Opinion
358508
12-01-2022
CHAD MORROW, Petitioner-Appellant, v. SECRETARY OF STATE, Respondent-Appellee.
UNPUBLISHED
Wayne Circuit Court LC No. 21-004810-AL
Before: Gleicher, C.J., and Markey and Patel, JJ.
PER CURIAM.
Petitioner Chad Morrow filed a claim of appeal challenging a circuit court ruling upholding a hearing officer's determination that Morrow failed to meet the minimum requirements for restoration of his driver's license. Whether Morrow may appeal as of right from the order entered by the circuit court presents a question we need not answer today. Because the circuit court failed to apply correct legal principles, we treat his claim of appeal as an application and grant it. Wardell v Hincka, 297 Mich.App. 127, 133 n 1; 822 N.W.2d 278 (2012).
The hearing examiner's decision, which was affirmed by the circuit court, imposed two prerequisite conditions on Morrow's eligibility for a restricted driver's license: production of the presentence investigation reports (PSIRs) from his marijuana-related convictions in 2016 and 2017, and production of Morrow's medical marijuana card. Both conditions contravene Michigan law. Accordingly, we vacate the circuit court's opinion and remand for further proceedings consistent with this opinion.
I. FACTUAL AND LEGAL BACKGROUND
Morrow is considered an "habitual offender" due to two convictions for intoxicated driving within seven years. MCL 257.303(2)(c). In 2004, Morrow's license was suspended following his convictions for operating while impaired by liquor and for driving while his license was withdrawn. In January 2007, he was granted a restricted license. But in November 2007, Morrow was involved in an accident and his license was revoked for operating while intoxicated. In February 2016, Morrow was granted a restricted license, which required him to refrain from using intoxicants and to only operate a vehicle equipped with a breath alcohol ignition interlock device (BAIID). His restricted license was revoked twice because of BAIID violations but restored in October 2017. In 2018, Morrow's restricted license was again suspended and subsequently reinstated following his conviction for delivery of marijuana. In October 2018, the revocation was reinstated following another BAIID violation.
The Legislature has created a pathway for the restoration of a revoked driver's license, even for habitual offenders like Morrow. Morrow filed petitions seeking restoration of his license in 2019 and 2021; this appeal arises from the denial of his 2021 petition, which hinged on a ruling made during the 2019 proceedings. A hearing officer appointed by the secretary of state considered both petitions. MCL 257.322(1). Morrow bore the burden of rebutting "by clear and convincing evidence the presumption resulting from the prima facie evidence that he or she is a habitual offender." MCL 257.303(4)(b), as amended by 2012 PA 498. He was also obligated to meet "the requirements of the department." MCL 257.303(4)(c). Those requirements are contained in Mich. Admin Code, R 257.313(1)(a), and include:
MCL 257.303 was amended by 2020 PA 376, effective October 1, 2021, with only minor changes to the language of Subsections 2 and 4.
The hearing officer shall not order that a license be issued to the petitioner unless the petitioner proves, by clear and convincing evidence, all of the following:
(i) That the petitioner's alcohol or substance abuse problems, if any are under control and likely to remain under control.
(ii) That the risk of the petitioner repeating his or her past abusive behavior is a low or minimal risk;
(iii) That the risk of the petitioner repeating the act of operating a motor vehicle while impaired by, or under the influence of, alcohol or controlled substances or a combination of alcohol and a controlled substance or repeating any other offense listed in section 303(1)(d), (e), or (f) or (2)(c), (d), (e), or (f) of the act is a low or minimal risk.
(iv) That the petitioner has the ability and motivation to drive safely and within the law . . . .
A hearing examiner denied Morrow's petition in 2019, and a different hearing examiner denied his 2021 petition. At the 2021 administrative hearing, Morrow testified that he was 39 years old and had two convictions for impaired or intoxicated driving, the first in 2004 and the second in 2007. Morrow presented a favorable substance abuse evaluation and the results of several negative alcohol and drug tests. He admitted to having used marijuana as a teenager, and testified that he had been sober from alcohol and marijuana for 10 years. He declared that he was motivated to remain sober and believed that could do so in part because of this active participation in Alcoholics Anonymous and a supportive community of friends and family.
Morrow testified that he had a medical marijuana caregiver card from 2011 until 2017 and operated a medical marijuana dispensary from 2015 to 2017. He was convicted by guilty plea of two counts of delivery of marijuana to undercover police officers outside of his caregiver plan, which he claimed arose due because of a disagreement regarding the zoning laws governing his dispensary. Morrow attributed his BAIID violations to vehicle repair issues and denied any elevated blood alcohol readings in 2017.
