Cascio v. State ex rel. Dept. of Public Safety

Cascio v. State ex rel. Dept. of Public Safety
1984 OK 30
686 P.2d 282
Case Number: 59696
Decided: 05/22/1984
Modified: 05/23/1984
Supreme Court of Oklahoma

PETER SAMUEL CASCIO, APPELLANT,
v.
STATE OF OKLAHOMA, EX REL., DEPARTMENT OF PUBLIC SAFETY, APPELLEE.

Appeal from District Court, Tulsa County; Robert Farris, Judge.

¶0 Appellant's driver's license came to be suspended, under the authority of 47 O.S. 1981 § 6-211 (e), upon his accumulation of excessive points. He appealed to the district court where judgment was rendered against him on demurrer to the petition.

REVERSED AND REMANDED.

James Francis Gillet, Henshaw & Leblang, Tulsa, for appellant.

Stephen G. Fabian, Jr., Oklahoma City, for appellee.

OPALA, Justice:

¶1 The sole issue for decision is whether, on appeal to the district court from an adverse action of the Department of Public Safety, "economic hardship" may be considered as a ground for (1) vacating or (2) modifying an order suspending a driver's license upon licensee's accumulation of excessive points. We answer in the negative as to part (1) and in the affirmative as to part (2).

¶2 The driver's license of the appellant, Cascio, was suspended by the Department of Public Safety [Department] for a 60-day period because over 10 points had been [686 P.2d 283] assigned to his driving record. Cascio brought an appeal from that decision. The district court sustained the Department's demurrer to Cascio's petition, resting its decision on our pronouncement In re Metcalf,

¶3 Under the provisions of 47 O.S. 1981 § 6-206 the Department may suspend the license of a motorist for offenses under the Highway Safety Code

"(e) Upon said hearing said [district] court shall take testimony and examine into the facts and circumstances, including all of the records on file in the office of the Department of Public Safety relative to the offense committed and the driving record of said licensee, and determine from said facts, circumstances and records whether the petitioner is entitled to a license or shall be subject to the order of denial, cancellation, suspension or revocation issued by the Department. The court may also determine whether, from such testimony of said licensee's previous driving record in the operation of motor vehicles, said order was for a longer period of time than such facts and circumstances warranted . . ." [emphasis added]

¶4 Cascio urges that in § 6-211(e) appeals the district court is authorized to consider as a "fact and circumstance" the economic hardship that would result from the loss of a driver's license.

¶5 We note that in two related acts, also dealing with sanctions imposable on licensees for violation of traffic laws, the legislature specifically authorized the district court to consider economic hardship in modifying a driver's license suspension. Under the Oklahoma Implied Consent Law

¶6 While these or similar phrases do not appear in haec verbis in § 6-211(e) - the [686 P.2d 284] section applicable to appeals by licensees suspended for accumulation of excessive points - we are persuaded that the relief is implicitly authorized in the language of § 6-211(e), because therein the court is mandated "to examine into" the "facts and circumstances" relative to the offense committed. We will not assume the legislature intended to single out licensees with excessive points for a treatment different from that which is accorded licensees under the Implied Consent Law or that which is meted out under the Financial Responsibility Act.

¶7 The Equal Protection Clause, although not an absolute guarantee of equality of operation or application of state legislation, is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Disparate state treatment of classes of persons may be deemed valid when a rational basis exists for the inequality, unless the exercise of some fundamental right stands impaired or a suspect classification is found. If discrimination is said to infringe upon a fundamental right, it becomes the subject of strict judicial scrutiny. Because neither a fundamental right nor a suspect classification is implicated in this case, the rationality test must be applied. Under that standard of review the challenged legislation will pass constitutional muster if it is rationally related to some legitimate state objective.

¶8 Our own pronouncements under Art. 2 § 7 and Art. 5 §§ 46 and 59, Okl. Const., are in substantial harmony with the rationality test.

