Manzano v. Kansas Dept. of Revenue

No. 108,861

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ISRAEL MANZANO,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.


SYLLABUS BY THE COURT

1.
A driver subject to license suspension under the Kansas implied-consent law has
due-process rights.

2.
The legislature has provided a driver may request both an administrative hearing
and a de novo trial to the district court before the driver's license may be suspended or
revoked. The combination of that administrative hearing with de novo judicial review
provides sufficient constitutional due process for the suspension or revocation of driving
privileges.

3.
When the administrative hearing is so circumscribed by the hearing officer that it
no longer provides a meaningful opportunity to present evidence, to cross-examine law-
enforcement officers, to explore potential issues, and to list the issues a de novo district
court trial would consider, the driver's due-process rights have been violated.

2

4.
K.S.A. 77-622 provides broad authority to the district court to enter appropriate
relief when it finds that an agency action is invalid under K.S.A. 2013 Supp. 77-621.
When the administrative hearing in a driver's license suspension case is so circumscribed
that the driver's due-process rights have been violated, the district court does not abuse its
discretion by setting aside the license suspension altogether.

Appeal from Finney District Court; MICHAEL L. QUINT, judge. Opinion filed May 9, 2014.
Affirmed.

John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellant.

Leslie A. Hess and Andrea K. Swisher, of Kennedy Berkley Yarnevich & Williamson, Chartered,
of Hays, for appellee.

Before LEBEN, P.J., MCANANY and POWELL, JJ.

LEBEN, J.: The Kansas implied-consent law provides that a driver's license may be
suspended for a failure to take a blood or breath test for alcohol when a law-enforcement
officer has reasonable grounds to believe the person was driving while intoxicated. But
the law also provides hearings that meet constitutional due-process requirements by
allowing both an administrative hearing before a Kansas Department of Revenue hearing
officer and, if unsuccessful there, a new trial before the district court.

The Department of Revenue appeals the district court's order setting aside the
administrative suspension of Israel Manzano's driver's license. The district court found
that the administrative hearing provided to Manzano had been a sham, thus violating his
right to a fair and impartial hearing. The Department has appealed, contending that there
was no due-process violation since Manzano's license has remained in effect on a
temporary basis while his appeal has been pending in the courts.
3


But we agree with the district court that Manzano's administrative hearing did not
provide a meaningful opportunity to present evidence, to explore the issues, or to identify
the issues that would be subject to a de novo trial in the district court. Under these
circumstances, Manzano's due-process rights were violated, and the district court entered
an appropriate remedy in light of that violation. We therefore affirm the district court's
judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 30, 2011, Kansas Department of Revenue Administrative Hearing
Officer Kent Collins affirmed the agency's suspension of Manzano's driver's license.
Manzano was stopped while operating a motor vehicle in Garden City, Kansas, on
November 28, 2010. Police Officer David Wheet initiated the traffic stop. Officer Wheet
testified at the administrative hearing that he initiated the stop after observing the vehicle
accelerate rapidly from a stop sign, squealing the tires. Officer Wheet called Police
Officer Oscar Flores to the scene of the stop because Officer Flores was part of the DUI
saturation patrol that night.

Manzano was arrested and charged with a DUI in violation of K.S.A. 2010 Supp.
8-1567. After being given the required implied-consent advisories, Manzano refused to
submit to testing intended to determine the presence of alcohol or drugs in his body.
Officers Flores and Wheet filled out the Officer's Certification and Notice of Suspension
form (DC-27) and gave it to Manzano at 3:50 a.m.

Manzano requested an in-person administrative hearing, which was held
September 30, 2011, before Administrative Hearing Officer Collins. Manzano and
Officers Flores and Wheet were present to testify at the hearing. Counsel began
questioning Officer Wheet regarding his investigative report. After a few preliminary
4

questions about when and where Officer Wheet wrote his report, Collins interrupted
saying, "Let's move on. If there's an issue with the report get to it." Counsel continued by
questioning Wheet about where he and his car were located in relation to where Manzano
was driving. After seven more questions from counsel, Collins again interrupted, "Get to
the stop. This is taking way too long."