The hearing officer issued a written opinion denying the restoration of Morrow's driving privileges, relying in large measure on Morrow's failure to "submits proofs of his claims as to why he was convicted of two drug crimes (2016 and 2017), and what if any certification he held from the State of Michigan to be involved in [the] production/distribution of cannabis." The hearing officer found that Morrow was "unable to meet [his] burden" of proving by clear and convincing evidence "that he is a good risk to sustain recovery and to avoid re-offense" due to his failure to comply "with specific evidence requirements given him in his prior hearing order."
"The prior order," issued in 2019, required that Morrow produce "for the next hearing":
6) verification from the Department of Licensing and Regulatory Affairs, [LARA], when Mr. Morrow had a medical marijuana card. An online form is available for this.
7) a complete [PSIR] or its equivalent regarding Mr. Morrow's drug crimes in 2016 and 2017 to provide an independent account of his offenses.
It appears that at the time of the 2021 hearing, Morrow produced all the other materials requested by the 2019 hearing examiner.
After the 2021 denial of his request for license restoration, Morrow filed a petition for review in the circuit court. In his circuit court pleadings, Morrow asserted that the hearing officer abused his discretion by disregarding powerful evidence substantiating that Morrow met the conditions for restoration of his license, and instead improperly required Morrow to submit the PSIRs and his medical marijuana card. Morrow emphasized that he had presented clear and convincing evidence that his alcohol and drug use disorders were in remission, an expert had reported that he had a favorable prognosis for recovery, and that he had abstained from the use of alcohol and marijuana since 2009, satisfying all requirements for a restricted license. The hearing officer's decision was not supported by competent, material, and substantial evidence on the whole record, he contended.
MCL 257.323(1) provides that "[a] person aggrieved by a final determination of the secretary of state . . . revoking, suspending, or restricting an operator's or chauffeur's license . . . may petition for a review of the determination in the circuit court . . . ."
In a bench opinion, the circuit court observed that the record reflected an issue regarding whether Morrow had a medical marijuana card "as a caregiver" or "for dispensing." The court also noted that the 2019 hearing officer had ordered Morrow "to provide a complete [PSIR] or its equivalent, regarding Mr. Morrow's drug crimes for 2016, 2017." The court summarized:
I believe the documents indicated that the underlying criminal crime had to do with [Morrow] selling marijuana to an undercover police officer. So, I think the - - the point was that the hearings [sic] officer wanted to see, because of this discrepancy in terms of whether or not [Morrow] had a marijuana - - a medical marijuana license for his own use, as a caregiver, or as a dispensary.
The court concluded that the hearing officer's decision to deny Morrow's request for driving privileges was based on competent, material, and substantial evidence and was not arbitrary or capricious or an abuse of discretion.
Morrow claimed this appeal, contending that the hearing officer abused his discretion by focusing on his failure to produce the PSIRs or the medical marijuana card. The PSIR could not be produced, Morrow contends, under Michigan law. And evidence related to the issuance of a medical marijuana card is off-limits, Morrow asserts, because the issuance of a card cannot be used as a "sword to take negative action against a licensee."
During oral argument in this Court, the parties were instructed to meet and confer and to advise the Court whether they could stipulate to expand the record concerning the availability of Morrow's PSIRs. The parties then stipulated to the admission of an email from Michigan Department of Corrections Regional Manager Donald Nolan stating that he was not allowed to release a copy of a PSIR "except as allowed by statute." The statute Nolan cited in his email, MCL 791.229, prohibits the release of "all records and reports of investigations made by a probation officer, and all case histories of probationers," except to "[j]udges and probation officers" and others named in the statute, none of whom include Morrow or Secretary of State hearing officers.
II. ANALYSIS
The hearing officer erred by conditioning Morrow's license restoration on production of his PSIRs and his medical marijuana card. As the parties now agree, Morrow cannot produce his PSIRs to a hearing officer. Because the PSIRs are not subject to production, the hearing officer improperly relied on Morrow's alleged failure to produce it as a reason to deny license restoration.
