Madison v. Kansas Dept. of Revenue

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NOT DESIGNATED FOR PUBLICATION

No. 120,186

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SHERRIE MADISON,
Appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellant.


MEMORANDUM OPINION

Appeal from Rooks District Court; BLAKE A. BITTEL, judge. Opinion filed January 10, 2020.
Affirmed.

Charles P. Bradley, of Legal Services Bureau, Kansas Department of Revenue, for appellant.

Andrew J. Walter, of Walter & Walter, LLC, of Norton, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and SCHROEDER, JJ.

PER CURIAM: The Kansas Department of Revenue (KDOR) suspended Sherrie
Madison's driver's license after she failed a breath test. On judicial review, the district
court affirmed the suspension, finding that while the officer lacked reasonable suspicion
to initiate the traffic stop, the validity of the stop was irrelevant for the purposes of an
administrative appeal. A week later, Madison moved to alter or amend the judgment
based on a 2016 statutory amendment that allowed consideration of constitutional
violations related to a stop. The district court reversed the suspension of Madison's
driver's license, concluding that the constitutionally defective stop deprived the KDOR of
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subject matter jurisdiction. The court set aside the suspension of Madison's driver's
license. The KDOR appeals. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In the early morning hours, Officer Cordell Stover witnessed a vehicle swerve to
the left of the center of the road several times and move back and forth on the right side
of the roadway. He began a traffic stop of the vehicle, ultimately leading to an arrest of
Madison for driving under the influence (DUI). Madison agreed to submit to a breath test
and that test led to a breath sample of 0.237.

After the KDOR suspended Madison's driving privileges because of the failed
breath test, she requested an administrative hearing and the hearing officer upheld the
suspension. Madison timely petitioned for judicial review, arguing that Officer Stover
lacked probable cause to initiate the traffic stop and had no reasonable grounds to suspect
she was driving under the influence.

At the evidentiary hearing before the district court, Officer Stover testified that he
stopped Madison around 2:30 a.m. after witnessing her vehicle drive close to the curb,
then swerve to the left of center several times and move left and right within the road.
Stover admitted that driving close to the curb was not a traffic infraction, nor did it
suggest impairment. He explained the road had no center line and there were multiple
cars parked along the street, and agreed it was proper for a vehicle to move left to go
around the parked vehicles. Stover said it is normal—when coming upon an intersection
that dips—for the driver to go through at an angle to prevent bottoming out. He testified
there were certain times when Madison's vehicle went beyond the scope of what a typical
driver would need to do. So he decided to pull her over when she turned a corner and
went left of center into the other lane.

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The district court viewed the video recording from Stover's patrol car, which
showed that Madison's vehicle moved around vehicles in the street to avoid hitting them
but did not commit any traffic infractions.

The district court ultimately issued a memorandum decision affirming Madison's
driver's license suspension. The court found, in part, based on the evidence presented that
Madison did not commit any traffic infractions leading up to the traffic stop. But the
court went on to find that the validity of the traffic stop was irrelevant for the purposes of
an administrative appeal based on Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 646,
176 P.3d 938 (2008). In addition, the exclusive statutory list of issues that could be raised
in a driver's license suspension action did not include the lawfulness of the stop. See
K.S.A. 2017 Supp. 8-1020(h)(2).

One week after the district court issued its decision, Madison moved to alter the
judgment under K.S.A. 2017 Supp. 60-259(a)(1)(B). She argued that legislative
amendments to K.S.A. 2017 Supp. 8-1020—which became effective between the
administrative review hearing and the court's review hearing in October 2016—allowed
the district court to consider any constitutional issue, including the lawfulness of a traffic
stop. The district court granted the motion. After hearing arguments, the court agreed
with Madison and considered the lawfulness of the traffic stop under K.S.A. 2017 Supp.
8-1020(p). The court found, consistent with its prior order, that Officer Stover lacked
reasonable suspicion to initiate the stop, so the stop was constitutionally defective. Based
on the amended statute, the court reversed course and found that the KDOR lacked
subject matter jurisdiction to suspend Madison's driver's license.

