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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Winterrowd v. State, Dept. of Administration, Division of Motor Vehicles (11/2/2012) sp-6719
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RALPH KERMIT WINTERROWD, )
II, ) Supreme Court No. S-14043
)
Appellant, ) Superior Court No. 3PA-10-02010 CI
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) No. 6719 - November 2, 2012
DEPARTMENT OF )
ADMINISTRATION, DIVISION )
OF MOTOR VEHICLES, and )
JOHN DOES 1-10, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Kari Kristiansen, Judge.
Appearances: Ralph Kermit Winterrowd II, pro se, Wasilla,
Appellant. Erling T. Johansen, Assistant Attorney General,
Anchorage, and John J. Burns, Attorney General, Juneau, for
Appellee.
Before: Carpeneti, Chief Justice, Fabe, Winfree, and
Stowers, Justices, and Eastaugh, Senior Justice.*
EASTAUGH, Senior Justice.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
----------------------- Page 2-----------------------
I. INTRODUCTION
After a van driven by Ralph Kermit Winterrowd II was damaged in a
collision with a moose, the Alaska Division of Motor Vehicles (DMV) proposed
suspending Winterrowd's driver's license because he did not provide proof of liability
insurance. Winterrowd opposed suspension and then filed suit to enjoin DMV's
suspension action. Treating Winterrowd's opposition as a request for hearing, DMV
scheduled an administrative licensing hearing for September 1, 2010. On motion by
DMV, the superior court dismissed Winterrowd's complaint on August 31. DMV
suspended Winterrowd's license on September 1 after he failed to attend the September 1
licensing hearing. Winterrowd appeals the dismissal of his superior court complaint.
We affirm, because Winterrowd had not exhausted his administrative remedies as of
August 31, when the court dismissed his complaint.
II. FACTS AND PROCEEDINGS
Ralph Kermit Winterrowd II was driving a 1994 Dodge van on March 1,
2010, when it collided with a moose and was damaged. On May 7 DMV sent
Winterrowd a notice stating that he was a driver in a crash resulting in property damage
exceeding $501, and that DMV had not received proof the van had been covered by the
motor vehicle liability insurance required by statute. The notice also stated that DMV
would suspend Winterrowd's driver's license unless he provided, within 30 days,
verification that he had the required insurance.1 The notice informed Winterrowd of the
1 The notice referred to AS 28.22.031 as the statute requiring proof of
insurance in this instance. AS 28.22.031(a) provides in relevant part:
A person involved in an accident who is required under
AS 28.22.021 to prove that a motor vehicle liability policy or
a certificate of self-insurance was in effect shall, within 15
days after the accident, (1) present a copy of the insurance
(continued...)
-2- 6719
----------------------- Page 3-----------------------
right to dispute the proposed suspension. It also informed him of a statute that provides
for an exception to suspension if the accident results in property damage of less than
$2,000 and only the property of the person who is required to register is damaged.2
Winterrowd responded with two letters disputing the amount of damage and
asserting that he was therefore exempt. In reply, DMV told him he needed to supply
specified information to prove his eligibility for an exemption from the insurance
requirement. On June 9, 2010, DMV issued a Notice and Order of Suspension,
informing Winterrowd of the factual basis for its decision. It also informed him of the
process needed to request an administrative hearing.
Winterrowd sent DMV a letter and two affidavits on June 28. A mechanic
executed one of the affidavits. His affidavit stated that the van was worth less than $350
1(...continued)
policy . . . that was in effect at the time of the accident . . . .
2 AS 28.22.041(h) provides in relevant part:
Subsection (a) does not apply to a person who is required to
provide proof under AS 28.22.021 if the person
(1) is involved in an accident that results in property damage
of less than $2,000 and the damage occurs only to the
property of the person required to show proof of insurance;
(2) not later than 15 days after the accident, provides proof of
motor vehicle liability insurance that complies with this
chapter or a certificate of self-insurance that complies with
AS 28.20.400 to the department; and
(3) establishes by a preponderance of the evidence that the
failure to have in effect motor vehicle liability insurance or to
self-insure as required by this chapter at the time of the
accident was due to circumstances beyond the control of the
person.
