State Ex Rel. Commissioner, West Virginia Division of Motor Vehicles v. Swope

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term FILED
_______________ April 25, 2013
released at 3:00 p.m.
No. 13-0005 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. COMMISSIONER,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Petitioner
v.
THE HONORABLE DEREK SWOPE,
JUDGE OF THE CIRCUIT COURT OF MERCER COUNTY
AND BRANDON WHITE,
Respondents
ORIGINAL PROCEEDING IN PROHIBITION
WRIT GRANTED
Submitted April 16, 2013
Filed: April 25, 2013
Patrick Morrisey, Esq. R. Thomas Czarnik, Esq
Attorney General R. Thomas Czarnik & Associates
Elaine L. Skorich, Esq. Princeton, West Virginia
Assistant Attorney General Counsel for Brandon White
Charleston, West Virginia
Counsel for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “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).
2. “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.” Syl. pt. 5, State v. General Daniel Morgan Post No.
548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
Per Curiam:
This original proceeding is before this Court upon the petition of the Commissioner
of the West Virginia Division of Motor Vehicles seeking to prohibit further consideration in
the Circuit Court of Mercer County of Brandon White’s appeal from the order of the Office
of Administrative Hearings upholding the revocation of White’s driver’s license.
White’s license was revoked by the Commissioner in 2011 for driving under the
influence of alcohol. Following an unsuccessful challenge before the Office of
Administrative Hearings, White filed an appeal in circuit court. In an order entered on
December 7, 2012, the circuit court stated that the appeal was timely filed. In addition, the
order of the circuit court set forth a briefing schedule and time frame for disposition of the
case.
The Commissioner contends that White’s appeal was not filed in the circuit court
within the thirty day period specified in W.Va. Code, 29A-5-4(b) [1998], of the State
Administrative Procedures Act, and that, therefore, the circuit court exceeded its jurisdiction
in declaring White’s appeal timely.
Upon examination of the petition, the response, the exhibits and the argument of
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counsel, this Court concludes that White’s appeal was not filed within the thirty day period
specified in the statute and that, consequently, the Commissioner is entitled to relief in
prohibition. Having, thus, exceeded its jurisdiction in declaring the appeal timely, the Circuit
Court of Mercer County is prohibited from further consideration of White’s appeal from the
order of the Office of Administrative Hearings upholding the revocation of his driver’s
license.
I. Factual and Procedural Background
On May 9, 2011, Brandon White, driving a Ford Escort, rear-ended another vehicle
in the City of Princeton, Mercer County. White was arrested at the scene for driving while
under the influence of alcohol. W.Va. Code, 17C-5-2 [2010]. His secondary chemical test
administered soon thereafter produced a reading of .171% blood alcohol by weight. In June
2011, the Commissioner of the Division of Motor Vehicles entered an order revoking
White’s license for the offense of driving a motor vehicle in this State while under the
influence of alcohol. W.Va. Code, 17C-5A-1 [2008].
White challenged the revocation, and an evidentiary hearing was conducted by the
Hearing Examiner for the Office of Administrative Hearings. W.Va. Code, 17C-5C-1 [2010],
et seq. On July 25, 2012, a joint administrative order was entered reflecting the decision of
the Hearing Examiner and, upon review, the decision of the Chief Hearing Examiner. Both
2
the Hearing Examiner and the Chief Hearing Examiner upheld the Commissioner’s order of
revocation.1
Addressing White’s right to file an appeal in circuit court from the revocation, the
decision of the Chief Hearing Examiner stated:
This Final Order shall become effective after the passage of ten (10)
business days from the date of entry thereof, exclusive of the date of entry.
Any party aggrieved by this decision may petition for appeal of same in
accordance with the provisions of West Virginia Code § 29A-5-4.
The Petitioner is hereby directed to contact the West Virginia
Division of Motor Vehicles, Driver Services Division . . . to verify the
effective date of the license revocation which is the subject of this Order, or
concerning any questions related to any fees, procedural requirements or
suspension or revocation periods that must be met prior to reinstatement of
driving privileges.
