Petry v. Stump

• Decision Date: 24 May 2006
• Docket Number: No. 32886.,32886.
• Court: West Virginia Supreme Court
• Parties: Harold PETRY, II, Petitioner Below, Appellant, v. F. Douglas STUMP, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellee.

632 S.E.2d 353

Harold PETRY, II, Petitioner Below, Appellant, v. F. Douglas STUMP, Commissioner, West Virginia Division of Motor Vehicles, Respondent Below, Appellee.

No. 32886.

Supreme Court of Appeals of West Virginia.

Submitted May 10, 2006.

Decided May 24, 2006.

Syllabus by the Court

1. "The standard of appellate review of a circuit court's refusal to grant relief through an extraordinary writ of prohibition is de novo." Syllabus point 1, State ex rel. Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001).

2. "A driver's license is a property interest and such interest is entitled to protection under the Due Process Clause of the West Virginia Constitution." Syllabus point 1, Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995).

3. "Under West Virginia Constitution art. III, § 10, which provides that `No person shall be deprived of life, liberty, or property, without due process of law ...,' and under West Virginia Constitution art. III, § 17, which provides that `justice shall be administered without . . . delay,' administrative agencies performing quasi-judicial functions have an affirmative duty to dispose promptly of matters properly submitted." Syllabus point 7, Allen v. State Human Rights Commission, 174 W.Va. 139, 324 S.E.2d 99 (1984).

Carter Zerbe, Charleston, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Janet E. James, Assistant Attorney General, for the Appellee.

PER CURIAM:

Harold Petry, II, (hereinafter referred to as "Mr. Petry"), appeals from an order entered February 10, 2005, by the Circuit Court of Kanawha County. By that order, the circuit court denied Mr. Petry's petition for writ of prohibition and mandamus and application for a stay; wherein, Mr. Petry sought to preclude the Commissioner¹ of the West Virginia Division of Motor Vehicles (hereinafter referred to as the "Commissioner") from conducting a second license revocation hearing. Mr. Petry now appeals the circuit court's denial of the petition for writ of prohibition and mandamus. On appeal, Mr. Petry argues that the Commissioner should be prevented from holding a second hearing on Mr. Petry's license revocation because the lengthy time delay since the first hearing is prejudicial and violates Mr. Petry's due process rights. Based upon the parties' arguments, the record designated for our consideration, and the pertinent authorities, we reverse and remand the decision of the circuit court.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Petry was charged with driving under the influence (hereinafter referred to as "DUI") of alcohol on November 20, 1998. His privilege to drive was revoked by the Commissioner on November 24, 1998. Mr. Petry timely requested an administrative hearing. A hearing was held on February 16, 1999.

On April 23, 2003, the Commissioner revoked Mr. Petry's driver's license for a period of six months. This revocation was not a result of the February 16, 1999, hearing; but rather, was based on an abstract of judgment received from the county magistrate court indicating that Mr. Petry had entered a guilty plea to the offense of DUI.² The order of revocation from the Commissioner, dated April 23, 2003, states that "[y]ou are hereby notified that this Division has received notice from the clerk of the below-named court that you were convicted of the following offense: DUI . . . ." Mr. Petry, however, did not learn of this revocation until Fall 2004 when his employer performed a yearly background check on all of the employees. When Mr. Petry learned of the revocation, he contacted the Commissioner to report that the abstract of judgment had been incorrect. The charge of DUI had been dismissed and Mr. Petry had entered a guilty plea to the offense of reckless driving. Therefore, automatic revocation of his license was improper.

After a corrected abstract of judgment was received, the Commissioner stayed the order of revocation, and set an administrative hearing for March 7, 2005, even though an original hearing was held in the matter on February 16, 1999. The Commissioner has been unable to find the tapes from the original hearing and the evidence introduced during that hearing, which included photographs submitted by Mr. Petry and expert testimony. Mr. Petry filed a writ of prohibition, mandamus and application for stay with the Kanawha County Circuit Court, which was denied and the case was dismissed. Mr. Petry then filed a writ of prohibition, mandamus and application for stay with this Court, which was refused. The appeal period had not expired. Therefore, Mr. Petry filed a petition for appeal with this Court. The case is currently before this Court upon Mr. Petry's filing of a petition for appeal from the circuit court's denial of his extraordinary writ.

