McCurdy v. Secretary of State

STATE OF MAINE SUPERIOR COURT

CUMBERLAND, ss. CIVIL ACTION
Docket No. AP-2023-19

PRESCOTT MCCURDY,

Petitioner,

v. DECISION

SECRETARY OF STATE, ET AL.,

Respondents,

Pursuant to Maine Rule of Civil Procedure 80C, Petitioner Prescott McCurdy seeks
judicial review of a decision issued by the Bureau of Motor Vehicles on May 2, 2023 (the
“Decision”), after hearing. For the following reasons, the Court denies Mr. McCurdy’s
appeal,

I. Background

On January 7, 2023, Atlantic Coast Towing (“ACT”) towed Mr. McCurdy’s 2012
Chevrolet Silverado, vehicle identification number 1GCPKSE78CF200099 (the
“Silverado”), at the request of the Brunswick Police Department. (R. Tab 5.) ACT
submitted an Application for Certificate of Title along with a Notice to the Secretary of
State of An Abandoned Vehicle dated January 12, 2023. (R. Tab 5.) The application was
received by the Secretary of State on January 17, 2023. (R. Tab 5.) The application was not
immediately processed because ACT initially neglected to pay a fee associated with the
application. (R. Tab 6.)

The Secretary of State sent a notice of ACT’s claim and a notice of right to hearing
dated March 6, 2023, to Mr. McCurdy. (R. Tab 5.) Mr. McCurdy requested an
administrative hearing. (R. Tab 5.) A hearing was held on April 25, 2023. (R. Tab 3.) The

notice of hearing dated March 30, 2023, informed Mr. McCurdy that the sole issue to be

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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 0. Dep’t of Envtl. Prot., 2005 ME 50, 1
7, 870 A.2d 566; see 5 M.RS. § 11007(4).

In conducting its review of an agency decision, the court “dofes] not substitute [its]
judgment for that of the agency and will ‘affirm findings of fact if they are supported by
substantial evidence in the record.” AngleZ Behavioral Health Servs. v. Dep't of Health and
Hum. Servs., 2020 ME 26, { 12, 226 A.3d 762 (quoting Int’! Paper Co. v. Bd. of Env’t Prot.,
1999 ME 135, J 29, 737 A.2d 1047). “[I]nstead, [the court] will vacate an agency’s factual
findings ‘only if there is no competent evidence in the record to support’ the findings.”
AngleZ, Behavioral Health Servs., 2020 ME 26, Y 12, 226 A.3d 762 (quoting Friends of Lincoln
Lakes, 2010 ME 18, 14, 989 A.2d 1128). The party seeking to vacate an agency decision
bears the burden of persuasion on appeal. Anderson v. Me. Pub, Emp. Ret. Sys., 2009 ME
134, 9 3, 985 A.2d 501.

Ill. Discussion

Mr. McCurdy challenges the Decision on several grounds. The Court will address
each of his arguments in turn.

A. Substantial Evidence

First, Mr. McCurdy argues that the hearing examiner erred in finding that he had
abandoned the Silverado. He cites dictionary definitions of abandonment and
emphasizes that he has demanded that ACT or the Town of Brunswick return the
Silverado.

Pursuant to 29-A M.R.S. § 1853, “iJf a person abandons a vehicle as described in

section 1851, the owner of the premises or property where the vehicle is located may

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obtain a letter of ownership or certificate of title.” 29-A M.R.S. § 1852 provides that “a
vehicle is considered ‘abandoned’ if the owner or lienholder does not retrieve it and pay
all reasonable charges for towing, storing and authorized repair of the vehicle within 14
days after the notices to the owner and lienholder are sent by the Secretary of State.” The
subchapter applies to vehicles that are “towed . . . at the direction of a law enforcement
officer.” 29-A MLR.S. § 1851. The dictionary definitions cited by Mr. McCurdy are not
applicable because “abandoned” is clearly defined in the applicable statute.

The Secretary of State “may issue certificates of title or letters of ownership” so
long as the Secretary is “satisfied that notice has been made to all parties with an interest
wn the vehicle.” 29-A M.R.S. § 1856(2). “If the owner or lienholder of the vehicle retrieves
it and pays the towing, storage and repair charges before the Secretary of State issues a
letter of ownership or certificate of title, the person holding the vehicle must immediately
release it to the person paying the charges and must immediately notify the Secretary of
State of the release.” Id.

In this case, the record contains evidence that ACT provided the Secretary of State
with the notification and application required by 29-A M.R.S. § 1854. The record also
contains evidence that Mr. McCurdy received notice from the Secretary of State and that
the notice complied with 29-A M.R.S. § 1854(3). Finally, it is undisputed that Mr.
McCurdy never paid ACT the towing and storage charges for the Silverado. The Decision
is supported by substantial evidence.

