holding that because the petitioner did not raise the issue of “fair play” at the administrative level he had not preserved the issue for purposes of appeal
How later courts described this case
- holding that because the petitioner did not raise the issue of “fair play” at the administrative level he had not preserved the issue for purposes of appeal
- "[t]he maxim — expressio unius est exclusio alterius — is well recognized in Maine as in other states”
- statute provides a single exception and implicitly denies the availability of any other
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, SS. CIVIL ACTION
DOCKET, JO. AP-02-53
oS : | .
IE CUM -jafrooy
DOUGLAS A. BELL,
Petitioner
vs. DECISION AND ORDER
SECRETARY OF STATE, WL bey nen ee
BUREAU OF MOTOR VEHICLES, - ~
Respondent JUN. 2003 ~
sy
a
This matter is before the court on the appeal of the petitioner
ae
Douglas Bell from the decision of a hearing examiner upholding the
decision of the respondent Secretary of State, Bureau of Motor Vehicles
(BMV) revoking the petitioner’s driver’s license based upon a
determination that he was an habitual offender.
Preliminarily, the petitioner has moved to strike certain documents
attached to the respondent’s memorandum of law because they were not
part of the administrative record. In this appeal, the court's review is
limited to the record before the agency upon which the agency decision
was based. 5 M.R.S.A. § 11006 (1). The court agrees with the petitioner
that the challenged documents were noi part of the record before the
hearing examiner. Accordingly, the motion to strike is granted.
BACKGROUND
On March 3, 1995, the petitioner’s license was administratively
suspended as the result of a dishonored check given by him to the
Secretary of State. The petitioner cured the dishonor on March 25, 1995,
ASN~
after the administrative suspension went into effect, but did not pay the
license reinstatement fee. Accordingly, his license remained under
suspension.
On January 26, 1998, the petitioner was charged with Operating
After Suspension (OAS) based upon the “dishonored check” suspension
(“First OAS Charge”). On May 12, 1998, the petitioner failed to appear at
court on the First OAS Charge and his license was suspended by the
court for that reason. On February 16, 2000, the petitioner was again
charged with OAS based upon the “dishonored check” and the “failure to
appear” suspensions (“Second OAS Charge”). On March 21, 2000, his
license was restored as to the court ordered suspension, but not as to
the administrative suspension. Thus, his license remained under
suspension.
On May 2, 2000, the petitioner was convicted of the Second OAS
Charge following his plea of guilty. This conviction was based upon the
“dishonored check” and the “failure to appear” suspensions and resulted
in the imposition of an administrative suspension of the petitioner’s
license by BMV on June 1, 2000 (First OAS Administrative Suspension).
On July 25, 2000, the petitioner was convicted of the First OAS
Charge. This conviction was based upon the “dishonored check”
suspension and resulted in the imposition of another administrative
suspension by BMV on September 11, 2000 (Second OAS Administrative
Suspension).
On April 25, 2002, the petitioner was charged for the third time
with OAS based upon the “dishonored check” suspension and the First
and Second OAS Administrative Suspensions (“Third OAS Charge”). On
May 7, 2002, his license was restored with respect to the OAS
Administrative Suspensions, but not as to the “dishonored check”
suspension.
On July 11, 2002, John Sweeney, a legal assistant to the
petitioner’s attorney, contacted BMV and asked “what effect a new
conviction for [the Third OAS Charge] would have on Mr. Bell’s license”.
See Petition, Exh. B, Affidavit John D. Sweeney 1 3. The legal assistant
reports that he was told by an unidentified BMV representative that the
petitioner’s license would be suspended for 60 days, but “he would not
be classified as an habitual offender”. Id. On July 16, 2002, the
petitioner plead guilty to the Third OAS Charge.
On August 14, 2002, BMV sent a notice to the petitioner advising
him that, as a result of the third OAS conviction, he was declared to be
an habitual offender and his license was revoked for an indefinite period
beginning August 24, 2002. 29-A M.R.S.A. § 2551 (2003). The notice
cited four driving offenses, including the three OAS convictions, that
resulted in his habitual offender status. On August 20, 2002, the
petitioner’s attorney timely requested an administrative hearing to
determine (i) whether the petitioner was the same person cited in the
notice as having been convicted of the offenses, and (ii) whether his
driving record brought him within the definition of an habitual offender.
A hearing was held on October 28, 1997 and the hearing examiner
upheld BMV’s determination that the petitioner was an habitual offender
and the revocation of his license.
