State ex rel. Everett Frazier v. Warren R. McGraw and Dalton Watts

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2020 Term
_______________ FILED
November 2, 2020
No. 20-0142 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
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Petitioner
v.
THE HONORABLE WARREN R. MCGRAW,
JUDGE OF THE CIRCUIT COURT OF WYOMING COUNTY,
and DALTON WATTS,
Respondents
____________________________________________________________
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
____________________________________________________________
Submitted: October 7, 2020
Filed: November 2, 2020
Patrick Morrisey, Esq. Lela D. Walker, Esq.
Attorney General Oceana, West Virginia
Janet E. James, Esq. Counsel for Respondent Watts
Assistant Attorney General
Charleston, West Virginia
Counsel for Petitioner
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
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SYLLABUS BY THE COURT
1. “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).
2. “When an individual brings a mandamus action seeking to compel the
West Virginia Division of Motor Vehicles to perform a statutory duty which relates to the
Division’s maintenance of records, and such action is not an administrative appeal pursuant
to the West Virginia Administrative Procedures Act, West Virginia Code §§ 29A–1–1 to
29A–7–4 (1998), West Virginia Code §§ 14–2–2(a)(1) and 53–1–2 require that such action
shall be brought in the Circuit Court of Kanawha County, but such an action cannot be
used to circumvent the administrative appeals procedure.” Syllabus Point 12, State ex rel.
Miller v. Reed, 203 W. Va. 673, 510 S.E.2d 507 (1998).
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Armstead, Chief Justice:
Everett Frazier, Commissioner of the West Virginia Division of Motor
Vehicles (“DMV”), seeks to prohibit The Honorable Warren R. McGraw, Judge of the
Circuit Court of Wyoming County, from enforcing his November 7, 2019, order that stayed
the DMV’s administrative revocation of the driver’s license of Dalton Watts (“Watts”)
pending appeal to the circuit court. The DMV contends that because there was no contested
case in the administrative proceeding, the circuit court did not have jurisdiction. The DMV
further contends that the relief sought – granting Watts another administrative hearing –
could only be accomplished by seeking extraordinary relief in mandamus against the non-
party Office of Administrative Hearings (“OAH”) in Kanawha County. For the reasons
stated herein, we agree with the DMV that the Wyoming County Circuit Court had no
jurisdiction to hear this matter and issue the stay pending appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 25, 2015, Watts was driving his 1985 Chevrolet Blazer on West
Virginia Route 10 in Matheny, West Virginia, when he was observed by Wyoming County
Deputy Sheriff McKinney to be drifting, straddling the lane line, and swerving. Deputy
McKinney initiated a traffic stop and pulled Watts over. Deputy McKinney then
administered three field sobriety tests on Watts – the horizontal gaze nystagmus test, the
walk and turn test, and the one leg stand. Watts failed the horizontal gaze nystagmus and
walk and turn tests. He was unable to perform the one leg stand. Thereafter, Watts
submitted to two separate preliminary breath tests, showing his blood alcohol content to be
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.081 and .082, respectively. Watts was then transported to the Wyoming County Sheriff’s
Department where a secondary chemical test was administered. The result of that test
showed Watts’ blood alcohol content to be .076, and Deputy McKinney declined to arrest
Watts.
Deputy McKinney transmitted his West Virginia DUI Information Sheet to
the DMV, which issued an “ORDER OF REVOCATION NOTICE” dated November 5,
2015, noting that Watts’ “driving privileges will be revoked at 12:01 a.m. ET” on
December 10, 2015, for a period of one year. In that order, the DMV informed Watts that
he “may Petition the [OAH] for a hearing,” which Watts timely did.
The administrative hearing was first set for April 5, 2016. During the next
three years, the matter was set for hearing a total of sixteen times. At the August 15, 2019,
hearing, neither Watts nor his lawyer appeared. Notice of the August 15, 2019, hearing
was sent to Watts’ lawyer via email and was also included in the administrative order
granting the previous continuance dated July 23, 2019.
Because Watts failed to appear at the hearing, the OAH entered a final order,
affirming the Order of Revocation dated November 5, 2015, because an “unexcused failure
to appear at [the] administrative hearing is construed as an implicit withdrawal of [the]
request for a hearing as well as a waiver of [Watts’] right to contest the suspension and/or
revocation.” A copy of this final order was sent to Watts, who then went to his lawyer
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about the missed hearing. Watts’ attorney informed Watts that “he didn’t want anything
to do with the case anymore.” Watts then retained another lawyer who filed the purported
appeal in the Wyoming County Circuit Court.
After a hearing, the circuit court, by its November 7, 2019, order, stayed the
revocation of Watts’ license pending appeal. Thereafter, the DMV sought this writ to
prohibit the circuit court from proceeding, maintaining that the OAH’s final order was not
appealable because there was no contested case before the OAH. The DMV further argues
that Watts’ request for relief below should properly be considered a petition for writ of
mandamus against the OAH, which was not a party to the purported appeal. Finally,
because a writ of mandamus is only proper in Kanawha County, the DMV argues that the
circuit court also lacked jurisdiction to grant any requested relief. 1
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The DMV also argues that pre-suit notice was not given for a writ of
mandamus as required in West Virginia Code § 55-17-3 (2008) and that this Court should
assess costs against Watts for essentially seeking a writ of mandamus in a circuit court
lacking jurisdiction. See W. Va. Code § 59-2-12 (1931).
