Johnson v. State Dept. of Motor Vehicles

• Decision Date: 26 June 1984
• Docket Number: No. 15915,15915
• Citation: 173 W.Va. 565,318 S.E.2d 616
• Court: West Virginia Supreme Court
• Parties: Jack M. JOHNSON v. STATE of West Virginia DEPARTMENT OF MOTOR VEHICLES, et al.

Page 616

318 S.E.2d 616

173 W.Va. 565

Jack M. JOHNSON v. STATE of West Virginia DEPARTMENT OF MOTOR VEHICLES, et al.

No. 15915.

Supreme Court of Appeals of West Virginia.

June 26, 1984.

Syllabus by the Court

1. "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., 309 S.E.2d 342 (1983).

2. "The mere delay in the disposition or decision of a case does not vitiate the order or judgment. If a decision is unduly delayed, a proceeding in mandamus may be instituted to compel a decision but not how to decide." Syllabus Point 2, Kanawha Valley Transportation Co. v. Public Service Comm'n, 159 W.Va. 88, 219 S.E.2d 332 (1975).

3. "Ordinarily, an objection to any incompetent, improper or hearsay evidence should have been made at a trial or hearing before the admission of any such evidence can be later urged as error on appeal." Syllabus Point 1, Evans v. State Compensation Director, 150 W.Va. 161, 144 S.E.2d 663 (1965).

Spilman, Thomas, Barrle & Klostermeyer, Charleston, for appellant.

H. Bradley Russell, Asst. Atty. Gen., Charleston, for appellees.

PER CURIAM:

This appeal is brought by the West Virginia Department of Motor Vehicles and its Commissioner, Virginia L. Roberts, from a final order of the Circuit Court of Kanawha County, entered January 6, 1983. The circuit reversed and vacated the Commission's order suspending the driver's license of the appellee, Jack M. Johnson. The Commissioner contends that the circuit court exceeded its authority to review contested cases under the West Virginia Administrative Procedure Act, W.Va.Code § 29A-5-4 (1980 Replacement Vol.), and that the order of reversal is, therefore, clearly wrong. We agree and we reverse the judgment of the circuit court.

At approximately 1:30 a.m. on November 13, 1981, Trooper R.L. Seacrist and Trooper R.G. Blevins of the West Virginia Department of Public Safety observed a motor vehicle traveling eastward on Interstate 64 in Kanawha County veer across four lanes of traffic in a manner which suggested loss of control of the vehicle. After the vehicle came to a stop on the berm of an access ramp, the officers approached and asked the appellee, who was seated on the driver's side of the vehicle, to get out. At that time Trooper Seacrist detected a strong odor of alcohol and observed that the appellee was swaying and holding onto the vehicle for support. Trooper Seacrist then asked the appellee to walk a straight line and subsequently arrested him on a charge of driving while under the influence of alcohol. A passenger in the vehicle was also arrested, and both she and the appellee were taken to the South Charleston State Police Detachment.

At the detachment offices, the appellee was given a breathalyzer test, the results of which indicated an alcoholic concentration in his blood of eighteen hundredths of one percent (.18) by weight. Trooper Seacrist, as the arresting officer, completed an affidavit reciting the details of the appellee's arrest, as required by W.Va.Code § 17C-5A-1(b) [1981], ¹ and mailed it, along with the results of the breath analysis, to the West Virginia Department of Motor Vehicles (hereinafter, the Department).

By letter dated November 28, 1982, the Department notified the appellee of the temporary suspension of his license to operate a motor vehicle on the ground that "[y]ou drove a motor vehicle in this state while having an alcoholic concentration in your blood of ten hundredths of one percent (.10) or more by weight." The appellee filed a timely request for a hearing and was permitted to retain his driver's license pending the outcome.

On March 16, 1982, a hearing examiner for the Department conducted a hearing at which Trooper Seacrist, Trooper Blevins, the appellee and the passenger in the vehicle testified. On August 16, 1982, the Commissioner entered a final order suspending the appellee's driver's license for a period of six months, subject to reinstatement after thirty days upon successful completion of the Department's safety and treatment program.

The appellee appealed the Commissioner's order to the Circuit Court of Kanawha County pursuant to the provisions of W.Va.Code § 29A-5-4, and obtained a stay of enforcement of the license suspension. By order entered January 6, 1983, the circuit court reversed and vacated the Commissioner's order. The court made no findings of fact or conclusions of law, but adopted and incorporated by reference the facts and legal arguments contained in the appellee's memorandum of law. ² It is from this order that the Department and the Commissioner now appeal.

The issue raised on appeal is whether the circuit court exceeded its statutory authority to review the decisions of administrative agencies under the West Virginia Administrative Procedure Act. The scope of judicial review of administrative adjudications in contested cases is controlled by W.Va.Code § 29A-5-4, which provides, in pertinent part:

(g) The court may affirm the order or decision of the agency or remand the case for further proceedings. It 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.

This provision clearly predicates the circuit court's authority to reverse an administrative order upon a showing, by the party seeking review, of prejudice to his substantial rights as a result of one or more of the statutorily enumerated grounds. Absent such a showing, the reviewing court has no statutory authority to reverse an order or decision of an administrative agency in a contested case. Shepherdstown Volunteer Fire Dept. v. West Virginia Human Rights Comm'n, W.Va., 309 S.E.2d 342 (1983).

The first assignment of error presented to the circuit court was that the Commissioner acted in excess of her statutory authority in ordering two continuances of the license suspension hearing. The record shows that the hearing was originally set for December 23, 1981, but that the appellee was twice notified by the Department that the matter had been postponed "due to circumstances beyond our control." In all there was a lapse of approximately four months between the original hearing date and the day the hearing was in fact conducted.

W.Va.Code § 17C-5A-2(b) provides that a license suspension hearing "shall be held within twenty days after the date upon which the commissioner received the timely written request therefor, unless there is a postponement or continuance. The Commissioner may postpone or continue any hearing on his own motion, or upon application for each person for good cause shown." The appellee contends that this provision requires the Commissioner to make a showing of good cause as a precondition of asserting her statutory authority to order a continuance of a license suspension hearing, a requirement that was not satisfied by the Commissioner's statement of reasons in this case. The Commissioner contends that the "good cause" provision is not applicable to her and that she is not required to articulate on the record any reason for her decision to order a continuance.

We need not resolve this conflict in statutory interpretation for two reasons. First, there is no evidence of record which indicates that the appellee voiced any objection to the continuances ordered. In State v. Scritchfield, W.Va., 280 S.E.2d 315, 322 (1981), this Court held that any error associated with a delay in a final child custody hearing was waived by the parent's failure to object to continuances granted. Similarly, in Syllabus Point 2 of Kanawha Valley Transportation Co. v. Public Service Comm'n, 159 W.Va. 88, 219 S.E.2d 332 (1975), this Court stated, "The mere delay in the disposition or decision of a case does not vitiate the order or judgment. If a decision is unduly delayed, a proceeding in mandamus may be instituted to compel a decision but not how to decide." In the present action, the appellee neither objected to the continuances ordered nor attempted to hasten the proceedings through mandamus or otherwise.

Second, there has been no showing of prejudice which would warrant reversal of the Commissioner's order. As we have already noted, absent a showing of prejudice to the substantial rights of the petitioner for review, a circuit court has no authority under W.Va.Code § 29A-5-4(g) to reverse an agency decision in a contested case. Shepherdstown Volunteer Fire Dept. v. West Virginia Human Rights Comm'n, supra. There has been no such showing in this case. The...