SER Everett Frazier, Commissioner of WV DMV v. Hon. William S. Thompson, Judge and Dylan Price ( 2020 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
_______________ FILED
April 24, 2020
No. 19-0754 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. EVERETT FRAZIER,
COMMISSIONER OF THE WEST VIRGINIA
DIVISION OF MOTOR VEHICLES,
Petitioner
V.
HONORABLE WILLIAM S. THOMPSON,
JUDGE OF THE CIRCUIT COURT OF BOONE COUNTY,
AND DYLAN PRICE,
Respondents
_____________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
_____________________________________________
AND
_______________
No. 19-0755
_______________
STATE OF WEST VIRGINIA EX REL. EVERETT FRAZIER,
COMMISSIONER OF THE WEST VIRGINIA
DIVISION OF MOTOR VEHICLES,
Petitioner
V.
HONORABLE WILLIAM S. THOMPSON,
JUDGE OF THE CIRCUIT COURT OF BOONE COUNTY,
AND NICHOLAS BLANKENSHIP,
Respondents
_____________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED
_____________________________________________
Submitted: January 28, 2020
Filed: April 24, 2020
Patrick Morrisey Wendle Cook
Attorney General Cook and Cook
Elaine L. Skorich Madison, West Virginia
Assistant Attorney General Attorney for the Respondents,
Charleston, West Virginia Dylan Price and
Attorneys for the Petitioner Nicholas Blankenship
JUSTICE JENKINS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “Interpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power
Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).
2. “When a court is attempting to proceed in a cause without
jurisdiction, prohibition will issue as a matter of right regardless of the existence of other
remedies.” Syllabus point 10, Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162 (1919).
3. “In determining whether to entertain and issue the writ of prohibition for
cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
i
should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199
W. Va. 12, 483 S.E.2d 12 (1996).
4. “Our Administrative Procedures Act, W. Va. Code, 29A-1-2(b), defines a
contested case before an agency as a proceeding that involves legal rights, duties, interests,
or privileges of specific parties which are required by law or constitutional right to be
determined after an agency hearing. Thus, an agency must either be required by some
statutory provision or administrative rule to have hearings or the specific right affected by
the agency must be constitutionally protected such that a hearing is required.” Syllabus
point 1, State ex rel. West Virginia Board of Education v. Perry, 189 W. Va. 662, 434
S.E.2d 22 (1993).
5. “‘Whenever it is determined that a court has no jurisdiction to entertain
the subject matter of a civil action, the forum court must take no further action in the case
other than to dismiss it from the docket.’ Syllabus Point 1, Hinkle v. Bauer Lumber &
Home Bldg. Ctr., Inc., 158 W. Va. 492, 211 S.E.2d 705 (1975).” Syllabus point 5, Holly
v. Feagley, 242 W. Va. 240, 834 S.E.2d 536 (2019).
6. “‘Before any stay may be granted in an appeal from a decision of the
Commissioner of the Department of Motor Vehicles revoking a driver’s license, the circuit
court must conduct a hearing where evidence is adduced and, “upon the evidence
presented,” must make a finding that there is a substantial probability that the appellant
ii
will prevail upon the merits and that he will suffer irreparable harm if a stay is not granted.’
Syllabus Point 2, Smith v. Bechtold, 190 W. Va. 315, 438 S.E.2d 347 (1993).” Syllabus
point 2, State ex rel. Miller v. Karl, 231 W. Va. 65, 743 S.E.2d 876 (2013).
7. “A proffer is not sufficient to satisfy the evidentiary requirements of West
Virginia Code § 17C-5A-2(s) (201[5]) for proof of irreparable harm. A stay or supersedeas
of the order issued pursuant to West Virginia Code § 17C-5A-2(s) must contain findings
of fact and conclusions of law which demonstrate that the circuit court has, upon the
testimony or documentary evidence presented, made a finding that the appellant will suffer
irreparable harm if the order is not stayed.” Syllabus point 3, State ex rel. Miller v. Karl,
231 W. Va. 65, 743 S.E.2d 876 (2013).
8. “[T]he words of a statute are to be given their ordinary and familiar
significance and meaning, and regard is to be had for their general and proper use.”
Syllabus point 4, in part, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va.
