                 Filed 4/6/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                  2020 ND 76



Kyle Al Christianson,                                          Appellant


      v.


Ronald Henke, Interim Director,
Department of Transportation,                                   Appellee



                                No. 20190348

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable John W. Grinsteiner, Judge.

REVERSED AND VACATED.

Opinion of the Court by Crothers, Justice.

Adam Justinger, Fargo, ND, for appellant.

Douglas B. Anderson, Bismarck, ND, for appellee.
                          Christianson v. NDDOT
                               No. 20190348

Crothers, Justice.

[¶1] Kyle Christianson appeals from a district court’s judgment affirming the
North Dakota Department of Transportation’s suspension of his driving
privileges. Christianson asserts the Department’s hearing file, which was
admitted at the adjudication hearing, was improperly certified as a true copy
of the Department’s official records. We conclude Christianson rebutted the
presumption that the individual whose signature certified the record had
authority to do so. We reverse the hearing officer’s decision to admit the
hearing file and vacate the Department’s suspension of Christianson’s driving
privileges.

                                       I

[¶2] The Department issued Christianson an order of suspension for his non-
commercial driver’s license and order of disqualification for his commercial
license (together referred to as suspension) based on his driving privileges
being suspended in another jurisdiction. At the adjudication hearing, the
Department sought to admit a hearing file indicating Christianson’s driving
privileges were suspended in Canada for a violation of Canada’s laws
prohibiting driving under the influence of alcohol. The hearing file was
certified by Glenn Jackson, Drivers License Division Director, as a true copy of
the official Department records.

[¶3] Christianson objected to admission of the hearing file arguing it was not
properly certified. Christianson offered exhibits detailing an investigation into
Jackson’s workplace misconduct and subsequent resignation. The exhibits
were comprised of an intra-agency investigatory report and newspaper
articles. After the hearing officer admitted the exhibits, Christianson
requested the hearing officer take judicial notice that, as detailed in the
articles, Jackson was on administrative leave on the date his signature
certified the Department’s hearing file as a true and correct copy of the
Department’s official records.


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[¶4] The hearing officer admitted the hearing file over Christianson’s
objection concluding it was properly certified as a copy of the official
Department records. The hearing officer explained he was unaware of the
extent of Jackson’s administrative leave and its effect on Jackson’s role with
the Department. The hearing officer recommended Christianson’s driving
privileges be suspended. The Department adopted the recommendation and
suspended Christianson’s non-commercial driver’s license for a period of 91
days and his commercial driver’s license for a period of one year. The district
court affirmed.

                                      II

[¶5] Christianson argues the hearing file was inadmissible and therefore the
Department’s suspension of his driving privileges was not in accordance with
the law.

[¶6] The Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, governs
our review of the Department of Transportation’s decision to suspend or revoke
a driver’s license. Haynes v. Dir., Dep’t of Transp., 2014 ND 161, ¶ 6, 851
N.W.2d 172. We review the Department’s original decision. DeForest v. N.D.
Dep’t of Transp., 2018 ND 224, ¶ 5, 918 N.W.2d 43. We give great deference to
the Department’s findings of fact. Id. We review the Department’s legal
conclusions de novo. Id. We must affirm the Department’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.



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      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.”

N.D.C.C. § 28-32-46.

[¶7] The admissibility of evidence at an adjudicative proceeding generally is
governed by the North Dakota Rules of Evidence. N.D.C.C. § 28-32-24; see also
Jangula v. N.D. Dep’t of Transp., 2016 ND 116, ¶ 8, 881 N.W.2d 639. A hearing
officer has “broad discretion” when making evidentiary determinations. Id.
We review a hearing officer’s evidentiary determinations for an abuse of
discretion. Id.

[¶8] “Before documentary evidence is admissible, it must be authenticated.”
Ouradnik v. Henke, 2020 ND 39, ¶ 20, 938 N.W.2d 392 (quoting Frost v. N.D.
Dep’t of Transp., 487 N.W.2d 6, 8 (N.D. 1992)). Authentication requires
evidence sufficient to support a finding that the item in question is what the
proponent claims it to be. N.D.R.Ev. 901(a). Certain items are self-
authenticating and require no extrinsic evidence of authenticity, including “[a]
signature, document, or anything else that a statute declares to be
presumptively or prima facie genuine or authentic.” N.D.R.Ev. 902(10).

[¶9] Section 39-06-33(2), N.D.C.C., states that, at a hearing regarding the
suspension or revocation of a driver’s license, “the regularly kept records of the
director may be introduced and are prima facie evidence of their content
without further foundation.” “It has long been the law in this state that an
official record may be proved ‘by the original or by a copy, certified by the legal
keeper thereof.’” Frost, 487 N.W.2d at 9 (quoting N.D.C.C. § 31-09-10(5)). A
copy of an official record is self-authenticating when certified as correct by “the
custodian or another person authorized to make the certification[.]” N.D.R.Ev.