After another seven short questions (e.g., "How far back?"; "Were your windows
up?"), Collins said, "Let's get to the actual stop itself." Counsel asked Wheet why he
began following Manzano. Wheet said that Manzano had "accelerate[d] rapidly" from a
stop sign, "squealing the tires." Counsel then asked whether the officer's windows were
down ("No") and followed up by asking what the speed limit was at that location.

Collins again interrupted and ruled that Manzano's attorney could not ask any
further questions about how and why the officer conducted a traffic stop: "According to
the Martin case [Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938
(2008)], that's as far as we're going to go with that. Move on to his contact with your
client." Counsel continued by asking Officer Wheet how far he had followed Manzano's
vehicle and if he observed anything else. Collins told the attorney to move on: "Let's go
to his contact with your client. . . . Client's parked in the driveway, the officer stopped, go
from there."

Counsel asked four questions about who was present and then asked where Wheet
had turned on his police lights to pull over Manzano in relationship to where Manzano
had pulled into his driveway. Collins did not allow Wheet to answer. Collins said, "I don't
care. Go ahead. Next question." Counsel asked eight more questions about the discussion
that Wheet had with Manzano after the stop. At that point, Collins said he would only
allow 5 more minutes to finish the hearing:

5

"[Hearing Officer Collins:] Okay, I'm going to give you 5 more minutes to
complete this.
"[Counsel:] Well —
"[Hearing Officer Collins:] Then I'm going to make a ruling based on what I've
heard.
"[Counsel:] Well, wait, I — I have the other officer. I —
"[Hearing Officer Collins:] Then you better hurry.
"[Counsel:] Well, if we're behind I can reschedule for a time that you have time.
"[Hearing Officer Collins:] No, we can't reschedule. We're going to do it today.
"[Counsel:] Well, it's going to take me —
"[Hearing Officer Collins:] It's docketed for 10 minutes.
"[Counsel:] Well, I didn't docket it for 10.
"[Hearing Officer Collins:] Use the time as you [see] fit. Just warning you."

Counsel finished questioning Officer Wheet (15 additional questions) and began
questioning Officer Flores. She questioned Officer Flores, uninterrupted, regarding his
report, Manzano's ability to stop the vehicle, Manzano's ability to speak clearly, and
whether there was a videotape of the stop. Officer Flores explained that the written report
had some information missing—that he had asked Manzano if he would be willing to go
to the Law Enforcement Center to complete an alcohol-related test and that Manzano had
said he would. At that point, Collins ended the hearing:

"[Hearing Officer Collins:] "At this time, I'm going to affirm the certification.
"[Counsel:] Um, I'm not done yet, because my client hasn't testified.
"[Hearing Officer Collins:] No, ma'am. We're done.
"[Counsel:] We're not done with the hearing.
"[Hearing Officer Collins:] I said we're done. There's your copy of the order.
There's one for the officers."

Manzano filed a timely petition for judicial review by the district court. Manzano
claimed that the agency did not have jurisdiction to suspend his license because he did
not receive due process of law during the administrative hearing. He also alleged that the
6

procedure and decision-making process of the agency was unlawful and that the agency
action was unreasonable, arbitrary, and capricious.

The district court conducted its hearing on September 6, 2012. Prior to the
presentation of any evidence or testimony, the trial judge requested that the parties
discuss the preliminary issues in the case. During that discussion, Manzano raised the
issue of due process based on the abbreviated administrative hearing. After hearing
further arguments and opening statements from the parties, the court noted it had read the
stipulated transcript of the administrative hearing and declared the hearing "a farce." The
court continued, "[T]here was a travesty of justice performed by the hearing officer. That
there was not any reasonable due process of law provided to Mr. Manzano during that
particular hearing. And, frankly, he didn't get a hearing."

