State ex rel. Frazier v. McGraw
| Decision Date | 02 November 2020 |
| Docket Number | No. 20-0142,20-0142 |
| Citation | 850 S.E.2d 720,243 W.Va. 721 |
| Parties | STATE of West Virginia EX REL. Everett FRAZIER, Commissioner West Virginia Division of Motor Vehicles, Petitioner v. The Honorable Warren R. MCGRAW, Judge of the Circuit Court of Wyoming County, and Dalton Watts, Respondents |
| Court | West Virginia Supreme Court |
Patrick Morrisey, Esq., Attorney General, Janet E. James, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioner.
Lela D. Walker, Esq., Oceana, West Virginia, Counsel for Respondent Watts.
Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles ("DMV"), seeks to prohibit The Honorable Warren R. McGraw, Judge of the Circuit Court of Wyoming County, from enforcing his November 7, 2019, order that stayed the DMV's administrative revocation of the driver's license of Dalton Watts ("Watts") pending appeal to the circuit court. The DMV contends that because there was no contested case in the administrative proceeding, the circuit court did not have jurisdiction. The DMV further contends that the relief sought – granting Watts another administrative hearing – could only be accomplished by seeking extraordinary relief in mandamus against the nonparty Office of Administrative Hearings ("OAH") in Kanawha County. For the reasons stated herein, we agree with the DMV that the Wyoming County Circuit Court had no jurisdiction to hear this matter and issue the stay pending appeal.
On October 25, 2015, Watts was driving his 1985 Chevrolet Blazer on West Virginia Route 10 in Matheny, West Virginia, when he was observed by Wyoming County Deputy Sheriff McKinney to be drifting, straddling the lane line, and swerving. Deputy McKinney initiated a traffic stop and pulled Watts over. Deputy McKinney then administered three field sobriety tests on Watts – the horizontal gaze nystagmus test
, the walk and turn test, and the one leg stand. Watts failed the horizontal gaze nystagmus and walk and turn tests. He was unable to perform the one leg stand. Thereafter, Watts submitted to two separate preliminary breath tests, showing his blood alcohol content to be .081 and .082, respectively. Watts was then transported to the Wyoming County Sheriff's Department where a secondary chemical test was administered. The result of that test showed Watts’ blood alcohol content to be .076, and Deputy McKinney declined to arrest Watts.
Deputy McKinney transmitted his West Virginia DUI Information Sheet to the DMV, which issued an "ORDER OF REVOCATION NOTICE" dated November 5, 2015, noting that Watts’ "driving privileges will be revoked at 12:01 a.m. ET" on December 10, 2015, for a period of one year. In that order, the DMV informed Watts that he "may Petition the [OAH] for a hearing," which Watts timely did.
The administrative hearing was first set for April 5, 2016. During the next three years, the matter was set for hearing a total of sixteen times. At the August 15, 2019, hearing, neither Watts nor his lawyer appeared. Notice of the August 15, 2019, hearing was sent to Watts’ lawyer via email and was also included in the administrative order granting the previous continuance dated July 23, 2019.
Because Watts failed to appear at the hearing, the OAH entered a final order, affirming the Order of Revocation dated November 5, 2015, because an "unexcused failure to appear at [the] administrative hearing is construed as an implicit withdrawal of [the] request for a hearing as well as a waiver of [Watts’] right to contest the suspension and/or revocation." A copy of this final order was sent to Watts, who then went to his lawyer about the missed hearing. Watts’ attorney informed Watts that "he didn't want anything to do with the case anymore." Watts then retained another lawyer who filed the purported appeal in the Wyoming County Circuit Court.
After a hearing, the circuit court, by its November 7, 2019, order, stayed the revocation of Watts’ license pending appeal. Thereafter, the DMV sought this writ to prohibit the circuit court from proceeding, maintaining that the OAH's final order was not appealable because there was no contested case before the OAH. The DMV further argues that Watts’ request for relief below should properly be considered a petition for writ of mandamus against the OAH, which was not a party to the purported appeal. Finally, because a writ of mandamus is only proper in Kanawha County, the DMV argues that the circuit court also lacked jurisdiction to grant any requested relief.1
In State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996), this Court adopted the following standard to be used in granting a writ of prohibition where the circuit court has jurisdiction, but exceeds it:
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, Hoover . However, "[w]hen a court is attempting to proceed in a cause without jurisdiction, prohibition will issue as a matter of right regardless of the existence of other remedies." Syllabus Point 10, Jennings v. McDougle , 83 W. Va. 186, 98 S.E. 162 (1919).
In this matter, the DMV argues that the circuit court did not have jurisdiction to hear an appeal of this matter because the final order was not the result of a "contested case" under the West Virginia Administrative Procedures Act ("the Act"). See W. Va. Code § 29A-5-4 (1998). We agree.
We recently analyzed the term "contested case" under the Act. See State ex rel. Frazier v. Thompson , 243 W. Va. 46, 842 S.E.2d 250 (2020). The facts in Thompson show that one of the drivers therein did not timely appeal the DMV order of revocation to the OAH. See id. , 243 W. Va. at 50, 842 S.E.2d at 254. After the OAH declined to hold a hearing, the driver then filed an appeal in the circuit court. Id. The circuit court entered an ex parte order that it had jurisdiction, required the DMV to provide its administrative file to the court, and temporarily reinstated driving privileges, pending appeal. See id. As in the present case, the DMV in Thompson sought a writ of prohibition in this Court to prohibit the circuit court from enforcing its order. See id.
In Thompson , we discussed our prior cases under the Act and concluded that for a matter to be a contested case, "an administrative agency [must] hold a hearing and issue a decision." Id. , 243 W. Va. at 53, 842 S.E.2d at 257. Thus, where there was no hearing before the OAH, there was no ...
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