Supreme Court No. S-12812.
March 4, 2009.
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Michael R. Spaan, Judge., Superior Court No. 3AN-06-09064 CI.
Appearances: Stephanie Patel and Ian Wheeles, Law Offices of Dan Allen Associates, Anchorage, for Appellant.
Krista S. Stearns, Assistant Attorney General, Anchorage, Talis J. Colberg, Attorney General, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh, Carpeneti, and Winfree, Justices.
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d). Accordingly, this memorandum decision may not be cited for any proposition of law or as an example of the proper resolution of any issue.
Entered pursuant to Appellate Rule 214.
Daniel Poirot was arrested in 1990 for driving while intoxicated, and his license was revoked. At his criminal trial on charges stemming from that arrest, he was acquitted after asserting a necessity defense. In 2006 he petitioned the State of Alaska, Department of Administration, Division of Motor Vehicles (DMV) to set aside the revocation of his license, but DMV did not respond to his request. Poirot interpreted the inaction as a denial of his request and appealed to the superior court, which affirmed DMV's implicit refusal to set aside his license revocation. Arguing it would be manifestly unjust to allow the 1990 revocation to stand when the finding at his criminal trial was that necessity forced him to drive while intoxicated, he requests that this court set it aside. Because we conclude it is not manifestly unjust to allow the revocation to stand when Poirot did not challenge it for sixteen years, we affirm the superior court's decision.
II. FACTS AND PROCEEDINGS
Poirot was arrested for driving while under the influence of alcohol (DUI) in Palmer in August 1990. The arresting officer issued Poirot a notice and order revoking his driver's license. Because this was Poirot's eighth DUI, the revocation period was ten years. Poirot did not contest or appeal the administrative license revocation.
Poirot asserted the defense of necessity at his criminal trial, arguing that although his blood-alcohol concentration was over the legal limit, he had been assaulted and robbed, requiring him to drive to contact the police. A jury acquitted Poirot and he states that he "reasonably believed" the 1990 revocation was set aside when he was acquitted on the related criminal charge. Poirot claims that until 2006 he was unaware the 1990 revocation still stood.
In 1993 the legislature enacted a law allowing drivers whose licenses had been revoked to apply for shortened revocation periods. In 2006 Poirot retained counsel and filed a request under the statute to have five revocation periods "roll[ed] back," including the 1990 administrative revocation. Poirot also requested that the 1990 revocation be set aside altogether "to avoid manifest injustice." Specifically, he argued it would be manifestly unjust to revoke his license not merely because he was acquitted, but "because, as determined by the jury, he really had no choice in the matter if he wanted, from his view, to avoid an even greater evil."
AS 28.15.181(f); Ch. 59, §§ 2-3, SLA 1993.
Emphasis in original.
DMV reduced the duration of Poirot's license revocations, including the revocation for his 1990 arrest, by halving the time for each in accordance with the statute. DMV notified Poirot that he could seek license reinstatement in 2011 and that he was eligible to apply for a limited license. DMV did not address Poirot's request to set aside the 1990 revocation, but rather returned the relevant materials to his attorney. Poirot characterized DMV's silence as a denial of his request and appealed to the superior court. He argued there, as he does here, that DMV abused its discretion in denying his request to set aside the 1990 revocation.
Had his request been granted, Poirot would have been eligible for license reinstatement in 2006.
In June 2007 the superior court affirmed DMV's action. The court found that Poirot had notice of his license revocation, but had failed to request a hearing or to appeal DMV's decision to revoke. The court therefore ruled that Poirot's appeal amounted to an untimely appeal of the 1990 administrative revocation. Citing our decision in McGhee v. State, the court acknowledged "that the DMV may have `inherent modification power when enforcement of the original order would result in manifest injustice,'" but concluded there was "no manifest injustice in foreclosing Mr. Poirot from disputing an administrative decision made sixteen years ago." The court also noted it is "an open question" whether a necessity defense is available in an administrative revocation proceeding, but concluded that the legislature likely intended to preclude consideration of such defenses by narrowly defining the scope of license revocation hearings.
951 P.2d 1215, 1218 (Alaska 1998).
Poirot appeals the superior court's decision.
III. STANDARD OF REVIEW
When the superior court acts as an intermediate court of appeal, this court independently reviews the merits of the administrative action, giving no deference to the superior court's decision. "We . . . review constitutional questions de novo, and will adopt the rule of law that is most persuasive in light of precedent, reason, and policy."
Brandal v. State, Commercial Fisheries Entry Comm'n, 128 P.3d 732, 735 (Alaska 2006).
Hartman v. State, Dep't of Admin., Div. of Motor Vehicles, 152 P.3d 1118, 1121-22 (Alaska 2007) (quoting Nevers v. State, Dep't of Admin., 123 P.3d 958, 961 (Alaska 2005)) (internal quotation marks omitted).
Poirot's case presents several potential questions: (1) whether Poirot's action is an untimely administrative appeal of his license revocation or a distinct cause of action implied under DMV procedures; (2) whether DMV's license revocation proceedings allow, or must provide, a necessity defense; (3) whether DMV possesses an "inherent modification power" to set aside an earlier license revocation even without explicit statutory authority; and (4) whether DMV's refusal to exercise this power would result in manifest injustice due to a denial of Poirot's due process rights. We need not address the first three questions, because even assuming that Poirot's action is not an untimely appeal, a necessity defense is available, and DMV possesses inherent modification power, continued enforcement of the 1990 license revocation is not manifestly unjust because Poirot made no effort to challenge the revocation for sixteen years.