The KDOR timely appeals.



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ANALYSIS

The KDOR makes three claims of error on appeal. First, it claims that the district
court lacked jurisdiction to reconsider its first order upholding the suspension. Second, it
contends that the officer had reasonable suspicion that Madison was under the influence
of alcohol to support his request for a breath test. And finally, the KDOR contends that
even if the officer did not have reasonable suspicion, it does not matter because the
officer does not have to have reasonable suspicion to request a breath test to have subject
matter jurisdiction over the case. We will examine each in order.

The district court had jurisdiction to reconsider its prior order.

To begin, the KDOR believes that the district court lacked jurisdiction to
reconsider its prior order upholding the suspension. Whether jurisdiction exists is a
question of law over which this court's scope of review is unlimited. In re Care &
Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017).

The agency concedes that K.S.A. 2018 Supp. 60-259(a)(1)(B) permits
reconsideration, but without citing any authority to support its position, claims that if the
prior order was not in error, the district court has no jurisdiction to reconsider it. The
entire argument consists of four sentences of circular reasoning with no support. See In re
Marriage of Williams, 307 Kan. 960, 977, 417 P.3d 1033 (2018) (finding that issues not
adequately briefed are considered waived or abandoned).

Madison timely moved the district court to revisit its ruling because it relied on
cases that were effectively overruled by the amendment of K.S.A. 2017 Supp. 8-1020(p).
The district court agreed that its prior order was erroneous, revisited it, and issued a new
order. We know of no cases that hold the court lacks jurisdiction to hear a motion under
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K.S.A. 2018 Supp. 60-259(a)(1)(B) if it did not err in its original holding. The court has
jurisdiction to consider a motion claiming it erred. This point of error fails.

There was sufficient evidence for the district court to find that the officer lacked a
reasonable suspicion to stop Madison.

Our standard of review and the applicable procedure

When a driver challenges the administrative suspension of his or her driving
privileges for failing to submit to a breath test, the district court holds a de novo trial.
K.S.A. 2017 Supp. 8-1020(p). At trial, the driver bears the burden of proving the agency
action should be set aside. K.S.A. 2017 Supp. 8-1020(q).

An appellate court reviews a district court's decision in a driver's license
suspension case to determine whether it is supported by substantial competent evidence.
Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012). Substantial
competent evidence is evidence that has both relevance and substance, and provides a
substantial basis of fact from which the issues can be reasonably resolved. Wiles v.
American Family Life Assurance Co., 302 Kan. 66, 73, 350 P.3d 1071 (2015). In
reviewing a district court's factual findings, appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations. State v.
Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

Before the KDOR may suspend a person's driver's license for a breath test failure,
a law enforcement officer must certify that the officer had reasonable grounds when the
officer requested the breath test to believe that the person had operated a vehicle while
under the influence of alcohol. K.S.A. 2018 Supp. 8-1002(a)(2). Reasonable grounds
resemble probable cause, and "[p]robable cause exists where the officer's knowledge of
the surrounding facts and circumstances creates a reasonable belief that the defendant
committed a specific crime. Probable cause does not require an officer have evidence of
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every element of the crime." Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242
P.3d 1179 (2010). A court determines the existence of probable cause by evaluating the
totality of the circumstances. State v. Hill, 281 Kan. 136, 146, 130 P.3d 1 (2006).

In Kansas the law governing testing for alcohol or drugs for a person who operates
or attempts to operate a vehicle is entirely statutory. K.S.A. 8-1001 et seq. Under the
statutory framework, the KDOR may administratively suspend a driver's license after
review of the law enforcement officer's certification, in part, that "[t]here existed
reasonable grounds to believe the person was operating or attempting to operate a vehicle
while under the influence of alcohol." K.S.A. 2018 Supp. 8-1002(a)(2). If the KDOR
determines the certification fails to meet the requirements of subsection (a), the KDOR
"shall dismiss the administrative proceeding and return any license surrendered by the
person." K.S.A. 2018 Supp. 8-1002(f).

