Port: North Dakota DOT continues license suspension hearings despite the rights of drivers to an in-person hearing

MINOT, N.D. — A few days ago, on March 24, Gov. Doug Burgum issued an executive order to the North Dakota Department of Transportation, asking for some changes in policy because of the COVID-19 outbreak.

You can read it in full below.

The part of the order which got the most attention was the removal of load restrictions from state highways to help facilitate the uninterrupted supply of goods during this time of considerable uncertainty.

What got less attention was the part which orders the North Dakota Department of Transportation to halt in-person administrative hearings "for the duration of the declared public health emergency."

The hearings mostly deal with things like license suspensions resulting from infractions like driving under the influence. Burgum's order states that currently scheduled hearings may be rescheduled to take place over the telephone or video conferencing and that all future hearings may be scheduled this way, but only if all participants can do so.

There is some existing jurisprudence which is important to this situation as well. In Wolfer vs. NDDOT , the North Dakota Supreme Court overturned a license suspension because the state failed to provide the driver with an in-person hearing, something which violated his due process rights.

An excerpt:

That was a 2010 case, and the hearing the court ruled on was done telephonically. Modern videoconferencing tools may or may not alleviate some of the court's concerns about remote testimony.

That's beside the point. Here and now, existing precedent grants drivers a right to an in-person hearing. They can waive that right if they want to, but the state has no standing to force such a hearing.

Yet, according to attorneys representing the drivers in these hearings, the NDDOT is doing just that. "Despite the clear order, DOT hearing officers are unilaterally re-noticing hearings for telephonic hearings and circumventing the governor's direction," one attorney told me, noting that he had three such hearings scheduled this way and had heard of "several" from his colleagues.

Let's pause here for a moment and reflect on the fact that these hearings are, from the get-go, an idiotic use of state resources. The process is deeply flawed and entirely duplicative . There is no need for a separate civil proceeding to run alongside the criminal prosecution of someone alleged to be guilty of a traffic infraction.

Any needed suspension or revocation of driving privileges could be a part of the criminal proceeding. Yet, for reasons I assume have to do with an obstinate sort of bureaucratic arrogance, the NDDOT holds their hearings in addition to the criminal prosecution, something which I'm afraid does more to congest the court system with pointless litigation than promote traffic safety.

In fact, by holding a separate civil proceeding, the NDDOT creates a situation where someone may have driving privileges suspended for an infraction they're ultimately acquitted of in a court of law.

These hearings are unnecessary even outside of the current crisis but add in the COVID-19 situation and the NDDOT's stubborn insistence on these hearings borders on malfeasance.

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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .