Michael Brian Shaffer v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Annunziata
Argued at Alexandria, Virginia
MICHAEL BRIAN SHAFFER
OPINION BY
v. Record No. 0344-00-4 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 5, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
James W. Haley, Jr., Judge
Mark S. Gardner (Gardner, Maupin & Sutton, on
briefs), for appellant.
Jeffrey A. Spencer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant, Michael Brian Shaffer, appeals the circuit
court's finding that it lacked jurisdiction to hear his appeal
of a Department of Motor Vehicles order determining him to be an
habitual offender under Code § 46.2-352. For the reasons that
follow, we reverse.
BACKGROUND
Guided by well established principles, we review the
evidence in the light most favorable to the Commonwealth, the
party prevailing below. Juares v. Commonwealth, 26 Va. App.
154, 156, 493 S.E.2d 677, 678 (1997). On September 2, 1999,
Shaffer petitioned the Circuit Court of Stafford County for
review of an order issued on July 15, 1997 by the Commissioner
of the Department of Motor Vehicles (DMV) in which Shaffer was
determined to be an habitual offender under former Code
§ 46.2-352(A). By the same order, the Commissioner revoked
Shaffer's driver's license effective August 17, 1997.
At the time the DMV determined Shaffer to be an habitual
offender, Code § 46.2-352 provided, in pertinent part, as
follows:
A. [T]he Commissioner shall determine, from
the Department's records, whether a person
named therein qualifies as an habitual
offender, as defined in § 46.2-351. Upon
such determination, the Commissioner shall
immediately cause the Department's records
to indicate that the person has been
determined to be an habitual offender and
shall revoke the person's driver's
license . . . . The Commissioner shall
immediately notify the person of the
revocation and of his right to file a
petition and request a hearing as provided
in subsection B.
* * * * * * *
B. At any time after receipt of the
revocation notice, as provided for in
subsection A, or after otherwise learning of
the revocation, a person who has been
determined to be an habitual offender may
file, with the circuit court of the county
or city in which he resides . . . a petition
for a hearing and determination by the court
that the person is not an habitual offender. 1
(Emphasis added).
1
Upon the filing of the petition for review, the revocation
of the person's license was automatically suspended, pending a
final determination by the circuit court as to the person's
habitual offender status. Former Code § 46.2-352(B).
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The General Assembly repealed Code §§ 46.2-351 through
-355, effective July 1, 1999. Shaffer filed his petition for
review of his habitual offender status on September 2, 1999.
The circuit court dismissed the appeal on November 30, 1999,
holding as a matter of law that the circuit court's jurisdiction
to hear the appeal had been terminated by the repeal of Code
§ 46.2-352.
ANALYSIS
The right to operate a motor vehicle is a property right
that cannot be taken away without due process of law. Bell v.
Burson, 402 U.S. 535, 539 (1971); Walton v. Commonwealth, 255
Va. 422, 428, 97 S.E.2d 869, 873 (1998). At a minimum, a person
whose license to drive has been rescinded is entitled to a
post-deprivation review. See generally Mackey v. Montrym, 443
U.S. 1 (1979); Dixon v. Love, 431 U.S. 105 (1977).
In 1995, the General Assembly enacted amendments to the
Habitual Offender Act, former Code §§ 46.2-351 through -355,
allowing habitual offender determinations to be made initially
by the DMV. Former Code § 46.2-352(A) provided the process by
which the Commissioner should determine someone to be an
habitual offender. In former Code § 46.2-352(B), the General
Assembly granted a person declared to be an habitual offender
the right to judicial review of that determination. Former Code
§ 46.2-352(A) also required the Commissioner to notify persons
determined to be habitual offenders that they had the right to a
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review. However, the statute did not specify a time period
within which a petition for review had to be filed.
In 1999, the General Assembly repealed sections 46.2-351
though 46.2-355 of the Habitual Offender Act, including the
process by which one could be determined an habitual offender
and the process by which one could seek judicial review of that
determination. In repealing the statute, the General Assembly
did not state that the statute was repealed retroactively.
Thus, it did not explicitly eliminate the right of those
individuals found to be habitual offenders under former Code
§ 46.2-352 to petition for judicial review.
The Commonwealth, nevertheless, argues that the
legislature's repeal of the right to obtain judicial review of
the DMV's determination of habitual offender status is effective
retroactively and that the court did not err in dismissing
Shaffer's appeal on the ground that it lacked jurisdiction to
adjudicate it. We disagree.
As the Virginia Supreme Court noted in Ferguson v.
Ferguson, 169 Va. 77, 192 S.E. 774 (1937):
All authorities appear to approve of the
rule that statutes will be presumed to have
been intended by the legislature to be
prospective and not retrospective in their
action where a retrospective effect would
work injustice and disturb rights acquired
under the former law. Some courts take the
view that since limitation laws apply only
to the remedy, they are not within the
principle that statutes should be given a
prospective rather than a retrospective
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construction . . . . The rule under
consideration is not everywhere recognized.
* * * * * * *
There appears to be no good reason for
excluding statutes of limitation, or
remedial statutes, from the general rule,
that retroactive or retrospective
legislation is not favored, in the absence
of any words expressing a contrary
intention. . . . It is reasonable to
conclude that the failure to express an
intention to make a statute retroactive
evidences a lack of such intention.
. . . It is not to be presumed that the
legislature intends to work an injustice.
Id. at 85, 86-87, 192 S.E. at 776, 777.
In Ferguson, the statute in question changed the time to
file a bill in equity to impeach a will from two years to one
year. The Court held that the statute did not apply
retroactively because, "[t]here is nothing in the language of
the amended statute to declare or to indicate that the
legislature intended to give to it a retroactive operation."
Id. at 85, 192 S.E. at 776; cf. Allen v. Mottley Constr. Co.,
160 Va. 875, 889, 170 S.E. 412, 417 (1933) (the General
Assembly's use of the term "an award" in the new statute of
limitation demonstrated an intent for the limitation to apply
retroactively to awards made prior to the passing of the
statute); Duffy v. Hartsock, 187 Va. 406, 46 S.E.2d 570 (1948)
(limitation law applied retroactively where statute clearly
stated retroactive intent); see also McIntosh v. Commonwealth,
213 Va. 330, 331-32, 191 S.E.2d 791, 792-93 (1972) (finding that
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amendment to Habitual Offender Act should not be applied
retroactively where no indication of legislative intent to do
so). We decline to apply the statutory repeal retroactively
absent an expressed intent by the legislature to deprive the
formerly adjudicated habitual offenders of their right to obtain
judicial review, particularly when the right in question is a
property right, entitled to due process protection. See Bell,
402 U.S. at 539; Walton, 255 Va. at 428, 97 S.E.2d at 873;
Ferguson, 169 Va. at 87, 192 S.E. at 777 ("It is not to be
presumed that the legislature intends to work an injustice.").
Accordingly, we find Shaffer's right to appeal the
Commissioner's order determining him to be an habitual offender
remained extant notwithstanding the repeal of Code § 46.2-352,
and we reverse the decision of the trial court.
Reversed and remanded.
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