State ex rel. Miller, Comm. v. Reed, Judge
Annotate this CaseSeptember 1998 Term
__________
No. 25191
__________
STATE OF WEST VIRGINIA EX REL. JOE E. MILLER,
COMMISSIONER, DIVISION OF MOTOR VEHICLES
OF THE STATE OF WEST VIRGINIA,
Petitioner
v.
HONORABLE NEIL A. REED
JUDGE OF THE CIRCUIT COURT OF PRESTON COUNTY,
and
NEIL L. SHEDD, II
Respondents
__________________________________________________________________
Writ Of Prohibition
WRIT GRANTED
_______________________________________________________________________
Submitted: October 6, 1998
Filed: December 8, 1998
Darrell V. McGraw, Jr.,
Esq.
David J. Straface, Esq.
Attorney
General
Angotti
and Straface
Jacquelyn I. Custer,
Esq.
Morgantown, West Virginia
Senior Assistant Attorney General Attorney
for Respondent, Neil L. Shedd, II
Charleston, West Virginia
Attorneys for Petitioner
AND
___________
25146
___________
SUSAN J. BURROUGH,
Appellee
v.
JANE L. CLINE, COMMISSIONER,
WEST VIRGINIA DEPARTMENT OF MOTOR VEHICLES,
Appellant
__________________________________________________________________
Appeal from the Circuit Court of Hancock County
Honorable Martin J. Gaughan, Judge
Civil Action No. 97-AA-1 G
REVERSED
__________________________________________________________________
Submitted: September 22, 1998
Filed: December 8, 1998
Arthur J. Recht,
Esq. Darrell
V. McGraw, Jr., Esq.
Recht Law
Office Attorney
General
Weirton, West Virginia
Jacquelyn I. Custer,
Esq.
Attorney for
Appellee Senior
Assistant Attorney General
Charleston, West Virginia
Attorneys
for Appellant
JUSTICE WORKMAN delivered the Opinion of the Court and was joined by CHIEF
JUSTICE DAVIS and JUSTICES MAYNARD, MCCUSKEY and STARCHER.
JUSTICE MCGRAW did not participate.
SYLLABUS BY THE COURT
1. "'Prohibition
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).
2. "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).
3. "'Upon
judicial review of a contested case under the West Virginia Administrative Procedure Act,
Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision
of the agency or remand the case for further proceedings. The circuit court shall reverse,
vacate or modify the order or decision of the agency if the substantial rights of the
petitioner or petitioners have been prejudiced because the administrative findings,
inferences, conclusions, decisions or order are: (1) In violation of constitutional or
statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the
agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole
record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.' Syllabus Point 2, Shepherdstown Volunteer Fire Dept.
V. West Virginia Human Rights Comm'n, 172 W.Va. 627, 309 S.E.2d. 342 (1983)." Syl.
Pt. 1, Johnson v. State Dep't of Motor Vehicles, 173 W.Va. 565, 318 S.E.2d 616 (1984) .
4. "'"In
reviewing the judgment of the lower court this Court does not accord special weight to the
lower court's conclusions of law, and will reverse the judgment below when it is based on
an incorrect conclusion of law." Syllabus Point 1, Burks v. McNeel, 164 W.Va. 654,
264 S.E.2d 651 (1980).' Syllabus, Bolton v. Bechtold, 178 W.Va. 556, 363 S.E.2d 241
(1987)." Syl. Pt. 2, State ex rel. Dep't of Motor Vehicles v. Sanders, 184 W.Va. 55,
399 S.E.2d 455 (1990).
5.
"Where the issue on 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." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415
(1995).
6. Pursuant
to the provisions of West Virginia Code § 17B-2-13 (1996), an individual who holds a
driver's license issued by the West Virginia Division of Motor Vehicles is required to
notify the Division in writing concerning a change of address within twenty (20) days
after a change of residence on the prescribed form.
7. "The
administrative proceedings for suspension of a driver's license under W.Va. Code,
17C-5A-1, et seq., do not violate this State's Due Process Clause." Syl. Pt. 3,
Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978).
8.
The West Virginia Division of Motor Vehicles satisfies the requirements of due process by
mailing a copy of a driver's license revocation or suspension order to an individual whose
license to drive is revoked or suspended, addressed to such individual at the last
recorded address shown by the Division's records.
9. 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 extraordinary 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).
