State v. Karl

• Citation: 231 W.Va. 65,743 S.E.2d 876
• Decision Date: 17 May 2013
• Docket Number: 12–1224,12–1223.,Nos. 12–1213,s. 12–1213
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, ex rel. Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Petitioner v. Mark A. KARL, Judge of the Circuit Court of Marshall County, Respondent and James Leonard Parker, Party in Interest. State of West Virginia, ex rel. Joe E. Miller, Commissioner, West Virginia Division of Motor Vehicles, Petitioner, v. William S. Thompson, Judge of the Circuit Court of Boone County, Respondent and Patrick White, Party in Interest. State of West Virginia, ex rel. Joe E. Miller, Commissioner, West Virginia Division of Motor Vehicles, Petitioner v. Charles King, Judge of the Circuit Court of Kanawha County, Respondent and Nichole Erwin, Party in Interest.

231 W.Va. 65

743 S.E.2d 876

STATE of West Virginia, ex rel. Joe E. MILLER, Commissioner, West Virginia Division of Motor Vehicles, Petitioner

v.Mark A. KARL, Judge of the Circuit Court of Marshall County, RespondentandJames Leonard Parker, Party in Interest.

State of West Virginia, ex rel. Joe E. Miller, Commissioner, West Virginia Division of Motor Vehicles, Petitioner,

v.William S. Thompson, Judge of the Circuit Court of Boone County, RespondentandPatrick White, Party in Interest.

State of West Virginia, ex rel. Joe E. Miller, Commissioner, West Virginia Division of Motor Vehicles, Petitioner

v.Charles King, Judge of the Circuit Court of Kanawha County, RespondentandNichole Erwin, Party in Interest.

Nos. 12–1213, 12–1224, 12–1223.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 6, 2013.

Decided May 17, 2013.

Syllabus by the Court

1. “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).

2. “Before any stay may be granted in an appeal from a decision of the Commissioner of the Department of Motor Vehicles revoking a driver's license, the circuit court must conduct a hearing where evidence is adduced and, ‘upon the evidence presented,’ must make a finding that there is a substantial probability that the appellant will prevail upon the merits and that he will suffer irreparable harm if a stay is not granted.” Syllabus Point 2, Smith v. Bechtold, 190 W.Va. 315, 438 S.E.2d 347 (1993).

3. A proffer is not sufficient to satisfy the evidentiary requirements of West Virginia Code § 17C–5A–2(s) (2012) for proof of irreparable harm. A stay or supersedeas of the order issued pursuant to West Virginia Code § 17C–5A–2(s) must contain findings of fact and conclusions of law which demonstrate that the circuit court has, upon the testimony or documentary evidence presented, made a finding that the appellant will suffer irreparable harm if the order is not stayed.

4. A stay or supersedeas of the order issued pursuant to W. Va.Code § 17C–5A–2(s) (2012) must contain an express provision limiting the duration to no more than 150 days, although the circuit court is not precluded from issuing consecutive stays for good cause shown.

Patrick Morrisey, Esq., Attorney General, Elaine L. Skorich, Esq., Assistant Attorney General, Charleston, WV, for Petitioner.

Herman D. Lantz, Esq., Lantz Law Offices, Moundsville, WV, for Respondent James Leonard Parker.

Matthew M. Hatfield, Esq., Madison, WV, for Respondent Patrick White.

Paul S. Detch, Esq., Lewisburg, WV, for Respondent Nichole Erwin.

BENJAMIN, Chief Justice:

These consolidated original proceedings are before the Court upon the petitions of the Commissioner of the West Virginia Division of Motor Vehicles who seeks to prohibit the Circuit Courts of Marshall County, Boone County, and Kanawha County from entering orders staying the license revocations of Respondents James Leonard Parker, Patrick White and Nichole Erwin. The Commissioner alleges that the circuit courts exceeded their jurisdiction and violated the requirements of West Virginia § 17C–5A–2(s) (2012)¹ and applicable case law by failing to require the Respondents to present evidence that there was a substantial probability that the Respondents would prevail on the merits and the Respondents would suffer irreparable harm if the orders were not stayed; failing to provide findings of fact and conclusions of law in the orders; and in failing to limit the stays to 150 days. Upon examination of the petitions, the responses, the submitted appendices, and the arguments of counsel, this Court concludes that the stay orders violate the requirements of West Virginia § 17C–5A–2(s) and applicable case law and that, consequently, the Commissioner is entitled to relief in prohibition.