                                        3
902(4)(A). “Only the certificate as to custody and correctness by ‘the legal
keeper thereof’ is required.” Frost, at 9.

[¶10] In Frost, this Court explained that custodial authority is presumed:

      “Rule 902(4) requires no additional certification to the fact of
      custody or to the custodian’s authority. The purported custodian’s
      signature under a statement that he has custody of the original
      and that the copy is correct, whether or not accompanied by a seal,
      suffices to assure the accuracy of the copy as a substitute for the
      original. . . .

      “The rule is silent as to what the custodian’s certificate should
      contain. Any reasonable statement implying custody and
      correctness should suffice.

      “As applied to domestic records, the phrase ‘other person
      authorized to make certification’ applies to deputy custodians or
      others in the office of the custodian who are authorized to make
      copies of the records in their keeping. His authority should be
      assumed on the basis of his certification alone.”

487 N.W.2d at 10 (quoting 5 Weinstein’s Evidence, ¶ 902(4)[01], p. 902-25 to -
26).

[¶11] Christianson asserts Jackson had no authority to certify the hearing file
because he was on administrative leave. He claims the hearing file was not
self-authenticating due to Jackson’s invalid certification. He argues the
hearing file was improperly admitted because its authenticity was not
established.

[¶12] Although custodial authority generally is presumed, “evidence that the
person who signed the certificate was not the legal custodian of the record (or
otherwise authorized to sign) would prevent the record from being self-
authenticating.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s
Federal Evidence, § 902.06[2] (2d ed. 2020). We also have explained that
official acts are presumed to have been regularly completed unless evidence
exists to the contrary:


                                      4
      “Section 31-11-03 NDCC which catalogs disputable presumptions,
      sets forth the presumption, ‘That official duty has been performed
      regularly.’ Since this is a disputable presumption, it follows that
      where there is evidence that official duty has not been regularly
      performed, the burden of going forward with the evidence is cast
      upon the officials whose acts are challenged.”

Linden Sch. Dist. No. 24 v. Porter, 130 N.W.2d 76, 80 (N.D. 1964); see also
Haugland v. City of Bismarck, 2014 ND 51, ¶ 12, 843 N.W.2d 840 (“Under
N.D.C.C. § 31-11-03(15), there is a disputable presumption that an official duty
has been performed regularly, which may be contradicted.”).

[¶13] “A party against whom a presumption is directed has the burden of
rebutting the presumption by proving the nonexistence of the presumed fact is
more probable than its existence.” Stenehjem ex rel State v. Nat’l Audubon
Soc’y, Inc., 2014 ND 71, ¶ 25, 844 N.W.2d 892. Whether a presumption has
been rebutted is a question of fact governed by the clearly erroneous standard
of review under N.D.R.Civ.P. 52(a). In re Estate of Blikre, 2019 ND 257, ¶ 22,
934 N.W.2d 867 (citing In re Estate of Clemetson, 2012 ND 28, ¶ 11, 812 N.W.2d
388); see also Stenehjem, at ¶ 25.

[¶14] The exhibits Christianson offered indicate Jackson was on
administrative leave on the date the hearing file was certified. The hearing
officer acknowledged Jackson was on administrative leave, but he nonetheless
admitted the hearing file as self-authenticating based on Jackson’s
certification. The hearing officer explained: “I may have heard . . . may have
been aware of that there was an administrative leave. I’m not sure of the
circumstances of it in its entirety or the specifics or the extent of the leave.
And what exactly, what that meant as far as his role with the division.”

[¶15] Based on the facts in this case, we conclude as a matter of law that
Christianson rebutted the presumption Jackson had authority to certify
Department records. Christianson established that, on the date of the
certification, Jackson was on administrative leave due to suspected workplace
misconduct. Although Christianson did not prove Jackson lacked authority to
act on behalf of the Department, as the hearing officer recognized, he raised


                                       5
facts that made it more probable than not that Jackson’s authority had been
suspended. The hearing officer’s decision to the contrary was clearly
erroneous.

[¶16] By establishing Jackson was on administrative leave when the
certification was made, Christianson shifted the burden to the Department to
either prove Jackson had certification authority or to proffer evidence
authenticating the copies. The Department did neither, and therefore the
hearing officer abused his discretion by admitting the file because its
authenticity was not established.      Because the Department relied on
inadmissible evidence to suspend Christianson’s driving privileges, its decision
is not in accordance with the law.

                                     III

[¶17] The hearing officer’s decision to admit the hearing file is reversed and
the Department’s suspension and disqualification of Christianson’s driving
privileges are vacated.

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




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