The Commissioner of the Division of Motor Vehicles and White agree that White
received notice of the July 25, 2012, administrative order by certified mail on July 27, 2012.
The Commissioner and White also agree that White filed his appeal in the Circuit Court of
Mercer County on September 7, 2012.
1
In addition to noting the result of the secondary chemical test, the findings of the Hearing
Examiner included the following:
The Investigating Officer approached the Petitioner [White] and noticed that
the Petitioner had an odor of an alcoholic beverage emanating from his breath as he
spoke, slurred his speech and was unsteady as he stood. The Petitioner advised the
Investigating Officer that he was the driver of the motor vehicle that had struck a
second vehicle. The Petitioner admitted that he had consumed alcoholic beverages
prior to operating his motor vehicle and getting into the accident.
3
The Commissioner, by special appearance, filed a motion to dismiss in circuit court,
alleging that White’s appeal was untimely because it was not filed within thirty days of July
27, 2012, the date White received notice of the administrative order. The thirty day limit
cited by the Commissioner is found in W.Va. Code, 29A-5-4(b) [1998], of the State
Administrative Procedures Act. We note, however, that if the ten additional days referred
to by the Chief Hearing Examiner of the Office of Administrative Hearings is determinative,
then the thirty day appeal period would be counted from August 8, 2012, thereby rendering
White’s appeal to circuit court timely filed.
On December 7, 2012, the circuit court entered an order concluding that the July 25,
2012, administrative order “did not become final until August 8, 2012.” As a result, the
circuit court (1) ruled that the appeal was timely filed, (2) denied the motion to dismiss and
(3) set forth a briefing schedule and time frame for disposition of the case.
The Commissioner then filed a petition for a writ of prohibition in this Court.
Thereafter, this Court entered an order directing the Circuit Court of Mercer County to show
cause why relief in prohibition should not be awarded.
II. Standards of Review
This Court has original jurisdiction in prohibition proceedings pursuant to art. VIII,
4
§ 3, of The Constitution of West Virginia. That jurisdiction is recognized in Rule 16 of the
Rules of Appellate Procedure and in various statutory provisions. W.Va. Code, 51-1-3
[1923]; W.Va. Code, 53-1-2 [1933]. In considering whether to grant relief in prohibition, this
Court stated in the syllabus point of State ex rel. Vineyard v. O’Brien, 100 W.Va. 163, 130
S.E. 111 (1925): “The writ of prohibition will issue only in clear cases where the inferior
tribunal is proceeding without, or in excess of, jurisdiction.” Syl. pt. 1, State ex rel. Johnson
v. Reed, 219 W.Va. 289, 633 S.E.2d 234 (2006).
In the current matter, which concerns whether the circuit court exceeded its
jurisdiction, the relevant guidelines are found in State ex rel. Hoover v. Berger, 199 W.Va.
12, 483 S.E.2d 12 (1996), syllabus point 4 of which holds:
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.
5
Syl. pt. 2, State ex rel. West Virginia National Auto Insurance Company v. Bedell, 223 W.Va.
222, 672 S.E.2d 358 (2008); syl. pt. 2, State ex rel. Isferding v. Canady, 199 W.Va. 209, 483
S.E.2d 555 (1997).
Of course, as an extraordinary remedy invoking the original jurisdiction of this Court,
a petition for a writ of prohibition may not be used as a substitute for an appeal. Syl. pt. 1,
State ex rel. Gibson v. Hrko, 220 W.Va. 574, 648 S.E.2d 338 (2007). As early as 1873, this
Court stated that “a mere error in the proceeding may be ground of appeal or review, but not
of prohibition.” Syl. pt. 3, in part, Buskirk v. Judge of Circuit Court, 7 W.Va. 91 (1873).