We have recognized the possibility that a court or administrative agency may have the power to grant relief beyond that provided by established procedures in order to avoid manifest injustice. In McGhee we noted that "[e]ven in the absence of any express grant of authority to reconsider and modify a final revocation order . . . DMV may well have inherent modification power when enforcement of the original order would result in manifest injustice." As we later recognized in Grinols v. State, an agency or court's authority to provide extraordinary relief where manifest injustice would otherwise result lies in the constitutional guarantee of due process.
10 P.3d 600, 615 (Alaska 2000) (holding res judicata could constitutionally be applied to bar criminal defendants' successive claims for post-conviction relief, but recognizing that "under particular circumstances, strict application of res judicata might perpetuate manifest injustice and thus violate the guarantee of due process.").
Poirot argues that license revocation procedures must provide a defense of necessity and that refusal to vacate his license revocation on that ground is manifestly unjust. It may be manifestly unjust to let a constitutional violation and resulting injury stand when the victim had no opportunity to vindicate his rights. But it is not manifestly unjust to decline to craft an extraordinary remedy for someone who had that opportunity but failed to use it for sixteen years.
Courts have a duty to protect the rights of individuals; individuals have the concomitant duty to timely assert those rights, or risk forfeiting them. We recognized in Grinols that "there is no fundamental unfairness in requiring defendants to raise all of their post-conviction claims in a single proceeding — and in barring defendants from filing later claims unless they demonstrate that there is a good reason why they could not raise those claims in earlier litigation." Our legal system requires litigants to assert claims and rights through the processes provided, not according to their own convenience.
See, e.g., AS 12.72.020(a)(3)(A) (providing criminal defendant may not bring claim for post-conviction relief related to his conviction more than eighteen months after entry of judgment or one year after decision becomes final under appellate rules); Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389-90 (Alaska 1990) (plaintiff's personal injury claim barred by statute of limitations, which was not tolled by plaintiff's incarceration or bed-ridden condition following injury); Andrews v. Wade DeYoung, Inc., P.C., 875 P.2d 89, 91 (Alaska 1994) ("Failure to assert a compulsory counterclaim bars a party from bringing a later independent action on that claim.") (citing Miller v. LHKM, 751 P.2d 1356, 1359 (Alaska 1988); Wells v. Noey, 399 P.2d 217, 220 (Alaska 1965)).
Grinols, 10 P.3d at 615 (emphasis added).
Poirot lacks a good reason for not earlier raising his claim. Although DMV's license revocation procedures do not expressly provide for a necessity defense, he had the opportunity in 1990 to raise his argument and, if denied, to pursue it on appeal. He also could have requested that DMV exercise its "inherent modification power" to set aside the revocation soon after his acquittal in the criminal proceedings. Poirot claims he was unaware his revocation still stood after his acquittal in the criminal trial, but ignorance of a fact easily verified is not a good reason for failing to timely file a claim.
AS 28.15.166 (setting forth procedures for administrative hearing and review of license revocation); cf. State, Dep't of Pub. Safety, Div. of Motor Vehicles v. Fann, 864 P.2d 533, 535-37 (Alaska 1993) (holding that when plaintiff whose driver's license was revoked on basis of prior DUI convictions challenged constitutionality of his out-of-state conviction at revocation hearing, superior court was allowed to consider constitutionality of that conviction when reviewing license revocation proceedings on appeal).
Cf. McGhee, 951 P.2d at 1217 (considering, but ultimately rejecting, legal merits of plaintiff's claim when plaintiff requested DMV reduce duration of license revocation six months after prior DUI conviction was vacated).
See Coleman v. Thompson, 501 U.S. 722, 753 (1991). The Court in Coleman held that a criminal defendant was procedurally foreclosed from asserting a habeas corpus claim under 28 U.S.C. § 2254 because his attorney failed to timely appeal his constitutional claim in state court proceedings. Id. at 752-54. Under federal habeas law, the petitioner's procedural default in state court will be excused, and his habeas claim heard in federal court, only if the petitioner can show "cause" for the default. Id. at 753. The Court in Coleman described "cause" as "something external to the petitioner, something that cannot be fairly attributed to him. . . . [a] showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable. . . ." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)) (internal quotation marks and citations omitted).
We also note that Poirot is not completely prohibited from driving a motor vehicle. Poirot's 2006 application that requested DMV set aside his 1990 license revocation alternatively requested a limited work license. DMV notified Poirot that he was eligible for a limited license, and at oral argument DMV's counsel stated that Poirot also would soon be eligible for limited license privileges not restricted to work-related use, allowing him to use a vehicle for other basic needs. Under these circumstances, it is not manifestly unjust to refuse the extraordinarily belated remedy Poirot seeks.
See AS 28.15.201(d) (allowing court or DMV to grant limited license privileges to applicant with revoked license if applicant fulfills certain conditions, including installation of ignition interlock device, enrollment in or completion of treatment programs for alcoholism under AS 28.35.030(h), and proof of insurance as required by AS 28.20.230 and .240).
Effective January 1, 2009, AS 28.15.201(d)'s limited license privileges are no longer determined by reference to the driver's work-related needs. Ch. 97, §§ 3, 12, SLA 2008.
Poirot's appeal is DENIED and the judgment of the superior court is AFFIRMED.