The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-2016-68
BRYAN M. CARRIER,
Petitioner
DECISION AND ORDER
V.
MAINE BUREAU OF MOTOR
VEHICLES,
Respondent
The matter before the court is an appeal by the Petitioner from a decision of a
hearings examiner with the Bureau of Motor Vehicles dated October 13, 2016
denying his petition for the reinstatement of his driver's license pursuant to 29-A
M.R.S. §2454(5). The appeal has been brought in accordance with 5 M.R.S.
§§11001-11008 (Maine Administrative Procedure Act) and M.R.Civ.P. 80C. The
sole issue before the court is whether the hearings examiner committed legal error
when he determined that the Petitioner's third petition for license reinstatement was
"his final petition and that he has exhausted his right to petition under 29-A M.R.S.
§2454(5)."
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are not in dispute. In 1996 the Petitioner, then 19,
operated a motor vehicle while intoxicated and caused the deaths of three people
when he collided with another vehicle. On June 13, 1997, upon his pleas of guilty
to three counts of manslaughter and three counts of aggravated operating under the
influence, the Petitioner was sentenced to 10 years, all but 2 years suspended with 6
years of probation, along with 2000 hours of community service and a total of
$6000 in fines. The sentencing court, as part of its written sentencing opinion,
noted that the Petitioner's license was suspended for life and the notice of
suspension referred to in the judgment and commitment specified a lifetime
suspension. Carrier v. Secretary ofState, 2012 ME 142, ,r,r 2, 3, 60 a.3d 1241.
As a result of the manslaughter convictions, the Petitioner's driver's license
was suspended for life as mandated by 29-A M.R.S. §2454(2). 1 Notwithstanding
the language of section 2454(2) that the Petitioner's license must be revoked
"permanently" by the Secretary of State, subsection 5 of that same law provides a
mechanism for the Petitioner to apply for the reinstatement of his license. It
provides as follows:
A person whose license is permanently revoked under
subsection 2 may petition the Secretary of State for relicensure 10
years after the date the person is no longer incarcerated. The Secretary
of State shall make the person's petition for relicensure known to the
family of any victims of the person's offense and shall consider the
family's testimony in determining whether to reissue the person a
driver's license.
The Petitioner was released from incarceration on March 30, 1999. He filed
his first petition for relicensure on February 18, 2009 and a hearing .on that petition
was held on April 28, 2009. (Administrative Record at Tabl9, Exhibit 14) The
petition was denied and the denial was appealed to the superior court, which
remanded the matter for further findings of fact and conclusions of law. (A.R., Tab
20, Exhibit 15) On remand the hearing officer again denied the petition and the
superior court affirmed. (A.R. at Tabs 21, 22, Exhibits 16, 17) In her decision after
1
29-A M.R.S. §2454(2) provides:
The license of any person who, as a result of the operation of a motor vehicle
in such a manner as to cause the death of any person, is convicted of criminal
homicide, ... , must be permanently revoked immediately by the Secretary of State
upon receipt of an attested copy of the court records, without further hearing, if the
report by the district attorney pursuant to section245 5 shows the person was under
the influence of intoxicants at the time of the offense.
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remand the hearing officer recommended that the Secretary of State not consider
another application from the Petitioner "for at least two years from the date of the
original petition." (Exhibit 16).
In 2011 the Petitioner filed his second application with the Secretary of State
for reissuance of his driver's license. A hearing was held on June 30, 2011 and the
petition was gain denied in a decision dated July 29, 2011. In making that decision
the hearing officer made detailed findings of fact in support of denying the petition.
In addition, however, the hearing officer concluded that he had no authority to issue
a license to the Petitioner because the sentencing court had suspended the
Petitioner's license for life as part of his sentences for multiple counts of
manslaughter. (Exhibit 18, Tab 23) The denial of the Petitioner's reinstatement
request was affirmed on appeal to the superior court. (Exhibit 19, Tab 24) The
Petitioner appealed to the Law Court.
In Carrier v. Secretary of State, supra, the Law Court held that the
reinstatement statute - 29-A M.R.S. §2454(5) - unambiguously requires the hearing
officer to consider the testimony of the victims and their families. The Court
rejected the Petitioner's argument that the victims and their families held a virtual
"veto" over his reinstatement petition, stating as follows:
Carrier has the opportunity to petition for reinstatement in the
future. He must present evidence that he has earned the opportunity to
drive in spite of his horrendous behavior and its disastrous
consequences to the victims and their families. Perhaps he can make a
stronger case than his need to drive or his capacity to be a safe driver.
The ultimate decision will be up to the Secretary of State and not the
victims or their families, but their opinions must be considered then
just as they were here. Driving in Maine is not a right, but a privilege,
and Carrier must show that he as earned that privilege.
2012 ME 142, ,r 16 (citation omitted)
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On August 5, 2016 the Petitioner submitted his third request with the
Secretary of State for reissuance of his driver's license. (Exhibit 9) A hearing on
the petition was held on September 26, 2016. (Exhibits 5, 10) The hearing officer
issued a written Decision on October 13, 2016 concluding as follows:
The State interest, along with Mr. Carrier's own actions, and
lack thereof, since 2011, and the compelling testimony of [the victims
and victims' relatives] outweigh Mr. Carrier's need and desire to drive
on Maine's roads. Therefore I deny his petition for reinstatement. Mr.
Carrier's petition, his third, had been allowed explicitly by order of the
Law Court. I consider this to be his final petition and that he has
exhausted his right to petition under 29-A M.R.S. §2454(5).