II. STANDARD OF REVIEW

The present posture of this case is an appeal from a circuit court's summary denial of a writ of prohibition and mandamus and application for stay. Our case law instructs that a de novo review be applied. "The standard of appellate review of a circuit court's refusal to grant relief through an extraordinary writ of prohibition is de novo." Syl. pt. 1, State ex rel. Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001). This Court has further advised that

[o]ur standard of appellate review of a circuit court's decision to refuse to grant relief through an extraordinary writ of mandamus is de novo. See Syllabus Point

1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995)(granting relief through an extraordinary writ of mandamus is reviewed de novo) and State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

State ex rel. Warner v. Jefferson County Comm'n, 198 W.Va. 667, 671, 482 S.E.2d 652, 656 (1996). Mindful of this applicable standard, we now consider the substantive issues raised herein.

III. DISCUSSION

Mr. Petry asserts that the Commissioner should be precluded from conducting a second hearing on his license revocation because the lengthy time delay since the first hearing is prejudicial and violates his due process rights. Therefore, Mr. Petry asserts that his driver's license should be restored. The Commissioner argues that a hearing was held in 1999; therefore, the Commissioner is bound to make a final determination regarding Mr. Petry's license. Further, the Commissioner argues that Mr. Petry was not prejudiced by the delay.

We have previously recognized the important property interest inherent in driver's licenses when we stated that "[t]here is not much question that in our mobile society the suspension of a driver's license . . . constitutes a serious deprivation." Jordan v. Roberts, 161 W.Va. 750, 756, 246 S.E.2d 259, 262 (1978). Thus, we concluded that a driver's license is a property interest entitled to protection under our Due Process Clause.³ Id., 161 W.Va. at 753, 246 S.E.2d at 261 (citations omitted); see also Syl. pt. 1, Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995) ("A driver's license is a property interest and such interest is entitled to protection under the Due Process Clause of the West Virginia Constitution.").

Due process rights must be considered under our general rules concerning unreasonable delay. As previously explained [u]nder West Virginia Constitution art. III, § 10, which provides that "No person shall be deprived of life, liberty, or property, without due process of law . . . ," and under West Virginia Constitution art. III, § 17, which provides that "justice shall be administered without . . . delay," administrative agencies performing quasi-judicial functions have an affirmative duty to dispose promptly of matters properly submitted.

Syl. pt. 7, Allen v. State Human Rights Comm'n, 174 W.Va. 139, 324 S.E.2d 99 (1984). Some delays are presumptively prejudicial, and if found to be presumptively prejudicial, then the government has the burden to rebut the presumption. "A delay of eleven years . . . is presumptively prejudicial to the defendant and violates his right to due process of law, U.S. Const. Amend. XIV, and W. Va. Const. art. 3, § 10. The presumption is rebuttable by the government." Syl. pt. 1, in part, State ex rel. Leonard v. Hey, ___ W.Va. ___, 269 S.E.2d 394 (1980). See also State ex rel. Cline v. Maxwell, 189 W.Va. 362, 368, 432 S.E.2d 32, 38 (1993) (a six-month delay by the Department is unreasonable, however, that delay, standing alone, is not sufficient to justify the dismissal of the licensees' revocation proceedings); State v. Petrice, 183 W.Va. 695, 700, 398 S.E.2d 521, 526 (1990) (per curiam) (a two and one-half-year delay between arrest and indictment was prima facie excessive). But see Dolin v. Roberts, 173 W.Va. 443, 317 S.E.2d 802 (1984) (a twenty-week delay between a licensee's arrest for DUI and suspension of his license was not "grossly excessive"); Kanawha Valley Transp. Co. v. Public Serv. Comm'n, 159 W.Va. 88, 219 S.E.2d 332 (1975) (a sixteen to twenty-three-month delay between the Public Service Commission's hearing and its decision did not, by itself, justify overturning the PSC's order).

The time delay in this case is so egregious that it rises to the level of being presumptively prejudicial, and the Commissioner has not been able to rebut this presumption. We feel compelled to recognize that this case presents even more flagrant facts that rise to the level of actual prejudice. In Jordan, we set forth requirements to ensure that due process conditions are met in cases involving suspensions of drivers' licenses. Relying on North v. West Virginia Board of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977), cert. denied, 475 U.S. 1020, 106 S.Ct. 1207, 89 L.Ed.2d 320 (1986), this Court in Jordan set forth the following as due process safeguards: "`a formal written notice of charges; sufficient opportunity to prepare to rebut the charges; opportunity to have retained counsel at any hearings on the charges, to confront his accusers, and to present evidence on his own behalf; an unbiased hearing tribunal; and...