver
Control Hearing Referee, 280 North College Avenue, Suite 145,
Fayetteville, Arkansas 72701, by placing a copy thereof in the
United States Mail, postage prepaid, addressed to her as above
set forth."  
     In a letter dated December 6, 1996, Johnson's counsel sent a
letter to Toni Boone, "Driver Control Hearing Referee," at the
same address set forth in the certificate of service.  Johnson
enclosed a copy of the petition, and informed Boone that the
matter had been set for a hearing on January 10, 1997.  At this
hearing Johnson's counsel explained that Boone, the referee who
actually suspended Johnson's license, was not present.  Counsel
stated "[Boone] was, is the one that actually suspended the
license and so on December the 6th I mailed a petition and
notified her of this court date to make sure that all parties
were informed about it."  Based on Boone's absence, Johnson moved
that the court reinstate her license "pending adjudication
concerning the charges against her unless Toni Boone can produce
some kind of a statement that she had no knowledge of this
hearing."  The trial court examined the letter that Johnson had
sent to Boone, and then stated the following:
Based upon the facts that you have provided here with
notice of this hearing and based upon the fact that as
I read this 5-65-104C [sic] the Office of Driver
Services has the burden at this hearing to establish by
preponderance of the evidence that a revocation was
appropriate, by failing to appear and prosecute I don't
think I have got any choice but to find that the
burden, that they have not met their burden and that
the driver's license should be reinstated pending a
final adjudication.

On January 23, 1997, the trial court entered an order reinstating
Johnson's driver's license, finding that the Office of Driver
Services had failed to appear even though it had received notice
through the December 6 letter and that it had "failed to meet its
burden in this case."
     On February 18, 1997, the Department of Finance &
Administration filed a motion to set aside the order on the
grounds that Johnson failed to name the Director of DF&A as a
defendant as required by Ark. R. Civ. P. "4(8A)" [sic], and that
Johnson failed to deliver a copy of the summons and complaint to
the Chief Executive Officer of DF&A as required by Ark. R. Civ.
P. "4(7)" [sic].  DF&A further alleged that it did not receive
notice of "this action" until it received the trial court's order
directing reinstatement of Johnson's license, and that DF&A
should be granted additional time to file an answer.
     On March 20, 1997, following a hearing on DF&A's motion, the
trial court entered an order denying the motion and finding as
follows:
1.  That the de novo review conducted in circuit court
pursuant to Ark. Code Ann.  5-65-104 is a "special
hearing."

2.  That the hearing officer, Toni Boone, was an
authorized agent of the Office of Driver Services, and
that "notification received of the hearing date by her
under the facts of this case was service made to
[DF&A]."

3.  That Johnson properly served DF&A with notice of
the de novo review and that DF&A failed to meet its
burden of proof.

