Murray v. Neth

Without notice of the existence of an addendum solicited by
the Director, it is arguable that Walz would have been justified
in preparing for the hearing by preparing to simply challenge
the jurisdiction of the Director based on the deficiencies of the
sworn report. The record presented to us does not indicate that
Walz was provided notice prior to the hearing that there was
any need to prepare a substantive case to challenge revoca-
tion, because the materials provided to Walz indicated a lack
of jurisdiction.
For the foregoing reasons, I respectfully dissent from the
decision of the majority.
William murray, appellant, v. Beverly neth , director ,
State of neBraSka department of motor vehicleS,
and the neBraSka department of
motor vehicleS, appelleeS.
773 N.W.2d 394
Filed September 8, 2009. 	No. A-08-806.
1. Administrative Law: Final Orders: Appeal and Error. Under the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008), an appellate
court may reverse, vacate, or modify a district court’s judgment or final order for
errors appearing on the record.
2. Administrative Law: Judgments: Appeal and Error. When reviewing an order
of a district court under the Administrative Procedure Act for errors appearing on
the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Statutes: Appeal and Error. The interpretation of statutes
and regulations presents questions of law, in connection with which an appellate
court has an obligation to reach an independent conclusion irrespective of the
decision made by the court below.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs: Jurisdiction. In an administrative license revoca-
tion proceeding, the sworn report of the arresting officer must, at a minimum,
contain the information specified in the applicable statute, in order to con-
fer jurisdiction.
5. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Proof. The Department of Motor Vehicles makes a prima facie case for license
revocation once it establishes that the officer provided a sworn report containing
the statutorily required recitations.
900 	17 NebRASkA APPellATe RePoRTS
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www.nebraska.gov/apps-courts-epub/
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6. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Evidence. A sworn report which does not include information required by stat-
ute cannot be supplemented by evidence offered at a subsequent administrative
license revocation hearing.
7. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Jurisdiction: Time. If a sworn report falling under Neb. Rev. Stat. § 60-498.01(5)(a)
(Reissue 2004) is submitted after the 10-day period, the Department of Motor
Vehicles lacks jurisdiction to revoke a person’s driver’s license.
8. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Time. The 10-day time limit set forth in Neb. Rev. Stat. § 60-498.01(3) (Reissue
2004) is directory rather than mandatory.
9. Administrative Law: Due Process: Notice: Evidence. In proceedings before
an administrative agency or tribunal, procedural due process requires notice,
identification of the accuser, factual basis for the accusation, reasonable time and
opportunity to present evidence concerning the accusation, and a hearing before
an impartial board.
10. Administrative Law: Due Process. In formal agency adjudications, as in
court proceedings, due process requires a neutral, or unbiased, adjudicatory
decisionmaker.
11. Administrative Law: Presumptions. Administrative adjudicators serve with a
presumption of honesty and integrity.
12. Administrative Law. Factors that may indicate partiality or bias on the part of an
adjudicator are a pecuniary interest in the outcome of the proceedings, a familial
or adversarial relationship with one of the parties, and a failure by the adjudicator
to disclose the suspect relationship.
13. Administrative Law: Recusal: Presumptions. The party seeking to disqualify
an adjudicator on the basis of bias or prejudice bears the heavy burden of over-
coming the presumption of impartiality.
Appeal from the District Court for Scotts bluff County:
randall l. lippStreu, Judge. Affirmed.
bell Island, of Island, Huff & Nichols, P.C., l.l.o., for
appellant.
Jon bruning, Attorney General, Andee G. Penn, and Milissa
Johnson-Wiles for appellees.
irWin, carlSon, and moore, Judges.
moore, Judge.
INTRoDUCTIoN
William Murray appeals from the decision of the district
court for Scotts bluff County, which affirmed the decision of
the director of the Nebraska Department of Motor Vehicles,
MURRAy v. NeTH 	901
Cite as 17 Neb. App. 900