137, 107 S.E.2d 353 (1959).
iii
Jenkins, Justice:
The petitioner in these consolidated cases, Everett Frazier, 1 Commissioner
of the West Virginia Division of Motor Vehicles (“DMV”), requests this Court to prohibit
the Circuit Court of Boone County from enforcing orders it entered on August 16, 2018,
and May 8, 2019. By those orders, the circuit court stayed the administrative revocation
of the driver’s licenses of the respondent drivers, Dylan Price (“Mr. Price”) and Nicholas
Blankenship (“Mr. Blankenship”), while their appeals from the revocation rulings were
pending in the circuit court. In requesting a writ of prohibition to prevent the circuit court
from enforcing these orders, the DMV contends that the circuit court has, by issuing these
stays, failed to comply with the statutory procedure prescribed for the issuance of such a
stay set forth in West Virginia Code section 17C-5A-2(s) (LexisNexis 2017). 2 Having
reviewed the parties’ arguments and briefs, the appendix records, and the pertinent
authorities, we agree with the DMV’s assertion that the circuit court has erred by not
complying with the requisite statutory procedure for granting a stay of an administrative
revocation of a driver’s license to operate a motor vehicle in this State. Accordingly, and
in recognition of the different procedural postures of the two instant matters, we grant as
Since the filing of these cases, the Commissioner of the West Virginia
1
Division of Motor Vehicles has changed, and the Commissioner is now Everett Frazier.
Accordingly, the Court has made the necessary substitution of parties pursuant to Rule
41(c) of the West Virginia Rules of Appellate Procedure.
For the relevant language of West Virginia Code section 17C-5A-2(s)
2
(LexisNexis 2017), see Sections III.B.1. & -2., infra.
1
moulded the requested writ of prohibition in Case Number 19-0754, and, as to Case
Number 19-0755, we grant the requested writ of prohibition.
I.
FACTS AND PROCEDURAL HISTORY
Although the two matters before us share many similar aspects, they also
have distinct differences. Therefore, we will recount the facts and procedural history of
each of the consolidated cases separately.
A. Case Number 19-0754: Dylan Price
Mr. Price was involved in a single-vehicle accident in Boone County, West
Virginia, on May 27, 2018. As a result of this incident, and as stated in the DMV’s
“ORDER OF REVOCATION NOTICE” dated May 31, 2018, Mr. Price was charged with
“driving a motor vehicle . . . in West Virginia while under the influence of alcohol,
controlled substances, drugs or a combination of those and . . . proximately caus[ing] the
death of another person [Mr. Price’s passenger] while acting in reckless disregard of the
safety of other people.” Further, the DMV determined that, as a result of these charges,
Mr. Price’s “driving privileges will be revoked at 12:01 a.m. ET on Jul[y] 05, 2018.”
Finally, the revocation order informed Mr. Price that he “may contest the DUI by filing a
Written Objection Form with the Office of Administrative Hearings (OAH) . . . within 30
days after receiving the Revocation Notice.” Thereafter, another individual who shares
2
Mr. Price’s mailing address signed a certified mail receipt on June 2, 2018, reflecting
delivery and receipt of the DMV’s May 31, 2018 revocation order.
Counsel for Mr. Price then filed the referenced “WRITTEN OBJECTION
AND HEARING REQUEST FORM” with the Office of Administrative Hearings
(“OAH”) to challenge the administrative revocation of his driver’s license. The form’s
instructions also provided the deadline for challenging the DMV’s revocation ruling cited
in the DMV’s earlier order:
[L]ate written objections may not be considered. If you dispute
an order revoking . . . your driver’s license for a DUI related
offense as outlined in W. Va. Code § 17C-5A-2, this form
MUST BE FILED WITH THE OAH WITHIN THIRTY
(30) CALENDAR DAYS FROM THE DATE YOU
RECEIVED THE DMV ORDER YOU ARE
CONTESTING.
The form, itself, does not reflect the date on which it was submitted, but the OAH stamped
the document as having been received on July 5, 2018. Because this date was more than
thirty calendar days from Mr. Price’s receipt of the DMV’s revocation order, the OAH
determined that his “request for an administrative hearing regarding this matter is untimely
. . . and must be denied.”
Mr. Price, by counsel, then filed a “PETITION FOR REVIEW OF
ADMINISTRATIVE ORDER” in the Circuit Court of Boone County. After recounting
the matter’s procedural history, from arrest and revocation to request for and denial of an
administrative hearing, Mr. Price argued that the OAH had erred by refusing to grant him
3
a hearing and incorrectly calculating the period within which he was required to file his
request for an administrative hearing. Mr. Price also asked the circuit court for relief,
including
that the Office of Administrative Hearings be required to
produce a true and accurate copy of the transcript of the hearing
and all exhibits contained within the file, that an order be
entered staying the revocation order entered by letter dated
May 31, 2018, with an effective date of July 5, 2018, and that
the revocation order be stayed until such time as a hearing on
the merits of the petition can be held[.]
By ex parte order entered August 16, 2018, the circuit court found “that it
has jurisdiction over this matter pursuant to Chapter 29A-5-4 of the West Virginia Code.
It is therefore ordered that this petition be filed.” The court also ordered the DMV to “file
with the Clerk of this Court a complete copy of all exhibits in the file, and a copy of all
administrative orders made by the Commissioner within 30 days after receipt of this
Order.” Finally, the court “ordered that [Mr. Price’s] driving privileges shall be
temporarily reinstated pending the outcome of this petition.”