10. "'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)." Syl. Pt. 1, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).
11. "'Actions wherein a state agency or official is named, whether as a principal party or third-party defendant, may be brought only in the Circuit Court of Kanawha County.' Syllabus Point 2, Thomas v. Board of Education, County of McDowell, 167 W.Va. 911, 280 S.E.2d 816 (1981)." Syl. Pt. 5, State ex rel. West Virginia Board of Education v. Perry, 189 W.Va. 662, 434 S.E.2d 22 (1993).
12. 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.
Workman, Justice:
The above-styled cases
have been consolidated for the purposes of this opinion because both cases address the
issue of whether the West Virginia Division of Motor Vehicles (hereinafter
"Division") provided sufficient notice of revocation of a driver's license.
I.
State ex rel. Joe E. Miller v. The Honorable Neil A. Reed and Neil L. Shedd, II
The Commissioner of the Division, Joe E.
Miller, filed this writ of prohibition seeking to prevent the enforcement of an April 7,
1998, order, issued by Judge Neil Reed of the Circuit Court of Preston County. Through
this order, the circuit court directed the Division to provide the respondent, Neil L.
Shedd, Jr. (hereinafter "Mr. Shedd"), an opportunity to request an
administrative hearing from the Division to contest the Division's revocation of his
license for driving under the influence of alcohol. The Division contends that the circuit
court exceeded its jurisdiction and legitimate authority by entering the order.
Mr. Shedd contends that although he
provided his new address to the arresting officer, he did not receive proper notice
regarding the suspension of his license and, therefore, had been wrongfully denied an
administrative hearing by the Division. Because Mr. Shedd failed to properly notify the
Division of his change of address, we find that the Division's notification, which was
mailed to Mr. Shedd's address of record, was sufficient notice of the administrative
hearing and, therefore, we prohibit the circuit court from enforcing the order.
Shedd Facts
Mr. Shedd was arrested in Preston County
on January 26, 1997, for driving under the influence of alcohol in violation of West
Virginia Code § 17C-5-2(d) (1996). Upon his arrest, Mr. Shedd provided the arresting
officer with the correct address of his residence at 207 Pratt Street, Kingwood, West
Virginia. This address was included in the information forwarded to the Division when the
arresting officer reported the arrest to the Division. Upon notice of the arrest, the
Division issued an initial order revoking the privilege of Mr. Shedd to drive in West
Virginia. The initial revocation order was forwarded to Mr. Shedd by certified mail on
February 5, 1997, return receipt requested, at the address which was then on file for him
with the Division,See footnote 1 1 pursuant
to the requirements of West Virginia Code § 17A-2-19 (1996).See footnote 2 2 The United States Postal Service stamped
the envelope containing the initial revocation order "forwarding order expired"
and returned the order to the Division. The initial revocation order afforded Mr. Shedd
the right to request an administrative hearing to challenge the order within ten days of
receiving notice of the order. Mr. Shedd never requested an administrative hearing.
Eight months later, on October 11, 1997, Mr. Shedd was stopped for an unrelated traffic violation and was notified at that time that his license had been revoked by the Division. After another four months, Mr. Shedd filed a "Petition for Appeal and Supersedeas on Behalf of Appellant" in the circuit court of Preston County seeking review of the Division's "decision" denying him the right to an administrative appeal. According to the record, Mr. Shedd filed this petition pursuant to the West Virginia Administrative Procedures Act (hereinafter "APA"), West Virginia Code §§ 29A-1-1 to 29A-7-4 (1998). Mr. Shedd maintains that when he told the arresting officer his current address, he officially notified the Division of his address change and, therefore, the Division should have sent the notice of revocation to his new address.
After a hearing, the circuit court held:
(1) that DMV Form 14, which is the statement of the arresting officer that is prepared and
issued pursuant to West Virginia Code § 17C-5A-1 (1996), is an official notification
to the Division and the document that triggered the initial order of revocation; (2) that
upon the return of the initial order of revocation to the Division, it was incumbent on
the Division to send the notice to the address Mr. Shedd gave the arresting officer; and
(3) that Mr. Shedd is entitled to have an administrative hearing to appeal the revocation
of his license. The circuit court ordered the Division to provide Mr. Shedd with an
administrative hearing, provided Mr. Shedd requested such a hearing within ten days after
the entry of the order memorializing its rulings.