The district court dismissed the agency's action against Manzano and ordered his
driver's license reinstated. The Kansas Department of Revenue has appealed to this court.

LEGAL STANDARDS APPLICABLE TO THIS APPEAL

When a party in a driver's-license-suspension case appeals from an administrative
hearing to the district court, the district court reviews the matter under the Kansas
Judicial Review Act (the KJRA), K.S.A. 77-601 et seq. See K.S.A. 2013 Supp. 8-
1020(p). Under the KJRA, the district court may grant relief if the agency action violated
constitutional rights, K.S.A. 2013 Supp. 77-621(c)(1), if the agency erroneously
interpreted the law, K.S.A. 2013 Supp. 77-621(c)(4), if the agency procedure was
unlawful, K.S.A. 2013 Supp. 77-621(c)(5), and if the agency action was otherwise
unreasonable, arbitrary, or capricious, K.S.A. 2013 Supp. 77-621(c)(8).

To the extent that the facts are not in dispute and only legal issues are involved,
we review the matter independently, without any required deference to the district court.
7

See In re Doe, 277 Kan. 795, 799, 90 P.3d 940 (2004). Here, the facts are not in dispute
as to what happened at the administrative hearing, for which we have a transcript.

To the extent that any issues required the application of discretion by the district
court, we review the district court's decision for abuse of discretion. Unless the district
court has made a factual or legal error, a district court abuses its discretion only when no
reasonable person would agree with its decision. Snider v. American Family Mut. Ins.
Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013).

ANALYSIS

I. The Hearing Officer Presiding over Manzano's Administrative Hearing Violated
Manzano's Due-Process Rights by Arbitrarily Limiting the Hearing by Time and
Subject Matter.

Before we discuss the specific arguments the parties have made in this appeal, we
first must place them into the procedural framework of the Kansas implied-consent law
as well as the Kansas Supreme Court's guidance about a driver's due-process rights under
that law. The implied-consent law provides that a law-enforcement officer may ask a
person to take a breath or blood test for alcohol when the officer has reasonable grounds
to believe that the person was operating or attempting to operate a vehicle under the
influence of alcohol or drugs. See K.S.A. 2013 Supp. 8-1001(b)(1). If the person fails or
refuses the test, the person's driving privileges may be suspended. See K.S.A. 2013 Supp.
8-1002(e), (f).

That's obviously an important matter, and Kansas law provides for two hearings at
which the driver can challenge the suspension. First, the driver may request an
administrative hearing before a hearing officer of the Department of Revenue. See K.S.A.
2013 Supp. 8-1020(a), (d). If the driver is not successful at the administrative hearing, he
or she may petition for review in the district court, in which case the matter is tried "de
8

novo" there, which means that the district court decides the matter independently based
solely on the evidence presented to it. See K.S.A. 2013 Supp. 8-1020(p).

How these two hearings have been structured has varied over the years, as our
Supreme Court set out in some detail in Kempke v. Kansas Dept. of Revenue, 281 Kan.
770, 781-97, 133 P.3d 104 (2006). At one time, only one issue could be argued at the
administrative hearing when a driver refused a drug or alcohol test—whether the driver
had reasonable grounds to refuse the test—and the driver's license was suspended from
the time of the administrative hearing (assuming the driver lost) until the de novo trial in
the district court. 281 Kan. at 783, 790. Based on that system, the Kansas Supreme Court
ruled in Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 246-49, 671 P.2d 547
(1983), that the administrative-hearing process then in place violated a driver's due-
process rights because it failed to provide sufficient opportunity to cross-examine
witnesses at the administrative hearing.