beverly Neth (Director), to revoke Murray’s driving privileges
for 90 days. because the district court’s decision to affirm the
revocation of Murray’s operator’s license conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable, we affirm.
bACkGRoUND
on March 8, 2008, a Scottsbluff Police Department officer,
Jed Combs, stopped a vehicle driven by Murray for driving
with expired license plates and for driving the wrong way on
a public highway. Upon contact with Murray, Combs smelled
the odor of an alcoholic beverage coming from Murray, who
showed signs of impairment upon completing field sobriety
tests. Murray submitted to and failed a preliminary breath test.
Murray also submitted to a chemical breath test, the results of
which showed that Murray’s blood alcohol content was .231 of
a gram of alcohol per 210 liters of breath.
Combs arrested Murray, completed a sworn report, and pro-
vided Murray with a temporary license. on the sworn report,
Combs filled in the reasons for his arrest of Murray, stating,
“[R]eport of vehicle driving wrong way on Hwy 26 was advised
that vehicle in question. I observed the vehicle described and
observed the expired plate.” The sworn report was signed by
Combs and notarized by a notary public. The Department of
Motor Vehicles (hereinafter Department) received the sworn
report on March 11, 2008.
After receiving the sworn report, the Director determined
that “the reasons for arrest on the sworn report . . . may
not confer jurisdiction to revoke [Murray’s] operators license
because it does not explain how [Combs] determined [Murray]
was intoxicated.” The Department sent a blank “Addendum
to Sworn Report” to Combs, which asked Combs to indicate
on the addendum form “why you concluded the motorist was
operating or in actual physical control of a motor vehicle while
intoxicated.” Combs completed the addendum by filling in his
name and badge number, listing the reasons why he concluded
Murray was driving while intoxicated, and signing it in front
of a notary. As to the reasons for concluding that Murray was
driving while intoxicated, Combs stated:
902 	17 NebRASkA APPellATe RePoRTS

Report of motor vehicle driving down the wrong lane of
travel. Was also advised that vehicle had expired plates.
I observed the vehicle matching that description travel-
ing west on Hwy. 26. I conducted a stop on the vehicle
and smelled the odor of an alcoholic beverage. Driver
consented to SFST’s and showed impairment. . . . Murray
consented to PbT. PbT a failure.
The Department received the completed addendum on March
24, 2008, 16 days after Murray’s arrest.
Murray filed a petition for administrative hearing, which
was heard on April 2, 2008. At the hearing, the sworn report
and addendum were received into evidence. The hearing officer
also received testimony from Combs.
Following the hearing, the hearing officer recommended
that Murray’s driving privileges be suspended for the statutory
period. The Director adopted the recommended order of the
hearing officer and revoked Murray’s driving privileges for 90
days, effective April 7, 2008.
Murray appealed to the district court, which affirmed the
Director’s revocation of Murray’s driving privileges. Murray
subsequently perfected his appeal to this court.
ASSIGNMeNTS oF eRRoR
Murray asserts that the district court erred in (1) finding that
the Department had jurisdiction to revoke his operator’s license
through an addendum to the sworn report and (2) failing to
find a violation of his due process rights when the Director
provided an addendum to the sworn report.
STANDARD oF ReVIeW
[1,2] Under the Administrative Procedure Act, Neb. Rev.
Stat. §§ 84-901 to 84-920 (Reissue 2008), an appellate court
may reverse, vacate, or modify a district court’s judgment
or final order for errors appearing on the record. Berrington
Corp. v. State, 277 Neb. 765, 765 N.W.2d 448 (2009). When
reviewing an order of a district court under the Administrative
Procedure Act for errors appearing on the record, the inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Berrington Corp. v. State, supra.
MURRAy v. NeTH 	903
Cite as 17 Neb. App. 900