The issue on appeal is whether the petitioner was properly
determined to be an habitual offender within the meaning of 29-A
M.R.S.A. § 2551(4)(B), which provides that OAS convictions may not be
counted for determining habitual offender status “when the suspension
is based upon a failure to appear in court or to pay a fine”. The hearing
examiner concluded that the petitioner’s OAS convictions on May 2,
2000, July 25, 2000, and July 16, 2002 qualified as predicate countable
offenses.’
The petitioner counters that all of the convictions should not be
counted because his administrative suspension for issuing a dishonored
check to the Secretary of State is sufficiently similar to a court ordered
suspension for failing to pay a fine to the court. He also argues that,
even if the convictions are countable, BMV is estopped from classifying
him as an habitual offender because of the erroneous information given
to his attorney’s legal assistant.
DISCUSSION
Any party aggrieved by a final agency action is entitled to judicial
review in the Superior Court. See M.R. Civ. P. 80C(a). "The court shall
not substitute its judgment for that of the agency on questions of fact." 5
M.R.S.A. § 11007 (3). "The standard of review is limited to whether the
governmental agency abused its discretion, committed an error of law, or
' It is noted that the May 2, 2000, conviction for the Second OAS Charge was based on
two separate suspensions — one related to the “dishonored check” and the other to the
petitioner’s “failure to appear in court”. The latter suspension, which is clearly not
“countable” for determining whether a person is an habitual offender, was not included
by the hearing examiner in her decision. 29-A M.R.S.A. § 2551(4)(B).
made findings not supported by substantial evidence in the record."
Seider v. Board of Examiners of Psychologists, 2000 ME 206, P8, 762
A.2d 551, 555 (Me. 2000) (quotation and citation omitted). “The party
seeking review of agency action has the burden of proof to show that the
decision of the agency is not supported by competent evidence. Greely v.
Commissioner, Dep't of Human Servs., 2000 ME 56, {| 9, 748 A.2d 472.
(a) Determination of Habitual Offender Status
The petitioner does not dispute that he was convicted of OAS in
1998, 2000, and 2002, and that evidence of these convictions was
properly before the hearing examiner. However, he argues that the
conduct resulting in his 1995 administrative suspension is not a proper
consideration for determining his habitual offender status. The
petitioner’s argument is premised on an interpretation of 29-A M.R.S.A. §
255 1(4)(B) that the “failure to pay a fine” to the court includes by
implication the issuance of a “bad check” to the Secretary of State.
The hearing examiner upheld BMV’s contrary interpretation and
reasoned that the statute expressly excludes OAS convictions based on
the failure to pay a fine to the court and that, if the legislature intended
to also exclude those based on “dishonored checks” to the Secretary of
State, it would have done so. “The administrative agency's interpretation
of a statute administered by it, while not conclusive or binding on [the]
court, will be given great deference and should be upheld unless the
statute plainly compels a contrary result.” Thacker v. Konover Dev.
Corp., 2003 ME 30, 1 14, 818 A.2d 1013 (internal quotations omitted);
see also, Wood v. Superintendent of Insurance, 638 A.2d 67, 70 (Me.
1994).
Section 2551(4)(B) does not “plainly compel” a contrary result. It
specifically includes the “failure to pay a fine” in the enumeration of
excluded OAS convictions, but is silent as to administrative suspensions
based upon dishonored checks. It is a well-settled rule of statutory
interpretation that the express mention of one concept implies the
exclusion of others not listed. Wescott v. Allstate Ins., 397 A.2d 156, 169
(Me. 1979) ("[t]he maxim — expressio unius est exclusio alterius — is well
recognized in Maine as in other states”); Musk v. Nelson, 647 A.2d 1198,
1200-01 (Me. 1994) (statute provides a single exception and implicitly
denies the availability of any other).
Although the nature of the transgressions associated with the
issuance of a bad check to the Secretary of State and the failure to pay a
fine to the court are similar in that they are both fiscally based, the plain
language of the statute only applies to the latter. Thus, the court
upholds the hearing examiner’s determination that the petitioner’s three
OAS convictions are “countable” in the habitual offender analysis.
