Escobedo v. State of California

CARTER, J, Dissenting.

On the main issue, the majority hold (citing as authority Bourjois v. Chapman, 301 U.S. 183 [ 57 S.Ct. 691 , 81 L.Ed. 1027 ]; Phillips v. Commissioner of Internal Rev., 283 U.S. 589 [ 51 S.Ct. 608 , 75 L.Ed. 1289 ]) that due process of law requiring notice and hearing is satisfied because a court review may be had after the suspension of a license without a hearing by the department. In the Bourjois case a Maine statute authorized the public official to issue permits for the sale of cosmetics and refuse such permits where they “. . . contain injurious substances in such amounts as to be poisonous, injurious or detrimental to the person.” The court states: “And neither constitution requires that there must be a hearing of the applicant before the board may exercise a judgment under the circumstances and of the character here involved. The requirement of due process of law is amply safeguarded by sec. 2 of the statute, which provides: ‘From the refusal of said department to issue a certificate of registration for any cosmetic preparation appeal shall lie to the superior court in the county of Kennebec or any other county in the state from which the same was offered for registration.’ ”

*880 In the Phillips case the issue involved was the payment of taxes, and was based on the principle that: “Property rights must yield provisionally to governmental need. . . . The underlying principle in that case was not such relation, but the need of the government promptly to secure its revenues. ’ ’ In the instant case it is said that the rule that a hearing in court after the suspension is sufficient to satisfy due process, is limited to cases where there is a “ compelling public interest,” and such interest in this case is: “. . . the obvious carelessness and financial irresponsibility of a substantial number of drivers and from the following allegations of the petition: There are 3,879,931 motor vehicles registered in California. During the first four months after the effective date of the law now under consideration, 19,808 persons were ordered by the department to establish that they were adequately insured or deposit security. More than 6,567 operators’ licenses were suspended under the applicable law, and more than 1,300 ‘citations per month for suspension of license’ were issued by the department. In these circumstances it is apparent that to require a hearing in every case before suspension of a license would have substantially burdened and delayed if not defeated the operation of the law.” (Emphasis added.)

Assuming that the above rule stated by the majority is sound, there is no “compelling public interest” here. In Bourjois v. Chapman, supra, the vital interest was the necessity for immediate protection of the public health. In Phillips v. Commissioner, supra, it was the immediate necessity that the government receive its tax revenue in order to function. We have no comparable pressing need in the instant ease. There is no issue of immediate danger to the public health involved nor is there any question of indispensable government revenue. The sole need is that a private person shall have security for the payment of any damages caused to him by another individual. Certainly that presents no urgency for immediate action which will justify depriving a person of the use of his automobile, his sole means of livelihood. The majority opinion states, as seen from the above quotation, that obviously careless persons’ licenses were suspended for failure to post security. That is a non sequitur. It does not follow from the failure to post security that the drivers were careless. Nor does it follow from the fact that they were in accidents that they were careless drivers. They may have been wholly blameless. But even more important, there is no *881 connection between careless drivers and posting of security, that is, the statute is not designed to keep seemingly careless drivers off the highways. That is true because they are permitted to drive, careless or not, if they post security. Hence the purpose of the statute is only security for payment of damages to the innocent person.

The recent U.S. Supreme Court case of Ewing v. Mytinger & Cosselberry, Inc., 339 U.S. 594 [ 70 S.Ct. 870 , 94 L.Ed. -], involved a statute authorizing the administrator to determine whether probable cause existed for the seizure of goods on the basis that they were falsely labelled. That determination did not result in an immediate seizure. Such could only be accomplished if the attorney general, in his discretion, brought an action to seize and confiscate the goods. Only upon the commencement of such an action could the goods be seized pending the court proceeding. The court stated: “We have repeatedly held that no hearing at the preliminary stage is required by due process so long as the requisite hearing is held before the final administrative order becomes effective. (Emphasis added) . . . But this case does not go as far. Here an administrative agency is merely determining whether a judicial proceeding should be instituted. Moreover, its finding of probable cause, while a necessary prerequisite to multiple seizures, has no effect in and of itself. All proceedings for the enforcement of the Act or to restrain violations of it must be brought by and in the name of the United States, sec. 307. Whether a suit will be instituted depends on the Attorney General, not on the administrative agency. He may or may not accept the agency’s recommendation. If he does, seizures are made and libels are instituted. But the seizures and suits are dependent on the discretion of the Attorney General.” In the instant ease the person’s license is suspended. Moreover, stress is laid upon the general public interest involved as distinguished from rights between individuals.