As the Kempke court noted, however, the implied-consent statute has since been
amended in significant ways. Now, the driver's license suspension does not take effect
until after the de novo trial in the district court, assuming the driver properly files and
serves the petition for review by the district court. See K.S.A. 2013 Supp. 8-1020(o);
Kempke, 281 Kan. at 783. In addition, as the Department of Revenue argued in Kempke,
see 281 Kan. at 790, the scope of the administrative hearing was substantially broadened
after Wulfkuhle. Given these developments, our Supreme Court concluded in Kempke that
a driver's due-process rights were not violated by an inability to subpoena some witnesses
for the administrative hearing since they were given the opportunity to examine the
certifying officer (usually the arresting officer) there, were permitted to present other
evidence there, and did not lose the license until after a more extensive hearing was held
in the district court. See 281 Kan. 770, Syl. ¶¶ 5-8. Even so, drivers do have due-process
rights with respect to license suspension or revocation, and "the fundamental requirement
9

of due process is the opportunity to be heard at a meaningful time and in a meaningful
manner." 281 Kan. 770, Syl. ¶¶ 2-3.

In Manzano's case, the license suspension was based on the claim that he refused
to take a breath or blood test for alcohol. In a test-refusal case, K.S.A. 2013 Supp. 8-
1020(h)(1) limits the scope of the administrative hearing to four issues: (1) whether the
officer had reasonable grounds to believe the person was operating a vehicle under the
influence of alcohol; (2) whether the person was in custody or arrested for an alcohol or
drug related offense; (3) whether the proper notices were given; and (4) whether the
person refused to submit or complete a test. That statute also limits the witnesses at the
evidentiary hearing to the driver, any law-enforcement officer who signed the
certification form (the DC-27 form), and "one other witness who was present at the time
of the issuance of the certification." In addition, the questioning of the law-enforcement
officers "shall be restricted to the factual circumstances relied upon in the officer's
certification." K.S.A. 2013 Supp. 8-1020(g).

The officers who filled out a DC-27 form in Manzano's case certified that he had
been stopped for reckless driving. They also said that they had reasonable grounds to
believe that he had been operating his vehicle under the influence of alcohol based on an
odor of alcohol coming from him, slurred speech and bloodshot eyes, difficulty
communicating, poor balance and coordination, and Manzano's admission that he had
consumed some alcohol.

We are fortunate in this case to have a transcript of the administrative hearing.
Such transcripts are not routinely prepared, but Manzano's attorney brought a court
reporter to the hearing to record it. We have carefully reviewed that transcript. The
questions asked by Manzano's counsel at that hearing generally related to "the factual
circumstances relied upon in the officer's certification," as required by K.S.A. 2013 Supp.
8-1020(h). Because of the restrictions the hearing officer imposed, however, not all
10

witnesses were allowed to testify and the hearing did not explore the four subjects it
could have covered.

The Department of Revenue argues that there was no due-process violation. The
Department contends that the only real purpose of the administrative hearing is to raise
the issues that are to be determined. That is, in fact, one recognized purpose of the
hearing. A driver must first raise an issue at the administrative hearing—even including
constitutional challenges—or that issue may not be raised before the district court. See
Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 633-34, 176 P.3d 938 (2008); Bruch v.
Kansas Dept. of Revenue, 282 Kan. 764, 773-76, 148 P.3d 538 (2006). There is also
support for the Department's position in Kempe, where the court said that the de novo
trial in the district court "cures" procedural defects at the administrative hearing:

"Unlike [state supreme court cases from other states], where no initial
administrative hearing was afforded the licensees, Kansas motorists are granted by law an
administrative predeprivation hearing and are permitted to present limited evidence at
that hearing. Like [those case from other states], however, Kansas law provides for a de
novo hearing before the district court, which cures any procedural due process defects at
the administrative hearing level." 281 Kan. at 799.

Significantly, however, the Kempke court's statement that the de novo hearing in the
district court cures procedural due-process defects at the administrative hearing came
directly after it had noted that Kansas motorists have an administrative hearing. And the
court again emphasized in the paragraph following the one quoted above that
"[l]egislative changes have provided for an extensive hearing at the administrative level"
as well as an extension of driving privileges until the de novo trial in the district court.
281 Kan. at 799.