II.
Susan J. Burrough v. Jane L. Cline, Commissioner of the West Virginia Division of
Motor VehiclesSee footnote 3 3
Joe E. Miller, Commissioner of the
Division, as successor to the respondent below, Jane L. Cline, appeals the order of the
Circuit Court of Hancock County compelling the Division to afford the Appellee, Susan J.
Burrough (hereinafter "Ms. Burrough"), an administrative hearing in order to
challenge the revocation of her driver's license for driving under the influence of
alcohol. Ms. Burrough did not file a responsive pleading, but instead
chose to rely on the record from the underlying proceeding. Ms. Burrough
contends, as Mr. Shedd contends, that although she gave her new address to the arresting
officer, the Division sent the order of revocation to her old address, thereby depriving
her of the opportunity for an administrative hearing. Because Ms. Burrough failed to
properly notify the Division of her change of address, we find that the Division's
notification, which was sent to Ms. Burrough's address of record, was sufficient notice of
the administrative hearing and, therefore, we reverse the circuit court.
Burrough Facts
Ms. Burrough was arrested in Hancock
County on June 14, 1997, for driving under the influence of alcohol in violation of West
Virginia Code § 17C-5-2(d). The arresting officer, Trooper B.L. Allen of the West
Virginia State Police, submitted a "Statement of Arresting Officer" to inform
the Division of Ms. Burrough's arrest. An Intoxilyzer ticket submitted with the
"Statement of Arresting Officer" reflected a result of .181 on an insufficient
sample. The "Statement of Arresting Officer" also included Ms. Burrough's
address as 264 Central Avenue, Weirton, West Virginia.
Upon notice of the arrest,
the Division issued an initial order revoking the privilege of Ms. Burrough to drive in
West Virginia. The initial revocation order was forwarded to Ms. Burrough by certified
mail on June 25, 1997, return receipt requested, at the address which was then on file
with the Division,See footnote 4 4 pursuant
to the requirements of West Virginia Code § 17A-2-19. The envelope containing the
revocation notice was returned to the Division with a notation indicating that a
forwarding order had expired.
The Division's initial
revocation notice advised Ms. Burrough that her privilege to drive in West Virginia was
revoked for a period of six months pending successful completion of the safety and
treatment program and payment of pertinent fees. The notice further advised Ms. Burrough
that she was entitled to request an administrative hearing to challenge the revocation, in
writing, "with the Commissioner in person or by registered or certified mail,
return-receipt requested, within ten (10 ) days after receipt of this order." Ms.
Burrough never requested an administrative hearing and no further action took place at the
administrative level.
Approximately two months
later, on September 9, 1997, Ms. Burrough initiated the circuit court action by filing a
pleading simply entitled "Motion." In her "Motion," Ms. Burrough
contended that she did not receive a right to hearing notice from the Division and
therefore, denial of her right to hearing would be unjust and unfair. She contended that
she did not change her former post office address to her current residency address because
of excusable neglect. Ms. Burrough requested that the circuit court order the Division to
give her a new notice of revocation so that she might be afforded a hearing. The circuit
court assigned the action an administrative appeal number. The Division moved to dismiss
the action on the basis that the petition should be viewed as an extraordinary writ of
mandamus based upon the nature of the relief requested and that the circuit court lacked
venue and jurisdiction over the action.
After a hearing on both Ms. Burrough's
motion and the Division's motion to dismiss, the circuit court denied the Division's
motion to dismiss, holding that the action was not in the nature of a writ of mandamus,
but rather a demand for review of a denial of due process. With respect to Ms. Burrough's
motion, the circuit court held that "the Department's [Division's] actions in not
mailing it [the revocation notice] to the address provided by the arresting officer when
it had access to the appropriate address, was arbitrary and capricious[.]" The
circuit court ordered the Division to grant Ms. Burrough an administrative hearing within
thirty days of the entry of the order.
III.
Standard of Review
In the Shedd case, the Division filed a
writ of prohibition seeking to prevent the enforcement of the April 7, 1998, order. The
Division contends that the circuit court has no jurisdiction over the case and exceeded
its legitimate powers in issuing the order. We have held that "'[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).
In syllabus point four of
State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the
applicable standard for determining whether to grant a writ of prohibition in cases when a
petitioner asserts that the circuit court has exceeded its legitimate powers:
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.
Id.