III. Discussion
A. The Statutory Requirements
The provisions of chapter 17C, articles 5A and 5C, of the West Virginia Code set forth
the administrative framework for license revocation for driving a motor vehicle while under
the influence of alcohol. Nevertheless, judicial review of an administrative order or decision
concerning revocation is obtained in circuit court, and subsequently in this Court, under the
Contested Cases provision of the State Administrative Procedures Act, W.Va. Code, 29A-5-1
[1964], et seq. See Miller, Comm’r v. Moredock, 229 W.Va. 66, 726 S.E.2d 34, 37 (2011)
(Judicial review of a revocation order of the Commissioner of the Division of Motor Vehicles
is conducted pursuant to the contested cases provision of the State Administrative Procedures
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Act.); syl. pt. 1, Muscatell v. Cline, Comm’r, 196 W.Va. 588, 474 S.E.2d 518 (1996) (Review
by this Court in such cases is similar to the review conducted under the Act in circuit court);
Dean v. West Virginia Department of Motor Vehicles, 195 W.Va. 70, 71, 464 S.E.2d 589,
590 (1995) (Judicial review of the revocation of a license to operate a motor vehicle is under
the State Administrative Procedures Act.).2
B. The Issue Before This Court
In this original proceeding in prohibition, the issue is whether the Circuit Court of
Mercer County exceeded its jurisdiction by accepting an administrative appeal filed more
than thirty days after the receipt of notice of the order entered by the Office of Administrative
Hearings. Specifically, this Court must determine whether White’s appeal was untimely
because it was not filed in circuit court within thirty days of July 27, 2012, the date he
received notice of the order, or whether White’s appeal was timely filed on September 7,
2012, because, as the circuit court stated, the administrative order “did not become final until
August 8, 2012.”
2
W.Va. Code, 17C-5A-2 [2012], outlining the nature of a revocation hearing provides, in
subsection (s), for judicial review under the State Administrative Procedures Act. See also W.Va.
Code, 17C-5C-4 [2010]. Moreover, the Act is made applicable to a challenge to an order or decision
of the Division of Motor Vehicles by Legislative Rule. See Code of State Rules § 91-1-3.12.3.
[2005]. Finally, Rule 1(a) of the West Virginia Rules of Procedure for Administrative Appeals states,
in part: “These rules govern the procedures in all circuit courts for judicial review of final orders
or decisions from an agency in contested cases that are governed by the Administrative Procedures
Act, W.Va. Code § 29A-5 et. seq.”
7
The relevant statute, W.Va. Code, 29A-5-4(b) [1998], provides:
Proceedings for review shall be instituted by filing a petition, at the
election of the petitioner, in either the Circuit Court of Kanawha County, West
Virginia or in the circuit court of the county in which the petitioner or any one
of the petitioners resides or does business, or with the judge thereof in
vacation, within thirty days after the date upon which such party received
notice of the final order or decision of the agency. A copy of the petition shall
be served upon the agency and all other parties of record by registered or
certified mail. The petition shall state whether the appeal is taken on questions
of law or questions of fact, or both. No appeal bond shall be required to effect
any such appeal.3
(emphasis added)
Noticeably, W.Va. Code, 29A-5-4(b) [1998], does not include the type of language at
issue in this case, i.e., that the administrative order being appealed “shall become effective
after the passage of ten (10) business days from the date of entry.” As explained by the
Commissioner during argument before this Court, although the ten day delay, in this case,
issued from the Office of Administrative Hearings, rather than from the Commissioner
directly, the delay represents a grace period commonly observed so that driver’s will not be
subject to arrest, without notice, immediately upon the entry of a revocation decision.
3
Rule 2(b) [2008] of the West Virginia Rules of Procedure for Administrative Appeals
states:
Time for Petition. - No petition shall be filed from a state agency decision or
final order in a contested case after the time period allowed by law. The petition
shall be filed in the office of the circuit clerk of the circuit court in which venue lies
by law, within 30 days after the petitioner receives notice of the final order or
decision from the agency, unless otherwise provided by law.
8
Reference to a ten day delay after revocation is found in various statutes in chapter
17C of the West Virginia Code. However, unlike this case in which the revocation order was
to become effective after ten business days from the date of entry, several statutes in chapter
17C provide that revocation shall become effective ten days after receipt of a copy of the
revocation order.4 That difference notwithstanding, the order of the Office of Administrative
Hearings in the present matter expressly stated: “Any party aggrieved by this decision may
petition for appeal of same in accordance with the provisions of West Virginia Code § 29A-5­
4.” (emphasis added) As that statute requires, the appeal to circuit court shall be filed
“within thirty days after the date upon which such party received notice of the final order or
decision of the agency.”