Upon learning of this ruling, the DMV filed a “NOTICE OF SPECIAL
LIMITED APPEARANCE; MOTION TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION, VENUE, AND FAILURE TO JOIN A PARTY; AND
REQUEST FOR ATTORNEY FEES AND COSTS” also in the Circuit Court of Boone
County. The DMV primarily objected to the circuit court’s entry of an order granting relief
to Mr. Price because the OAH had not granted him an administrative hearing or issued a
4
ruling with regard to his challenge of his driver’s license revocation, and, thus, the DMV
argued that the circuit court did not have jurisdiction because the matter did not constitute
a “contested case” under the West Virginia Administrative Procedures Act. Although the
circuit court held a hearing on the DMV’s motion to dismiss, the court has not entered an
order either granting or refusing the DMV’s request for relief. Therefore, the DMV now
seeks a writ of prohibition from this Court to prevent the circuit court from enforcing its
August 16, 2018 ex parte order finding that it has jurisdiction to entertain Mr. Price’s
petition for review, granting a stay of his driver’s license revocation during the pendency
of the circuit court proceedings, and ordering the DMV to compile and file a record of the
administrative proceedings regarding Mr. Price’s license revocation.
B. Case Number 19-0755: Nicholas Blankenship
Mr. Blankenship was involved in a single-vehicle accident in Logan County,
West Virginia, on July 19, 2012. The administration of field sobriety tests suggested that
Mr. Blankenship was impaired, and, as noted in the OAH’s Hearing Examiner’s April 9,
2019 “FINAL ORDER,” the investigating officer arrested Mr. Blankenship for “driving
while under the influence of alcohol, controlled substances, drugs or any combination of
the aforementioned.” Thereafter, “[t]he Commissioner of the West Virginia Division of
Motor Vehicles entered an Order of Revocation dated October 1, 2013, revoking the
driving privileges of [Mr. Blankenship] for the offense of driving a motor vehicle in this
[S]tate while under the influence of controlled substances, and[/]or drugs.” Mr.
Blankenship filed a timely request for an administrative hearing to challenge the revocation
5
of his driver’s license; the OAH granted his request; and a hearing was held on Mr.
Blankenship’s revocation challenge. By “FINAL ORDER OF CHIEF HEARING
EXAMINER” entered April 10, 2019, the OAH affirmed the DMV’s revocation of Mr.
Blankenship’s license to drive a motor vehicle in this State.
Counsel for Mr. Blankenship then appealed from the OAH’s order affirming
Mr. Blankenship’s license revocation by filing a “PETITION FOR REVIEW OF
ADMINISTRATIVE ORDER” in the Circuit Court of Boone County. In his petition, Mr.
Blankenship claimed, among other things, that the arresting officer failed to correctly
administer the field sobriety tests and preliminary and secondary tests; the hearing
examiner erred by considering the results of allegedly improperly collected blood samples;
and the yearlong delay in filing the arresting officer’s DUI information sheet prejudiced
him. Mr. Blankenship also asked the circuit court for relief, including
that the Commissioner b[e] required to produce a true and
accurate copy of the transcript of the hearing and all exhibits
contained within the file, that an order be entered staying the
Final Order dated May 11, 2009 [sic], until such time as a
hearing on the merits of the petition can be held, [and] that the
revocation order entered by the Commissioner be reversed and
set aside in accordance with West Virginia Code [§] 29A-5-
4(g)[.]
By ex parte order entered May 8, 2019, the circuit court ordered the DMV to
“file with the Clerk of this Court a complete copy of the transcript of hearing, all exhibits
in the file, and a copy of all administrative orders made by the Commissioner within 30
6
days after receipt of this Order.” The court additionally “ordered that the Final Order which
revoked [Mr. Blankenship’s] driving privileges be stayed for a period of 150 days, and that
[Mr. Blankenship’s] right to drive shall be reinstated pending further Order of this Court
regarding the outcome of this petition.”
The DMV now seeks a writ of prohibition from this Court to prevent the
circuit court from enforcing its May 8, 2019 ex parte order granting a stay of Mr.
Blankenship’s driver’s license revocation during the pendency of the circuit court
proceedings and ordering the DMV to compile and file a record of the administrative
proceedings regarding Mr. Blankenship’s license revocation.
II.
STANDARD FOR ISSUANCE OF WRIT
The issue presented by both of these petitions for prohibitory relief concerns
the circuit court’s interpretation and application of the statutory law governing a driver’s
request for a stay of the administrative revocation of his/her driver’s license while the
appeal of that ruling is pending in circuit court. In cases involving a circuit court’s
determination of matters as to which a statute provides guidance, we previously have held
that “[i]nterpreting a statute or an administrative rule or regulation presents a purely legal
question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t
of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995). See also Syl. pt. 1, Chrystal R.M. v.
7
Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from
the circuit court is clearly a question of law or involving an interpretation of a statute, we
apply a de novo standard of review.”).
