State ex rel. Stump v. Johnson

• Citation: 619 S.E.2d 246
• Decision Date: 13 July 2005
• Docket Number: No. 32651.,32651.
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. F. Douglas STUMP, Commissioner West Virginia Division of Motor Vehicles, Petitioner v. The Honorable Gary JOHNSON, in His Official Capacity as Judge of the Twenty-Eighth Judicial Circuit, and Basil H. Bishop, Respondents.

619 S.E.2d 246

STATE ex rel. F. Douglas STUMP, Commissioner West Virginia Division of Motor Vehicles, Petitioner v. The Honorable Gary JOHNSON, in His Official Capacity as Judge of the Twenty-Eighth Judicial Circuit, and Basil H. Bishop, Respondents.

No. 32651.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 2005.

Decided July 7, 2005.

Dissenting Opinion of Justice Starcher July 13, 2005.

Janet E. James, Assistant Attorney General, Charleston, for Petitioner.

Kenneth J. Barnett, P.C., Summersville, for Respondent Basil H. Bishop.

BENJAMIN, Justice:

Petitioner, F. Douglas Stump, Commissioner, West Virginia Division of Motor Vehicles ("Commissioner"), invokes the original jurisdiction of this Court to seek to prohibit the Honorable Gary Johnson, Judge of the Twenty-Eighth Judicial Circuit, and Basil H. Bishop ("Bishop"), from proceeding in a mandamus/prohibition action instituted by Bishop in the Circuit Court of Nicholas County, wherein the State of West Virginia and the Commissioner are named as respondents, and from enforcing an order of the circuit court entered on March 7, 2005, in that action (collectively referred to herein as "circuit court action"). The Commissioner contends that W. Va.Code § 53-1-2 (1933) and W. Va.Code § 14-2-2 (1976) make Kanawha County, not Nicholas County, the proper venue for Bishop's action in that (1) the Commissioner's records of Bishop's driver's license to which his circuit court action relates are in Kanawha County, and (2) the Commissioner, being a state officer, may only be sued in Kanawha County.

Bishop, on the other hand, contends (1) that the records to which his circuit court action relate are his arrest for driving under the influence of alcohol ("DUI"), the ensuing magistrate court proceedings, and a plea-bargain agreement he entered into with the Prosecuting Attorney of Nicholas County, and that all of these records are in Nicholas County; (2) that W. Va.Code § 14-2-2 (1976) applies only to "claims against the state"; (3) that the Commissioner "can not be characterized as a party defendant in [Bishop's circuit court action]"; and (4) that his circuit court action is ancillary to a criminal action over which the circuit court had exclusive jurisdiction and that W. Va.Code § 14-2-2 (1976) applies only to original proceedings against a state official.

The Court has before it the Commissioner's Verified Petition for Writ of Prohibition and accompanying Memorandum of Law in support thereof, Bishop's Response to the petition, and has heard oral argument of counsel for the Commissioner. Bishop did not appear for oral argument. Underlying the specific arguments made by the parties, we observe that the genesis for Bishop's position herein is the aforesaid plea-bargain agreement, the validity of which has not previously been considered. For the reasons stated below and in view of our rulings on the underlying matters which give rise to instant petition, the Court grants the writ of prohibition sought by the Commissioner.

I. FACTS AND PROCEDURAL BACKGROUND

The circuit court action arose out of an administrative revocation by the Commissioner of Bishop's driver's license for a period of six months, and a criminal prosecution in a magistrate court of Bishop, for driving under the influence of alcohol. The administrative revocation proceeded pursuant to the provisions of W. Va.Code § 17C-5A-1(a), (b), and (c) (2004), and the criminal prosecution proceeded pursuant to the provisions of the Rules of Criminal Procedure for the Magistrate Courts of West Virginia.

The Criminal Complaint signed by the arresting officer before a magistrate in Nicholas County represents that on or about September 4, 2004, "[Bishop] was involved in an accident on W. Va. Rt. 41 [in Nicholas County]. [Bishop] ran off the road left and into a ditch. Defendant was staggering all over the road [and] fell over an embankment. A strong smell of alcohol [word unclear] defendants breath. Failed nystagmus test. BAC. 108."

