Opinion Information Sheet

			

                                                              FILED

                                                           JAN. 31, 2012

                                                      In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

REBECCA E. DESMON, and the PUBLIC                   )      No. 30221-1-III
SCHOOL EMPLOYEES OF                                 )
WASHINGTON, SEIU Local Union #1948,                 )
a Washington Non-Profit Corporation,                )
                                                    )
                             Appellants,            )
                                                    )      Division Three
                      v.                            )
                                                    )
WASHINGTON DEPARTMENT OF                            )
LICENSING,                                          )
                                                    )
                             Respondents.           )      PUBLISHED OPINION

       Korsmo, J.  --  The Department of Licensing lacked authority to cancel Rebecca

Desmon's commercial driver's license after she failed an audit retest.  We therefore 

reverse and remand.  

No. 30221-1-III
Desmon v. Dep't of Lic.

                                            FACTS

       As a school bus driver, Rebecca Desmon held a commercial driver's license 

(CDL).  In order to receive her CDL, Ms. Desmon successfully passed a skills test.  Her 

examination was administered by an authorized third-party tester.  The Department of 
Licensing (DOL) is required by federal law to audit third-party testers once per year.1  

DOL conducts these audits by requiring drivers who were examined by third-party testers 

to undergo a skills test administered by a DOL employee in order to compare pass/fail 

results.  

       In June 2009 Ms. Desmon was notified that she had been randomly selected to 

retest as part of the third-party tester audit process.  She took the test, but failed.  Shortly 

thereafter, she was notified by DOL that her license was being canceled because of the 

failed audit retest.  She was informed that she must retake and pass the applicable tests to 

reinstate her license.  

       Rather than retake those tests, Ms. Desmon sought an administrative hearing.  The 

hearing officer affirmed DOL's actions.  On appeal, the superior court granted summary 

judgment in DOL's favor.  Ms. Desmon then sought direct review from the Supreme 

Court, which transferred the case to this court.  

       1 49 C.F.R. § 383.75(a)(2).
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No. 30221-1-III
Desmon v. Dep't of Lic.

                                         ANALYSIS

       This appeal requires us to determine whether DOL may act against Ms. Desmon's 

CDL solely because she failed an audit retest and whether it may cancel the license.  

       DOL contends that RCW 46.20.305 authorized it to cancel Ms. Desmon's CDL 

because she failed the audit retest and did not act to reinstate her license.  That statute 

provides: 

       (1) The department, having good cause to believe that a licensed driver is 
       incompetent or otherwise not qualified to be licensed may upon notice 
       require him or her to submit to an examination.
              (2) The department shall require a driver reported under RCW 
       46.52.070(2) and (3) to submit to an examination.  The examination must 
       be completed no later than one hundred twenty days after the accident 
       report required under RCW 46.52.070(2) is received by the department 
       unless the department, at the request of the operator, extends the time for 
       examination.
              (3) The department may in addition to an examination under this 
       section require such person to obtain a certificate showing his or her 
       condition signed by a licensed physician or other proper authority 
       designated by the department.
              (4) Upon the conclusion of an examination under this section the 
       department shall take driver improvement action as may be appropriate 
       and may suspend or revoke the license of such person or permit him or her 
       to retain such license, or may issue a license subject to restrictions as 
       permitted under RCW 46.20.041.  The department may suspend or revoke 
       the license of such person who refuses or neglects to submit to such 
       examination.
              (5) The department may require payment of a fee by a person subject 
       to examination under this section.  The department shall set the fee in an 
       amount that is sufficient to cover the additional cost of administering 
       examinations required by this section.

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No. 30221-1-III
Desmon v. Dep't of Lic.

RCW 46.20.305(1)-(5) (emphasis added). 

       Courts will only construe ambiguous statutes.  Burton v. Lehman, 153 Wn.2d 416, 

422, 103 P.3d 1230 (2005).  A statute is ambiguous where its words may have more than 

one meaning.  Id. at 423.  However, where a statute is unambiguous, we will give words 

their plain meaning and presume that legislative intent is clearly expressed.  Id. at 422.  