[3] The interpretation of statutes and regulations presents
questions of law, in connection with which an appellate court
has an obligation to reach an independent conclusion irrespec-
tive of the decision made by the court below. Id.
ANAlySIS
Department’s Jurisdiction.
Murray asserts that the district court erred in finding that
the Department had jurisdiction to revoke his operator’s license
through an addendum to the sworn report.
[4-6] In an administrative license revocation proceeding,
the sworn report of the arresting officer must, at a minimum,
contain the information specified in the applicable statute,
in order to confer jurisdiction. Betterman v. Department of
Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007). The
Department makes a prima facie case for license revocation
once it establishes that the officer provided a sworn report con-
taining the statutorily required recitations. Id. The applicable
statute in this case is Neb. Rev. Stat. § 60-498.01(3) (Reissue
2004), which provides:
If a person arrested as described in subsection (2) of sec-
tion 60-6,197 submits to the chemical test of blood or
breath required by section 60-6,197, the test discloses the
presence of alcohol in any of the concentrations specified
in section 60-6,196, and the test results are available to
the arresting peace officer while the arrested person is
still in custody, the arresting peace officer, as agent for
the director, shall verbally serve notice to the arrested
person of the intention to immediately confiscate and
revoke the operator’s license of such person and that the
revocation will be automatic thirty days after the date of
arrest unless a petition for hearing is filed within ten days
after the date of arrest as provided in subsection (6) of
this section. The arresting peace officer shall within ten
days forward to the director a sworn report stating (a) that
the person was arrested as described in subsection (2) of
section 60-6,197 and the reasons for such arrest, (b) that
the person was requested to submit to the required test,
and (c) that the person submitted to a test, the type of test
904 	17 NebRASkA APPellATe RePoRTS

to which he or she submitted, and that such test revealed
the presence of alcohol in a concentration specified in
section 60-6,196.
A sworn report which does not include information required
by statute cannot be supplemented by evidence offered at a
subsequent administrative license revocation hearing. Yenney
v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446, 729
N.W.2d 95 (2007).
The present case is similar to but distinguishable from
Stoetzel v. Neth, 16 Neb. App. 348, 744 N.W.2d 465 (2008), in
which this court considered whether a sworn report that was
amended after the arresting officer submitted the initial sworn
report to the Department was sufficient and timely for pur-
poses of establishing the Department’s jurisdiction. In Stoetzel,
Mark Stoetzel was arrested on February 18, 2006, for driving
under the influence. Stoetzel submitted to a blood test, which
was then sent to a laboratory to determine Stoetzel’s blood
alcohol content. The arresting officer received the test results
on March 2, completed a sworn report, and sent the report to
the Department. The Department received the report on March
6, but the report did not show the date on which the officer
received the blood test results. The Department returned the
report to the officer, asking him to provide the omitted infor-
mation. on March 7, the Department sent Stoetzel a notice of
administrative license revocation and temporary license, and
Stoetzel requested a hearing. on March 17, the Department
received an amended sworn report, which was the same as the
original report except for having been altered to include the
omitted date. Stoetzel’s operator’s license was subsequently
revoked. Stoetzel challenged the revocation, and the revocation
was reversed by the district court.
[7] on appeal, this court determined that the March 6, 2006,
sworn report was not properly completed because the arresting
officer omitted the date he obtained the blood test results. We
found the amended report to be untimely and noted that it was
not “sworn” because it was not properly renotarized. Section
60-498.01(5)(a), which applies when the results of a chemical
test are not available to the officer while the arrested person is
in custody, was applicable. Section 60-498.01(5)(a) explicitly
MURRAy v. NeTH 	905
Cite as 17 Neb. App. 900

states, “If the sworn report is not received within ten days, the
revocation shall not take effect.” This court found the language
of that subsection to be mandatory and held that if a sworn
report falling under § 60-498.01(5)(a) is submitted after the
10-day period, the Department lacks jurisdiction to revoke a
person’s driver’s license. Stoetzel v. Neth, supra. The court in
Stoetzel also found the amended report was not a sworn report,
because although the arresting officer signed his initials next
to the new information and a notary affixed her seal and wrote
the date above the new information, the notary did not sign
the amended form. Neb. Rev. Stat. § 64-107 (Reissue 2003)
mandates that a properly notarized document contain both the
signature and the seal of the notary. Accordingly, the amended
report in Stoetzel was not considered sworn as required by
§ 60-498.01(5)(a).
[8] Murray argues that the sworn report in this case was
not timely, because the addendum thereto was received by
the Department 16 days after his arrest. Unlike Stoetzel v.
Neth, 16 Neb. App. 348, 744 N.W.2d 465 (2008), where this
court found the amended report was not timely submitted to
the Department, the present case is distinguishable. because
Murray submitted to a breath test and the result was immedi-
ately available, the requirements of § 60-498.01(3) rather than
§ 60-498.01(5) were applicable. This court has held that the
10-day time limit set forth in § 60-498.01(3) is directory rather
than mandatory. Thomsen v. Nebraska Dept. of Motor Vehicles,
16 Neb. App. 44, 741 N.W.2d 682 (2007). We also note that,
unlike Stoetzel, where the amended report was not “sworn”
because it was not renotarized, both the original sworn report
and the addendum thereto were properly notarized in this case.
Murray’s assignment of error is without merit.
There is nothing in this court’s opinion in Stoetzel to suggest
that the procedure followed by the Department in this case, in
returning the original sworn report to the officer and asking
him to include omitted information, was improper. A similar
procedure was followed here, and we find no error. This is not
a situation where the Department attempted to supplement a
sworn report which did not include information required by
statute by offering the missing information through testimony
906 	17 NebRASkA APPellATe RePoRTS