In the Burrough case, the circuit court
treated Ms. Burrough's "Motion" as an administrative appeal of a contested case
and the Division chose to appeal the circuit court's final order under West Virginia Code
§ 29A-6-1 (1998)See footnote 5 5 of
the APA.See footnote 6 6 The scope
of judicial review concerning decisions issued by the Division was stated in syllabus
point one, Johnson v. State Department of Motor Vehicles, 173 W.Va. 565, 318 S.E.2d 616
(1984):
"Upon
judicial review of a contested case under the West Virginia Administrative Procedure Act,
Chapter 29A, Article 5, Section 4(g), the circuit court may affirm the order or decision
of the agency or remand the case for further proceedings. The circuit court shall reverse,
vacate or modify the order or decision of the agency if the substantial rights of the
petitioner or petitioners have been prejudiced because the administrative findings,
inferences, conclusions, decisions or order are: (1) In violation of constitutional or
statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the
agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole
record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion." Syllabus Point 2, Shepherdstown Volunteer Fire
Dept. V. West Virginia
Human Rights Comm'n, W.Va., 172 W.Va. 627, 309 S.E.2d. 342 (1983).
The Division has also
alleged that the circuit court misapplied the law in ordering the Division to afford Ms.
Burrough a hearing. "' In reviewing the judgment of the lower court this Court does
not accord special weight to the lower court's conclusions of law, and will reverse the
judgment below when it is based on an incorrect conclusion of law.' Syllabus Point 1,
Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980). Syllabus, Bolton v. Bechtold, 178
W.Va. 556, 363 S.E.2d 241 (1987)." Syl. Pt. 2, State ex rel. Dep't of Motor Vehicles
v. Sanders, 184 W.Va. 55, 399 S.E.2d 455 (1990).
Even though the Shedd case
and the Burrough case followed different procedural routes, they relate to identical
issues, and similarly present an issue of statutory interpretation. Accordingly, the
following standard of review applies: "Where the issue on 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." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194
W.Va. 138, 459 S.E.2d 415 (1995).
IV.
Discussion
The Division contends that the respective
circuit courts incorrectly found that it had a duty to send the initial revocation order
to the respective addresses provided by Mr. Shedd and Ms. Burrough to the arresting
officers. The law is clear that Mr. Shedd and Ms. Burrough had a statutory duty to keep
the Division apprised of their correct addresses. West Virginia Code § 17B-2-13
(1996) requires that an individual holding a driver's license must notify the Division in
writing of a change of address within twenty (20) days after a change to the new address
is made. Specifically, West Virginia Code § 17B-2-13 provides:
Whenever any
person after applying for or receiving a driver's license moves from the address named in
such application or in the license issued to person, or when the name of a licensee is
changed by marriage or otherwise, such person shall within twenty days thereafter notify
the division in writing of the old and new addresses or of such former and new names and
of the number of any license then held by such person on the forms prescribed by the
division.
"The person who holds
a driver's license has the responsibility to notify the Department of a change of address
and the Department has no obligation to seek out those persons who fail to notify the
Division." Davis v. West Virginia Dep't of Motor Vehicles, et al., 187 W.Va. 402,
405, 419 S.E.2d 470, 473 (1992). Accord State ex rel. Dept. of Motor Vehicles v. Sanders,
184 W.Va. 55, 59, 399 S.E.2d 455, 459 (1990) ("the burden is on the licensee to
notify the Department of Motor Vehicles of a change of address"); State ex rel. Mason
v. Roberts, 173 W.Va. 506, 509, 318 S.E.2d 450, 453 (1984) ("the DMV [Division] has
no obligation to track him down").
In the present cases, as
in Davis, both Mr. Shedd and Ms. Burrough maintain that their statement of their new
address to their arresting officers constituted notice to the Division of their change of
address. Neither Mr. Shedd nor Ms. Burrough dispute that they failed to notify the
Division in writing of their address changes, as required by West Virginia Code
§ 17B-2-13. In addition, Mr. Shedd was given actual notice that the Division had
revoked his license on October 11, 1997, when he was stopped for an unrelated traffic
offense. Despite this notice, he took no action until February 26, 1998, when he filed his
petition in circuit court, a delay of more than four months. Ms. Burrough took no action
from the time of her arrest on June 14, 1997, until September 9, 1997, when she filed her
motion in circuit court. Accordingly, we hold today that pursuant to the provisions of
West Virginia Code § 17B-2-13 (1996), an individual who holds a driver's license
issued by the West Virginia Division of Motor Vehicles is required to notify the Division
in writing concerning a change of address within twenty (20) days after a change of
residence on the prescribed form.