It should be noted that the United States Supreme Court has said since the Bourjois and Phillips eases: “The demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective.” (Emphasis added.) (Opp Cotton Mills v. Administrator of W. & H. Div., 312 U.S. 126, 152 [ 61 S.Ct. 524 , 86 L.Ed. 624 ].)

*882 In the ease at bar no hearing has ever been accorded petitioner. His operator’s license has been suspended.

Since" his right to operate an automobile on the public highway is essential to his livelihood, I am constrained to hold that he has been deprived of property without due process of law, and the statute here involved is unconstitutional.

I would therefore issue the peremptory writ prayed for.

EDMONDS, J.

In my opinion, if the Department of Motor Vehicles may, without a hearing, summarily suspend the license of a person to operate a motor vehicle, the provisions of the Vehicle Code purporting to give that authority violate constitutional guarantees. As the court here construes the statute, one may lose a valuable property right without the opportunity even to show that the reported accident did not occur or, if there was such an accident, he was not the driver of an automobile causing personal injury or property damage.

The Vehicle Code, as it read in 1948 when Escobedo’s license was suspended, provided that the Motor Vehicle Department shall “. . . within 60 days after the receipt of a report of a motor vehicle accident within this State which has resulted in bodily injury or death or damage to the property of any one person in excess of one hundred dollars ($100), suspend the license of each operator . . . involved in such accident. . . .” (Veh. Code, § 420(a).) The causes for suspension, therefore, are (1) the licensee was the operator of the vehicle involved in the accident; (2) less than 60 days have elapsed since the accident report was received; and (3) bodily injury resulted or property was damaged to an amount in excess of $100.

The license may not be suspended if the operator deposits security “in a sum which shall be sufficient in the judgment of the department to satisfy any judgment or judgments for damages resulting from such accident as may be recovered against such operator or owner.” (Veh. Code, § 420(a).) An operator who alone suffers damage or injury or one who was driving a vehicle which was “. . . stopped, standing, or parked, whether attended or unattended . . .” at the time of the accident, (unless he was doing so illegally or the vehicle lacked lighted lamps as required by law) does not have to meet this requirement. And suspension shall not be imposed upon one who has been released from liability, or has been finally adjudicated not liable, or has executed a confession of judgment or has executed an acknowledged agreement in *883 writing providing for the payment of the amount of the damages resulting from the accident (§420.1).

Self-insurers are exempted from certain requirements of the law and other conditions are exacted of them (§420.7). Under some circumstances the license of a self-insured operator may not he suspended.

By these provisions, the Legislature has directed the Department of Motor Vehicles to suspend the license of an operator under specified circumstances or for certain causes, but only if his conduct, either at the time of the accident or subsequently, does not bring him within one of the stated exemptions which bars that action. This constitutes statutory authority to suspend an operator’s license for enumerated causes only. Certainly the law contemplates a determination that the operator against whom action is proposed to be taken is the person who was involved in the accident reported as having occurred.

The administrative agency must also find whether personal injury occurred or property was damaged in extent of $100; whether the security demanded in the alternative to suspension is “sufficient in the judgment of the department”; whether any other policy or bond held by the driver is “. . . in the judgment of the department ...” sufficient; whether the vehicle was stopped, standing, or parked, and if so whether it was properly lighted; and finally, whether the operator is a self-insurer.

It is a well established principle that, under a statute providing for dismissal of an employee or revocation of a license “for cause,” there must be notice and a hearing before such action may be taken. The rule has been applied to a teacher (Keenan v. San Francisco Unified School Dist., 34 Cal.2d 708 [ 214 P.2d 382 ]); automobile operator (Ratliff v. Lampton, 32 Cal.2d 226 [ 195 P.2d 792 , 10 A.L.R.2d 826 ]); liquor licensee (Covert v. State Board of Equalization, 29 Cal.2d 125 [ 173 P.2d 545 ]); horse trainer (Carroll v. California Horse Racing Bd., 16 Cal.2d 164 [ 105 P.2d 110 ]); and civil servants generally (La Prade v. Department of Water & Power, 27 Cal.2d 47 [ 162 P.2d 13 ]; Steen v. Board of Civil Service Commrs., 26 Cal.2d 716 [ 160 P.2d 816 ]). There is at least as much reason for requiring notice and hearing under a statute providing for deprivation of a license for any one of specifically enumerated causes as under legislation which allows such action “for cause” generally. Where the Legislature has *884 enumerated the causes or conditions for which a license may be suspended, the requirement of notice and a hearing to determine the existence of those causes will be implied. Section 420(a) should be construed accordingly.

