Means v. Sidiropolis

Decision Date30 November 1990
Docket NumberNo. 19507,19507
Citation401 S.E.2d 447,184 W.Va. 514
CourtWest Virginia Supreme Court
Parties, 65 Ed. Law Rep. 1309 Michael Allen MEANS v. George T. SIDIROPOLIS, Commr., et al.

Syllabus by the Court.

1. This Court, in its discretion, may decide a case that is technically moot if the issue presented by the case can be repeatedly presented to the trial court yet escape review at the appellate level because of its fleeting and determinate nature.

2. W.Va.Code, 18-8-11 [1988], which conditions a junior operator's license for motor vehicles upon continued school attendance between the ages of sixteen and eighteen unless withdrawal from school is involuntary, is constitutional.

3. When a junior operator's license for motor vehicles is about to be revoked for failure to attend school, notice must be sent to the affected junior operator informing him or her that he or she is entitled to a hearing before the superintendent of schools or his designate, or before the appropriate school official of the secondary private school from which the affected operator has withdrawn.

Christopher S. Butch, Charleston, for Michael Allen Means.

Roger W. Tompkins, Atty. Gen., Bruce Ray Walker, Deputy Atty. Gen., Paul E. Jordan, Asst. Atty. Gen., Charleston, for George T. Sidiropolis, Com'r W. Va. Dept. of Motor Vehicles.

NEELY, Chief Justice:

In this case we are asked to determine the constitutionality of W.Va.Code, 18-8-11 [1988], which denies a driver's license "to any person under the age of eighteen who does not at the time of application present a diploma or other certificate of graduation issued to the person from a secondary high school of this State or any other State, or documentation that the person (1) is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a State approved institutional organization, or has obtained such certificate, (2) is enrolled in a secondary school of this State or any other State, or (3) is excused from such requirement due to circumstances beyond his or her control."

The appellant, Michael Allen Means, appeals from a final order of the Circuit Court of Kanawha County which upheld the suspension of his driver's license. The West Virginia Department of Motor Vehicles suspended the appellant's license because he was under the age of eighteen and had withdrawn from school. Mr. Means, who at the time was over sixteen, left school lawfully under W.Va.Code, 18-8-1 [1990], which provides in part:

"Compulsory school attendance shall begin with the seventh birthday and continue to the sixteenth birthday."

Before his lawful withdrawal from school, Mr. Means had obtained a junior operator's license from the Department of Motor Vehicles. Mr. Means received this license only after meeting the legal requirements for obtaining such a license that are set forth in W.Va.Code, 17B-2-5 [1990], 17B-2-6 [1978] and 17B-2-7 [1981].

Mr. Means has now reached the age of eighteen and is, therefore, outside the provisions of W.Va.Code, 18-8-11 [1988]. Technically, therefore, this case is moot because Mr. Means may now lawfully receive a regular driver's license; however, because this case presents an issue "which may be repeatedly presented to the trial court, yet escape review at the appellate level because of [its] fleeting and determinate nature," Israel v. Secondary Schools Act Com'n, --- W.Va. ----, 388 S.E.2d 480 (1989) we believe the case should not be dismissed for mootness.

I.

On 10 January 1989 the Department of Motor Vehicles' Student Attendance Program sent Mr. Means a "Notice of Suspension." This notice informed Mr. Means that his license was to be suspended effective 11 February 1989 because "[y]ou are under the age of eighteen and have withdrawn either voluntarily or involuntarily from a secondary school," and the notice cited W.Va.Code, 17B-3-6(10) [1989].

Pursuant to the rights of which the notice informed him, Mr. Means filed a request for a hearing on the suspension of his license, which request was received by the Department on 19 January 1989. A hearing was scheduled for 31 January 1989, a date before the effective date of suspension. However, in the same letter sent by the Department to inform Mr. Means of his scheduled hearing, Mr. Means was also informed that the "Commissioner has, on his own motion, postponed this hearing. He will notify you when a hearing date has been scheduled."