Furthermore, the instant cases are before the Court as petitions for a writ of
prohibition. As an extraordinary remedy, the writ of prohibition is granted only in
exceptional cases. In other words,
“[p]rohibition lies only to restrain inferior courts from
proceeding in causes over which they have no jurisdiction, or,
in which, having jurisdiction, they are exceeding their
legitimate powers and may not be used as a substitute for writ
of error, appeal or certiorari.” Syl. pt. 1, Crawford v. Taylor,
138 W. Va. 207, 75 S.E.2d 370 (1953).
Syl. pt. 2, Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984). Accord Syl. pt. 10, in
part, State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d 472 (1968) (“[P]rohibition
may be invoked when it clearly appears that the trial court is without jurisdiction or has
exceeded its legitimate powers.”). See also Syl. pt. 2, State ex rel. Winter v. MacQueen,
161 W. Va. 30, 239 S.E.2d 660 (1977) (“Prohibition will lie to prohibit a judge from
exceeding his legitimate powers.”). In cases involving a lack of jurisdiction, we have held
that “[w]hen a court is attempting to proceed in a cause without jurisdiction, prohibition
will issue as a matter of right regardless of the existence of other remedies.” Syl. pt. 10,
Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162 (1919). However, where it is claimed
that a circuit court has jurisdiction over a matter but allegedly has exceeded it, our standard
for determining whether a writ of prohibition should issue is as follows:
8
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as
a useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Guided
by these standards, we proceed to consider the questions raised by the parties.
III.
DISCUSSION
Because each of the matters in this consolidated case presents different issues
for this Court’s resolution, we will consider the parties’ arguments in each matter
separately.
A. Case Number 19-0754: Dylan Price
In this matter, the DMV contends that the circuit court erred by accepting
Mr. Price’s petition for review and granting him a stay of his driver’s license revocation
9
because the court lacked jurisdiction to do so. The DMV explains its position by stating
that because the OAH deemed Mr. Price’s request for an administrative hearing to be
untimely and, thus, refused to grant him an administrative hearing, the OAH did not render
a final decision on Mr. Price’s challenge to the DMV’s revocation order. As a result, the
DMV argues that Mr. Price’s petition for review to the circuit court did not involve a
“contested case” as required for the circuit court to have jurisdiction pursuant to the
provision of the West Virginia Administrative Procedures Act (“the Act”), i.e., West
Virginia Code section 29A-5-4 (LexisNexis 2018), referenced in the circuit court’s order.
Mr. Price disagrees and contends that his request for review was properly considered by
the circuit court. 3
Whether the circuit court had jurisdiction to entertain Mr. Price’s request for
relief is governed by statutory law, namely various provisions of the Act and West Virginia
Code section 17C-5A-2, which pertains to the review of an administrative revocation of a
driver’s license. See generally W. Va. Bd. of Med. v. Spillers, 187 W. Va. 257, 259, 418
S.E.2d 571, 573 (1992) (“[P]rocedures for appeals of decisions by administrative agencies
are governed by the State Administrative Procedures Act.”). In matters involving statutes,
we are bound by the rules of statutory construction. We first must determine the
Legislature’s intent in enacting the provision. See Syl. pt. 1, Smith v. State Workmen’s
The DMV also raises additional issues similar to those advanced in Mr.
3
Blankenship’s case. See note 4, infra.
10
Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object in
construing a statute is to ascertain and give effect to the intent of the Legislature.”). Then,
we consider the precise words employed in the enactment. Where such language is plain,
we apply the subject statutory language as written without any further interpretation. See
Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language of
a statute is clear and without ambiguity the plain meaning is to be accepted without
resorting to the rules of interpretation.”); Syl. pt. 5, State v. Gen. Daniel Morgan Post No.
548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and
unambiguous and the legislative intent is plain, the statute should not be interpreted by the
courts, and in such case it is the duty of the courts not to construe but to apply the statute.”).
To determine whether the circuit court had jurisdiction to consider Mr.
Price’s review petition, we first look to the statute the circuit court cited in support of its
jurisdictional finding. Pursuant to West Virginia Code section 29A-5-4(a), “[a]ny party
adversely affected by a final order or decision in a contested case is entitled to judicial
review thereof under this chapter[.]” (Emphasis added). We find this language to be plain
because we previously have recognized that “this [S]tate’s [A]dministrative [P]rocedures
[A]ct . . . generally provides for judicial review of contested administrative cases[.]”
Johnson v. Comm’r, Dep’t of Motor Vehicles, 178 W. Va. 675, 677, 363 S.E.2d 752, 754
(1987) (emphasis added).
11
The Act further defines a “contested case,” in pertinent part, as “a proceeding
before an agency in which the legal rights, duties, interests or privileges of specific parties
are required by law or constitutional right to be determined after an agency hearing.”