Moreover, section 420(a), under which Escobedo’s license was suspended, should be read in conjunction with section 314, which is the general provision governing the suspension and revocation of an operator’s license. The latter section provides for suspension or revocation of a license where, among other things, “. . . the licensee has been involved as a driver in any accident causing death or personal injury or serious damage to property ... [or where] . . . the safety of . . . persons upon the highway requires such action. ...”

Section 314 embodies express provision for notice and hearing, in that it requires an “investigation” and “reexamination of the licensee . . . [upon] ... 10 days’ written notice of the time and place thereof ...” and also provides for modification of any probation “. . . whenever good cause appears therefor. ’ ’ In Ratliff v. Lampton, supra, this court held that section 314 as then worded required “. . . an investigation and hearing conducted by the department which would afford the licensee an opportunity to present evidence under the rule in the Carroll and Steen cases.” At the time of the Ratliff decision, section 314 provided for a determination after investigation “that good cause exists” for suspension. The causes enumerated by the statute then, as now, included the determination that the licensee was “. . . involved as a driver in any accident causing death or personal injury or serious damage to property” and the rule of the Ratliff case in this regard remains unchanged. In fact, subsequent amendment providing for “reexamination” and “written notice” makes it all the more evident that the Legislature intended to continue in effect this court’s construction of that section.

Cases such as Surtman v. Secretary of State, 309 Mich. 270 [ 15 N.W.2d 471 ]; Nulter v. State Road Commission, 119 W.Va. 312 [ 193 S.E. 549 , 194 S.E. 270 ]; LaPlante v. State Board of Public Roads, 47 R. I. 258 [ 131 A. 641 ]; and Sullins v. Butler, 175 Tenn. 468 [ 135 S.W.2d 930 ], which hold that the operation of a motor vehicle upon a public highway is “merely a personal privilege, and is not a property right,” either concerned that right in connection with the use of a pleasure vehicle or failed to recognize the evolution of modern transportation. Today the social and economic circumstances *885 of many persons have placed a motor vehicle in the category of a necessity.

Escobedo’s situation is a typical example of one in which the statute as now applied sweeps away established rights without opportunity for any defense of them. He is a gardener living at San Gabriel. By taking care of lawns and gardens there and in Pasadena, he supports himself, his wife and nine children. While driving his automobile from one place of his work to another, his vehicle collided with another one. The state can and does prescribe the qualifications which one must have to obtain a license allowing him to operate a motor vehicle. Failure to meet those requirements justifies denial of the license. But after it has been issued and one is relying upon it as a means of livelihood, a license to operate a motor vehicle attains the status of a property right. The suspension or revocation of such a license must meet the same requirements of procedural due process which have been applied in connection with a license to practice a profession.

The Motor Vehicle Department makes no claim that Escobedo was given a hearing. In an order of the department served upon him, he was told: ‘1 Since you have failed to otherwise meet the security requirements of section 420 of the Vehicle Code, you must now deposit security or have your driving privilege suspended. ’ ’ Such suspension was made effective 15 days after the date of the demand unless, in the meantime, security in the amount of $2,800 was deposited with the department. The attorney general does not contend that the department has made any determination of the respective liabilities of the operators of the two cars nor of the amount of damage caused by the crash. As far as the record shows, the order of suspension is based entirely upon the statements made in an “accident report” filed in one of its offices.

This is far from procedural due process. As succinctly stated in the Ratliff case, “It is contrary to commonly accepted principles of justice to revoke a license for cause without giving the person charged an opportunity to be heard before a decision is made, since the determination necessarily requires a fair consideration of any evidence offered by the licensee.”

“Subsequent judicial review” of the department’s action is no adequate substitute for a hearing in which the licensee would have an opportunity to present evidence tending to prove that he was not subject to the drastic sanction prescribed by the statute. This inadequacy is graphically illustrated by *886 the present record. Escobedo was summarily ordered to surrender his license in September, 1948. When he declined to dó so, he was advised that the authorities intended to arrest and prosecute him for having a revoked license in his possession. On January 18, 1949, he filed in this court his petition for writ of mandate. During the 20 months which have since elapsed, presumably he has been unable to carry on his work.

For these reasons, I would grant the writ of mandate.