The Kempke court did not consider the possibility that the Department of Revenue
would provide sham administrative hearings. Whatever one might call it, the hearing
11

provided to Manzano cannot be called a fair or adequate hearing. His attorney's questions
were generally appropriate, yet the hearing officer continually interrupted the questioning
and ultimately cut it off altogether. Manzano did not have a chance to explore the bases
for the statements the law-enforcement officers made on the DC-27 form or time for any
possible constitutional challenges Manzano wished to raise at the administrative hearing
so that they could be pursued later. In abruptly closing the hearing, the hearing officer did
not even provide an opportunity to state issues that Manzano wished to preserve; he
simply ended the hearing and moved on to another case.

The Kansas Legislature has carefully crafted a system in which certain witnesses
and evidence may be presented at the administrative hearing; more extensive evidence
may be presented in the district court's de novo trial. Here, the way the administrative
hearing was handled deprived Manzano of the opportunity to meaningfully cross-
examine the law-enforcement witnesses, the opportunity to present evidence (including
his own testimony), the opportunity to identify potential issues that had to be raised at the
administrative hearing, and the opportunity to list those issues to preserve them for later
hearing before the district court. In short, the district court properly characterized the
hearing as a sham. See American Heritage Dictionary 1599 (4th ed. 2006) (defining a
sham as "[s]omething false or empty that is purported to be genuine").

Our court considered the teaching of Kempke in DeLong v. Kansas Dept. of
Revenue, 45 Kan. App. 2d 454, 252 P.3d 582 (2011). As we said in DeLong, "The
Kempke decision . . . recognizes that the combination of the administrative hearing with
de novo judicial review provides sufficient constitutional due process in the context of
suspension of driving privileges." (Emphasis added.) 45 Kan. App. 2d at 457. Where, as
here, the administrative hearing is a sham that does not provide a meaningful opportunity
to present evidence, develop the issues, or identify the issues for a later hearing, the
driver's due-process rights have been denied.

12

The Department of Revenue cites DeLong in support of its position that Manzano
suffered no due-process violation. The Department contends that since Manzano has
never lost his license (the suspension doesn't take effect until his court appeal has been
completed), he has yet to suffer a deprivation of property and, thus, has no due-process
claim. But the facts in DeLong are far different than the ones now before us. In DeLong,
the alleged due-process error was an allegedly erroneous mailing from the Department of
Revenue that suggested DeLong's license would be suspended even while her appeal of
the suspension continued. That, of course, was incorrect, and DeLong claimed that it
caused her concern. Our court found no due-process violation, noting that she had
suffered no loss or suspension based on the claimed violation. 45 Kan. App. 2d at 457-
58. We also noted, of course, that the combination of the administrative hearing and the
de novo trial in district court met the requirements of due process. Here, those twin
protections have been wiped away by a sham administrative hearing.

Manzano now faces the suspension of his license, and the potential issues on
which he might challenge the suspension were neither reasonably explored nor identified
at the administrative hearing. The district court's de novo trial is limited to the issues
raised at the administrative hearing. In this context, the violation of Manzano's statutory
right to a reasonable administrative hearing has violated his constitutional due-process
rights as well.

II. The District Court Properly Dismissed the Department of Revenue's Order
Suspending Manzano's Driving Privileges Based on the Denial of Manzano's Due-
Process Rights.

Based on the due-process violation, the district court said that it had two options—
remand to the hearing officer or dismissal of the administrative proceeding to suspend
Manzano's license. The court concluded that dismissal was the appropriate option:

13

"One [option] would be to remand the case back to the hearing officer, but that would
simply penalize [Manzano] for the administrative hearing officer's actions without any
compensation to him for the fees and costs not only for the initial administrative hearing,
but also for the costs and fees associated with the appeal of his ruling to the district court.
The second option would be to dismiss this case and order a reinstatement of the
petitioner's driver's license immediately."

