Miller v. Moredock

• Decision Date: 17 November 2011
• Docket Number: No. 11–0081.,11–0081.
• Citation: 726 S.E.2d 34,229 W.Va. 66
• Court: West Virginia Supreme Court
• Parties: Joe E. MILLER, Commissioner of the Department of Motor Vehicles, Respondent Below, Petitioner v. John MOREDOCK, Petitioner Below, Respondent.

229 W.Va. 66

726 S.E.2d 34

Joe E. MILLER, Commissioner of the Department of Motor Vehicles, Respondent Below, Petitioner

v.John MOREDOCK, Petitioner Below, Respondent.

No. 11–0081.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 2011.

Decided Nov. 17, 2011.

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, 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).” Syl. Pt. 3, State ex rel. Miller v. Reed, 203 W.Va. 673, 510 S.E.2d 507 (1998).

2. “ ‘ “ ‘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).” Syl. Pt. 4, State ex rel. Miller v. Reed, 203 W.Va. 673, 510 S.E.2d 507 (1998).

3. “In cases where the circuit court has amended the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.” Syl. Pt. 2, Muscatell v. Cline, 196 W.Va. 588, 474 S.E.2d 518 (1996).

4. “ ‘[A]dministrative agencies performing quasi-judicial functions have an affirmative duty to dispose promptly of matters properly submitted.’ Syl. Pt. 7, in part, Allen v. State, Human Rights Comm'n, 174 W.Va. 139, 324 S.E.2d 99 (1984).” Syl. Pt. 2, Frantz v. Palmer, 211 W.Va. 188, 564 S.E.2d 398 (2001).

5. On appeal to the circuit court from an order revoking a party's license to operate a motor vehicle in this State, when the party asserts that his constitutional right to due process has been violated by a delay in the issuance of the revocation order by the Commissioner of the Division of Motor Vehicles, he must demonstrate that he has suffered actual and substantial prejudice as a result of the delay. Once actual and substantial prejudice from the delay has been proven, the circuit court must then balance the resulting prejudice against the reasons for the delay.

Janet James, Office of the Attorney General, Charleston, WV, for Petitioner.

Carter Zerbe, David Pence, Charleston, WV, for Respondent.

McHUGH, J.:

The West Virginia Division of Motor Vehicles (“DMV”), through its Commissioner, Joe E. Miller, appeals a final order entered August 9, 2010, in the Circuit Court of Kanawha County, in which the circuit court reversed the Commissioner's order revoking the driver's license of Appellee John Moredock for a period of six months. The Commissioner argues that the circuit court committed error in concluding that Appellee's due process rights were violated by the Commissioner's delay in issuing the revocation order following the administrative hearing.

Upon careful consideration of the arguments of the parties and the applicable legal authority, and the for the reasons discussed below, we reverse the order of the circuit court.

I. Factual and Procedural Background

The relevant facts of this case are not in dispute. On September 29, 2007, Appellee was arrested for driving under the influence of alcohol (“DUI”) after the vehicle he was driving collided head-on with another vehicle on Cantley Drive in Kanawha County, West Virginia. On October 10, 2007, the Division of Motor Vehicles (“DMV”)issued an Order of Revocation, revoking for two years Appellee's privilege to operate a motor vehicle in West Virginia. The effective date of the order was November 14, 2007. Appellee timely filed a request for an administrative hearing.

A hearing was scheduled for February 20, 2008; however, the hearing date was continued at the request of the hearing examiner and without objection by Appellee. The hearing was conducted on the rescheduled date of May 6, 2008.

By Final Order dated October 13, 2009, the Commissioner adopted the findings and conclusions of the hearing examiner and ordered that Appellee's privilege to drive a motor vehicle be revoked for a period of six months,¹ effective November 20, 2009.² The hearing examiner found that the arresting officer detected the odor of alcoholic beverage on Appellee's breath and person; observed glassy eyes; noted his speech to be slurred; and observed him to be walking and standing unsteadily. Appellee admitted to the arresting officer that he had consumed alcoholic beverages. The hearing examiner also found that Appellee began the walk-and-turn test before the officer finished the instructions, “did not touch in a heel-to-toe manner, used his arms for balance, and lost his balance while turning, almost falling.” The evidence concluded further that, “[w]hile performing the one-leg stand test, [Appellee] swayed while balancing and hopped ....also ... [Appellee] started before he had completed his instructions, almost fell, and miscounted during his test.” (FOF 10) Appellee's blood alcohol concentration level was .172. Appellee offered no evidence to rebut the evidence submitted to the hearing examiner.

Thereafter, Appellee filed a motion to stay the revocation order in the Circuit Court of Kanawha County, arguing that the seventeen-month delay between the administrative hearing and entry of the final order revoking his driver's license violated his procedural due process rights.³ Appellee argued that there was more than a substantial probability he would prevail on the merits of the appeal and further, that he would suffer irreparable harm if a stay was not granted. SeeW.Va.Code § 17C–5A–2(s) (2010). By order entered November 18, 2009, the circuit court granted Appellee's motion, ordering a stay of the revocation of Appellee's driver's license for one hundred and fifty days. A subsequent Order Granting Stay was entered on April 8, 2010, staying the order of revocation for an additional one hundred and fifty days pending the outcome of Appellee's appeal.

Appellee appealed the revocation order to the circuit court. In a Final Order entered August 9, 2010, the circuit court recognized that a driver's license is a property interest and as such, is entitled to due process protection. The circuit court indicated that one element of due process, among other things, is the timely resolution of appeals and that, accordingly, “delays that prejudice a litigant violate due process.” Citing State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va. 1980),⁴ the circuit further indicated that “delays can be presumptively prejudicial[,]” although “ ‘the presumption is rebuttable by the government.’ ” ⁵Hey, at syl. pt. 1, 269 S.E.2d at 394. The circuit court determined, inter alia, that the “length of the delay in this case is extraordinary, over 17 months between the hearing and final order and over two years between the request for hearing and final order.... Not resolving Mr. Moredock's case in a timely manner is exacerbated by the DMV's failure to provide a reasonable justification for the delay.” The circuit court concluded that the “excessive delay” violated Appellee's due process rights and, thus, reversed the revocation order. It is from this order that the Commissioner now appeals.

II. Standard of Review

At issue in this appeal is whether the circuit court committed error in reversing the revocation order entered by the Commissioner. Judicial review of an order of the Commissioner is conducted pursuant to the contest cases provision of West Virginia's Administrative Procedures Act, W.Va.Code § 29A–5–4(g) (1998). As we held in syllabus point three of State ex rel. Miller v. Reed, 203 W.Va. 673, 676, 510 S.E.2d 507, 510 (1998),

“ ‘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).

In this case, the...