JESUS MAYSONET V SECRETARY OF STATEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
June 28, 2002
Ingham Circuit Court
LC No. 00-091949-AL
SECRETARY OF STATE,
FARMWORKER LEGAL SERVICES and
MICHIGAN MIGRANT LEGAL ASSISTANCE
Before: Hood, P.J., and Saad and E. M. Thomas,* JJ.
Respondent appeals by leave granted the circuit court’s order reinstating petitioner’s
driving privileges. We reverse. This appeal is being decided without oral argument pursuant to
In 1996 petitioner’s driver’s license was revoked for a minimum period of one year after
he received three alcohol-related driving convictions within a ten-year period. MCL
257.303(2)(f) and (4)(a)(i). Petitioner sought review of the revocation at hearings conducted by
respondent’s Driver License Appeal Division (DLAD) in each of the years 1997 through 2000.
After each hearing the hearing referee upheld the revocation because petitioner failed to show by
clear and convincing evidence that his alcohol problem was under control and was likely to
remain under control.
At the hearing held on February 10, 2000, petitioner testified he had not consumed
alcohol since his last conviction in 1996. Petitioner presented a December 1999 substance abuse
evaluation from the National Counsel on Alcoholism (NCA) that stated that petitioner no longer
met the requirements for a diagnosis of substance abuse/dependence. The report did not detail
the basis for this conclusion, and did not contain a treatment recommendation. The evaluation
* Circuit judge, sitting on the Court of Appeals by assignment.
remarked that petitioner would benefit from continued participation in Alcoholics Anonymous
(AA), but noted that petitioner stated he did not have an AA sponsor.
Petitioner submitted letters from his children that stated that petitioner had not consumed
alcohol in several years, and that he needed his driving privileges restored in order to assist his
wife, who did not drive. Petitioner submitted attendance sheets from AA that showed regular
attendance from January through November 1999. The sheets did not document more recent
attendance. In response to questions from the hearing referee, petitioner could not answer basic
questions about AA, i.e., the number of steps involved in the program and the contents of the
serenity prayer, and could not provide the full name of his sponsor.
The hearing referee denied petitioner’s request for reinstatement of his driving privileges
because petitioner did not establish by clear and convincing evidence that his alcohol problem
was under control and was likely to remain under control. 1979 AACS, R 257.313. The hearing
referee erroneously stated that petitioner had four alcohol-related driving convictions when in
fact petitioner had three such convictions. The hearing referee observed that the NCA evaluation
did not state a basis for the conclusion that petitioner was no longer dependent on alcohol, and
petitioner did not demonstrate a basic understanding of the principles of AA or a long-term
commitment to a support program.
Petitioner appealed the hearing referee’s decision to circuit court. Petitioner argued the
hearing referee abused his discretion by denying restoration of his driving privileges because he
established by clear and convincing evidence that he was no longer a risk. Petitioner did not
argue the hearing process denied him due process and equal protection, and specifically did not
allege that he requested an interpreter at the hearing and was denied that assistance. At the
circuit court hearing counsel for petitioner noted that petitioner had some difficulty with the
English language; however, counsel did not contend that petitioner should have been afforded
the services of an interpreter at the DLAD hearing.
The circuit court set aside the hearing referee’s decision on the ground that it was not
supported by competent, material, and substantial evidence on the whole record. The circuit
court concluded the evidence showed that petitioner had remained alcohol free and had
internalized the negative effect of alcohol on his life. The circuit court recognized that a
language difficulty existed, but did not indicate that that difficulty served as a basis for its
Respondent filed an application for leave to appeal the circuit court’s decision. Petitioner
did not file an answer. This Court granted respondent’s application. Petitioner moved for
rehearing of this Court’s order. Petitioner noted that the errata sheet for the transcript of the
DLAD hearing showed that at the conclusion of the hearing he asked the hearing referee to write
something so that his daughter could read it and explain it to him in Spanish. Petitioner
contended that this request constituted a request for an interpreter, and that the denial of that
request supported the circuit court’s decision to set aside the hearing referee’s decision. This
Court denied petitioner’s motion for rehearing.
Subsequently, petitioner moved in the circuit court for clarification and to amend the
administrative hearing transcript. Petitioner sought to have the circuit court expand its ruling to
include a finding that he was denied a fair hearing based on the hearing referee’s denial of his
request for an interpreter. Petitioner contended the lack of an interpreter at the hearing denied
him due process and equal protection. The circuit court denied the motion because it lacked
jurisdiction to amend its original order because leave to appeal from that order had been granted.
A circuit court is authorized to set aside a respondent’s decision regarding a petition for
restoration of driving privileges only if the petitioner’s substantial rights were violated and one
or more of six statutory criteria is met, including that the decision was not supported by
competent, material, and substantial evidence on the whole record. MCL 257.323(4)(d). We
review a circuit court’s review of an agency decision to determine whether the circuit court
applied correct legal principles and whether it misapprehended or grossly misapplied the
substantial evidence test to the factual findings of the agency. This standard is indistinguishable
from the clearly erroneous standard of review. A finding is clearly erroneous when, after a
review of the entire record, we are left with a firm and definite conviction that a mistake was
made. Boyd v Civil Service Comm, 220 Mich App 226, 234-235; 559 NW2d 342 (1996).
Respondent argues the circuit court clearly erred by reversing the hearing referee’s
decision. We agree and reverse the circuit court’s decision for the reason it clearly erred in
finding that the hearing referee’s decision was not supported by competent, material, and
substantial evidence on the whole record. Substantial evidence is evidence that a reasonable
person would accept as sufficient to support a conclusion. Substantial evidence is more than a
mere scintilla but less than a preponderance of the evidence. Dowerk v Oxford Charter Twp, 233
Mich App 62, 75; 592 NW2d 724 (1998). Here, the evidence established that petitioner received
three alcohol-related convictions within ten years. The substance abuse evaluation on which
petitioner relied stated no basis for its conclusion that petitioner was no longer dependent on
alcohol. That evaluation noted that petitioner stated he did not have an AA sponsor. Petitioner
gave contradictory information to the hearing referee.
No evidence contradicted petitioner’s assertion he had not consumed alcohol since 1996.
However, his inability to articulate an understanding of AA principles, the program in which he
purportedly chose to participate, supported a conclusion that he did not demonstrate a long-term
commitment to a support program. Also, petitioner’s inability to commit to a support program
shows that he did not demonstrate by clear and convincing evidence that his alcohol problem
likely would stay under control. R 257.313.
The hearing referee based his decision on his assessment of petitioner’s credibility, and
the circuit court erred by substituting its judgment for that of the hearing referee on the
credibility issue. Arndt v Dep’t of Licensing & Regulation, 147 Mich App 97, 101; 383 NW2d
136 (1985). Sufficient evidence existed to support the hearing referee’s decision; therefore, the
circuit court was not permitted to substitute its judgment for that of the hearing referee, though
the court might have reached a different result in the first instance. Black v Dep’t of Social
Services, 195 Mich App 27, 30; 489 NW2d 493 (1992).
We decline to address the additional issues raised by petitioner and amici on the ground
that those issues were not raised before or addressed by the circuit court. Fast Air, Inc v Knight,
235 Mich App 541, 549; 599 NW2d 489 (1999). We conclude that our refusal to address these
issues does not result in manifest injustice in light of the fact that petitioner’s assertion that he
requested an interpreter, but was refused one by the hearing referee, is not supported by the
record. Herald Co, Inc v Kalamazoo, 229 Mich App 376, 390; 581 NW2d 295 (1998).
/s/ Harold Hood
/s/ Henry William Saad
/s/ Edward M. Thomas