The court then concluded that because the hearing had been "a sham" and the hearing
officer had "actively interfered with the rights of petitioner during that hearing," then "the
only fair and appropriate order to be entered in this case is for the dismissal" of the
administrative proceeding against Manzano's license.

Once the district court has found that an administrative agency's act is invalid
under K.S.A. 2013 Supp. 77-621, then K.S.A. 77-622 provides broad authority to grant
appropriate relief. K.S.A. 77-622(a) prohibits a damage award unless some other statute
authorizes damages, but K.S.A. 77-622(b) broadly authorizes "other appropriate relief"
aside from damages, including setting aside the agency action or taking "any other
action" that is "appropriate":

"The court may grant other appropriate relief, whether mandatory, injunctive or
declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting
relief, the court may order agency action required by law, order agency exercise of
discretion required by law, set aside or modify agency action, enjoin or stay the
effectiveness of agency action, remand the matter for further proceedings, render a
declaratory judgment or take any other action that is authorized and appropriate."
(Emphasis added.)

K.S.A. 77-622 appears to grant some level of discretion to the district court,
offering a range of options and allowing the district court to choose the appropriate one in
a specific case. For example, K.S.A. 77-622(b) allows the district court to remand the
matter to an administrative agency for further proceedings; our Supreme Court has said
14

that whether to send a matter back to the agency is a discretionary call. Sunflower Racing,
Inc. v. Board of Wyandotte County Comm'rs, 256 Kan. 426, 447, 885 P.2d 1233 (1994).
We conclude that the district court has some level of discretion in determining what
action may be "appropriate" in a given case under K.S.A. 77-622(b).

We next consider whether the district court abused its discretion by ordering
dismissal of the administrative proceeding to suspend Manzano's license. In our view,
where the administrative hearing officer has altogether failed to provide the opportunity
for a meaningful hearing to the driver, a reasonable person could agree with the district
court that dismissal is the appropriate remedy.

The Department of Revenue suggests that we instead affirm the administrative
suspension. It bases this on a stipulation Manzano entered into in as part of a diversion
agreement in a separate criminal case arising out of this DUI stop. Manzano responds that
the diversion agreement itself provided that the stipulations were made solely for the
purpose of that case and that K.S.A. 2013 Supp. 8-1020(t) provides that the "facts found
by the hearing officer or by the district court" in a driver's license suspension case "shall
be independent of the determination of the same or similar facts in the adjudication of
any criminal charges arising out of the same occurrence." In the alternative, the
Department suggests that we remand the matter to the district court to hold its de novo
evidentiary hearing.

We find the Department's suggestions off the mark. First, whatever discretion may
be exercised in determining the proper ruling under K.S.A. 77-622 is given to the district
court, not us. Second, even if Manzano's factual statement in the diversion agreement
were admissible in a separate driver's-license-suspension case, nothing makes it binding
here, so Manzano could still present other evidence. Thus, the Department's suspension
order cannot be affirmed without first providing for an evidentiary hearing. Third, the
Department's suggestion that we simply remand the case to the district court for its de
15

novo evidentiary hearing would not solve the problems created by the sham
administrative hearing held in Manzano's case—Manzano never had a chance to explore
the issues at that administrative hearing or to identify the issues he wanted to preserve for
the de novo trial in the district court.

K.S.A. 77-622(b) allows the district court to set aside agency action or to "take
any other action that is authorized and appropriate." The district court had the authority in
this case to set aside the administrative suspension without providing for any further
proceedings. On the facts of this case, we find no abuse of discretion in the district court's
decision.

The district court's judgment is therefore affirmed.