from the arresting officer at the revocation hearing. See Yenney
v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446, 729
N.W.2d 95 (2007) (Department did not acquire jurisdiction
where sworn report omitted reasons for motorist’s arrest, but
reasons were provided through arresting officer’s testimony
at hearing). Here, the sworn report and the addendum thereto
were sent to the Department prior to the revocation hear-
ing, and when considered together, contained the required
recitations and were thus sufficient to confer jurisdiction on
the Department. See Taylor v. Wimes, 10 Neb. App. 432, 632
N.W.2d 366 (2001) (where sworn report which did not set forth
specific reasons for arrest but referenced attached field obser-
vation and performance testing report was found sufficient to
establish prima facie case).
Due Process.
Murray asserts that the district court erred in failing to find
a violation of his due process rights when the Director pro-
vided an addendum to the sworn report. Murray argues that the
actions of the Director—in sending an addendum for Combs
to complete, informing Combs of the necessary information to
be included, and explaining why the Director did not believe
she could obtain jurisdiction based on the information found
in the original sworn report—were not the actions of a fair and
impartial board.
[9-13] In proceedings before an administrative agency or
tribunal, procedural due process requires notice, identifica-
tion of the accuser, factual basis for the accusation, reason-
able time and opportunity to present evidence concerning the
accusation, and a hearing before an impartial board. Stenger v.
Department of Motor Vehicles, 274 Neb. 819, 743 N.W.2d 758
(2008). In formal agency adjudications, as in court proceed-
ings, due process requires a neutral, or unbiased, adjudicatory
decisionmaker. Barnett v. City of Scottsbluff, 268 Neb. 555,
684 N.W.2d 553 (2004). Administrative adjudicators serve
with a presumption of honesty and integrity. Id. Factors that
may indicate partiality or bias on the part of an adjudicator
are a pecuniary interest in the outcome of the proceedings, a
familial or adversarial relationship with one of the parties, and
MURRAy v. NeTH 	907
Cite as 17 Neb. App. 900

a failure by the adjudicator to disclose the suspect relationship.
Id. The party seeking to disqualify an adjudicator on the basis
of bias or prejudice bears the heavy burden of overcoming the
presumption of impartiality. Id.
Murray’s arguments are without merit and insufficient to
overcome the presumption of impartiality. We observe that the
sworn report form is essentially a fill-in-the-blank document
provided by the Department to arresting officers, and we see
no significant difference between the Department’s provision
of the sworn report documents and provision of the addendum
form in the present case. Further, the evidence does not indicate
that the Director instructed the officer how to fill out the form;
rather, she only pointed out what information was missing. The
addendum was sent to Murray prior to the hearing, and he had
adequate notice of the factual basis for the revocation, as well
as an opportunity to present evidence. Murray received pro-
cedural due process.
CoNClUSIoN
because the district court’s decision to affirm the revocation
of Murray’s operator’s license conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor
unreasonable, we affirm.
affirmed.
irWin, Judge, dissenting.
I respectfully dissent from the decision of the majority
affirming the practice of the Director of reviewing the sworn
report prior to the administrative license revocation hearing,
assessing its sufficiency to confer jurisdiction and prove the
Department’s prima facie case, ex parte advising the arresting
officer of potential deficiencies, and then receiving an adden-
dum at the administrative hearing remedying potential defects
in accordance with the Director’s concerns. I do not believe
there is any authority for the Director to act in this fashion.
I find it troubling that the ultimate decisionmaker in this
administrative action, the Director, in an ex parte fashion,
previewed 	the 	document 	which 	both 	confers 	jurisdiction
and amounts to prima facie proof of the Department’s case
and assessed its sufficiency, contacted the arresting officer,
908 	17 NebRASkA APPellATe RePoRTS