In response to the Statement of Arresting Officer filed with the Commissioner stating that the officer had reasonable grounds to believe that Bishop was driving a motor vehicle while under the influence of alcohol, the Commissioner revoked Bishop's privilege to operate a vehicle in this State for a period of six months from October 22, 2004. Thereafter, the Commissioner, in response to a timely request by Bishop, stayed the imposition of the six-month period of revocation, and afforded him an opportunity to be heard. The Commissioner scheduled an administrative hearing for Bishop on November 16, 2004. Some three weeks before this scheduled hearing, Bishop's attorney, in a letter dated October 21, 2004, to the Division of Motor Vehicles, advised "that we are currently in negotiations with the Nicholas County Prosecuting Attorney's Office regarding a potential plea which may obviate the need to subpoena the arresting officer or the individual or individuals administering the testing or performing the chemical analysis."¹

At the administrative hearing on November 16, 2004, counsel for Bishop advised the hearing examiner of the agreement to a plea bargain in the criminal prosecution. According to Bishop, a part of that agreement was that the arresting officer would not present any evidence at the administrative hearing. In fact, the arresting officer did not present any evidence.

A little more than two months later, the Director of Legal Services of the Division of Motor Vehicles wrote a letter, dated January 28, 2005, to Bishop advising that "[t]he agreement [apparently referring to the claimed plea bargain agreement] proposed at the previous hearing was not accepted." The letter notified Bishop that "[a] hearing regarding the suspension of your driver's license has been rescheduled for March 09, 2005, at 10:00 AM, at the Division of Motor Vehicles, 295 Skidmore Lane, Sutton, WV." As a result of Bishop's subsequent circuit court action below, an order was entered on March 7, 2005, staying the rescheduled hearing set for March 9, 2005, pending further proceedings in that action. On March 24, 2005, the Commissioner filed the instant petition with this Court.

In his response to the Commissioner's Petition for a Writ of Prohibition, Bishop represents that "[a]t that time [presumably November, 22, 2004] your Petitioner, the State of West Virginia, by an assistant prosecuting attorney, offered Mr. Bishop a plea bargain, whereby Mr. Bishop would plead guilty to the charge of DUI, first offense. In return, the arresting officer would not present evidence at the DMV revocation hearing. The arresting officer, Henry A. Spinks, concurred with the plea offer. Mr. Bishop accepted the plea offer and then entered into a valid and binding plea bargain agreement with your Petitioner, State of West Virginia."² Later in that same response, Bishop admits that "[o]n November 22, 2004, [he] entered a plea to the underlying charge of DUIA, first offense, in Nicholas County Magistrate Court." A conviction followed, and Bishop was sentenced to a day in jail, a fine and costs. Notwithstanding the representation of Bishop's counsel that a part of the plea agreement was that Bishop "would plead guilty to the charge of DUIA, first offense," the record before us shows that Bishop "plead . . . no contest."

The circuit court action below which is at the heart of the issue before us sought to stop the administrative license revocation hearing. It was filed by Bishop on or about February 24, 2005, and consisted of (1) a Petition for a Writ of Mandamus filed with the Circuit Court of Nicholas County seeking (a) to compel the State to abide by the terms of the claimed plea-bargain agreement between it, as represented by the Nicholas County Prosecuting Attorney, and Bishop in Bishop's criminal prosecution (whereby Bishop claimed that the State agreed that the law-enforcement officer who arrested Bishop for DUI would not testify in the administrative license revocation hearing), and (b) to order the Commissioner to enter an order based only upon the November 16, 2004, administrative hearing (at which hearing the arresting officer refused to provide evidence of the arrest) without any further proceedings or hearing; and (2) for a Writ of Prohibition to (a) prohibit the Commissioner from proceeding with the rescheduled hearing set for March 9, 2005, and to (b) prohibit the Commissioner enforcing the earlier revocation of Bishop's driver's license until a court determination could be made and all appeals exhausted. As set forth above, the circuit court entered an order on March 7, 2005, staying the Commissioner's rescheduled hearing set for March 9, 2005.

The Commissioner now asks this Court to issue a writ prohibiting the circuit court and Bishop from proceeding with the circuit court action and prohibiting the circuit court from enforcing the March 7, 2005, order on the ground that Kanawha County, rather than Nicholas County, is the proper venue for that action.

II. STANDARD OF REVIEW

"`The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction.' Syl. State ex rel. Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925)." Syl. Pt. 1, State ex rel. Brison v. Kaufman, 213 W.Va. 624, 584 S.E.2d 480 (2003). In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition:

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)...