DF&A brings the present appeal from the order denying its motion
to set aside.
     DF&A's sole argument on appeal is that the trial court
abused its discretion in denying its motion to set aside because
service of Johnson's petition for review failed to comply with
the provisions of Ark. R. Civ. P. 4.  Specifically, DF&A contends
that service of the petition and a summons should have been made
on Richard Weiss, the chief executive officer of DF&A, under Ark.
R. Civ. P. 4(d)(7), and that Weiss should have been named as a
party to the action under Ark. R. Civ. P. 4(d)(8).  
     Act 802 of 1995, codified in part at Ark. Code Ann.  5-65-
104 (Repl. 1997), generally governs the temporary suspension of
driver's licenses held by those persons arrested for driving
while intoxicated.  The statute directs the arresting officer to
seize the arrestee's license, subject to that individual's right
to a hearing before the Office of Driver Services of the Revenue
Division of the Department of Finance & Administration.  Ark.
Code Ann.  5-65-104(a)(1).  This hearing "shall cover the issues
of whether the officer had reasonable grounds to believe that the
person had been operating a vehicle while intoxicated. . . and
whether the person was placed under arrest."  Ark. Code Ann.  5-
65-104(a)(8)(A).  "At the hearing, the burden of proof shall be
on the state, and the decision shall be based on a preponderance
of the evidence."  Id.  Following an adverse determination, a
person may file a "de novo petition for review" within thirty
days in the circuit court in the county in which the offense took
place.  Ark. Code Ann.  5-65-104(c).  "The administrative
hearings held pursuant to this section shall be exempt from the
Arkansas Administrative Procedure Act,  25-15-201 et seq."  Id. 
On review to circuit court, the trial court is directed to hear
the case de novo "to determine whether, based on a preponderance
of the evidence, grounds exist for revocation, suspension, or
denial of the person's privilege to drive."  Id.
     Noticeably absent from the statute is any indication whether
the service provision of the Rules of Civil Procedure apply on
review to circuit court, except to say that the APA does not
apply at the administrative level.  One notice or service
provision that is found in the statute deals with the requirement
that the arresting officer give the driver a receipt form serving
as a notice of suspension or revocation and the right to a
hearing.  Ark. Code Ann.  5-65-104(a)(2).  Furthermore, "[a]ny
notices from the Office of Driver Services required under this
act which are not personally delivered shall be sent by certified
mail. . . .  Refusal of the addressee to accept delivery or
attempted delivery of the notice . . . shall not constitute
nonreceipt of notice."  Ark. Code Ann.  5-65-104(a)(3).  Once a
person's privilege to drive has been revoked, denied, or
suspended under the statute, the person is entitled to a hearing
with the Office of Driver Services upon "written request."  Ark.
Code. Ann.  5-65-104(a)(7).
     Rule 1 of the Arkansas Rules of Civil Procedure, governing
the scope of the Rules, provides in part that "[t]hese rules
shall govern the procedure in the circuit, chancery, and probate
courts in all suits or actions of a civil nature with the
exceptions stated in Rule 81."  The Reporter's Note to Rule 1
explains that "Rule 81 makes exceptions to the applicability of
these rules for special statutory proceedings."  The Rule 81(a)
exception provides as follows:
(a) Applicability in General. These rules shall apply
to all civil proceedings cognizable in the circuit,
chancery, and probate courts of this State except in
those instances where a statute which creates a right,
remedy or proceeding specifically provides a different
procedure in which event the procedure so specified
shall apply.

