if statute does not expressly grant agency power to hold hearings, holding such hearings is “unlawful”
How later courts described this case
- if statute does not expressly grant agency power to hold hearings, holding such hearings is “unlawful”
- authority to hold license revocation hearing
Written by the judges who cited it.
The opinion
TERRY, Associate Judge,
concurring:
I join my colleagues in their decision to reverse and remand, and I am in general agreement with Judge Ferren’s opinion for the court. However, I think Judge Ferren is too gentle with the Bureau of Traffic Adjudication in part II-B of his opinion.
I am not content with merely stating that there is "no express authority,” ante at 343, for BTA to hold a hearing on a traffic ticket after the recipient of the ticket has admitted criminal liability by paying the fine. In my view, the absence of any statutory or regulatory authority for such hearings requires us to hold affirmatively that they are unauthorized, and hence unlawful. The fact that they have apparently been going on for years does not legitimize them; on the contrary, it demonstrates that BTA either does not know the limits of its own powers or does not care about the legality of its actions. To put it bluntly, such hearings should not be held at all without express statutory authorization. If they are still going on, they should stop.
Nevertheless, on the facts of this case, I agree that Mr. Kuflom is entitled to the relief he seeks. Once BTA agreed to hold the infraction hearings — notwithstanding its lack of authority to hold such hearings in the first place — due process required that he be given all the procedural protections to which he was entitled. In this case that means he was entitled to the stay which he sought. The hearing examiner’s refusal to grant that stay requires us, for the reasons stated in Judge Ferren’s opinion, ante at 344-45 to reverse the order revoking Mr. Kuflom’s permit.