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Jacob Carl Rodewald v. Kansas Department of Revenue

March 22, 2013

JACOB CARL RODEWALD, APPELLANT/CROSS-APPELLEE,
v.
KANSAS DEPARTMENT OF REVENUE, APPELLEE/CROSS-APPELLANT.



Appeal from Jackson District Court; MICHEAL A. IRELAND, judge.

SYLLABUS BY THE COURT

SYLLABUS BY THE COURT 1. The authority of the Kansas Department of Revenue to suspend a driver's license pursuant to K.S.A. 8-1567a(f) only applies to persons who operated or attempted to operate a vehicle in the state of Kansas. 2. The phrase "within this state" in K.S.A. 2007 Supp. 8-1001(a) and the phrase "in this state" in K.S.A. 8-1567a(a) are intended to mean locations in the state of Kansas that are within the jurisdiction of a Kansas law enforcement officer. Those phrases do not include the roadways-either public or private-within the Prairie Band Potawatomi reservation over which tribal police have assumed jurisdiction to enforce tribal law. 3. A state court cannot confer jurisdiction upon itself for public policy reasons. Likewise, an agency of this state must derive its subject matter jurisdiction from statutory authority.

The opinion of the court was delivered by: Johnson, J.: Jacob C.

Reversed and remanded with directions.

The opinion of the court was delivered by JOHNSON, J.: Jacob C.

Rodewald appeals from the district court's summary judgment in favor of the Kansas Department of Revenue (KDR), upholding the suspension of Rodewald's Kansas driver's license. The basis for the suspension was K.S.A. 8-1567a, which prohibits any person less than 21 years of age from operating a vehicle in this state with a breath or blood alcohol content (BAC) of .02 or greater and which provides for a driver's license suspension if the test results are greater than .02, but less than .08. Rodewald contends that because he is an enrolled member of the Prairie Band Potawatomi Nation and was operating a vehicle on the reservation when stopped by a tribal officer, the tribal court had exclusive jurisdiction over any civil matter arising from the incident, and the KDR acted outside the scope of its authority. We agree. The grant of summary judgment is reversed, and the matter is remanded to the district court with directions to order the reinstatement of Rodewald's driver's license.

FACTUAL A D PROCEDURAL OVERVIEW

On April 26, 2008, Prairie Band Potawatomi Nation (Nation) Police Officer John Hurla stopped Rodewald's vehicle for driving recklessly. At all relevant times, Rodewald was operating his vehicle within the boundaries of the Nation's reservation. After making contact with Rodewald, Officer Hurla initially detected a slight odor of an alcoholic beverage coming from inside of the vehicle, but later determined the alcohol smell was coming from Rodewald's person. Upon inquiry, Rodewald said that he had consumed a beer with a friend and also admitted that he was only 18 years old.

Officer Hurla arrested Rodewald for violating provisions of the Nation's Law and Order Code (Tribal Code), including that code's driving under the influence section. The Tribal Code contains an implied consent provision that authorizes tribal officers to test anyone who "operates a motor vehicle upon the public highways within the [Nation's] jurisdiction." Potawatomi Law and Order Code, Section 17-4-14 (2008). Under that section, the tribal officer is authorized to administer the test "only after placing such person under arrest and informing the person that he or she is or will be charged with the offense of driving or being in actual physical control of a vehicle upon the public highways while under the influence of intoxicating liquor or any drug." Potawatomi Law and Order Code, Section 17-4-14(A). Rodewald submitted to a breath test on which he scored an alcohol content of .046.

Inexplicably, Officer Hurla completed and mailed KDR's form DC-28, which is required by Kansas law to certify a test result by a person less than 21 years of age who scores .02 or greater but less that .08 on an alcohol breath test. See K.S.A. 8-1567a(d). The form includes Officer Hurla's certification of the test result and his acknowledgment that he provided Rodewald with all notices required by Kansas' implied consent law. See K.S.A. 2007 Supp. 8-1001; K.S.A. 8-1567a(d) (identifying the oral and written notices required under those sections). The form also recited that Rodewald was operating his vehicle in Jackson County, Kansas, albeit the KDR does not appear to argue that the Nation's reservation is a part of Jackson County.

Rodewald properly requested and was given an administrative hearing, which was held in Shawnee County. The hearing officer affirmed the administrative suspension of Rodewald's license for violating 8-1567a, but also noted that Rodewald had raised the issue of subject matter jurisdiction. Specifically, Rodewald argued that the KDR did not have jurisdiction over the proceedings because K.S.A. 8-1567a only prohibits the operation or attempt to operate a motor vehicle while under the influence "in this state," and Rodewald was operating his motor vehicle entirely within the sovereign boundaries of the Nation's reservation.

Rodewald then filed a timely petition for judicial review of the suspension order. Both parties filed motions for summary judgment and related responses. Although multiple issues were raised, the district court recited the following in the issues section of its memorandum decision:

"It would seem to the Court while the Petitioner, Rodewald, lists four separate issues and the Department of Revenue only looks at one issue, they both agree on what the Court sees as the sole issue in this case.

"That issue is if the administrative action taken by the Kansas Department of Revenue pursuant to [K.S.A. 8-1567a] is valid for a Native American Indian driver who is operating a motor vehicle solely within the boundaries of a federally recognized Indian Reservation of which the driver is a member while being stopped by a Tribal Police Officer.

"In plain English, it comes down to whether the action of the Native American driver on a reservation after being stopped by a Tribal Officer can be used against him in an administrative hearing which is completely removed from the Prairie Band Potawatomi Nation. The Plaintiff believes the actions did not arise within this 'state' as the PBPT is a sovereign nation."

Then, applying the familiar summary judgment standard, the district court granted summary judgment in favor of KDR noting:

"This case is close for either side. In reading the case decisions put forth by both of the parties it is apparent to the Court most of the time the Courts have sided with the [PBPN] as being a sovereign entity. As a sovereign entity they are not considered part of the State of Kansas. However, the Court is very much aware of the competing issues in this case and the importance of the State's interest in keeping impaired and drunk drivers off the road. When looking at the State's interests in keeping the motoring public of the entire state safe the Court must find it has preference to the welfare of the tribe and/or the tribes right to self govern.

"The Court affirms the action of the State and denies the Plaintiff's petition."

Rodewald subsequently filed a timely notice of appeal. KDR filed a timely cross-appeal of the district court's determination that the Nation's reservation was "not considered part of the State of Kansas." Pursuant to K.S.A. 20-3018(c), this court transferred the appeal from the Court of Appeals.

STATUTORY INTERPRETATION OF K.S.A. 8-1567a

The parties present us with the opportunity to become immersed in documents outside our own statutes, such as the 1861 Act for the Admission of Kansas into the Union, Congress' 1953 enactment of Public Law 280 and its 1968 amendments thereto, or the Potawatomi treaties with the United States government in 1846, 1861, and 1867. But KDR's authority to suspend Rodewald's license emanates from K.S.A. 8-1567a, and our inquiry necessarily begins with that statute's language:

"(a) It shall be unlawful for any person less than 21 years of age to operate or attempt to operate a vehicle in this state with a breath or ...


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