 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
In re Sleigh ex rel Unnamed Motorists Accused of DWI Infractions3/23/2005
ies" concerning public health). The Board is also created and authorized in Title 18. 18 V.S.A. § 101-102. Its adjudicative jurisdiction is specified in the same title: "Any person aggrieved by an act, decision, or order of the commissioner, local board of health or selectmen pursuant to this title may appeal to the board within 30 days." 18 V.S.A. § 128(a) (emphasis added).
12. It is apparent from these statutory delegations that the decision of the Commissioner at issue here, if statutorily authorized at all, is based on his powers and responsibilities as granted in Chapter 13 of Title 23, and not those authorized by Title 18. Thus, the provision of Title 18 that generally allows appeals to the Board from "an act, decision, or order of the commissioner" is inapplicable because it is limited to those made "pursuant to [Title 18]." 18 V.S.A. § 128(a). Therefore, the Board lacked jurisdiction to review any decision related to DUI breath testing.
13. We do not ground our decision solely on the absence of jurisdiction in the Board. Plaintiff first sought judicial review in the superior court under V.R.C.P. 75, and the State argued that plaintiff had failed to exhaust administrative remedies by appealing to the Board. Plaintiff voluntarily discontinued the superior court action to appeal to the Board, and the State did not assert lack of jurisdiction either in the Board or in this Court. To end this controversy, we further hold that the case does not involve a reviewable agency action, whether review is sought in the Board or the superior court.
14. There is no law that requires law enforcement to utilize the DataMaster data-collection function, and the Commissioner is under no statutory duty to either maintain or disable this function. Indeed, the Commissioner took no action to require the use of the data collection function in the first place. Viewed in this context, the Notice of DataMaster Function Termination plaintiff appealed to superior court and then to the Board is only a notice, as its words state, and is not a reviewable agency action. See V.R.C.P. 75(a) (authorizing Supreme Court review of agency "action"). The Commissioner's notice to disable the data-collection feature is not an agency action that created "legal consequences" or "determine any right or obligation of any party." Invention Submission Corp. v. Rogan, 357 F.3d 452, 459-60 (4th Cir. 2004) (finding court lacked jurisdiction to review agency decision to publish certain material because "the content of the campaign was not the consummation of any decisionmaking process that determined rights or obligations or from which legal consequences flowed"), cert. denied, 125 S.Ct. 415 (2004); see also Hearst Radio, Inc. v. Fed. Communications Comm'n, 167 F.2d 225, 227 (D.C. Cir. 1948) (noting that the "Administrative Procedure Act does not provide judicial review for everything done by an administrative agency" and dismissing appeal for lack of agency action).
The Board's decision is vacated, and the appeal is dismissed.
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
Paul L. Reiber, Associate Justice
Frederic W. Allen, Chief Justice (Ret.), Specially Assigned
|