-3- 6719
----------------------- Page 4-----------------------
and was not worth repairing, and that the damage to the van was less than $500 because
of the van's low value.
Treating the submission of these documents as an opposition to suspension
and as a request for hearing, DMV scheduled an administrative hearing on the licensing
action for September 1, 2010. DMV sent the hearing notice to Winterrowd on July 6;
the notice informed him that if he failed to appear or contact DMV, he would waive his
right to contest DMV's action.
On July 2, four days before DMV sent the hearing notice, Winterrowd filed
a complaint in the superior court to enjoin DMV from suspending his license. In
response, DMV moved under Alaska Civil Rules 4(d)(8) and 12(b)(6) to dismiss
Winterrowd's superior court complaint. DMV's motion argued that Winterrowd had not
stated a claim on which relief could be granted, had not provided sufficient service, and
had not exhausted his administrative remedies. It informed the superior court that an
administrative hearing on the pending suspension was scheduled for September 1. It also
informed the court that suspension of Winterrowd's license had been stayed pending the
September 1 administrative hearing.
On August 31 the superior court granted DMV's motion to dismiss. The
dismissal order did not state the basis for dismissal. Winterrowd did not appear at or
participate in the DMV hearing scheduled for September 1. Noting that Winterrowd
failed to participate in the September 1 hearing, the DMV hearing officer issued a
decision affirming the suspension of his license.
The superior court denied reconsideration of its dismissal order.
Winterrowd appeals the dismissal of his superior court complaint.3
3 The caption of Winterrowd's complaint also lists "The Department" and
"John Does 1-10." The superior court's caption lists the State of Alaska, the Department
(continued...)
-4- 6719
----------------------- Page 5-----------------------
III. STANDARD OF REVIEW
Several different standards of review could potentially apply here, because
DMV moved for dismissal of Winterrowd's complaint on alternative grounds, including
failure to exhaust administrative remedies and failure to state a claim, and because the
superior court's dismissal order did not state the ground for dismissal.
For reasons we discuss in Part IV.A, the exhaustion issue resolves this
appeal. We consequently only need to identify the standards of review applicable in
deciding whether it was error to hold that a plaintiff's failure to exhaust administrative
remedies required dismissal of plaintiff's complaint.
Two different standards apply when reviewing a dismissal for a failure to
exhaust administrative remedies:
Whether a type of claim generally requires exhaustion of
administrative remedies is a legal question that we review de
novo . We review for abuse of discretion a superior court's
determination of whether a plaintiff exhausted those remedies
or whether the failure to exhaust should be excused.[4]
In accordance with the first sentence of this quotation, we review de novo
the legal question whether Winterrowd's defense to DMV's licensing action was the type
of claim that required Winterrowd to exhaust his administrative remedies.
But we conclude that the abuse-of-discretion standard of review described
in the second sentence of the quotation does not apply in this appeal. The superior court
3(...continued)
of Administration, and the Division of Motor Vehicles as the "Appellees." Our caption
includes the Doe parties, although the Department of Law's brief does not undertake to
represent them, and there is no indication any Doe party was served with Winterrowd's
complaint.
4 Smart v. State, Dep't of Health & Soc. Servs., 237 P.3d 1010, 1014 (Alaska
2010) (internal citations omitted).
-5- 6719
----------------------- Page 6-----------------------
dismissal order does not expressly determine whether Winterrowd had exhausted his
administrative remedies or whether a failure to exhaust should be excused, and therefore
does not reflect any exercise of judicial discretion as to those issues. Nonetheless, we
conclude that there is no possible legal or factual dispute about whether Winterrowd
failed to exhaust his administrative remedies and about whether his failure is
inexcusable. As a result, the only standard of review applicable here is the de novo
standard for reviewing legal determinations.
IV. DISCUSSION
A. Winterrowd Failed To Exhaust His Administrative Remedies.
We read Winterrowd's appeal to argue that the superior court improperly
dismissed his lawsuit against DMV. DMV argues that dismissal was proper because
Winterrowd failed to exhaust his administrative remedies.
