STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6529

July 8, 1988

MENTAL HEALTH, DEPARTMENT OF: Duty of superintendent of mental health facility to give notice of patient rendered unsafe to drive

MOTOR VEHICLES: Driver's license of an infirm or disabled patient

The duty of a medical superintendent of a state mental health facility imposed by MCL 257.303a; MSA 9.2003(1), to give notice to the Secretary of State that a patient is rendered unsafe to drive a motor vehicle due to mental or physical infirmities is valid and should be observed.

Thomas D. Watkins, Jr.

Director

Department of Mental Health

Lewis Cass Building

Lansing, Michigan 48913

You have requested my opinion on the following question:

The Michigan Vehicle Code, 1949 PA 300, Sec. 303a, MCL 257.303a; MSA 9.2003(1), provides in relevant part:

Act 300, Sec. 303a, requires the medical superintendent of a state mental health facility where a person is a patient for treatment to notify the Secretary of State if the patient has a driver's license but cannot safely drive because of mental or physical infirmities. Once notified of the patient's condition, the Secretary of State is required to suspend the license, ex parte, of the patient. Act 300, Sec. 303a, conditions reinstatement of the patient's driving privileges upon the medical superintendent's notification of the Secretary of State that the condition causing the infirmities no longer exists.

A driver's license, once issued, is a significant interest subject to constitutional due process protections. Bell v. Burson, 402 US 535, 539; 91 S.Ct. 1586; 29 L.Ed.2d 90 (1971). Shavers v. Attorney General, 402 Mich. 554, 598; 267 N.W.2d 72 (1978), mirrors this holding:

Whether a patient is afforded due process under Act 300, Sec. 303a, was addressed by the Court of Appeals in Gargagliano v. Secretary of State, 62 Mich.App. 1; 233 N.W.2d 159 (1975). There was a split decision.

On extrapolating the rule of law from a divided opinion, the United States Supreme Court has held that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....' Gregg v. Georgia, 428 U.S. 153, 169 n. 15 [96 S.Ct. 2909, 2923 n. 15, 49 L.Ed.2d 859] (1976) (opinion of STEWART, POWELL, and STEVENS, JJ.)." Marks v. U.S., 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977).

The "narrowest grounds" approach focuses upon the actual discrete points of majority agreement in a plurality opinion. In Gargagliano, the narrowest ground of majority agreement was that a temporary ex parte suspension of the driver's license of a mental patient based upon the recommendation of the medical superintendent of the hospital at which the person was a patient was constitutionally permissible.

Judge N.J. Kaufman, however, concluded that Act 300, Sec. 303a was altogether unconstitutional. He reasoned that because the deprivation involved was a driver's license, due process required the availability of a hearing prior to the suspension. Although Judge Kaufman acknowledged that there could be certain emergency situations where a brief suspension of the license of a person receiving mental treatment pending a hearing could be justified, he noted that Act 300, Sec. 303a, did not provide for such an emergency. Judge Kaufman was further critical of Act 300, Sec. 303a, because it prohibited any post-suspension appeal. The only way the license could be restored under Act 300, Sec. 303a, is by the medical superintendent initiating the action.

Judge Allen, concurring in the result, ruled that there was no constitutional impediment to the temporary ex parte suspension of a patient's driver's license under Act 300, Sec. 303a. According to Judge Allen, the state was justified under the section in summarily suspending the license on a temporary basis. He further ruled, however, that revocation under Act 300, Sec. 303a, was unconstitutional because it made no provision for a post-restoration hearing. Reinstatement only when the medical superintendent of the institution certifies that the patient is no longer under a disability does not provide due process.

Judge O'Hara's dissent in Gargagliano recognized that the failure to provide a post-restoration hearing was unconstitutional. He would, however, have excised the offending provision that gave the medical superintendent control over reinstatement of the license, and held that Act 300, Sec. 322, MCL 257.322; MSA 9.2022, controlled. That provision permits a person aggrieved in a licensure action to ask for a hearing before the License Appeal Board. Judge O'Hara found no objection to the provisions in Act 300, Sec. 303a, involving notice to the Secretary of State and the temporary ex parte suspension of the patient's driver's license.

Although Judge Allen and Judge O'Hara agreed that there was no constitutional impediment to the temporary ex parte suspension of a patient's driver's license, Judge Allen declined to adopt Judge O'Hara's "innovative and constructive suggestion that, by judicial construction, Sec. 303a, was absorbed by Sec. 322." Gargagliano, supra, 62 Mich.App. at 17. In Judge Allen's view, such an interpretation runs contrary to established rules of statutory construction. Gargagliano, supra.

While no single rationale for the court's decision in Gargagliano received majority endorsement, a majority of Justices concluded that the temporary ex parte suspension of a mental patient's driver's license based upon the recommendation of the medical superintendent of the hospital at which the person was a patient was constitutionally permissible. Implicit in the court's decision to uphold the temporary suspension of a patient's driver's license is the medical superintendent's notification of the Secretary of State. A fair reading of Gargagliano thus compels the conclusion that upholding the temporary suspension means upholding the notification procedure set forth in Act 300, Sec. 303a.

Cameron v. Secretary of State, 63 Mich.App. 753; 235 N.W.2d 38 (1975), lv. den. 395 Mich. 774 (1975), confirms the analysis of Gargagliano that the "majority of the court (in Gargagliano) found no constitutional infraction by reason of summary ex parte suspension prescribed by the statute" noting that "the protection of the motoring public justifies the state in summarily denying to the individual involved the entrustment of high speed motor vehicles." Opinion of Judge Allen, Judge Walsh, concurring. Cameron, supra, 63 Mich.App. at 756-757.

The protection of the public safety upon the highways has been described as an important state interest justifying the summary suspension of driving privileges where the drivers demonstrate they present a significant safety risk. Nicholas v. Secretary of State, 74 Mich.App. 64, 70; 253 N.W.2d 662 (1977).

1949 PA 300, Sec. 320, MCL 257.320; MSA 9.2020, was not considered by the Gargagliano court. It provides that upon notification that a person is afflicted with mental or physical infirmities or disabilities rendering it unsafe for that person to drive a motor vehicle, the Legislature has authorized the Secretary of State to conduct an investigation and re-examination after notice to the licensed person and may suspend or revoke such license. Any suspension of the license ordered pursuant to this section "shall be in addition to other suspensions."

It is my opinion, therefore, that the duty of a medical superintendent of a state mental health facility imposed by MCL 257.303a; MSA 9.2003(1), to give notice to the Secretary of State that a patient is rendered unsafe to drive a motor vehicle due to mental or physical infirmities is valid and should be observed.

Frank J. Kelley

Attorney General