                Filed 1/23/20 by Clerk of Supreme Court

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                2020 ND 10

Nicholas Reineke,                                                   Appellant


      v.


NDDOT Director,                                                      Appellee



                                No. 20190250




Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable M. Jason McCarthy, Judge.

REVERSED, VACATED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Robert J. Woods, Forest River, ND, for appellant (on brief).

Michael T. Pitcher, Office of Attorney General, Bismarck, ND, for appellee (on
brief).
                 Reineke v. N.D. Dep’t of Transportation
                              No. 20190250

Crothers, Justice.

[¶1] Nicholas Reineke appeals a district court judgment affirming the
administrative hearing officer’s decision to suspend his driver’s license for 365
days. We reverse the district court judgment, vacate the hearing officer’s order,
and remand for the Department to administer the suspension according to law.

                                        I

[¶2] On May 4, 2019, Reineke was arrested for driving under the influence of
intoxicating liquor. On May 5, 2019, a temporary operator’s permit was issued
to Reineke. On May 15, 2019, Reineke requested an administrative hearing.
The envelope containing Reineke’s request was returned undeliverable due to
an incorrect mailing address for the Department of Transportation. Reineke
argues he renewed the request for hearing when he resent the request to the
correct mailing address on May 23, 2019. On May 31, 2019, an administrative
proceeding occurred without providing Reineke notice and without him
present. The hearing officer concluded the Department did not have
jurisdiction to grant Reineke an administrative hearing because he did not
request a hearing in time as required by statute. The hearing officer suspended
his license for 365 days. The district court affirmed.

[¶3] On appeal, Reineke argues the hearing officer erred in conducting the
May 31, 2019 hearing without giving notice and the opportunity to be heard.




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                                        II

[¶4] “The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
our review of an administrative decision suspending or revoking a driver’s
license.” Crawford v. Director, N.D. Dep’t of Transp., 2017 ND 103, ¶ 3, 893
N.W.2d 770. “We review the department’s original determination, not the
district court’s decision.” Sutton v. N.D. Dep’t of Transp., 2019 ND 132, ¶ 4, 927
N.W.2d 93. “This Court must affirm the agency’s decision unless:

       ‘1. The order is not in accordance with the law.
       2. The order is in violation of the constitutional rights of the
       appellant.
       3. The provisions of chapter 28-32 have not been complied with in
       the proceedings before the agency.
       4. The rules or procedure of the agency have not afforded the
       appellant a fair hearing.
       5. The findings of fact made by the agency are not supported by a
       preponderance of the evidence.
       6. The conclusions of law and order of the agency are not supported
       by its findings of fact.
       7. The findings of fact made by the agency do not sufficiently
       address the evidence presented to the agency by the appellant.
       8. The conclusions of law and order of the agency do not sufficiently
       explain the agency’s rationale for not adopting any contrary
       recommendations by a hearing officer or an administrative law
       judge.’”

Id. (citing DeForest v. N.D. Dep’t of Transp., 2018 ND 224, ¶ 5, 918 N.W.2d 43)
(quoting N.D.C.C. § 28-32-46).

                                        III

[¶5]   Reineke argues the hearing officer erred in conducting the May 31, 2019
adjudicative hearing without giving notice and the opportunity to be heard. In
his reply brief Reineke asserts a hearing was conducted and jurisdiction was



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assumed once the hearing officer conducted the hearing. As a result, he
requests the hearing officer’s order be reversed and his driving privileges
reinstated.

[¶6] The Director argues the court lacks subject matter jurisdiction over
Reineke’s appeal because he did not make a timely request for an
administrative hearing.

[¶7]   Section 39-20-05(1), N.D.C.C., guides requesting a hearing and the
procedure to administratively revoke a driver’s license when a request is not
timely. It states:

       “Before issuing an order of suspension, revocation, or denial
       under section 39-20-04 or 39-20-04.1, the director shall afford that
       person an opportunity for a hearing if the person mails or
       communicates by other means authorized by the director a request
       for the hearing to the director within ten days after the date of
       issuance of the temporary operator’s permit. . . . If no hearing is
       requested within the time limits in this section . . . the expiration of
       the temporary operator’s permit serves as the director’s official
       notification to the person of the revocation, suspension, or denial of
       driving privileges in this state.”

(Emphasis added.)

[¶8] Here, a request for hearing was not made within the time limits of
N.D.C.C § 39-20-05(1). Section 39-01-01(39), N.D.C.C., defines “mail” as, “to
deposit mail properly addressed and with postage prepaid with the United
States postal service.” Reineke did not properly address the envelope with his
first request for a hearing. Consequently, under N.D.C.C. § 39-01-01(39) he did
not “mail” it. The second request was postmarked May 23, 2019, and was not
within ten days of May 5, 2019. Therefore, Reineke’s requests were untimely




                                          3
because he did not mail them within ten days of receiving the temporary
operator’s permit.

[¶9] Notwithstanding the lack of a timely request, a hearing was held. At that
proceeding the hearing officer concluded the Department did not have
jurisdiction to grant the hearing. The hearing officer nevertheless issued an
order suspending Reineke’s driving privileges for 365 days.

[¶10] Section 39-01-01.1, N.D.C.C., gives the Department jurisdiction over the
suspension of licenses. See Kouba v. State, 2004 ND 186, ¶ 7, 687 N.W.2d 466
(“The authority to issue and suspend driver’s licenses rests with the State of
North Dakota and is delegated by the State to the North Dakota Department
of Transportation.”). Therefore, the hearing officer was not correct in
concluding the Department did not have jurisdiction over the suspension of
licenses. Rather, the question is whether the Department’s jurisdiction was
properly invoked so that the hearing officer had authority to conduct the
hearing. See Aamodt v. N.D. Dep’t of Transp., 2004 ND 134, ¶ 15, 682 N.W.2d
308 (“The Department must meet the basic and mandatory provisions of the
statute to have authority to suspend a person’s driving privileges.”).

[¶11] Here, Reineke’s untimely request for a hearing did not invoke the
Department’s jurisdiction for a hearing. Therefore, the Department and the
hearing officer did not have authority to hold the hearing. The only authority
the Department had was to administratively revoke Reineke’s license as
outlined in N.D.C.C. § 39-20-05(1), after expiration of the temporary operator’s
permit. Because the hearing officer did not follow N.D.C.C. § 39-20-05(1) the
order is not in accordance with the law.




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                                      IV

[¶12] We reverse the district court judgment, and vacate the hearing officer’s
order. We reject Reineke’s request to reverse the hearing officer’s decision and
reinstate his driving privileges, and remand for the Department to administer
suspension of Reineke’s driving privileges according to law.

[¶13] Daniel J. Crothers
      Gerald W. VandeWalle
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen, C.J.




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