Before the 2016 statutory amendment, the scope of review by the district court
was limited to the same exclusive factors that could be considered at the administrative
hearing. This did not include any consideration of whether the officer had reasonable
suspicion to believe the person was operating a vehicle under the influence of alcohol.
See Martin, 285 Kan. at 631 (list of factors is exclusive and does not include whether
reasonable suspicion existed to justify a traffic stop). But in 2016, the Kansas Legislature
made several changes to the statute, including one expanding the scope of judicial
review. L. 2016, ch. 69, § 2. That amendment added the following language:

"Notwithstanding K.S.A. 77-617, and amendments thereto, the court: (1) May also
consider and determine any constitutional issue, including, but not limited to, the
lawfulness of the law enforcement encounter, even if such issue was not raised before the
agency; and (2) shall also consider and determine any constitutional issue, including, but
not limited to, the lawfulness of the law enforcement encounter, if such issue is raised by
the petitioner in the petition for review, even if such issue was not raised before the
agency." K.S.A. 2017 Supp. 8-1020(p).
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With this framework in mind, we move to the facts of this case.

Application to the facts of this case

The KDOR contends the district court erred by finding that Stover lacked
reasonable suspicion to stop Madison's car. Consideration of this issue implicates
Madison's constitutional right to be free of unreasonable searches and seizures by
government officials.

The Fourth Amendment to the United States Constitution provides: "The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated." Section 15 of the Kansas Constitution Bill
of Rights provides "the same protection from unlawful government searches and seizures
as the Fourth Amendment." State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081
(2014).

Because a traffic stop is a seizure of a driver, to conduct a traffic stop in
compliance with the Fourth Amendment, the officer conducting the stop must have a
reasonable and articulable suspicion that the driver has committed, is committing, or is
about to commit a crime. See K.S.A. 22-2402(1); Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968). Reasonable suspicion is a minimum level of objective
justification and is a lower standard than probable cause. City of Atwood v. Pianalto, 301
Kan. 1008, 1011, 350 P.3d 1048 (2015). A traffic infraction provides an objectively valid
reason to effectuate a traffic stop. State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014).

The KDOR cites two cases to support its claim that the evidence at trial
established reasonable suspicion to initiate a traffic stop. First, in State v. Field, 252 Kan.
657, 664, 847 P.2d 1280 (1993), the Kansas Supreme Court held that despite not
observing a traffic violation, an officer had reasonable suspicion to stop a driver who was
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weaving within his own lane at 2 a.m. Then, the KDOR cites Campbell v. Kansas Dept.
of Revenue, 25 Kan. App. 2d 430, 962 P.2d 1150 (1998), to support that driving in the
"early morning hour can be considered indicia of possible impairment." According to the
KDOR, these cases support that Officer Stover had a reasonable and articulable suspicion
to initiate a traffic stop because the evidence showed Madison's vehicle weaved between
the curb and the opposing lane of traffic on a wide road at around 2:30 a.m.

We agree the conduct described by the officer would have provided reasonable
suspicion for the car stop had the district court found the testimony credible. But the
district court reviewed the video tape and found that Officer Stover's testimony was not
supported by the videotape. Stover was the only witness to attempt to establish
reasonable suspicion for the car stop. The district court found that Madison did not
commit any traffic violations, and when she drove left of center it was clear that she was
legally avoiding vehicles in the lane. We will not reweigh the evidence or make witness
credibility determinations. Chandler, 307 Kan. at 668. Accordingly, we conclude this
finding is supported by the record.

The lack of reasonable suspicion for a traffic stop requires that the driver’s license
suspension action be dismissed and the State return Madison’s driver’s license to her.