Here, neither party contends that RCW 46.20.305 is ambiguous. We agree. Accordingly, 

we will give the words their plain meaning.  

       A plain reading of the applicable provisions outlines a clear procedure by which 

the department may act against a license. First, DOL may require a licensed driver to 

submit to an examination if it has good cause to believe that he or she is either 

incompetent or otherwise not qualified.  RCW 46.20.305(1).  Second, after the driver has 

retested, DOL may either suspend or revoke his or her license if necessary; however it 

must also take any actions it deems necessary to help the driver improve his or her 

performance.  RCW 46.20.305(4).  Finally, if the driver fails to take the retest, DOL may 

nonetheless suspend or revoke his or her license.  Id.

       As applied here, Ms. Desmon's failed exam could only have provided good cause 

to require her to take another examination.  RCW 46.20.305(1).  The audit examination 

was not the result of the department having "good cause" to test Ms. Desmon.  It was 

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No. 30221-1-III
Desmon v. Dep't of Lic.

authorized by the audit program.  The failure to pass the audit test then gave DOL "good 

cause" to require a retest.  Id.  Only when the results of that retest were known could 

DOL have acted against her CDL.  RCW 46.20.305(4).  The department could also have 

acted against her CDL had she refused or neglected to take the retest. Id. However by 

failing to require Ms. Desmon to take a good cause examination prior to acting against 

her license, DOL acted beyond its statutory authority.

       The audit retest was not given under the authority of RCW 46.20.305(1).  The 

department erred in taking action under that statute due to the failed audit test.

       DOL also acted without authority when it canceled her license.  As discussed 

above, the plain language of RCW 46.20.305(1) states that the department may require a 

licensed driver to submit to an examination if it believes him or her to be incompetent or 

otherwise not qualified to be licensed.  Once the driver either fails or refuses the retest, 

DOL may either suspend or revoke his or her license.  RCW 46.20.305(4).  Nowhere 

does the statute provide that it may cancel a license under these circumstances.  

       This omission is critical, since we will not read additional language into a statute 

regardless of whether an omission was intentional or accidental.  State v. Cooper, 156 

Wn.2d 475, 480, 128 P.3d 1234 (2006).  The terms "suspend," "revoke," and "cancel" are 

each defined by statute:

       "Cancel," in all its forms, means invalidation indefinitely.

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No. 30221-1-III
Desmon v. Dep't of Lic.

RCW 46.04.090.

        "Revoke," in all its forms, means the invalidation for a period of one 
       calendar year and thereafter until reissue.  However, under the provisions of 
       RCW 46.20.285, 46.20.311, 46.20.265, 46.61.5055, and chapters 46.32 and 
       46.65 RCW, the invalidation may last for a period other than one calendar 
       year. 

RCW 46.04.480.

       "Suspend," in all its forms and unless a different period is specified, means 
       invalidation for any period less than one calendar year and thereafter until 
       reinstatement.

RCW 46.04.580.  

       The legislature has defined each term within the motor vehicle title and applies 

them in different circumstances.  It is evident that it has used the term "cancel" as a term 

of art where it wants DOL to have that authority. See RCW 46.20.207(1) (authorizing 

cancelation of licenses). However, when the legislature empowered DOL to "suspend" or 

"revoke" a license pursuant to RCW 46.20.305(4), it did not grant it the authority to 

"cancel." Accordingly, when DOL canceled Ms. Desmon's CDL, it again acted without 

statutory authority. 

       We recognize that DOL was acting to protect the public from a bus driver whom it 

believed was unsafe.  Nonetheless, a plain reading of RCW 46.20.305 shows that the 

department acted without statutory authority when it canceled Ms. Desmon's license 

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No. 30221-1-III
Desmon v. Dep't of Lic.

rather than requiring her to submit to a good cause examination.  We therefore reverse 

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No. 30221-1-III
Desmon v. Dep't of Lic.

and remand for proceedings consistent with this opinion.2

                                            _________________________________
                                                           Korsmo, J.

WE CONCUR:

______________________________
       Kulik, C.J.

______________________________
       Sweeney, J.

       2 Because of our disposition of this case, we need not address Ms.
Desmon's other contentions. 
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