W. Va. Code § 29A-1-2(b) (LexisNexis 2018). We previously have considered this
statutory definition of a “contested case” and held as follows:
Our Administrative Procedures Act, W. Va. Code, 29A-
1-2(b), defines a contested case before an agency as a
proceeding that involves legal rights, duties, interests, or
privileges of specific parties which are required by law or
constitutional right to be determined after an agency hearing.
Thus, an agency must either be required by some statutory
provision or administrative rule to have hearings or the specific
right affected by the agency must be constitutionally protected
such that a hearing is required.
Syl. pt. 1, State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W. Va. 662, 434 S.E.2d 22 (1993).
Likewise, we find this language to plainly require, as it pertains to the instant proceeding,
an administrative agency to hold a hearing and issue a decision of the matter following the
hearing. These requirements are further reflected in the statute granting Mr. Price the
ability to challenge the DMV’s decision to revoke his driver’s license for DUI:
Written objections to an order of revocation or
suspension under the provisions of section one of this article or
section seven, article five of this chapter shall be filed with the
Office of Administrative Hearings. Upon the receipt of an
objection, the Office of Administrative Hearings shall notify
the Commissioner of the Division of Motor Vehicles, who
shall . . . afford the person an opportunity to be heard by the
Office of Administrative Hearings. The written objection must
be filed with [the] Office of Administrative Hearings in person,
by registered or certified mail, return receipt requested, or by
facsimile transmission or electronic mail within thirty calendar
days after receipt of a copy of the order of revocation or
suspension or no hearing will be granted . . . . The hearing
12
shall be before a hearing examiner employed by the Office of
Administrative Hearings who shall rule on evidentiary
issues. . . . Upon consideration of the designated record, the
hearing examiner shall, based on the determination of the facts
of the case and applicable law, render a decision affirming,
reversing or modifying the action protested. The decision shall
contain findings of fact and conclusions of law and shall be
provided to all parties by registered or certified mail, return
receipt requested, or with a party’s written consent, by
facsimile or electronic mail.
W. Va. Code § 17C-5A-2(a) (LexisNexis 2017). We also find this language to be clear
and note that the method for requesting a hearing to challenge the revocation ruling, as well
as the time period within which the request must be made, are reiterated in both the
revocation notice sent to Mr. Price and the administrative hearing request form he
submitted, but which the OAH rejected as untimely filed.
Moreover, as the definition of a “contested case” specifically requires, and
as the revocation review statute also recognizes, an administrative hearing must not only
be requested for a matter to constitute a “contested case.” Rather, the agency also must
actually hold the hearing and issue a decision to render a case “contested.” See, e.g., State
ex rel. Miller v. McGraw, No. 12-0380, 2012 WL 3155761, at *3 (W. Va. May 30, 2012)
(memorandum decision) (finding that “the subject license revocation is not a ‘contested
case’ within the definition of the [Act]” because the driver failed to appear at the
administrative hearing he had requested to challenge his license revocation, and, thus,
“because there was no administrative hearing, there was nothing to make this . . . a
contested case within the definition of W. Va. Code § 29A-1-2(b)”); Syl. pt. 9, in part, State
13
ex rel. Miller v. Reed, 203 W. Va. 673, 510 S.E.2d 507 (1998) (“Where an administrative
hearing is not held in a driver’s license revocation case because the holder of the driver’s
license failed to pursue his administrative remedies, a circuit court does not have
jurisdiction to grant . . . relief with respect to issues which are capable of resolution under
the West Virginia Administrative Procedures Act, West Virginia Code §§ 29A-1-1 to 29A-
7-4 (1998).”); Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984) (finding circuit court
did not have jurisdiction to grant motorist relief where motorist failed to request
administrative hearing to challenge suspension of his driver’s license). This is so because,
“[u]nder the Administrative Procedures Act, the task of the circuit court is to determine
whether the [agency’s] decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.” W. Va. Health Care Cost Review Auth.
v. Boone Mem’l Hosp., 196 W. Va. 326, 335, 472 S.E.2d 411, 420 (1996) (internal
quotations and citations omitted). Thus, where “there [i]s no administrative hearing before
the Division by the Commissioner, there [i]s no ‘contested case’ within the meaning of
West Virginia Code § 29A-1-2 of the [Act].” Reed, 203 W. Va. at 683, 510 S.E.2d at 517.
Here, it is undisputed that the OAH did not hold a hearing regarding the
revocation of Mr. Price’s driver’s license because it found his request to be untimely filed.
In fact, the failure to hold a hearing is one of the errors Mr. Price assigns in the petition for
review he filed in the circuit court. Nevertheless, as the preceding authorities make clear,
a circuit court has jurisdiction under the Act to review only “contested cases.” See W. Va.