We decline to address these issues as we find that the circuit court lacked
jurisdiction, so the question of pre-suit notice is moot. As for the issue of costs, we simply
note that the OAH’s final order invited Watts to seek relief by filing an appeal, which is
exactly what he did.
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II. STANDARD OF REVIEW
In State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996), this
Court adopted the following standard to be used in granting a writ of prohibition where the
circuit court has jurisdiction, but exceeds it:
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.
Syllabus Point 4, Hoover. However, “[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.” Syllabus Point 10, Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162
(1919).
III. ANALYSIS
In this matter, the DMV argues that the circuit court did not have jurisdiction
to hear an appeal of this matter because the final order was not the result of a “contested
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case” under the West Virginia Administrative Procedures Act (“the Act”). See W. Va.
Code § 29A-5-4 (1998). We agree.
We recently analyzed the term “contested case” under the Act. See State ex
rel. Frazier v. Thompson, 243 W. Va. 46, 842 S.E.2d 250 (2020). The facts in Thompson
show that one of the drivers therein did not timely appeal the DMV order of revocation to
the OAH. See id., 243 W. Va. at ___, 842 S.E.2d at 254. After the OAH declined to hold
a hearing, the driver then filed an appeal in the circuit court. Id. The circuit court entered
an ex parte order that it had jurisdiction, required the DMV to provide its administrative
file to the court, and temporarily reinstated driving privileges, pending appeal. See id. As
in the present case, the DMV in Thompson sought a writ of prohibition in this Court to
prohibit the circuit court from enforcing its order. See id.
In Thompson, we discussed our prior cases under the Act and concluded that
for a matter to be a contested case, “an administrative agency [must] hold a hearing and
issue a decision.” Id., 243 W. Va. at ___, 842 S.E.2d at 257. Thus, where there was no
hearing before the OAH, there was no “contested case” from which a party could appeal
because “a circuit court has jurisdiction under the Act to review only ‘contested cases’”
Id., 243 W. Va. at ___, 842 S.E.2d at 258.
Our holding in Thompson clearly applies here. In this matter there was no
hearing on the merits before the OAH so there was no “contested case.” Therefore, the
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circuit court lacked jurisdiction to hear the appeal. We further agree with the DMV that
lack of a contested case, in effect, converted Watts’ appeal into a petition for an
extraordinary remedy – a writ of mandamus.
“Jurisdiction of writs of mandamus and prohibition . . . shall be in the circuit
court of the county in which the record or proceeding is to which the writ relates.” W. Va.
Code § 53-1-2 (1933). Since “the Division’s records relating to drivers’ licenses are
maintained at the State Capitol in Charleston, Kanawha County, West Virginia,” State ex
rel. Miller v. Reed, 203 W. Va. 673, 684, 510 S.E.2d 507, 518 (1998), a writ of mandamus
seeking to compel the OAH to hold a hearing is only proper in Kanawha County.
When an individual brings a mandamus action seeking
to compel the West Virginia Division of Motor Vehicles to
perform a statutory duty which relates to the Division’s
maintenance of records, and such action is not an
administrative appeal pursuant to the West Virginia
Administrative Procedures Act, West Virginia Code §§ 29A–
1–1 to 29A–7–4 (1998), West Virginia Code §§ 14–2–2(a)(1)
and 53–1–2 require that such action shall be brought in the
Circuit Court of Kanawha County, but such an action cannot
be used to circumvent the administrative appeals procedure.
Syllabus Point 12, Miller.
Because the circuit court lacked jurisdiction to entertain the appeal, the filing
below essentially sought to compel the OAH – which was not named as a party – to perform
its statutory duty by granting Watts a new hearing. Just like the DMV, the OAH is based
in Kanawha County, and all its records are maintained there. Thus, the circuit court lacked
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jurisdiction to grant the extraordinary relief requested not only because a party necessary
for just adjudication was not joined in the matter, See W. Va. R. Civ. P. 19(a), but also
because petitions for mandamus against either the DMV or the OAH are only proper in
Kanawha County. As the United States Supreme Court said over one hundred and fifty
years ago, “[w]ithout jurisdiction the court cannot proceed at all in any cause. Jurisdiction
is power to declare the law, and when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the cause.” Ex parte McCardle, 74 U.S.
506, 514 (1868). Accord Syllabus Point 1, Hinkle v. Bauer Lumber & Home Bldg. Ctr.,
Inc., 158 W. Va. 492, 211 S.E.2d 705 (1975).
Because the circuit court lacked jurisdiction to hear either the appeal or a
petition for writ of mandamus in this action, the circuit court clearly exceeded its authority
in acting upon Watts’ filing. The DMV is entitled to issuance of the requested writ and
dismissal of the underlying proceeding.
IV. CONCLUSION
For the foregoing reasons, we grant the writ of prohibition as moulded
preventing the enforcement of the circuit court’s November 7, 2019, order and direct the
circuit court to dismiss the matter from its docket.
Writ granted as moulded.
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