¶9 We therefore hold that in appeals from a license suspension order for excessive points (1) the district court may modify the suspension on grounds of extreme and unusual hardship by allowing driving in the course of employment or only to and from a place of employment, and (2) any such modification order shall state the specific [686 P.2d 285] times and circumstances under which motor vehicle operation may be permitted. Insofar as this pronouncement is in conflict with extant case law, our former expressions to the contrary stand withdrawn.

¶10 Because we find no textually demonstrable authority, either explicit or implicit, for the appellant's argument that the legislature intended economic hardship to serve as a basis for judicial vacation of a driver's license suspension imposed for licensee's accumulation of excessive points, we hold that no such power resides in the district court.

¶11 The judgment of the district court is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this pronouncement.

¶12 DOOLIN, HARGRAVE, WILSON and KAUGER, JJ., concur.

¶13 BARNES, C.J., SIMMS, V.C.J., and HODGES and LAVENDER, JJ., dissent.

Footnotes:

1 Okl., 501 P.2d 208, 211 [1972]. In Metcalf we overruled our former holding in Appeal of Lewis, 208 Okl. 610, 258 P.2d 173 [1953]. In Lewis the district court found that the county court had arbitrarily vacated an order of the Commissioner of Public Safety which suspended the driver's license of the appellant. We held that the introduction of testimony by the State of a guilty plea to a public drunk offense committed several days after the operator had his license suspended was not competent evidence since the event had no connection with the operation of a motor vehicle on a public highway. While the suspension was upheld by reason of the operator's past driving record, the period of suspension was reduced because of "undue hardship". Explanation for the reduction is found only in the syllabus of the opinion.

Nearly 20 years later, the Lewis decision came under re-examination in Metcalf. There, a three-month suspension was given by the Department following the operator's conviction for driving while under the influence of intoxicating liquor. During the district court hearing the operator testified as to the economic hardship he would incur if the suspension were not vacated entirely. The trial court vacated the Commissioner's order and the Department appealed. We held that under the rule in Lewis - that a public drunk charge was not related to the use of a motor vehicle and could not be used by the State against the driver - evidence of undue hardship likewise is inadmissible and may not be used by the operator as a basis for modification or vacation of a driver's license suspension. Lewis was hence overruled to the extent it was in conflict with Metcalf.

2 47 O.S. 1981 § 1-101 et seq.

3 See 47 O.S. 1981 § 6-205 for the mandatory provisions for revocation of a driver's license.

4 47 O.S. 1981 §§ 751 , 755 .

5 47 O.S. 1981 §§ 7-101 , 7-505 .

6 Magnolia Pipe Line Co. v. Oklahoma Tax Commission, 196 Okl. 633, 167 P.2d 884, 889 [1946]; County Board of Equalization, Pittsburg County v. Muskogee Industrial Finance Corp., Okl., 357 P.2d 224, 228 [1960]; Lancaster v. State, ex rel. Harrod, Okl., 426 P.2d 714, 716-717 [1967].

7 Art. 2 §§ 6 and 7, Art. 5 §§ 46 and 59, Okl. Const.; Wilson v. Foster, Okl., 595 P.2d 1329, 1332 [1979]; Moses v. Hoebel, Okl., 646 P.2d 601, 605 [1982].

8 Wilson v. Foster, supra note 7.

9 Wilson v. Foster, supra note 7 at 1333; Suglove v. Oklahoma Tax Commission, Okl., 605 P.2d 1315, 1320 [1980]; Moses v. Hoebel, supra note 7; Anderson v. Walker, Okl., 333 P.2d 570 [1958].

10 Neumann v. Tax Commission, Okl., 596 P.2d 530, 532 [1979].

11 See In re Metcalf, supra note 1; Winter v. Mayberry, Okl., 533 P.2d 968 [1975]; Wade v. State ex rel. Dept. of Public Safety, Okl., 645 P.2d 510 [1982].