* * *

POWELL, J., dissenting: Israel Manzano, prior to his de novo judicial review
hearing in the district court, stipulated in his diversion agreement with the prosecutor of
his DUI criminal case that he "operated the motor vehicle while under the influence of
alcohol, and as a result of the influence of alcohol, [he] . . . was incapable of safely
operating the motor vehicle." After he was read his Miranda rights by law enforcement
and then asked if he understood those rights, he replied, "Fuck you." A couple of minutes
later, after law enforcement read him the implied consent warnings, he was asked if he
would provide a breath sample, to which his reply was again, "Fuck you." Under such
uncontroverted facts, Kansas law mandates that Manzano's driver's license be suspended
for 1 year. Because the majority holds otherwise, I dissent.

The majority endorses the district court's order reinstating Manzano's driver's
license on the grounds that because he was denied due process at the administrative
hearing before the Department of Revenue, the district court did not abuse its discretion
16

in reinstating Manzano's driver's license instead of conducting a de novo hearing. While I
agree that Manzano's due process rights were violated, I believe the district court abused
its discretion with the remedy it ordered.

First, Manzano was denied due process at the administrative hearing. The majority
will get no argument from me that the hearing was, to say the least, hardly the model of
an orderly and fair proceeding designed to explore the issues and elicit the truth. But the
due process failure was principally due to the fact Manzano was denied the ability to
meaningfully raise issues in order to preserve them for court review.

The majority correctly relies on Kempke v. Kansas Dept. of Revenue, 281 Kan.
770, 133 P.3d 104 (2006), for its holding that Manzano's due process rights were violated
at the administrative level because our Supreme Court never contemplated that the
Department of Revenue would provide a "sham" administrative hearing. However, our
Supreme Court in Kempke also repeatedly stated that de novo review in the district court
"cures any procedural due process defects at the administrative hearing level." (Emphasis
added.) 281 Kan. at 799. Moreover, it cited with approval several cases from other
jurisdictions which held that a complete denial of an administrative hearing did not
violate due process because a de novo trial in the district court was available before a
licensee's driver's license could be suspended. 281 Kan. at 797-99; see, e.g., Miles v.
Shaw, 272 Ga. 475, 447-78, 532 S.E.2d 373 (2000) (initial administrative appeal may fall
short of due process so long as licensee entitled to subsequent judicial review);
Wollenburg v. Conrad, 246 Neb. 666, 670-71, 522 N.W.2d 408 (1994) (licensee given
due process protection even without hearing at administrative level because license
suspension stayed and licensee afforded opportunity for full hearing at district court
level); Department of Transport., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw.
214, 218, 408 A.2d 173 (1979) (de novo hearing before district court cures any
procedural due process defect resulting from lack of administrative hearing).

17

We can harmonize our narrow holding that Manzano's due process rights were
violated at the administrative hearing in this instance with the broad language contained
in Kempke that a de novo hearing in the district court prior to a driver's license being
suspended cures any due process defects because of our Supreme Court's repeated rulings
that issues must be adequately raised at the administrative level before they can be
litigated at the de novo hearing in the district court. Kingsley v. Kansas Dept. of Revenue,
288 Kan. 390, 411, 204 P.3d 562 (2009) (party may only argue issues raised at
administrative hearing); Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 633-34, 176
P.3d 938 (2008) (licensee must first raise issues below in order to be considered by
district court); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773-74, 148 P.3d 538
(2006) (subject-matter jurisdiction vested in district court only as to those issues
adequately raised below). Moreover, the other jurisdictions cited in Kempke provide a
truly de novo hearing in court in the sense that the court proceedings are essentially a do
over. In Kansas, this is not the case as de novo review of driver's license suspensions in
the district court is not really de novo in the traditional sense; it is more like appellate
review, except that it allows for a complete new evidentiary record to be produced. See
Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 765, 758 P.2d 226 (1988) (true
de novo review allows for new trial on facts and issues instead of limiting trial to issues
preserved below), rev. denied 243 Kan. 777 (1988).

