State ex rel. Cicchirillo v. Alsop

• Decision Date: 07 April 2006
• Docket Number: No. 32876.,32876.
• Citation: 629 S.E.2d 733
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Joseph CICCHIRILLO, Commissioner, West Virginia Division of Motor Vehicles, Petitioner v. The Honorable Jack ALSOP, Judge of the Circuit Court of Braxton County; Lonnie D. Rose and Rita M. Tonkin, Respondents.

Page 733

629 S.E.2d 733

STATE of West Virginia ex rel. Joseph CICCHIRILLO, Commissioner, West Virginia Division of Motor Vehicles, Petitioner v. The Honorable Jack ALSOP, Judge of the Circuit Court of Braxton County; Lonnie D. Rose and Rita M. Tonkin, Respondents.

No. 32876.

Supreme Court of Appeals of West Virginia.

Submitted: January 24, 2006.

Decided: April 7, 2006.

Syllabus by the Court

1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1." Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

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." Syllabus Point 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[s] 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 V.F.D. v. W.Va. Human Rights, 172 W.Va. 627, 309 S.E.2d 342 (1983).

4. In a circuit court's final disposition of an administrative appeal pursuant to W.Va.Code § 29A-5-4 (1998) of the Administrative Procedures Act, the circuit court is not authorized to order a State administrative agency to cease the use of certain procedures and to direct the State agency to draft and implement new procedures which are subject to the circuit court's review.

Darrell V. McGraw, Jr., Esq., Attorney General, Janet E. James, Esq., Assistant Attorney

General, Charleston, for Joseph Cicchirillo, Commissioner, Division of Motor Vehicles.

Howard J. Blyler, Esq., Cowen, for Honorable Jack Alsop, Judge of the Fourteenth Judicial Circuit.

MAYNARD, Justice.

Petitioner Joseph Cicchirillo, Commissioner of the West Virginia Division of Motor Vehicles (hereafter "the Commissioner"), seeks a writ of prohibition to prevent the enforcement of a portion of the July 5, 2005, final order of Respondent, the Honorable Jack Alsop, Judge of the Fourteenth Judicial Circuit, that ordered the Commissioner to cease the use of certain procedures in license revocation proceedings and directed the Commissioner to draft new procedures which are subject to the circuit court's review. For the reasons that follow, we grant the writ of prohibition.

I. FACTS

The Commissioner revoked the licenses of Respondents Rita Tonkin and Lonnie D. Rose for driving under the influence of alcohol (hereafter "DUI"). Ms. Tonkin, a resident of Gilmer County, and Mr. Rose, a resident of Braxton County, filed petitions for appeal in the circuit courts of their respective counties. The appeals were heard by Judge Jack Alsop, Judge of the Fourteenth Judicial Circuit which includes both Braxton and Gilmer Counties.¹

In the hearing before the circuit court, Ramona Ward, the hearing examiner in both Mr. Rose's and Ms. Tonkin's administrative hearings, testified that she prepared recommended orders dismissing both Mr. Rose's and Ms. Tonkin's cases due to insufficient evidence to warrant license revocations. John T. Bonham, II, Assistant General Counsel to the Division of Motor Vehicles (hereafter "DMV"), testified that he reviewed Ms. Ward's recommended orders before they were seen by the Commissioner. According to Mr. Bonham, he believed that Ms. Ward's recommended orders were incorrect, in that she did not properly consider the totality of the evidence, and that the facts in the record supported the revocation of Mr. Rose's and Ms. Tonkin's licenses. Accordingly, Mr. Bonham redrafted the recommended orders to propose that Mr. Rose's and Ms. Tonkin's licenses be revoked. The Commissioner thereafter accepted Mr. Bonham's recommended orders and revoked the licenses of Mr. Rose and Ms. Tonkin.

In its July 5, 2005, order, the circuit court found that the procedures used by the DMV wherein staff employees substitute their findings for those of the hearing examiner assigned to the case are without statutory authority and thus denied the parties their due process rights. The circuit court therefore reversed Mr. Rose's and Ms. Tonkin's license revocations. Further, the court ordered that,

3) The Commissioner shall forthwith cease and desist the unconstitutional procedures currently being implemented in revocation of license proceedings, as defined herein.

4) In accordance with the principles enunciated herein, the Commissioner shall draft rules and regulations, requiring the hearing examiner's recommendations to be signed and submitted to the Commissioner for his consideration.

5) Any decision by the Commissioner to modify, vacate, reverse, or reject, the hearing examiner's recommendations shall set forth written findings, to allow a meaningful appellate review.

6) This Court retains jurisdiction to review the proposed regulations which shall be submitted within ninety (90) days to this Court.

In his petition for a writ of prohibition, the Commissioner does not challenge the circuit court's conclusion that the practice of permitting staff personnel to substitute their judgment for that of the hearing examiner violates Mr. Rose's and Ms. Tonkin's due process rights or the circuit court's reversal of Mr. Rose's and Ms. Tonkin's license revocations. Rather, he seeks to prevent the enforcement of the circuit court's directives set forth in paragraphs three through six above.² We granted a rule to show cause. For the reasons that follow, we now grant the writ.

II. STANDARD OF REVIEW

Concerning the standard of review applicable to a writ of prohibition, this Court has explained that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53-1-1." Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). "The writ [of prohibition] lies as a matter of right whenever the inferior court (a) has not jurisdiction or (b) has jurisdiction but exceeds its legitimate powers and it matters not if the aggrieved party has some other remedy adequate or inadequate." State ex rel. Valley Distributors, Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969).³ Further,

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.

Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these standards to guide us, we now determine the propriety of granting a writ of prohibition in the instant case.

III. DISCUSSION

In support of his petition for a writ of prohibition, the Commissioner asserts that the circuit court exceeded the legitimate scope of its authority in reviewing contested cases under the Administrative Procedures Act as set forth in W.Va.Code § 29A-5-4 (1998). He also avers that the circuit court's final order violates this Court's separation of powers doctrine.⁴ Respondent circuit court replies essentially that having found that the DMV's procedures...