We cannot tell from the dismissal order which of the three grounds
advanced below by DMV was the reason for dismissal. But DMV squarely argued the
exhaustion ground in the superior court, and Winterrowd had full opportunity to oppose
dismissal on that ground. "We may affirm a judgment on any grounds that the record
supports, even grounds not relied on by the superior court."5 Therefore, even though we
5 Van Sickle v. McGraw, 134 P.3d 338, 341 n.10 (Alaska 2006). This rule
"applies only to issues of law that find support in settled facts. It does not extend to new
theories that would normally be resolved by discretionary powers traditionally reserved
for trial courts - powers relying on case-specific consideration of disputed or disputable
issues of fact." Vaska v. State, 135 P.3d 1011, 1019 (Alaska 2006). The rule has
primarily been used in cases involving summary judgment. See, e.g., Young v. Embley,
143 P.3d 939, 940 (Alaska 2006). But we have also employed it in cases not involving
summary judgment. See, e.g., State v. Jacob, 214 P.3d 353, 362 (Alaska 2009)
(observing, in an appeal of an attorney's fees award, that "[t]he superior court did not
articulate this rationale for relying on factor (F), but we believe it is clear that the record
supports reliance on this factor"); Maness v. Daily , 184 P.3d 1, 7 (Alaska 2008) (holding
(continued...)
-6- 6719
----------------------- Page 7-----------------------
cannot tell which ground the court relied on, we choose to determine whether the
dismissal was required on the failure-to-exhaust ground. As we noted above in Part III,
normally a ruling that a complainant has not exhausted available administrative remedies
in part turns on rulings involving exercise of judicial discretion. But here, for reasons
discussed in Parts IV.A.2 and .3, the motion and opposition raised no exhaustion issue
that required the superior court to exercise its discretion.
In general, a party may not seek relief in a judicial forum until that party has
exhausted his or her available administrative remedies: "The exhaustion of remedies
doctrine is well established in the field of administrative law. A central principle of this
doctrine is that a party is not entitled to seek judicial relief for a supposed or threatened
injury until the available administrative remedies have been exhausted."6
Exhaustion is required if a statute or regulation provides for administrative
review. "[If] . . . a regulation provides for administrative review of an agency decision,
a person ordinarily must exhaust such administrative remedies before bringing an action
in superior court challenging the decision."7 Exhaustion is similarly required if a statute
provides for administrative remedies.8
5(...continued)
that the dismissal of an excessive-force claim could be affirmed on grounds not relied on
by the superior court).
6 Eidelson v. Archer , 645 P.2d 171, 176 (Alaska 1982) (internal citations
omitted).
7 Smart, 237 P.3d at 1015 (citing Matanuska Elec. Ass'n, Inc. v. Chugach
Elec. Ass'n, Inc., 99 P.3d 553, 560 (Alaska 2004)).
8 See Mount Juneau Enters., Inc. v. City & Borough of Juneau , 923 P.2d 768,
777 (Alaska 1996) ("The City has an ordinance specifically providing for an independent
Board of Appeals to review disputed decisions or orders of the City building official.
(continued...)
-7- 6719
----------------------- Page 8-----------------------
In deciding whether a complaint was correctly dismissed for failure to
exhaust administrative remedies, we must decide whether (a) exhaustion of remedies was
required; (b) the complainant exhausted those remedies; and (c) the failure to exhaust
remedies was excused.9
1. Exhaustion of administrative remedies was required.
The statutes pertinent to the proposed administrative suspension of
Winterrowd's license provided for administrative hearings. The statute authorizing
suspension of drivers' licenses for failing to provide proof of insurance, AS 28.22.041,
requires the "opportunity for a hearing under AS 28.05.121-28.05.141."10 Alaska
Statute 28.05.141(a) provides that "all hearings required under this title . . . shall be
conducted by the Department of Public Safety."11 And if DMV suspends a license, the
driver may file an administrative appeal.12
Because a driver who is the subject of a proposed administrative suspension
for failure to provide proof of insurance has a right to oppose the suspension of his
license and a right to an administrative hearing, he has administrative remedies that, if
exercised, might permit him to retain his license. Winterrowd could administratively
oppose DMV's proposed suspension of his license and could appeal a suspension. He
8(...continued)
See CBJ Ordinance 19.02.010. . . . Since an administrative appeal is clearly provided
for, exhaustion of remedies is required in this case.").