The express statutory
requirement that the notification of a change of address be given to the Division on the
forms prescribed by it cannot be ignored. The Division is charged with overseeing
literally hundreds of thousands of drivers' licenses. The legislature clearly recognized
that it would be an administrative nightmare to allow any writing submitted at any time by
an individual or some third party, such as the arresting officer in this case, to suffice
as notification to the Division of the relevant changes dictated by the statute. Thus, a
specific form and time frame were prescribed. Clearly, giving the new address to an
arresting officer at the time that individual is stopped for driving under the influence
or some other traffic violation, as Mr. Shedd and Ms. Burrough did here, does not meet
this statutory requirement.
The law is equally clear that the Division
satisfied the requirements of this State's due process clause by sending the copy of the
revocation orders to both Mr. Shedd and Ms. Burrough by United States mail addressed to
them at their addresses as shown by the Division's records. This Court has held that
"[t]he administrative proceedings for suspension of a driver's license under W.Va.
Code, 17C-5A-1, et seq., do not violate this State's Due Process Clause." Syl. Pt. 3,
Jordan v. Roberts, 161 W.Va. 750, 246 S.E.2d 259 (1978). When the Division receives a
statement from the arresting officer showing a person drove a motor vehicle while under
the influence of alcohol, the Division is required to enter an order revoking his driver's
license. Davis, 187 W.Va at 405, 419 S.E.2d at 473. The Division must send a copy of such
order to that person by mail "addressed to such person at his address as shown by the
records of the department" pursuant to West Virginia Code § 17A-2-19. Id. The
Division does not have a duty to seek out those persons who fail to notify the Division of
their address changes. See Davis, 187 W.Va. at 405, 419 S.E.2d at 473. Because the law is
clear in this jurisdiction, we hold that the West Virginia Division of Motor Vehicles
satisfies the requirements of due process by mailing a copy of a driver's license
revocation or suspension order to an individual whose license to drive is revoked or
suspended, addressed to such individual at the last recorded address shown by the
Division's records.
In the present case, the
Division fulfilled its obligation of giving notice when it sent the initial revocation
order to both Mr. Shedd and Ms. Burrough at the "address as shown by the records of
the department." W.Va. Code § 17A-2-19. Further, Mr. Shedd's and Ms. Burrough's
right to an administrative hearing before the Division to challenge the revocation of
their licenses under West Virginia Code § 17C-5A-2(a) (1996)See footnote 7 7 is predicated upon the filing of a
timely request seeking such hearing. Neither Mr. Shedd nor Ms. Burrough met the statutory
timeliness requirement. Generally, the failure to make a timely request for an
administrative hearing constitutes a waiver of the right to such hearing. State ex rel.
Ruddlesden v. Roberts, 175 W.Va. 161, 332 S.E.2d 122 (1985). In Ruddlesden, we explained
that:
The drunk driving
laws of this State are . . . regulatory and protective, designed to remove violations from
the public highways as quickly as possible. In this context we believe the ten-day
statutory period [in which to request an administrative hearing] should be strictly
applied. The requirement that the motorist respond in a timely fashion is not unduly
burdensome in view of the State's strong interest in promoting public safety and the
importance to the motorist of the driving privilege.
Id. at 164-65, 332 S.E.2d at 126.
The failure of respondents
Shedd and Burrough to request an administrative hearing within the time provided by
statute constituted a waiver of their right to do so and their licenses were properly
revoked. Had Mr. Shedd or Ms. Burrough filed a written request within ten days after
receiving the revocation order, they would have preserved their right to administrative
hearings; and had the Division affirmed the revocation of Mr. Shedd's and Ms. Burrough's
license, then they would have been entitled to judicial review of the decision under the
APA. See W.Va. Code § 17C-5A-2(q).
V.
As an ancillary matter, we address the
argument raised by the Division in both cases that the respective circuit courts
misapprehended the nature of the action before them. The Division correctly contends that
the actions filed by both Mr. Shedd and Ms. Burrough were not administrative appeals of a
final order in a contested case within the meaning of the APA. In the Shedd case, Mr.