Code § 29A-5-4(a). Therefore, because the OAH did not hold a hearing to review the
14
propriety of Mr. Price’s license revocation, the instant matter does not meet the definition
of a “contested case” so as to confer jurisdiction on the circuit court to consider the petition
for review therein filed by Mr. Price. See Syl. pt. 9, in part, Reed, 203 W. Va. 673, 510
S.E.2d 507. See also Syl. pt. 1, Cowie, 173 W. Va. 64, 312 S.E.2d 35 (“‘The general rule
is that where an administrative remedy is provided by statute or by rules and regulations
having the force and effect of law, relief must be sought from the administrative body, and
such remedy must be exhausted before the courts will act.’ Syl. pt. 1, Daurelle v. Traders
Federal Savings & Loan Association, 143 W. Va. 674, 104 S.E.2d 320 (1958).”).
Moreover, where, as here, a circuit court does not have jurisdiction over a
matter, the proper course is to dismiss the proceeding from the circuit court’s docket as we
recently held in Syllabus point 5 of Holly v. Feagley, 242 W. Va. 240, 834 S.E.2d 536(2019):
“Whenever it is determined that a court has
no jurisdiction to entertain the subject matter of a civil action,
the forum court must take no further action in the case other
than to dismiss it from the docket.” Syllabus Point 1, Hinkle v.
Bauer Lumber & Home Bldg. Ctr., Inc., 158 W. Va. 492, 211
S.E.2d 705 (1975).
Accord McGraw, No. 12-0380, 2012 WL 3155761; Syl. pt. 5, State ex rel. Dale v. Stucky,
232 W. Va. 299, 752 S.E.2d 330 (2013) (per curiam). See also Syl. pt. 3, Richmond v.
Henderson, 48 W. Va. 389, 37 S.E. 653 (1900) (“Where a justice has no jurisdiction of a
civil action, neither has a circuit court on appeal, though such circuit court would have
original jurisdiction in the case, and therefore such court must dismiss the action for want
15
of jurisdiction.”). Accordingly, we find that the circuit court exceeded its jurisdiction by
entering its August 16, 2018 order whereby it granted relief to Mr. Price by staying the
revocation of his driver’s license and requiring the DMV to produce the underlying
administrative record. As such, we grant as moulded the writ of prohibition requested by
the DMV 4 and direct the Circuit Court of Boone County to dismiss 5 the matter in which it
entered its August 16, 2018 order.
B. Case Number 19-0755: Nicholas Blankenship
In this matter, the DMV contends that the circuit court erred by entering its
May 8, 2019 ex parte order staying the revocation of Mr. Blankenship’s driver’s license
and ordering the DMV to produce the record of the underlying administrative proceedings.
To support its argument, the DMV states that West Virginia Code section 17C-5A-2(s)
establishes precise procedures that a circuit court is required to follow when issuing a stay
of an administrative license revocation and also directs which party is responsible for
compiling the administrative record to be considered by the circuit court. By contrast, Mr.
4
Because we have determined that the DMV is entitled to the prohibitory
relief it seeks with regard to Mr. Price’s circuit court proceeding, we need not consider the
additional issues raised by the DMV in this matter. See supra note 3.
Should Mr. Price wish to pursue his challenge of the OAH’s decision to
5
deny his request for an administrative hearing regarding the revocation of his driver’s
license because it found his request to be untimely filed, he may apply for a writ of
mandamus in the Circuit Court of Kanawha County. See generally Holly v. Feagley, 242
W. Va. 240, 834 S.E.2d 536 (2019); Williams v. W. Va. Div. of Motor Vehicles, 226 W. Va.
562, 703 S.E.2d 533 (2010) (per curiam); State ex rel. Miller v. Reed, 203 W. Va. 673, 510
S.E.2d 507 (1998).
16
Blankenship responds that the circuit court did not err in its rulings staying the revocation
of his driver’s license and ordering the DMV to prepare the administrative record of his
license revocation proceedings. We will address the issues raised by the DMV in turn.
1. Stay of administrative revocation of driver’s license. The DMV first
argues that the circuit court erred by entering an ex parte order staying Mr. Blankenship’s
license revocation. As with our resolution of the DMV’s petition for writ of prohibition in
Mr. Price’s matter, the DMV’s petition for writ of prohibition in this case also is governed
by statutory law, and our consideration of the relevant language is guided by the rules of
statutory construction. See generally Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r,
159 W. Va. 108, 219 S.E.2d 361 (holding that effect must be given to the Legislature’s
intent); Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (accepting plain meaning
of clear and unambiguous statutory language); Syl. pt. 5, State v. Gen. Daniel Morgan Post
No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (applying clear statutory language
without further interpretation).
A circuit court has the authority to stay the administrative revocation of a
driver’s license to operate a motor vehicle in this State while the driver’s appeal of the
administrative ruling is pending in the circuit court. However, this authority is not
unlimited but, rather, is clearly defined both in its scope and in the manner in which such
relief is to be granted. Pursuant to the relevant language of West Virginia Code section
17C-5A-2(s), paragraph 2,
17
[a] person whose license is at issue and the
commissioner shall be entitled to judicial review [of the OAH’s
final order] as set forth in chapter twenty-nine-a of this code.