I.FACTUAL AND PROCEDURAL BACKGROUND

James Leonard Parker

The Commissioner revoked the driving privileges of Respondent James Leonard Parker because he was found to have driven under the influence of alcohol (“DUI”).² Mr. Parker filed a Petition for Appeal in the Circuit Court of Marshall County on April 23, 2012, and that appeal is currently pending before the circuit court. Mr. Parker moved for a stay of the revocation, and at the hearing on the motion for stay on June 8, 2012, his counsel proffered the reasons why Mr. Parker would suffer a “substantial hardship” ³ if a stay was not granted, arguing that Mr. Parker would not be able to travel to do the various odd jobs he normally does to make money, that he would not be able to baby-sit his grandchildren on a regular basis, grocery shop, and attend medical appointments without obtaining transportation. Although counsel submitted these proffers to the court, no testimony was taken and no evidence was admitted to the record. The Commissioner argued that Mr. Parker had not met the requirements of West Virginia Code § 17C–5A–2(s) because he had not presented any evidence, other than mere proffer, that there was a substantial probability that he would prevail on the merits and that he would suffer any “irreparable harm” if the order was not stayed.

In granting Mr. Parker's motion for stay at the hearing, the circuit court relied on Mr. Parker's proffers and stated, “Mr. Lantz has indicated there's going to be irreparable harm in that he's not able to do his work, he's not able to get to medical appointments. I, as a matter of course, grant stays.” The Commissioner requested that the stay be self-terminating at 150 days, and the circuit court indicated that it would do so. However, on July 23, 2012, the circuit court entered the order prepared by Mr. Parker's counsel which failed to limit the stay to 150 days and contained no findings by the circuit court. It summarily stated,

Upon hearing the representations of both counsel, the Court does hereby grant the Petitioner's Application for Stay and does Order that the License Revocation entered by the Commissioner of Division of Motor Vehicles on April 9, 2012 is hereby stayed until further order of this Court. Upon receipt of the record from the prior proceedings, the court will review the same and schedule this matter for further proceedings on the Petition for Review.

Patrick White

The Commissioner revoked the driving privileges of Respondent Patrick White on August 10, 2012, because he was found to have driven under the influence of alcohol. Mr. White filed a Petition for Review of Administrative Order in the Circuit Court of Boone County on or about August 16, 2012, which is currently pending. Mr. White moved for a stay of the revocation on August 21, 2012. At the hearing on the motion for stay on August 28, 2012, Mr. White's counsel proffered reasons that Mr. White would suffer irreparable harm if a stay was not granted, arguing that Mr. White is currently enrolled in college and is the married father of minor children for whom he is responsible for transporting to extra-curricular activities in the evening while his wife works as a registered nurse. However, it appears from the record that no testimony was taken and no evidence was admitted to the record. The Commissioner argued that that the requirements of West Virginia Code § 17C–5A–2(s) had not been satisfied because he had not presented any evidence, other than mere proffer, that there was a substantial probability that he would prevail on the merits and that he would suffer any “irreparable harm” if the order was not stayed. However, the circuit court granted the motion for stay without requiring testimony to be taken.

Following the hearing, both parties submitted proposed orders. On September 10, 2012, the circuit court entered the order prepared by Mr. White which did not limit the stay to 150 days. On September 12, 2012, the Commissioner filed a Motion to Vacate Order Granting Temporary Stay on the grounds that the order granting the stay failed to limit the stay to 150 days. The circuit court has taken no action on the Commissioner's pending Motion to Vacate.

Nichole Erwin

The Commissioner revoked the driving privileges of Respondent Nichole Erwin because she was found to have driven under the influence of alcohol (“DUI”). ⁴ Ms. Erwin filed a Petition for Review of Administrative Order in the Circuit Court of Kanawha County on May 16, 2012, which is currently pending. Ms. Erwin moved for a stay of the revocation, and at the hearing on the motion for stay on June 26, 2012, Ms. Erwin failed to appear, but her counsel proffered the reasons why she would suffer irreparable harm if a stay was not granted, arguing that the loss of an automobile driver's license can cause irreparable harm in that it can cause the loss of employment and inconvenience. She further asserted that the inability to drive can cause risks to non-license holders in case of an emergency. However, no testimony was taken and no evidence was admitted to the record. The Commissioner...