9 Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater Util. ,
32 P.3d 362, 367 (Alaska 2001).
10 AS 28.22.041(g).
11 See also 2 Alaska Administrative Code (AAC) 93.010 (2006).
12 Id.
-8- 6719
----------------------- Page 9-----------------------
would therefore ordinarily be required to exhaust his administrative remedies before
suing DMV to prevent it from suspending his license.
2. Winterrowd did not exhaust his administrative remedies.
As of July 2, 2010, when he sued DMV, Winterrowd had not yet exhausted
his administrative remedies. He was entitled by statute and regulation to a hearing on
DMV's proposed suspension.13 It is irrelevant that as of July 2, when he filed his
complaint, DMV had not yet scheduled his hearing. DMV's July 6 hearing notice
confirmed Winterrowd's right to oppose suspension and also informed him that his
failure to appear at the scheduled hearing would waive his right to contest DMV's
proposed action. In effect, the notice informed him that a failure to appear and contest
the proposed suspension would result in a suspension without consideration of his
written opposition to suspension. This made Winterrowd aware that he could lose his
opportunity for administratively challenging the agency's proposed action if he did not
appear or call DMV on September 1.
Therefore, so long as the hearing and administrative appeal opportunities
remained available to him, Winterrowd had not yet exhausted his administrative
remedies.
As of August 31, 2010, when the superior court dismissed his complaint,
Winterrowd had not yet attended the hearing scheduled for September 1, and DMV had
not yet ruled on the proposed suspension. And as of August 31, he had not yet exhausted
his right to administratively challenge any suspension order that DMV might enter.
Therefore, as of August 31, when the court entered the dismissal order, Winterrowd had
not exhausted his administrative remedies and had not raised any contention that
exhaustion was not required.
13 AS 28.22.041(g); 2 AAC 93.010.
-9- 6719
----------------------- Page 10-----------------------
We recognize that the superior court might have chosen to hold the
dismissal motion in abeyance pending the outcome of the September 1 hearing and
perhaps also pending the outcome of any administrative appeal.14 Had Winterrowd
prevailed at the licensing hearing, it would likely have mooted his lawsuit. And had he
appeared at the hearing and lost, the basis for the loss and the availability of an
administrative appeal might have been relevant to the exhaustion issue. The dismissal
motion then easily could have been resurrected in the superior court, or the lawsuit could
have been converted to an administrative appeal.
But the superior court was not obliged to hold Winterrowd's pro se
dismissal motion in abeyance. And, as it soon turned out, the events of September 1
confirmed the justification for dismissing the lawsuit for failure to exhaust administrative
remedies. Winterrowd did not appear at the September 1 hearing, and DMV's hearing
officer ordered Winterrowd's license suspended. The suspension was consistent with
DMV's authority under AS 28.05.141(b), which states: "If a person fails to attend or
appear for the hearing . . . the person's failure to attend or appear is considered a waiver
of the hearing and the appropriate department may take appropriate action with respect
to the person."
Winterrowd does not argue that the superior court's dismissal was
premature. And even if the superior court had held the case in abeyance pending the
September 1 hearing, Winterrowd's failure to attend was itself a failure to exhaust his
administrative remedies. One purpose of the exhaustion requirement is to allow the
agency to "apply[] its special expertise, correct[] its own errors, [and] develop[] a
14 The superior court's August 31 dismissal order bore the court's handwritten
note referring to Winterrowd's August 30 opposition to DMV's motion to dismiss. That
opposition referred to the licensing hearing scheduled for September 1.