Shedd filed a "Petition for Appeal and Supersedeas on Behalf of Appellant"
seeking review of the Division's "decision" denying him the right to an
administrative appeal. Mr. Shedd filed this petition pursuant to the APA and the circuit
court treated it as such. In the Burrough case, Ms. Burrough simply filed a
"Motion" in the circuit court seeking an order that the Division be compelled to
give her a new hearing so that she could challenge the revocation of her driver's license.
Ms. Burrough's motion did not invoke the circuit court's jurisdiction pursuant to the APA;
however, the circuit court assigned the action an administrative appeal number and
proceeded to treat it as an administrative appeal. In both cases, the Division argues that
the actions could not have been brought in the respective circuit courts pursuant to the
APA because the actions did not involve a final order or decision in a contested case.
West Virginia Code § 17C-5A-2(q)
(1996) provides that a person whose license has been revoked or suspended after a hearing
before the Commissioner of the Division, is entitled to judicial review as set forth in
APA. "The rules governing the procedures for denial, suspension, revocation or
nonrenewal of driving privileges are contained in Title 91, Series 5 of the Code of State
Regulations (91 C.S.R. 5)." Carte v. Cline, 200 W.Va. 162, 166, 488 S.E.2d 437, 441
(1997). "91 C.S.R. § 5-7.14 provides judicial review for a licensee whose
driver's license is, or remains suspended after a hearing.See footnote 8 8 " Id.
The APA contemplates a
process whereby a hearing shall be held in a "contested case" for the purposes
of challenging an action of an administrative agency. W.Va. Code § 29A-5-1 (1998).
West Virginia Code § 29A-5-3 (1998) provides that "[e]very final order or
decision rendered by any agency in a contested case shall be in writing or stated in the
record and shall be accompanied by findings of fact and conclusions of law." A party
who is adversely affected by the final order of the administrative agency may seek
appellate review in circuit court within thirty days after the date upon which the party
received notice of the final order. W.Va. Code §§ 29A-5-4(a) and (b) (1998).See footnote 9 9
Appellate review of a
final order of an administrative agency is limited to a "contested case." W.Va.
Code § 29A-5-4(a). West Virginia Code § 29A-1-2(b) (1998) of the APA defines
"contested case" 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. . . ." The rules
governing the procedures for denial, suspension, revocation or nonrenewal of driving
privileges as contained in Title 91, Series 5 of the Code of State Regulations contemplate
that the Commissioner must hold a hearing in a contested case before a person whose
license is being revoked may seek appellate review pursuant to the APA. As there was no
administrative hearing before the Division by the Commissioner, there was no
"contested case" within the meaning of West Virginia Code § 29A-1-2 of the
APA. The Division's initial notice of revocation, which is the only determination and/or
decision made by the Division, does not fall within the statutory definition of a
"contested case" as contemplated by the APA and West Virginia Code
§ 17C-5A-2(q). Further, the respective parties failed to contest the initial
revocation of their driving licenses and failed to make a timely request for an
administrative hearing. As a result, full administrative hearings were never held by the
Division, and final orders, including findings of fact and conclusions of law, were never
issued by the Division.
Thus, 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 extraordinary 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). "The exhaustion of
administrative remedies is a well-established rule in this jurisdiction." Cowie, 173
W.Va. at 67, 312 S.E.2d at 38. "'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)." Syl. Pt. 1, Cowie, 173 W.Va. at
65, 312 S.E.2d at 36.
The Division also argues
that because the Shedd case and the Burrough case were not properly before the circuit
courts as administrative appeals, the nature of the relief requested by both parties was
in the nature of a petition for a writ of mandamus, and that, as such, the respective
circuit courts should have dismissed both actions for lack of jurisdiction and venue. Mr.
Shedd and Ms. Burrough sought and received orders from the circuit courts, which, in
essence, compelled the Division to afford each an administrative hearing. Accordingly,
both actions were more in the nature of a petition for a writ of mandamus rather than a
petition for appeal from a final order in an administrative hearing.See footnote 10 10
West Virginia Code
§ 53-1-2 (1994) provides that "[j]urisdiction 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." In both cases, the Division's records
relating to driver's licenses are maintained at the State Capitol in Charleston, Kanawha
County, West Virginia. There is no question that, in regard to these two cases,
jurisdiction for a writ of mandamus must be brought in the Circuit Court of Kanawha
County. Both actions sought to compel the Division to provide Mr. Shedd and Ms. Burrough
with an administrative hearing to challenge the revocation of their driver's licenses, and
such records are maintained in Kanawha County.