(Exhibit 3)
In holding that Mr. Carrier's third petition for reinstatement was his final
petition under 29-A M.R.S. §2454(5), the hearing officer may have been relying on
the testimony from the victims and their families "that his [Carrier's] continued
petitions for reinstatement increase their own suffering," and that the reinstatement
hearing process was "torture" to them. (Exhibit 3)
The Petitioner's Rule SOB appeal challenges only the hearing officer's
determination and ruling that the Petitioner has exhausted his right to apply for
reinstatement of his license pursuant to 29-A M.R.S. §2454(5).
DISCUSSION
The Law Court has frequently reaffirmed the principle that judicial review of
administrative agency decisions is "deferential and limited." Passadumkeag
Mountain Friends v. Bd. of Envtl. Prat., 2014 ME 116, 1 12, 102 A.3d 1181
(quoting Friends of Lincoln Lakes v. Bd. of Envtl. Prat., 2010 ME 18, 1 12, 989
A.2d 1128). The court is not permitted to overturn an agency's decision "unless it:
violates the Constitution or statutes; exceeds the agency's authority; is procedurally
unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by
bias or error of law; or is unsupported by the evidence in the record." Kroger v
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Departmental o( Environmental Protection, 2005 ME. 50, ,r 7, 870 A.2d 566. The
party seeking to vacate a state agency decision has the burden of persuasion on
appeal. Anderson v Maine Public Emp loyees Retirement S ystem. 2009 ME. 134, ,r
3, 985 A.2d 501. In particular, a party seeking to overturn an agency's decision
bears the burden of showing that "no competent evidence" supports it. Stein v. Me.
Crim. Justice Academy, 2014 ME 82, ,r 11, 95 A.3d 612.
This court must examine "the entire record to determine whether, on the basis
of all the testimony and exhibits before it, the agency could fairly and reasonably
find the facts as it did." Friends of Lincoln Lake v Board of Environmental
Protection, 2001 ME. 18 if13, 989 A. 2d 1128. The court may not substitute its
judgment for that of the agency's on questions of fact. 5 M.R.S. § 11007(3).
Determinations of the believability or credibility of the witnesses and evidence,
supported by substantial evidence in the record, should not be disturbed by this
court. Cotton v Maine Employment Security Commission, 431 A. 2d 637, 640 (Me.
1981). The issue is not whether the court would have reached the same result the
agency did, but whether the "record contains competent and substantial evidence
that supports the result reached" by the agency. Seider v. Board of Examiners of
Psychologists, 2000 ME 206, ,r 8, 762 A.2d 551 quoting CWCO, Inc. v.
Superintendent ofInsurance, 1997 ME 226, ,r 6, 703 A. 2d 1258, 1261.
The solitary issue before the court is whether the hearing officer committed
an error of law and acted without authority in prohibiting the Petitioner from filing
another petition for the reissuance of a driver's license under section 2454(5). 2
2
Because the court concludes that the hearing officer lacked the authority to
completely prohibit any future applications for relicensure by the Petitioner, there is
no need to address the argument that the Petitioner was denied due process by the
hearing officer's ruling.
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The court is persuaded that the hearing officer did not have statutory
authority to decide that the Petitioner could never file another petition for
reissuance of a driver's license by the Secretary of State pursuant to 29-A M.R.S.
§2452(5). The statute itself provides that a petition for relicensure may be made to
the Secretary of State "10 years after the date the person is no longer incarcerated."
The plain meaning of the statutory language indicates that the only limitation on the
filing of a petition is that 10 years must have elapsed since the person was released
from incarceration. Nothing in the statute supports a reading that only one petition
may be filed or that three petitions within a span of 8 years results in exhaustion of
the right to make another application.
The Law Court appears to have recognized that the Petitioner would have
"the opportunity to petition for reinstatement in the future." 2012 ME 142, ,I 16.
This court does not read the Law Court's opinion in Carrier as "explicitly"
allowing the Petitioner to apply for reinstatement, as suggested by the hearing
offi9er. Rather, the court interprets Carrier as recognizing that the statute - 29-A
M.R.S. §2454(5) - permits re-application for relicensure.
Had the Legislature intended to limit the number of petitions under section
2454(5) it could easily have done so because it knows how to do it. Compare 15
M.R.S. §104-A(3)(if release or discharge from custody of Commissioner of DHHS
is not ordered, a new petition may not be filed for 6 months). Moreover, in section
2454(6) the Legislature made it unmistakably clear that if a person's license has
been permanently revoked pursuant to subsection 5, and that person is subsequently
convicted of OUI, the person's license must be permanently revoked and the
Secretary of State "may not relicense that person." This language strongly suggests
that the Legislature knew how to prohibit the Secretary of State from issuing a
license to a person subject to permanent revocation under section 2454(2) & (5).
The legislative silence on the number of times a person may petition the Secretary
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of State for relicensure under subsection 5 persuades the court that the hearing
officer exceeded his authority by essentially banning the Petitioner from ever
applying for reinstatement of a license under the statute.
The court recognizes the pain and suffering the victims and their families
must endure whenever the Petitioner files a new petition for relicensure. The
decision to bar all future petitions under the statute, however, is one that should be
made by the Legislature. The hearing officer committed error of law in imposing
such a ban in the absence of legislative authority.
Finally, the hearing officer cited no authority for his conclusion that the
Petitioner's third reinstatement request would be deemed his last. The parties have
not directed the court's attention to any administrative rule governing hearings
before the Bureau of Motor Vehicles that suggests a prohibition on all future
petitions is authorized.
CONCLUSION
The entry is:
The Petition for Review of Final Agency Action is GRANTED to the extent
that the agency's determination that the Petitioner "has exhausted his right to
petition under 29-A M.R.S. §2454(5)" is REVERSED. In all other respects, the
agency's decision is AFFIRMED.
DATED: May 18, 2017.
Justice, Maine Superior Court
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