-10- 6719
----------------------- Page 11-----------------------
record . . . ."15 Winterrowd did not present any of his defenses at the hearing scheduled
for September 1; his failure to do so prevented DMV from applying its expertise,
correcting its own errors, or developing a record.
Because it was undisputed that at least one administrative step was pending
when the superior court entered the dismissal on August 31, Winterrowd failed to
exhaust his administrative remedies.
3. Winterrowd's failure to exhaust is not excused.
Courts have recognized numerous excuses for the failure to exhaust
remedies.16 But none of these excuses is alleged to apply here, and Winterrowd has not
argued on appeal that he was excused from exhausting his administrative remedies. And
because he did not attend the administrative hearing scheduled on September 1, he lost
the opportunity to oppose suspension; he consequently waived his administrative
remedies.
Dismissal for failure to exhaust was therefore justified. The superior court
permissibly dismissed his complaint.
B. We Do Not Reach Winterrowd's Other Arguments.
Winterrowd's brief raises many other issues. It argues that his fundamental
rights as a citizen are being denied. It argues that he has a right to a jury trial. It argues
that this case implicates his right to own property and travel. It raises other contentions
15 Eidelson v. Archer , 645 P.2d 171, 176 (Alaska 1982).
16 See Bruns v. Municipality of Anchorage, Anchorage Water & Wastewater
Util., 32 P.3d at 371 n.46 (Alaska 2001) (citing McCarthy v. Madigan , 503 U.S. 140, 148
(1992)) (bias in the administrative process). See also Bowen v. City of New York, 476
U.S. 467, 483-84 (1986) (danger of irreparable harm from the administrative process);
Robyns v. Reliance Standard Life Ins. Co. , 130 F.3d 1231, 1236 (7th Cir. 1997) ("lack
of meaningful access to the review procedures").
-11- 6719
----------------------- Page 12-----------------------
as well. Because Winterrowd failed to exhaust his administrative remedies, we do not
need to reach any of these issues.17
Winterrowd argued in a letter to the agency that AS 28.22.021 was not
triggered because the vehicle he was driving was not worth more than $501, and thus
could not have suffered more than $501 in damage, the threshold amount for requiring
proof of insurance. He later supported this contention with the affidavit of a mechanic
who asserted expertise in valuing vehicles. Winterrowd argued before the agency that
if he had not violated AS 28.22.021, his license could not be suspended under
AS 28.22.041. DMV responded to Winterrowd's argument by stating that AS 28.22.021
refers to vehicle damage, not vehicle value. Although it is an interesting question how
a vehicle allegedly worth no more than $350 could suffer more than $501 in damage, our
conclusion that Winterrowd failed to exhaust his administrative remedies makes it
unnecessary for us to reach that question here.18
17 Likewise, we do not need to reach the State's appellate contention that
dismissal was proper because Winterrowd's complaint failed to state a claim upon which
relief could be granted.
18 The mechanic's affidavit does not make it clear whether the vehicle was
worth $350 before it hit the moose, or after. That it was worth $350 after the collision
would not have established that the van could not have suffered damage exceeding $501.
Winterrowd had asserted in a letter that the van had a value of $350 when it was
purchased in 2009 at an auction. But his letter was unsworn and did not say whether
$350 was the van's purchase price or the value placed on it at auction. Winterrowd later
offered his own affidavit, but it did not attribute any particular value to the van, and it did
not discuss the $350 figure or the origin of that figure. By failing to attend the hearing,
Winterrowd lost the opportunity to prove that the van's pre-collision value was less than
$501. He therefore lost the opportunity to prove the facts that potentially might have
supported his legal argument. We do not mean to suggest that his argument would
necessarily have succeeded if he had proved that the van's pre-collision value was less
than $501; we decide only that, having failed to offer admissible evidence of value, he
(continued...)
-12- 6719
----------------------- Page 13-----------------------
V. CONCLUSION
We AFFIRM the dismissal of Winterrowd's complaint.
18(...continued)
failed to exhaust his administrative remedies as to this issue, and also failed to preserve
the issue for appellate review.
-13- 6719
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