(b) Equitable Estoppel
The court is also not persuaded by the petitioner’s argument that
BMV should be estopped from enforcing 29-A M.R.S.A. § 2551 because a
BMV representative may have given erroneous information to legal
assistant Sweeney. This issue was not raised at the administrative
hearing and, therefore, is not preserved for appeal. Powell v. Sec’y of
State, 614 A.2d 1303, (Me. 1992) (holding that because the petitioner did
not raise the issue of “fair play” at the administrative level he had not
preserved the issue for purposes of appeal). See also New England
Whitewater, Inc. v. Dept. of Inland Fisheries & Wildlife, 550 A.2d 56, 60-
61 (Me. 1988).
Estoppel bars the assertion of the truth by one whose misleading
conduct has induced another to act to his detriment in reliance on what
is untrue. See DiPietro v. Secretary of State, 2002 ME 114, { 14, 802
A.2d 399, 404. The reliance must be reasonable. The burden rests on
[the petitioner] to demonstrate that he justifiably relied upon affirmative
misleading conduct of a... governmental representative and was
induced to his detriment to do an act that he would not otherwise have
done.” Id. (quotations and citations omitted). In an appropriate case,
equitable estoppel may be invoked against a governmental agency.
Whether a governmental agency should be equitably estopped depends
on the totality of the circumstances, including the nature of the agency’ ~
and governmental function it performs.
Even if the issue is properly before the court, the court does not
accept the petitioner’s estoppel argument. Accepting for the sake of this
analysis that there was a conversation between legal assistant Sweeney
and an unidentified BMV representative during which erroneous
information was given to Sweeney, there is no indication on this record
that the misinformation rose to the level of “affirmative misleading
conduct”. Id. There is nothing to suggest that it was anything other
than a simple mistake. Even if it could be construed as “affirmative
misleading conduct”, there is insufficient record evidence that, but for
the erroneous information given to Sweeney by BMV, the petitioner
would have acted any differently — that is, he would not have plead
guilty — or that the “detriment” would not have occurred regardless —
that is, he would not have been convicted. Id.
DECISION
Based upon the foregoing, and pursuant to MLR. Civ. P. 79(a), the
Clerk is directed to enter this Decision and Order on the Civil Docket by
a notation incorporating it by reference and the entry is
Petitioner’s motion to strike documents appended to Respondents
Memorandum of Law is GRANTED; and
Decision of Hearing Officer affirming decision of Respondent
Secretary of State, Bureau of Motor Vehicles classifying Petitioner
as an habitual offender and revoking Petitioner’s license for an
indefinite period is AFFIRMED.
Dated: May 30, 2003 \4
Justice, Superior Court
Date Filed October 11, 02 CUMBERLAND Docket No, __ AP-02-53
/ County —
ne
DEPARTMENT OF THE SECRETARY OF
STATE, BUREAU OF MOTOR VEHICLES
DOUGLAS A. BELL
VS.
Plaintiff’s Attorney Defendant’s Attorney
GENE R. LIBBY, ESQ. JOSEPH WANNEMACHER, AAG
P.O. BOX 147 DEPARTMENT OF THE ATTORNEY GENERAL
KENNEBUNK, MAINE 04043 6 STATE HOUSE STATION
985-7193 AUGUSTA, MAINE 04333-0006
626-8800
Date of
Entry
2002
Oct. 1l Received 10-11-02:
Nov. 6
Dec. 17
Dec. 17
Dec. 31
2003
Feb. 5
Summary Sheet filed.
Petition for Review of Final Agency Action Pursuant to M.R.Civ.P 80C and
5 M.R.S.A. @11001 et seq. with attached exhibits A & B filed.
Received 10-30-02:
Letter from Joseph Wannemacher, AAG entering his appearance for the Res-—
+ pondent and that a certiffed copy of the complete record under review
will be sent filed.
Received 11-6-02.
Record with tape filed.
On 11-6-02.
Briefing Schedule Mailed. Petitioner' Brief due 12-16-02
Received 12-16-02:
Petitioner's Motion for Enlargement of Time to File Brief filed.
Received 12-16-02:
Order filed. (Humphrey, J.).
The court finds that Petitioner's motion was filed before the expiration
of the time to file his brief and that he has shown cause for an enlarge-
ment of time. Moreover, the Respondent does not oppose Petitioner's motion.
Therefore, the motion is GRANTED. It is hereby ORDERED that Petitioner shal
have up to and including December 30, 2002 to file his brief.
On 12-16-02 Copies mailed to Joseph Wannemacher, AAG and Gene Libby, Esq.
Received 12-30-02.
Petitioner's brief filed.
Received 02-04-03.
State's Memorandum of Law withattachments field.