Further, because we have determined that
neither Mr. Shedd's nor Ms. Burrough's actions arose under the APA, the question of venue
is not controlled by the statutory provisions found in the APA, but, rather, by the
provisions of West Virginia Code § 14-2-2 (1995). West Virginia Code
§ 14-2-2(a)(1) specifically provides that "[a]ny suit in which the governor,
any other state officer, or a state agency is made a party defendant" shall be
brought and prosecuted in the Circuit Court of Kanawha County. We recognized in syllabus
point five of State ex rel. West Virginia Board of Education v. Perry, 189 W.Va. 662, 434 S.E.2d 22 (1993) that "'[a]ctions wherein a state agency or official is named,
whether as principal party or third-party defendant, may be brought only in the Circuit
Court of Kanawha County.' Syllabus Point 2, Thomas v. Board of Education, County of
McDowell, 167 W.Va. 911, 280 S.E.2d 816 (1981)." Accordingly, we hold that 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.
Based on the foregoing, in the Shedd case, we grant the writ of prohibition and prevent the enforcement of the order issued by Judge Neil Reed of the Circuit Court of Preston County. In the Burrough case, we reverse the order of the Circuit Court of Hancock County.
No.
25191 -- Writ granted.
No.
25146 -- Reversed.
Footnote: 1 1 That address was Post Office Box 312, Kingwood, West Virginia.
Footnote: 2 2 West Virginia
Code § 17A-2-19 (1996) provides, in pertinent part:
Whenever the department is authorized or required to give any notice under this chapter or other law regulating the
operation of vehicles, unless a different method of giving such notice is otherwise expressly prescribed, such notice shall be given either by personal delivery thereof to the person to be so notified or by deposit in the United States mail of such notice in an envelope with postage prepaid, addressed to such person at his address as shown by the records of the department. The giving of notice by mail is complete upon the expiration of four days after such deposit of said notice.
Footnote: 3 3 Jane L. Cline, the former Commissioner of the Division was the respondent below. Her successor, Joe E. Miller, is the Appellant in the current proceeding.
Footnote: 4 4 That address was Post Office Box 164 C5, Weirton, West Virginia.
Footnote: 5 5 West Virginia Code § 29A-6-1 provides that "[a]ny party adversely affected by the final judgment of the circuit court under this chapter may seek review thereof by appeal to the supreme court of appeals of this state. . . ."
Footnote: 6 6 The Division contends that the circuit court misapprehended the nature of Ms. Burrough's "Motion" and that, in fact, it should not have been considered an administrative appeal of a contested case. This issue is addressed in section V of this opinion.
Footnote: 7 7 West Virginia
Code § 17C-5A-2(a) provides, in part:
Upon
the written request of a person whose license to operate a motor vehicle in this state has
been revoked or suspended under the provisions of section one [§ 17C-5A-1] of this
article or section seven [§ 17C-5-7], article five of this chapter, the commissioner
of motor vehicles shall stay the imposition of the period of revocation or suspension and
afford the person an opportunity to be heard. The written request must be filed with the
commissioner in person or by registered or certified mail, return receipt requested,
within ten days after receipt of a copy of the order of revocation or suspension.
W.Va. Code § 17C-5A-2(a) (emphasis added).
Footnote: 8 8 "Hearing [m]eans the administrative procedures conducted by the Commissioner pursuant to W.Va. Code §§ 17C-5A-1 et seq. and 29A-5-1 et seq. and this section as applied to contested cases arising out of the enforcement of administrative revocations imposed under the provisions of W.Va. Code 17C-5A-1 et seq." 91 W.Va. C.S.R. § 5-14.2.c.
Footnote: 9 9 At the election of the petitioner, a petition for review of a contested case may be filed in the Circuit Court of Kanawha County or in the circuit court of the county in which the petitioner resides or does business. W.Va. Code § 29A-5-4(b).
Footnote: 10 10 "It has been authoritatively stated that the primary purpose or function of a writ of mandamus is to enforce an established right and to enforce a corresponding imperative duty created or imposed by law." State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 572, 136 S.E.2d 783, 785-86 (1964).
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