As noted above, MCL 257.323(1) permits "[a] person aggrieved by a final determination of the secretary of state denying the person an operator's or chauffeur's license . . . or revoking, suspending, or restricting an operator's or chauffeur's license" to petition for a review of that determination in the circuit court. The scope of the circuit court's review is described in MCL 257.323(4) as follows:
Except as otherwise provided in this section, in reviewing a determination resulting in a denial, suspension, restriction, or revocation under this act, the court shall confine its consideration to a review of the record prepared under [MCL 257.322 or MCL 257.625f] or the driving record created under [MCL 257.204a] for a statutory legal issue, and may determine that the petitioner is eligible for full driving privileges or, if the petitioner is subject to a revocation under [MCL 257.303], may determine that the petitioner is eligible for restricted driving privileges. The court shall set aside the secretary of state's determination only if 1 or more of the following apply:
(a) In determining whether a petitioner is eligible for full driving privileges, the petitioner's substantial rights have been prejudiced because the determination is any of the following:
(i) In violation of the Constitution of the United States, the state constitution of 1963, or a statute.
(ii) In excess of the secretary of state's statutory authority or jurisdiction.
(iii) Made upon unlawful procedure resulting in material prejudice to the petitioner.
(iv) Not supported by competent, material, and substantial evidence on the whole record.
(v) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.
(vi) Affected by other substantial and material error of law.
Our review of the circuit court's decision is even more narrowly circumscribed:
[W]hen reviewing a lower court's review of agency action 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 agency's factual findings. This latter standard is indistinguishable from the clearly erroneous standard of review that has been widely adopted in Michigan jurisprudence. As defined in numerous other contexts, a finding is clearly erroneous when, on review of the whole record, this Court is left with the definite and firm conviction that a mistake has been made. [Boyd v Civil Serv Comm, 220 Mich.App. 226, 234-235; 559 N.W.2d 342 (1996).]
Our interpretation and application of statutory provisions is de novo, without deference to the other jurists who have considered this case. United Parcel Serv, Inc v Bureau of Safety & Regulation, 277 Mich.App. 192, 202; 745 N.W.2d 125 (2007).
Morrow's substantial rights were prejudiced by the hearing officer's insistence that he produce the PSIRs, because a statute prevented him from complying with this request. In affirming that decision the circuit court applied an incorrect legal principle: that Morrow could produce the PSIRs. And the hearing officer committed a congruent clear factual error in finding that Morrow had deliberately refused to produce the document.
We respectfully disagree with our dissenting colleague's suggestion that a police report is "equivalent" to a PSIR. A police report is generated to support an arrest. Generally, a police report does not include information contrary to a single police officer's perception of events. A police report is drafted to support a finding of probable cause for arrest. A PSIR is prepared by a probation officer, and often includes a defendant's version of what led to his or her arrest, and a fuller discussion of the background information. Most critically, at sentencing a defendant has an ability to challenge the factual information contained in a PSIR. No such ability exists with respect to a police report. That said, our holding does not constrain the circuit court from seeking a true "equivalent" to a PSIR if such a document exists.
This was not the only error committed by the hearing officer and the circuit court. In People v Thue, 336 Mich.App. 35, 48; 969 N.W.2d 346 (2021), this Court explained that the Michigan Medical Marijuana Act, (the MMMA), MCL 333.26421 et seq., includes an "immunity" provision, which provides, in pertinent part, that
A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marijuana in accordance with this act . . . . [MCL 333.26424(a) (emphasis added).]
In Thue, 336 Mich.App. at 47, we applied this immunity provision to prohibit the revocation of probation based on MMMA-compliant use of marijuana. Here, Morrow's medical marijuana card, regardless of its contents, cannot be used to deny him an opportunity for the restoration of driver's license.
These legal errors require us to vacate and remand to the circuit court for reconsideration of Morrow's appeal based on the legal principles set forth in this opinion. We do not retain jurisdiction.
Markey J. (dissenting).
Petitioner filed a claim of appeal in this Court challenging the circuit court's ruling that upheld a hearing officer's administrative order. The order that the hearing officer issued had affirmed or kept in place respondent's decision years earlier to revoke petitioner's operator's license. The hearing officer denied petitioner's request for restoration of restricted or full driving privileges. I would hold that petitioner does not have an appeal by right, that petitioner was instead required to file an application for leave to appeal, and that this panel, therefore, lacks jurisdiction over the claim of appeal. Exercising our discretion to do so, I would treat petitioner's appeal as an application for leave to appeal and deny leave. I also find the majority's reasoning problematic. Accordingly, I respectfully dissent.