B. Due Process

Second, Mr. McCurdy argues that his due process rights were violated by the
administrative process because the Decision was issued by a hearing examiner, who is
not a judge. “Although administrative agencies must adhere to certain due process

guarantees when following hearing procedures, these minimum requirements mean

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something less than what is demanded by courts but something more than unfettered
administrative action.” Me. Real Est. Comm’n v. Jones, 670 A.2d 1385, 1387 (Me. 1996). “The
essential requirement of due process in the administrative context is that a party be given
notice and an opportunity to be heard.” Martin v. Unemployment Ins. Comm’n, 1998 ME »
271, J 15, 723 A.2d 412; see Mathews v. Eldridge, 424 US. 319, 335 (1976) (“{T]he specific
dictates of due process generally requires consideration of three distinct factors: First, the
private interest that will be affected by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally, the Government's interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.”).

The record reflects that Mr. McCurdy received notice of ACT’s claim. A hearing
was held at his request, where he had the opportunity to present evidence and cross-
examine ACT’s representative. Due process required no more under the circumstances.

“The use of an agency employee to preside over an administrative hearing... is
specifically authorized by statute.” Greely 0. Comm'r, 2000 ME 56, I 7, 748 A.2d 472; see 5
MRS. § 9062 (2023). Due process does not require that Mr. McCurdy be heard by a
judicial officer before exhausting his administrative remedies. Mr. McCurdy is entitled to
have his appeal heard by a judicial officer after he has exhausted his administrative
remedies—a right that he is exercising by bringing this appeal.

C. Liberty of Contract

Third, Mr. McCurdy argues that the Decision violates liberty of contract principles
because he did not contract with ACT to store the Silverado. By Mr. McCurdy’s own
admission, no contract existed with which the Decision interfered. And, contrary to Mr.

McCurdy’s contentions, he was not forced to contract with ACT. Moreover, “Tf|reedom

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to contract is itself necessarily subject to reasonable police power measures intended to
promote and preserve the welfare of citizens.” Nat'l Hearing Aid Ctrs., Inc. v. Smith, 376
A.2d 456, 461 (Me. 1977). The hearing examiner properly applied Title 29-A in making
her Decision. Mr. McCurdy’s argument is without merit.

D. Taking or Conversion

Fourth, Mr. McCurdy argues that the Decision constitutes a conversion or a taking
without just compensation. The Takings Clause provides that no “private property [shall]
be taken for public use, without just compensation.” U.S. Const. amend. V. The Supreme
Court has held that “[t]he government may not be required to compensate an owner for
property which it has already lawfully acquired under the exercise of governmental
authority other than the power of eminent domain.” Bennis v. Michigan, 516 U.S. 442, 452
(1996).

To establish a claim for conversion, a party must show an invasion of the party’s
possession or right to possession by demonstrating “(1) a property interest in the goods;
(2) the right to their possession at the time of the alleged conversion, and (3) when the
holder has acquired possession rightfully, a demand by the person entitled to possession
and a refusal by the holder to surrender.” Mitchell v. Allstate Ins. Co., 2011 ME 133, 1 15,
36 A.3d 876 (quoting Bradford v. Dumond, 675 A.2d 957, 962 (Me. 1996)). “’The converter
need not intend any conscious wrongdoing,’ but need only act with ‘an intent to exercise
a dominion or control over the goods which is in fact inconsistent with the plaintiff's
rights.’” Mitchell, 2011 ME 133, 7 15, 36 A.3d 876 (quoting Ocean Nat Bank of Kennebunk
v. Diment, 462 A.2d 35, 39 (Me. 1983)).

Respondents acted pursuant to statutory authority and did not exercise eminent
domain powers. Any demand for return of the Silverado made by Mr. McCurdy was

insufficient because he did not pay the accrued fees as required by Title 29-A. The hearing

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examiner found that Mr, McCurdy abandoned a property interest in the Silverado, which
finding is supported by substantial evidence. Mr. McCurdy had no right to possession of
the Silverado, which was lawfully stored at ACT’s property. The Decision is nota taking
or conversion.

E. Spoliation of Evidence

Fifth, Mr. McCurdy makes an argument regarding spoliation of evidence. The
argument is speculative, vague, and without merit.
IV. Conclusion

For the foregoing reasons, Mr. McCurdy’s arguments are unavailing. He has failed
to mect his burden.

The entry is:

Petitioner Prescott McCurdy’s Rule 80C Petition is DENIED. Respondents’
Decision is AFFIRMED.

The Clerk is directed to incorporate this Decision into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Mar Kennedy, Justice
ine Superior Court

Dated: 3/286 [25
/ /

REC'D GUMB CLERKS OFC
AUG 28°23 pul? ‘52

Entered on the Docket:.. 04 24 (1023

Petitioner-Prescott McCurdy Pro Se
Respondent-Donald Macomber, AAG

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