The Department finally held a hearing on 21 April 1989, over three months after the Department received the request for a hearing. That hearing was conducted by a hearing examiner appointed by the commissioner and was limited in scope. According to the Notice of Suspension and the final order of the Department, the scope of the hearing was limited to the determination of: (1) whether Mr. Means was under the age of eighteen; and (2) whether Mr. Means had "withdrawn either voluntarily or involuntarily from a secondary school."

On 31 May 1989, more than a month after the hearing, Mr. Means received notice from the DMV that his driver's license was suspended until such time as he reached his eighteenth birthday or until he complied with the provisions of Code, 18-8-11 [1988]. The Commissioner specifically noted that "the law, as contained in W.Va.Code, 18-8-11(d) contemplates that the school superintendent (and those who assist him) be the sole judge of whether a student who has withdrawn from school should be accorded an exemption from complying with the provisions of W.Va.Code 18-8-11." Moreover, the commissioner noted that the law does not confer upon the commissioner appellate jurisdiction over the superintendent and that he, the commissioner, could not consider whether Mr. Means should be excused from compliance with Code, 18-8-11 [1988]. Therefore, the commissioner suspended the appellant's license, effective 2 June 1989.

Mr. Means appealed the final order of the Department to the Circuit Court of Kanawha County, where the circuit court limited the issue before him to whether the restriction imposed by the Commissioner of the Department of Motor Vehicles is reasonable.

The circuit court asked the parties at the initial hearing to brief only the issue of the reasonableness of the school attendance requirement as a condition of the lawful possession of a junior or probationary license. The court specifically excluded the issue of the procedure, or lack thereof, followed by the school board and the school superintendent in concluding that Mr. Means' withdrawal from school was due to circumstances within his control and not due to those beyond his control. After argument, the court found that conditioning the privilege of possessing a junior operator's license on continued enrollment in some form of secondary education is not unconstitutional. The court also found that the appellant's due process rights had not been violated, but, rather, had been protected by the hearing held before the Department's hearing examiner.

II.

We agree with the circuit court that conditioning the privilege of possessing a junior operator's license on continued enrollment in some form of secondary education is not unconstitutional, but we disagree with the circuit court that the hearing mechanism applied in this case was appropriate. In this case the only issue to be determined at the administrative level was whether Mr. Means was "excused from such requirement [i.e. school attendance] due to circumstances beyond his ... control." W.Va.Code, 18-8-11(a) [1988]. Because "the school district superintendent (or the appropriate school official of any private secondary school) with the assistance of the county attendance director and any other staff or school personnel, shall be the sole judge of whether such withdrawal is due to circumstances beyond the control of such person[,]" Code, 18-8-11(d) [1988], the hearing demanded by due process considerations must be held before the superintendent, his designate, or appropriate official of a private secondary school.

III.

The appellant makes a strong case that W.Va.Code, 18-8-11 [1988] is unconstitutional because the means chosen by the legislature (namely forfeiture of a driver's license when a teenager voluntarily leaves school) to effect the legitimate public purpose of encouraging school attendance is not reasonably related to the end sought to be achieved. Thus the appellant argues that if what the legislature wants is mandatory school attendance until the age of eighteen, the appropriate means to achieve that end is to amend W.Va.Code, 18-8-1 [1987] to require compulsory attendance through the age of eighteen.

The appellant also argues that W.Va.Code, 18-8-11 [1988] explicitly recognizes that there will be occasions when withdrawal from school is beyond a student's control, but that in those circumstances the determination of whether the withdrawal is beyond a student's control is left to the uninstructed discretion of school officials. Appellant asserts that the statute gives no guidance to the school system concerning the procedures that should be followed to determine the reasons for withdrawal and that there are no standards set forth in the statute by which a court can measure the reasonableness with which the school officials' discretion is exercised. Indeed, in Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), the U.S. Supreme Court decided that possession of a driver's license constitutes a protectable property interest and that the state's suspension or revocation of a license implicates due process rights.

We disagree with the appellant's contention that adequate guidelines are not set forth in the statute by which to test the exercise of a school official's discretion. The statute provides an exemption for students who withdraw from school for "circumstances beyond their...

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