The KDOR next asserts that even if the traffic stop was unlawful, the district court
erred by finding a lack of reasonable suspicion deprived the agency of subject matter
jurisdiction. The KDOR begins by correctly pointing out that the Kansas Supreme Court
once held in Martin that the exclusionary rule does not apply in administrative driver's
license suspension cases. See 285 Kan. at 646. The KDOR then addresses the 2016
amendment to K.S.A. 8-1020(p), arguing that a panel of this court held that the
amendment does not invalidate that holding from Martin. See Whigham v. Kansas Dept.
of Revenue, No. 117,043, 2018 WL 1884742, at *3 (Kan. App.) (unpublished opinion)
(until the Kansas Supreme Court rules otherwise, drivers may raise Fourth Amendment
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claims but such arguments "have no practical effect . . . in the administrative context"),
rev. granted 308 Kan. 1602 (2018). The KDOR then asserts that the "only logical
method" by which the district court could conclude that the KDOR lacked subject matter
jurisdiction was based on the Kansas Supreme Court's holding in Sloop v. Kansas Dept.
of Revenue, 296 Kan. 13, 20, 290 P.3d 555 (2012).

In Sloop, decided several years after Martin, the Kansas Supreme Court held that
lack of probable cause to arrest a driver for DUI leads to an unlawful arrest that precludes
an officer's statutory authority to request a breath test. The KDOR frames Madison's
argument as an analogy to Sloop: "As a lack of probable cause in Sloop precludes subject
matter jurisdiction in administrative driver's license cases, subject matter jurisdiction
would likewise be precluded if the officer lacked articulable suspicion to initiate the
traffic stop."

Although we agree that the district court stated its finding in terms of subject
matter jurisdiction, the Kansas Supreme Court decision in Sloop was not based on a lack
of subject matter jurisdiction. In fact, subject matter jurisdiction is never discussed. The
decision was based on a lack of statutory authority for the officer to request a breath test.
"An arrest must be lawful before an arresting officer is authorized to request a test under
K.S.A. 2008 Supp. 8-1001(b)(1)(A) to determine the presence of alcohol or drugs."
Sloop, 296 Kan. 13, Syl. ¶ 3.

"Because the evidence in this case was insufficient to establish probable cause
for the defendant's arrest, his arrest was unlawful. The arresting officer therefore had no
authority under K.S.A. 2008 Supp. 8-1001(b) to request the defendant to take an
evidentiary breath test. The defendant's refusal to take an unauthorized test cannot be the
basis for suspending his driving privileges under K.S.A. 2008 Supp. 8-1014(a)(1). They
are therefore reinstated." 296 Kan. 13, Syl. ¶ 6.

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The Sloop court does not mention Martin, because—like this case—it had nothing
to do with the exclusionary rule, and everything to do with compliance with the statute.
Here, the issue is compliance with K.S.A. 2017 Supp. 8-1020(p). Statutory interpretation
is a question of law over which appellate courts have unlimited review. See Hoesli v.
Triplett, Inc., 303 Kan. 358, 362, 361 P.3d 504 (2015).

In interpreting the meaning of K.S.A. 2017 Supp. 8-1020(p) we find the decision
made by another panel of this court persuasive. See Jarvis v. Kansas Dept. of Revenue,
56 Kan. App. 2d 1081, 442 P.3d 1054 (2019), rev. granted December 17, 2019.

Just as this court did in Jarvis, we believe that

"the Legislature has made it clear by the 2016 amendment to K.S.A. 8-1020(p) that the
initial police encounter is a justiciable issue in a driver's license suspension case—at least
when the case is on judicial review following the administrative hearing. The statute did
not provide for the district court to consider and decide the 'lawfulness of the law
enforcement encounter' when Martin was decided.

"K.S.A. 2018 Supp. 8-1020(p) also states that '[i]f the court finds that the grounds
for action by the agency have been met, the court shall affirm.' So under the statute, the
'lawfulness of the law enforcement encounter' is a constitutional issue the district court
can now decide in a driver's license suspension case, and the court shall affirm the
suspension if it finds that the grounds for action by the agency action have been met. If
the court shall affirm the agency action if it finds that the grounds for the agency action
have been met, then the only logical inference is that the court shall reverse the agency
action if it finds that the grounds for the agency action have not been met." (Emphasis
added.) 56 Kan. App. 2d at 1096.