Ark. R. Civ. P. 81(a).  The Reporter's Note explains that the
Rule 81(a) exception "would be those proceedings established by
statute and the statute prescribes a different procedure.  Except
to the extent that these rules are modified by statute, however,
they shall apply in all cases."  (emphasis added).  
     This court has historically recognized the distinction
between two types of proceedings -- civil actions and special
proceedings -- and considered whether or not the rules of civil
procedure are applicable to certain types of special proceedings. 
Recently, in In re: Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997), we were presented with the issue of whether
the voluntary nonsuit provisions of Ark. R. Civ. P. 41(a) were
applicable to adoption proceedings.  Adoption proceedings,
created by statute and unknown at common law, were special
proceedings "with appropriate and necessary special procedures
enacted to protect significant public policy concerns such as the
rights of adoptive parents and minor children to establish a
stable and secure family relationship."  Id.  Applying the
voluntary nonsuit provisions of Rule 41(a) to adoption
proceedings would have effectively nullified the plain meaning of
the Arkansas Revised Uniform Adoption Act's one-year statute of
limitations, and ignored the legislative intent behind the
statute of limitations.  Thus, the trial court in Martindale
erred in granting a dismissal without prejudice and allowing the
subsequent refiling of a petition to set aside an adoption
outside of the statutory limitations period. 
     By way of comparison, Sosebee v. County Line Sch. Dist., 320
Ark. 412, 897 S.W.2d 556 (1995), presented the similar issue of
whether Rule 41(a) allowed a nonsuit and the subsequent refiling
of an appeal to circuit court outside of the seventy-five day
time limit for such appeals under the Arkansas Teacher Fair
Dismissal Act.  In determining whether the Act was a "special
proceeding" as that term is used in Rule 81(a), the Sosebee court
began by noting that "[t]he Rules. . . apply to a proceeding
unless a statute, which creates a right, specifically provides
for a different procedure."  Id.  The Act was lacking in "special
rules" concerning appeals to circuit court, while the court found
"very thick and long breach of contract roots extending from the
Teacher Fair Dismissal Act."  Id.  Moreover, the nature of the
circuit court's review was not in substance that of an "appeal,"
but instead encompassed the taking of evidence beyond the record
of the administrative proceeding.  For these reasons, the rights
pursued under such an "appeal" were not created by the Act, as
that term is used under the Rule 81(a) exception.  Given the lack
of procedures found in the Act once the matter reached the
circuit court level, the Rules of Civil Procedure applied.
     In the present case, like the adoption proceedings in
Martindale, the right to judicial review of an administrative
agency's temporary suspension of a driver's license is clearly a
right created by statute as that term is used in Rule 81(a). 
Such a right to review has no origins in the common law.  Driving
itself is a privilege, not a right.  See Pyron v. State, 330 Ark.
88, 953 S.W.2d 874 (1997).  Thus, in that sense, the right to
review in circuit court under Ark. Code Ann.  5-65-104(c) is a
statutory "special proceeding."  
     However, the analysis under Rule 81(a) does not end there. 
Not only must the statute create a "right, remedy or proceeding",
but it must also "provide[] a different procedure in which event
the procedure so specified shall apply."  Ark. R. Civ. P. 81(a). 
See also Reporter's Note to Rule 81 ("the [Rule 81(a)] exception
would be those proceedings established by statute and the statute
prescribes a different procedure.") (emphasis added); Martindale,
supra, ("The Arkansas Revised Uniform Adoption Act's one year
statute of limitations provides a special procedure which cannot
be annulled by Rule 41(a)."); Sosebee, supra, ("The Rules thus
apply to a proceeding unless a statute, which creates a right,
specifically provides for different procedure.") (emphasis
added); Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992),
limited on other grounds, 316 Ark. 366, 872 S.W.2d 370 (1994)
("What this court intended when it adopted. . . Rule 82 [sic] in
particular, was to except from the rules special proceedings
created by statute which established different procedures from
those applicable to civil actions.") (emphasis added).   On this
point, Ark. Code Ann.  5-65-104(c) provides nothing "different"
from the Rules in the way of notice or service of process at the
circuit court level.  By the statute's express terms, the APA
does not apply, thus extinguishing a potential source for
guidance.  Given the silence of Ark. Code Ann.  5-65-104(c) on
the subject of notice or service of process, and therefore the
lack of a "different procedure" which conflicts with the Rules,
we are left with no choice but to conclude that the Rules govern
because the Rule 81(a) exception does not apply.
     This conclusion is bolstered by the nature of the review
sought in circuit court.  While labeled a "petition for review,"
the statute explains that the circuit court hears the case de
novo.  Thus, the circuit court is in no way bound by the
administrative decision below and assumes the case as if it were
originally filed in circuit court.  Given the "original"
character of the circuit court action due to the de novo review,
it seems consistent to require the challenging party to give DF&A
notice through traditional means of service of process.  Compare
In re: Proposed Annexation to Town of Beaver, 282 Ark. 516, 669 S.W.2d 467 (1984) (challenge of county court annexation
proceeding in circuit court pursuant to statute was not an
"appeal" but an "independent attack" requiring service of process
under Rule 4) with Fulmer v. Board of Commissioners, 286 Ark.
419, 692 S.W.2d 246 (1985) (challenge of commissioner's sale
pursuant to statute did not require notice under Rule 4 where the
statute at issue was a "special statutory action which
contain[ed] its own provisions for notice.").
     Having held that Rule 4 governs service of Johnson's
petition for review, it is clear that DF&A was not properly
served under the Rule.  The abstract reflects that Johnson simply
mailed Boone a copy of her petition via United States Mail at
Boone's business address.  Johnson also mailed Boone a letter
informing Boone that the matter was set for a hearing on January
10, 1997.  However, the record fails to show that the director of
DF&A was ever named as a party to the lawsuit, see Ark. R. Civ.
P. 4(d)(8) and 25(d)(2), or that DF&A was properly served with
the petition and a summons.  See Ark. R. Civ. P. 4(d)(7). 
Because Johnson failed to properly serve DF&A under Rule 4, the
trial court lacked jurisdiction to enter an order reinstating
Johnson's license.  We hold that the trial court abused its
discretion in denying DF&A's motion to set aside, and reverse and
dismiss without prejudice.
     Reversed and dismissed without prejudice.
     Brown, J., concurring.

     Robert L. Brown, Justice, concurring.  I agree completely with
the majority opinion but write only to highlight an inconsistency
in procedures for two categories of judicial review.  We hold
today that Ark. R. Civ. P. 4 governs judicial review of driver's
license suspensions under Ark. Code Ann.  5-65-104(c) (Repl.
1997), which includes issuance of a summons and personal service
of the petition on the agency.  Under the Administrative
Procedure Act, service of the petition for judicial review by
mail is all that is required.  See Ark. Code Ann.  25-15-
212(b)(2) (Repl. 1996).
     Conflicting procedures for administrative appeals to circuit
court on basic points like service of process can create a
procedural pitfall for attorneys and their clients.  I invite the
attention of the General Assembly to this matter.