The construction of court rules and statutes is reviewed de novo on appeal. In re Sanders, 495 Mich. 394, 404; 852 N.W.2d 524 (2014). "Our goal when interpreting and applying statutes or court rules is to give effect to the plain meaning of the text[,]" and "[i]f the text is unambiguous, we apply the language as written without [further] construction or interpretation." Ligons v Crittenton Hosp, 490 Mich.App. 61, 70; 803 N.W.2d 271 (2011).
I find it unnecessary to review and examine in detail petitioner's extensive and troubling driving history, which includes two drunk driving convictions and multiple violations related to the mandatory use of a breath alcohol ignition interlock device. Relevant to this appeal, respondent revoked petitioner's driver's or operator's license in October 2018. Then, after a rejected challenge in 2019, petitioner sought an administrative hearing under MCL 257.322(1) in 2021 to once again fight the continuing revocation and seek restoration of his license. MCL 257.322(1) states that "[t]he secretary of state shall appoint a hearing officer to hear appeals from persons aggrieved by a final determination of the secretary of state denying an application for an operator's or chauffeur's license, suspending, restricting, or revoking an operator's or chauffeur's license, or other license action." The hearing officer in this case denied petitioner's appeal.
Next, petitioner filed a petition for review in the circuit court in an effort to overturn the hearing officer's determination. MCL 257.323(1) provides, in part, as follows:
A person aggrieved by a final determination of the secretary of state denying the person an operator's or chauffeur's license, a vehicle group designation, or an indorsement on a license or revoking, suspending, or restricting an operator's or chauffeur's license, vehicle group designation, or an indorsement may petition for a review of the determination in the circuit court . . . . [Emphasis added.]
MCR 7.103(A)(3) provides that "[t]he circuit court has jurisdiction of an appeal of right filed by an aggrieved party from . . . a final order or decision of an agency from which an appeal of right to the circuit court is provided by law." (Emphasis added.) MCL 257.323(1) refers to petitions for review, while MCR 7.103(A)(3) refers to appeals. But, importantly, MCR 7.102(2) defines an "appeal" as "judicial review by the circuit court of a judgment, order, or decision of a 'trial court' or 'agency,' even if the statute . . . authorizing circuit court appellate review uses a term other than 'appeal.'" I conclude that for purposes of jurisdiction and an appeal by right to the circuit court under MCR 7.103(A)(3), it encompasses a petition for review under MCL 257.323(1), even though the Legislature did not use the term "appeal."
I fully recognize that a circuit court is authorized in some instances to take testimony to supplement respondent's record and to make associated findings. See MCL 257.323(3) and (4)(b)(ii)(B) and (C). But when deciding whether respondent's decision should be set aside and whether a petitioner should be eligible for full or restricted driving privileges, the circuit court must minimally find that respondent's determination was one of the following:
(i ) In violation of the Constitution of the United States, the state constitution of 1963, or a statute.
(ii) In excess of the secretary of state's statutory authority or jurisdiction.
(iii) Made upon unlawful procedure resulting in material prejudice to the petitioner.
(iv) Not supported by competent, material, and substantial evidence on the whole record.
(v) Arbitrary, capricious, or clearly an abuse or unwarranted exercise of discretion.
(vi) Affected by other substantial and material error of law. [MCL 257.323(4)(a) and (b)(i).]
These are well-established appellate review standards, see Bureau of Health Professions v Serven, 303 Mich.App. 305, 308; 842 N.W.2d 561 (2013), and ultimately, when viewed in context, the overall nature of MCL 257.323 concerns appellate review by the circuit court of secretary-of-state licensing determinations, even though the court may take testimony on occasion. In this case, the circuit court upheld the hearing officer's decision.
With respect to an appeal to this Court, the Motor Vehicle Code is silent. But MCR 7.203(A), which pertains to the jurisdiction of the Court of Appeals, provides, in pertinent part:
The court has jurisdiction of an appeal of right filed by an aggrieved party from the following:
(1) A final judgment or final order of the circuit court, or court of claims, as defined in MCR 7.202(6), except a judgment or order of the circuit court
(a) on appeal from any other court or tribunal[.] [Emphasis added.]
In light of the language defining an "appeal" in MCR 7.102(2) and our earlier analysis, I conclude that we are necessarily addressing a case involving an "appeal" to the circuit court.