However, adequate preservation of issues does not always require the calling of
witnesses, cross-examination of the opposing side's witnesses, or the production of other
evidence. For example, in Martin our Supreme Court held that constitutional issues had
to be raised at the administrative level even though they could not be decided by an
administrative tribunal. 285 Kan. at 633-34. But something more than a broad,
nonspecific, "mere reservation" of issues is probably required. See Soza v. Kansas Dept.
of Revenue, 33 Kan. App. 2d 254, 257, 100 P.3d 102 (2004) (Soza's mere "reservation"
failed to adequately raise issues), disapproved on other grounds by Kingsley, 288 Kan.
390. Parenthetically, I also note that while time limits on hearings are not per se violative
18

of a litigant's due process rights, a litigant is entitled to sufficient time to present his or
her case. In re Marriage of Glenn, 18 Kan. App. 2d 603, 606-07, 856 P.2d 1348 (while
trial court may have obligation to move matters rapidly, litigants entitled to sufficient
time to make an orderly presentation of their case), rev. denied 253 Kan. 603 (1993).

Second, as to the issue of whether the district court abused its discretion in
reinstating Manzano's driver's license, I must dissent for the reasons I stated at the outset.
I recognize that our scope of review is quite narrow. However, a district court abuses its
discretion when it bases its decision on an error of law, incorrect facts, or, in this
instance, when certain facts are completely ignored. See State v. Ward, 292 Kan. 541,
550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Moreover, while K.S.A.
77-622(b) authorizes the district court to provide "other appropriate relief," such authority
is not without some boundaries. Despite the district court's correct conclusion that the
administrative hearing violated Manzano's due process rights, I think it was an abuse of
discretion and inappropriate for the district court to order a remedy without considering
evidence that appears to foreclose such a remedy, a remedy that would seem to be greater
than what Manzano would have been entitled to had he received due process.

The uncontroverted facts are that prior to the district court hearing, Manzano
stipulated that he drove his vehicle while under the influence of alcohol, that such
intoxication rendered him unable to safely operate his motor vehicle, that he was given
and read a copy of the DC-27 form containing the required informed consent notices, and
that he refused to take the breath test. Under K.S.A. 2013 Supp. 8-1014, Kansas law
requires that Manzano's driver's license be suspended for 1 year given these
uncontroverted facts.

There is nothing in Kansas law which prohibits the district court from considering
these stipulations, just a prohibition on utilizing findings made in the criminal case.
K.S.A. 2013 Supp. 8-1020(t) states:
19


"The facts found by the hearing officer or by the district court upon a petition for
review shall be independent of the determination of the same or similar facts in the
adjudication of any criminal charges arising out of the same occurrence. The disposition
of those criminal charges shall not affect the suspension or suspension and restriction to
be imposed under this section."

A diversion agreement is simply a contract between the prosecutor and a
defendant. State v. Tims, 49 Kan. App. 2d 845, 854, 317 P.3d 115 (2014), petition for rev.
filed February 2, 2014. It is not an adjudication of a criminal case, nor does it contain any
findings by a court or jury which a district court can adopt. 49 Kan App. 2d at 854.
Manzano's diversion agreement contains admissions against interest or stipulations of
certain facts, facts that are highly relevant to the issue of whether Manzano's driver's
license was properly suspended. Manzano is bound by those stipulations. Double M
Constr. v. Kansas Corporation Comm'n, 288 Kan. 268, 269, 202 P.3d 7 (2009).
Moreover, the fact that the diversion agreement contains language that it cannot be used
for any other purpose is immaterial because neither the Department of Revenue nor the
district court was a party to the agreement and, therefore, are not bound by such
restrictions. See generally Swanson v. Fields, 814 F. Supp. 1007, 1014-15 (D. Kan. 1993)
(defendant's stipulation to contrary facts in diversion agreement bar subsequent 42 U.S.C.
§ 1983 civil action); see also Martin, 285 Kan. at 646 (illegally obtained evidence
admissible in driver's license revocation hearings).

The district court should have considered the diversion agreement. Because there
is nothing in the record to indicate it did so, I would reverse the district court, vacate its
order, and remand for a de novo hearing as required by K.S.A. 2013 Supp. 8-1020(p).