Neither the commissioner nor the Office of Administrative
Hearings may stay enforcement of the order. The court may
grant a stay or supersedeas of the order only upon motion and
hearing, and a finding by the court upon the evidence
presented, that there is a substantial probability that the
appellant shall prevail upon the merits and the appellant will
suffer irreparable harm if the order is not stayed: Provided,
That in no event shall the stay or supersedeas of the order
exceed one hundred fifty days. . . .
(Emphasis added).
We previously have considered this statutory language, found it to be plain,
and held that a circuit court has discretion as to whether to grant the requested stay, but that
the aggrieved motorist must first request a stay by motion, the circuit court must hold a
hearing on the motorist’s stay motion, and the circuit court must make the findings required
by statute before it may grant the stay:
“Before any stay may be granted in an appeal from a
decision of the Commissioner of the Department of Motor
Vehicles revoking a driver’s license, the circuit court must
conduct a hearing where evidence is adduced and, ‘upon the
evidence presented,’ must make a finding that there is a
substantial probability that the appellant will prevail upon the
merits and that he will suffer irreparable harm if a stay is not
granted.” Syllabus Point 2, Smith v. Bechtold, 190 W. Va. 315,
438 S.E.2d 347 (1993).
Syl. pt. 2, State ex rel. Miller v. Karl, 231 W. Va. 65, 743 S.E.2d 876 (2013). Thus, “if the
circuit court grant[s] the stay without conducting evidentiary hearings and without
meaningfully analyzing the evidence adduced during the hearings, [t]he [circuit court has]
18
exceeded the legitimate powers granted to [the court] under the statute.” Bechtold, 190
W. Va. at 320, 438 S.E.2d at 352.
Moreover, the circuit court may grant the requested stay only if it specifically
finds that “there is a substantial probability that the [driver] shall prevail upon the merits
and the [driver] will suffer irreparable harm if the order is not stayed.” W. Va. Code § 17C-
5A-2(s). In this regard, we specifically have held that
[a] proffer is not sufficient to satisfy the evidentiary
requirements of West Virginia Code § 17C-5A-2(s) (201[5])
for proof of irreparable harm. A stay or supersedeas of the
order issued pursuant to West Virginia Code § 17C-5A-2(s)
must contain findings of fact and conclusions of law which
demonstrate that the circuit court has, upon the testimony or
documentary evidence presented, made a finding that the
appellant will suffer irreparable harm if the order is not stayed.
Syl. pt. 3, Karl, 231 W. Va. 65, 743 S.E.2d 876.
Finally, if the court stays the revocation order, such stay is limited to one
hundred fifty days. See Syl. pt. 4, Karl, 231 W. Va. 65, 743 S.E.2d 876 (“A stay or
supersedeas of the order issued pursuant to W. Va. Code § 17C-5A-2(s) (201[5]) must
contain an express provision limiting the duration to no more than 150 days, although the
circuit court is not precluded from issuing consecutive stays for good cause shown.”).
During the proceedings below, Mr. Blankenship, as part of his “PETITION
FOR REVIEW OF ADMINISTRATIVE ORDER,” requested the circuit court to stay his
19
driver’s license revocation during the pendency of the circuit court proceedings. However,
it is undisputed that the circuit court did not hold a hearing on Mr. Blankenship’s request
for a stay insofar as it entered its ex parte order granting the stay on the same day that Mr.
Blankenship filed his review petition in the circuit court. Neither did Mr. Blankenship aver
that there was a “substantial probability” that he would prevail on the merits of his appeal
or that he would “suffer irreparable harm” if the circuit court did not grant the stay as
required by the express language of West Virginia Code section 17C-5A-2(s). Nor did the
circuit court make findings as to either of these points in its May 8, 2019 order granting
Mr. Blankenship’s requested stay. In fact, the only part of the statutory provisions for
granting a stay that the circuit court followed in this case concerns the length of the stay
because, in awarding Mr. Blankenship the stay he had requested, the circuit court limited
it to “a period of 150 days.”
Because both the clear statutory language of West Virginia Code section
17C-5A-2(s) and the prior decisions of this Court considering this language dictate that a
circuit court does not have the discretion to ignore these guidelines, but, rather, must
faithfully follow these strictures in staying an administrative revocation of a driver’s
license, we find that the circuit court erred as a matter of law in granting the stay in Mr.
Blankenship’s case when it failed to follow the prescribed procedure for granting a stay.
In this regard, the circuit court did not hold a hearing on Mr. Blankenship’s request for a
stay, did not take evidence as to whether Mr. Blankenship would substantially prevail on
the merits of his appeal and whether he would be irreparably harmed if his license
20
revocation was not stayed, and did not make findings as to Mr. Blankenship’s likelihood
of success on appeal or the harm he would suffer absent a stay. Accordingly, we find that
the DMV is entitled to the relief it requests in this regard and grant the writ of prohibition
to prevent the circuit court from enforcing the stay issued to Mr. Blankenship in its May 8,
2019 order.
