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Morrell v. North Dakota Department of Transportation7/15/1999
not in accordance with the law." Id.
When reviewing the findings of an administrative agency, we do not substitute our own judgment for that of the agency, but instead determine whether a reasonable mind could have determined that the factual Conclusions were proven by the weight of the evidence presented. Stanton v. Moore, 1998 ND 213, &P; 10, 587 N.W.2d 148.
The Department contends the suspension period should not have been reduced to 91 days because Morrell did have sufficient notice a 365-day suspension was possible. Under section 39-20-04.1(1)(b), N.D.C.C., the administrative sanction for driving a vehicle while having a certain alcohol concentration is suspension of the individual's driver's license for 365 days if the driving record shows a previous suspension or revocation. According to the Department, Morrell's receipt of the driving-record abstract and "Central Record" prior to the hearing informed him of the potential for enhancement of the penalty. The Department also argues that, even if Morrell did not receive proper notice of the 365-day suspension, he failed to show he was unfairly prejudiced by the insufficient notice.
II.
The inquiry in resolving a due process claim is twofold: Whether a constitutionally protected property or liberty interest is at stake and, if so, whether minimum procedural due process requirements were met. Ennis v. Williams County Bd. of Com'rs., 493 N.W.2d 675, 678 (N.D. 1992) (citing Livingood v. Meece, 477 N.W.2d 183, 193 (N.D. 1991)). If no constitutionally protected interest is involved, the due process requirements do not apply. Id. "It is well settled that a driver's license is a protectable property interest that may not be suspended or revoked without due process." Sabinash v. Director of Dept. of Transp., 509 N.W.2d 61, 63 (N.D. 1993); see also Kobilansky v. Liffrig, 358 N.W.2d 781, 786 (N.D. 1984) (stating a driver's license is a protectable property interest to which the guarantee of procedural due process applies). Thus, Morrell was entitled to procedural due process in the administrative hearing.
Due process requires a participant in an administrative proceeding be given notice of the general nature of the questions to be heard, and an opportunity to prepare and be heard on those questions. Saakian v. North Dakota Workers Comp. Bur., 1998 ND 227, &P; 11, 587 N.W.2d 166. Notice is sufficient if it informs the party of the nature of the proceedings so there is no unfair surprise. Id. The due process requirements for an administrative hearing are embodied in section 28-32-05(3)(c), N.D.C.C. The statute provides:
"A hearing under this subsection may not be held unless the parties have been properly served with a copy of the notice of hearing as well as a written specification of issues for hearing or other document indicating the issues to be considered and determined at the hearing. In lieu of, or in addition to, a specification of issues or other document, an explanation about the nature of the hearing and the issues to be considered and determined at the hearing may be contained in the notice." N.D.C.C. &S; 28-32-05(3)(c).
Basic notions of fundamental fairness also require a person challenging an agency action be adequately informed in advance of the questions to be addressed at the hearing so the person can be prepared to present evidence and arguments on those questions. Saakian, at &P; 11.
The notice, prepared by the hearing officer and received by Morrell, stated the proposed suspension period was 91 days. The notice fails to reference a 365-day suspension period. It wasn't until the hearing that the hearing officer announced the 91-
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