With regard to whether respondent was acting as a "tribunal," I note that a "tribunal" includes an administrative agency when it is acting in a judicial or quasi-judicial capacity. Natural Resources Defense Council v Dep 't of Environmental Quality, 300 Mich.App. 79, 86; 832 N.W.2d 288 (2013). In the context of hearings held by respondent in relation to revocation of driving privileges, there can be no reasonable dispute that respondent acts in a judicial or quasi-judicial capacity. See id. at 86 ("Quasi-judicial proceedings include procedural characteristics common to courts, such as a right to a hearing, a right to be represented by counsel, the right to submit exhibits, and the authority to subpoena witnesses and require parties to produce documents."); MCL 257.322(3). Furthermore, under MCR 7.203(B)(1), an appeal by application for leave applies to "a judgment or order of the circuit court and court of claims that is not a final judgment appealable of right."
MCL 257.322(3) provides:
In a hearing or matter properly before the hearing officer, he or she may do any of the following:
(a) Issue subpoenas to compel attendance of witnesses.
(b) Issue process to compel attendance.
(c) Punish for contempt any witness failing to appear or testify in the same manner as provided by the rules and practice in the circuit court.
(d) Swear witnesses, administer oaths, and exemplify records in any matter before the officer.
(e) Take additional testimony he or she considers appropriate.
Accordingly, I conclude that this panel lacks jurisdiction over the claim of appeal filed by petitioner. Petitioner was required to pursue the appeal through an application for leave to appeal. In the interest of judicial economy, this Court may exercise its discretion and treat a party's claim of appeal as an application for leave to appeal, grant leave, and then address the substantive issues. Wardell v Hincka, 297 Mich.App. 127, 133 n 1; 822 N.W.2d 278 (2012). Although the majority does not decide the question whether petitioner was required to file an application for leave to appeal, the majority does treat the claim of appeal as an application for leave. And I agree that the claim of appeal should be treated as an application for leave. But I disagree that we should grant leave. Instead, I would deny leave.
Ordinarily, in ruling on an application for leave to appeal, no explanation for denying or granting leave is given because it is not required. See MCR 7.205(E)(2). But in the posture of this appeal and in light of the majority's ruling, I feel compelled to make some remarks. The earlier 2019 hearing order contained the requirements that petitioner, for purposes of a future challenge and hearing, produce verification of when he actually held a medical-marijuana registry identification card and produce an independent accounting of his 2016 and 2017 drug crimes. There is no indication or claim that petitioner ever appealed or otherwise challenged those requirements in 2019 when the administrative order was issued; petitioner in the instant 2021 litigation is essentially engaging in a collateral attack to void portions of the 2019 order. The hearing officer in 2019 included the requirements because there were serious concerns regarding petitioner's truthfulness and credibility. Indeed, the hearing officer stated:
Mr. Morrow is not a credible person. He clearly perjured himself to obtain a license in 2016, and his gradual release of information over the course of 3 Administrative Hearings regarding his marijuana involvement is a substantial concern.
Moreover, in regard to producing an independent account of the drug crimes in relation to a future hearing, the hearing officer in 2019 specifically required petitioner to submit "a complete presentence investigation report [PSIR] or its equivalent regarding [the] drug crimes in 2016 and 2017 to provide an independent account of his offenses." (Emphasis added.) There is no indication that petitioner made any effort to identify or supply documentation that was the equivalent of a PSIR after determining that he could not access a PSIR. For example, petitioner likely had police reports at his disposal associated with the 2016 and 2017 drug charges and prosecutions. See MCR 6.201(B)(2) (upon request, a prosecutor must provide a defendant "any police report and interrogation records concerning the case"). The majority mistakenly focuses solely on the PSIR.
With respect to petitioner's medical marijuana card, the majority posits that MCL 333.26424(a) precludes use of his card to deny him an opportunity to have his driver's license restored. MCL 333.26424(a) provides, in part:
A qualifying patient who has been issued and possesses a registry identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including, but not limited to, civil penalty or
disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act . . . . [Emphasis added.]
The majority relies on the emphasized language to support its holding. In my view, the language simply stands for the proposition that petitioner cannot be denied restoration of his operator's license for the medical use of marijuana. The 2019 order required verification regarding "when Mr. Morrow had a medical marijuana card." (Emphasis added.) This was merely to assess or evaluate the truthfulness and credibility of petitioner's claims in multiple administrative hearings about his medical marijuana card and the 2016 and 2017 drug offenses. Again, there were serious issues concerning perceived fabrications by petitioner.
In sum, I would hold that petitioner has no appeal by right, that petitioner was required to file an application for leave to appeal, that we lack jurisdiction over his claim of appeal, that petitioner's appeal is to be treated as an application for leave to appeal, and that, finally, the application for leave to appeal is denied. Accordingly, I respectfully dissent.