and sought to bolster the evidence prior to the administrative
license revocation hearing. It is well established in Nebraska
case law that administrative bodies have no power or authority
other than that specifically conferred by statute or by construc-
tion necessary to accomplish the plain purpose of an adminis-
trative act. See, Brunk v. Nebraska State Racing Comm., 270
Neb. 186, 700 N.W.2d 594 (2005); Hahn v. Neth, 270 Neb.
164, 699 N.W.2d 32 (2005). In this case, there is no statute
conferring authority on the Director to review the sworn report
and seek to bolster its sufficiency prior to the hearing, without
notice to the driver.
In addition, inasmuch as the sworn report acts both as
the jurisdictional document and as the prima facie case for the
Department, the Director’s assessing and seeking to bolster the
sufficiency of the sworn report without notice to the driver has
an additional feel of impropriety and lack of impartiality. In
my assessment, the Director is limited either to that authority
specifically granted by the statutes or to those actions neces-
sary to carry out the purposes of the administrative license
revocation statutes; the majority’s endorsement of this practice
appears to take the approach that there is no statute prohibit-
ing the action, which seems to me to turn the basic general
rule about the authority of administrative bodies upside down.
I also note that there does not appear to be any authority
from the Nebraska Supreme Court approving of or endorsing
this practice.
I also disagree with the majority’s suggestion that the
Director’s actions in this case are comparable to the actions
of the Director in Stoetzel v. Neth, 16 Neb. App. 348, 744
N.W.2d 465 (2008), where this court did not disapprove of the
Director’s action of noting that the sworn report was missing a
date and sending it back to the arresting officer to have the date
supplied. A missing date is much more akin to a scrivener’s
error and is not comparable to a report that lacks substan-
tive allegations necessary to confer jurisdiction and prove the
Department’s prima facie case for revocation. Although the
majority concludes that the Director did not instruct the offi-
cer how to fill out the form when completing the addendum,
the evidence indicates that the Director specifically instructed
MURRAy v. NeTH 	909
Cite as 17 Neb. App. 900

the officer to indicate “why you concluded the motorist was
operating or in actual physical control of a motor vehicle while
intoxicated” and, thus, did instruct the officer of precisely what
substantive allegations the Director was predetermining to be
insufficient. I cannot agree that there is no significant differ-
ence between this situation and requesting correction of the
equivalent of a scrivener’s error concerning a date, as was done
in Stoetzel v. Neth, supra.
For the foregoing reasons, I respectfully dissent from the
decision of the majority.
timothy J. Bazar , appellant, v. department of motor
vehicleS, State of neBraSka , appellee .
774 N.W.2d 433
Filed September 8, 2009. 	No. A-08-898.
1. Statutes: Appeal and Error. Statutory interpretation presents questions of law,
and an appellate court is obligated to reach a conclusion independent of that
reached by the trial court.
2. Statutes: Legislature: Intent. The basic rule of statutory construction is to
ascertain and give effect to the intention of the legislature as expressed in the
statute.
3. Statutes. Where a statute is plain and certain in its terms, and free from ambi-
guity, a reading suffices, and no interpretation is needed or proper.
4. Statutes: Legislature: Intent: Presumptions: Appeal and Error. Appellate
courts will, if possible, give effect to every word, clause, and sentence of a stat-
ute, because the legislature is presumed to have intended every provision of a
statute to have meaning.
5. Statutes: Legislature: Intent. In considering a statute, the legislative intention
is to be determined from a general consideration of the whole act with reference
to the subject matter to which it applies and the particular topic under which the
language in question is found, and the intent as deduced from the whole will
prevail over that of a particular part considered separately.
6. Statutes. It is an elementary rule of construction that all the parts of an act relat-
ing to the same subject should be considered together, and not each by itself.
Appeal from the District Court for lancaster County: roBert
v. Burkhard, Judge. Reversed and remanded with directions.
Ronald e. Reagan, of Reagan law offices, P.C., l.l.o.,
for appellant.
910 	17 NebRASkA APPellATe RePoRTS