Although we are not bound by the Jarvis decision, the facts here are very similar to those
in Jarvis, and the approach taken by the district court in Jarvis and here is nearly
indistinguishable.
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The district court initially determined that the statute did not allow consideration
of whether reasonable suspicion existed to justify the traffic stop under the limitations set
out in K.S.A. 2017 Supp. 8-1020(h)(2). After Madison moved to alter the judgment,
bringing the 2016 amendment to the court's attention, the court determined that it could
now "consider the lawfulness of the law enforcement encounter pursuant to K.S.A. 8-
1020(p) as part of its review of the agency decision." (Emphasis added.) The court then
concluded reversal of the suspension was warranted, based on its previous findings that
Officer Stover did not have reasonable suspicion to stop Madison, so the stop was
"constitutionally defective" and the KDOR never acquired subject matter jurisdiction
over Madison's driver's license.

In reaching its decision, the district court noted the parties' arguments:

"6. Defendant argues that previous opinions hold that the exclusionary rule does
not apply and that while the District Court may consider constitutional issues there is no
remedy.

"7. In response the Plaintiff argues it would make no sense that the amendment
allows the District Court to consider constitutional issues, which specifically include the
lawfulness of the law enforcement encounter, but there be no remedy, as that would
essentially make that portion of the statute meaningless."

The district court's ultimate conclusion was that a specific remedy existed for a
constitutionally defective traffic stop: reversal of the administrative suspension. That
conclusion is supported by the Jarvis decision. After further review we believe it is the
correct interpretation of the 2016 amendment to K.S.A. 8-1020(p). As stated in Jarvis,
"the Legislature has made it clear by the 2016 amendment to K.S.A. 8-1020(p) that the
initial police encounter is a justiciable issue in a driver's license suspension case." 56
Kan. App. 2d at 1096. So when a district court reviews an administrative driver's license
suspension under K.S.A. 2017 Supp. 8-1020(p) and determines that the officer lacked
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reasonable suspicion to initiate the traffic stop, the appropriate remedy is to set aside the
suspension.

Along with the Jarvis decision, the Kansas Supreme Court's holding in Sloop
supports a finding that a constitutional defect in a law enforcement encounter leading to
an administrative suspension of a driver's license should result in setting aside the
suspension. The Sloop court recognized that a plain reading of the statutory language,
specifically that "'[t]he person has been arrested or otherwise taken into custody for any
offense involving operation or attempted operation of a vehicle while under the influence
of alcohol or drugs, or both,'" meant that the arrest needed to be lawful. See 296 Kan. at
19. When deciding whether an arrest was lawful, the Kansas Supreme Court looked to
probable cause as the appropriate legal standard. 296 Kan. at 20-21. And because the
officer in the case did not have probable cause to support an arrest for DUI, the
suspension of Sloop's driver's license for refusing to take an unauthorized breath test was
invalid and had to be set aside. 296 Kan. at 23-24. Likewise, when considering the
"lawfulness of the law enforcement encounter" under K.S.A. 2017 Supp. 8-1020(p), a
district court should determine whether the traffic stop that begins the law enforcement
encounter is lawful by applying the reasonable suspicion standard. Even though the
district court also found that it deprived the court of subject matter jurisdiction, the result
is no different—the suspension must be set aside. See State v. Prine, 297 Kan. 460, 481,
303 P.3d 662 (2013) (affirming judgment as right for the wrong reasons).

For these reasons, the district court's decision to reverse Madison's driver's license
suspension was appropriate under the statute. K.S.A. 2017 Supp. 8-1020(p) allows a
court to consider constitutional issues, including the lawfulness of a law enforcement
encounter. A lawful encounter requires reasonable suspicion to initiate a traffic stop. So
lack of reasonable suspicion to initiate a traffic stop leads to an unlawful stop that
deprives the officer of the authority to request a breath test.

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In sum, the district court correctly determined that Officer Stover lacked
reasonable suspicion to initiate a traffic stop and that finding was supported by
substantial competent evidence. The court's ruling was based on a correct application of
K.S.A. 2017 Supp. 8-1020(p), and the exclusionary rule did not factor into the court's
decision. Based on these findings, the court did not err in concluding that the appropriate
remedy was to set aside the administrative suspension of Madison's driving privileges.

Affirmed.