2. Preparation of record of administrative proceedings. The DMV
additionally argues that the circuit court erred by requiring it to prepare the record of the
administrative proceedings for Mr. Blankenship’s appeal of his license revocation to the
circuit court. This issue also is governed by statutory law, namely West Virginia Code
section 17C-5A-2(s), paragraph 2, and the rules of statutory construction again guide our
analysis. See generally Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va.
108, 219 S.E.2d 361; Syl. pt. 2, Elder, 152 W. Va. 571, 165 S.E.2d 108; Syl. pt. 5, Gen.
Daniel Morgan, 144 W. Va. 137, 107 S.E.2d 353.
Here, the DMV argues that the circuit court erroneously ordered it to prepare
and submit the administrative record upon which Mr. Blankenship’s appeal to the circuit
court is based. The preparation of the administrative record on appeal from an
administrative license revocation proceeding is governed by West Virginia Code section
17C-5A-2(s), the pertinent part of which provides:
The party filing the appeal shall pay the Office of
Administrative Hearings for the production and transmission
of the certified file copy and the hearing transcript to the court.
21
Notwithstanding the provisions of section four, article five of
said chapter, the Office of Administrative Hearings may not be
compelled to transmit a certified copy of the file or the
transcript of the hearing to the circuit court in less than sixty
days.
(Emphasis added). Unlike the other statutory language at issue in this matter, we have not
previously considered this precise provision of West Virginia Code section 17C-5A-2(s).
Nevertheless, we find the enactment to plainly require that the party filing the appeal to the
circuit court is the party responsible for arranging for the preparation and submission of
the administrative record to that tribunal.
In determining the meaning of statutory language, we look to the specific
words employed by the Legislature to ascertain the legislative intent and meaning of the
provision at issue. “It is not the prerogative of this Court to arbitrarily disregard the plain
meaning of clearly written statutes.” McVey v. Pritt, 218 W. Va. 537, 540, 625 S.E.2d 299,
302 (2005). Instead, “the words of a statute are to be given their ordinary and familiar
significance and meaning, and regard is to be had for their general and proper use.” Syl.
pt. 4, in part, Gen. Daniel Morgan, 144 W. Va. 137, 107 S.E.2d 353. Additionally, “courts
may not find ambiguity in statutory language which laymen are readily able to comprehend
. . . . Plain language should be afforded its plain meaning.” Crockett v. Andrews, 153
W. Va. 714, 718-19, 172 S.E.2d 384, 387 (1970).
22
The portion of West Virginia Code section 17C-5A-2(s) that addresses the
preparation of the administrative record specifically directs that the “[t]he party filing the
appeal shall pay the Office of Administrative Hearings for the production and transmission
of the certified file copy and the hearing transcript to the court.” (Emphasis added). This
language plainly directs the appealing party to arrange for the submission of the
administrative record to the circuit court. In this case, Mr. Blankenship filed the appeal
from the OAH’s order in the circuit court, and, thus, Mr. Blankenship, and not the DMV,
is the party responsible for ensuring the circuit court has the administrative record of the
proceedings from which the appeal has been taken. Furthermore, the Legislature’s use of
the word “shall” in this context makes this directive to the appealing party mandatory. See,
e.g., Syl. pt. 1, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982)
(“It is well established that the word ‘shall,’ in the absence of language in the statute
showing a contrary intent on the part of the Legislature, should be afforded a mandatory
connotation.”); Syl. pt. 2, Terry v. Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969)
(“The word ‘shall’ in the absence of language in the statute showing a contrary intent on
the part of the legislature, should be afforded a mandatory connotation.”).
Therefore, we conclude that the circuit court erred by disregarding the plain,
and mandatory, statutory language of West Virginia Code section 17C-5A-2(s) that
imposes upon the party appealing from the OAH to the circuit court the duty of arranging
for the preparation of the record of the underlying administrative proceedings by paying
the OAH “for the production and transmission of the certified file copy and the hearing
23
transcript” because the circuit court improperly shifted this burden to the non-appealing
party. Accordingly, we grant the writ of prohibition requested by the DMV on this ground
and prohibit the circuit court from enforcing its May 8, 2019 order requiring the DMV, as
the non-appealing party, to file the administrative record with the circuit court.
IV.
CONCLUSION
For the reasons explained in this opinion, we grant as moulded the requested
writ of prohibition in Case Number 19-0754 and direct the Circuit Court of Boone County
to dismiss the matter in which it entered its August 16, 2018 order. Furthermore, in Case
Number 19-0755, we grant the requested writ of prohibition and prohibit the Circuit Court
of Boone County from enforcing its May 8, 2019 order.
Case Number 19-0754 – Writ Granted as Moulded.
Case Number 19-0755 – Writ Granted.
24