In Bruce v. Steele, 215 W.Va. 460, 599 S.E.2d 883 (2004), this Court acknowledged
that “[j]udgments are, at times, open to differing interpretations.” 215 W.Va. at 463, 599
S.E.2d at 886. However, the administrative order in this case directed White to follow the
provisions of W.Va. Code, 29A-5-4 [1998], of the Administrative Procedures Act to pursue
his appeal. Moreover, Title 91 of the Code of State Rules pertaining to the Division of Motor
Vehicles provides in § 91-1-3.12.2. [2005], that the Commissioner “shall make and enter
4
Language to the effect that a revocation shall not become effective until ten days after
receipt of a copy of the order is found in W.Va. Code, 17C-5-7(a) [2010], concerning the refusal to
submit to a secondary chemical test; W.Va. Code, 17C-5A-1(c) [2008], concerning revocation for
driving under the influence of alcohol; and W.Va. Code, 17C-5A-1a(c) [2010], concerning revocation
upon conviction for driving under the influence of alcohol. See also W.Va. Code, 17B-3-3c(b)
[2005], concerning license suspension for failure to pay fines or penalties.
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every final order pursuant to W.Va. Code § 29A-5-1 et seq. and the applicable statutory
provisions.” In addition, Code of State Rules § 91-1-3.12.3. [2005], provides for judicial
review from an order of the Division “as set forth in W.Va. Code § 29A-5-1 et seq. and in
accordance with the applicable statutory provisions.” After careful consideration, this Court
cannot conclude that W.Va. Code, 29A-5-4(b) [1998], means less than what it plainly states.
A party adversely affected by an administrative order or decision in a contested case must file
the petition for appeal in circuit court “within thirty days after the date upon which such party
received notice of the final order or decision of the agency.”
Thus, although the July 25, 2012, order of the Office of Administrative Hearings may
have been inartfully drafted, the statute to which it refers for purposes of appeal, W.Va. Code,
29A-5-4 [1998], is clear. Syllabus point 5 of State v. General Daniel Morgan Post No. 548,
V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959), holds:
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.
Syl. pt. 4, Sims v. Miller, Comm’r, 227 W.Va. 395, 709 S.E.2d 750 (2011); syl. pt. 3, In re:
Chevie V., 226 W.Va. 363, 700 S.E.2d 815 (2010).
Here, the statutory, thirty day requirement from receipt of notice is controlling.
10
Therefore, the Commissioner was correct in asserting in the motion to dismiss that White’s
appeal was untimely because it was not filed in circuit court within thirty days of July 27,
2012, the date White received notice of the order entered by the Office of Administrative
Hearings.5
IV. Conclusion
For the reasons stated above, this Court concludes that White’s appeal was not filed
within the thirty day period specified in W.Va. Code, 29A-5-4(b) [1998], and that,
consequently, the Commissioner of the Division of Motor Vehicles is entitled to relief in
prohibition. Having exceeded its jurisdiction in declaring the appeal timely, the Circuit
Court of Mercer County is prohibited from further consideration of White’s appeal from the
July 25, 2012, order of the Office of Administrative Hearings which upheld the revocation
of his driver’s license.
Writ Granted.
5
In determining the appeal to be untimely, we note that it would be inappropriate in this case
to construe the ten day delay set forth in the administrative order as a formal stay. See W.Va. Code,
29A-5-4(c) [1998] (An agency may stay the enforcement of its orders and decisions.). Here, the July
25, 2012, order of the Office of Administrative Hearings did not associate the ten day delay with the
statutory appeal period and made no statement to the effect that the thirty days would only run from
August 8, 2012. Nothing in the administrative order would, thus, warrant an extension of the thirty
day appeal period. See generally Kanawha Valley Radiologists, Inc. v. One Valley Bank, 210 W.Va.
223, 229 n. 8, 557 S.E.2d 277, 283 n. 8 (2001) (A stay of the enforcement of an order does not affect
the order’s finality.).
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