State v. Swope

• Decision Date: 25 April 2013
• Docket Number: No. 13–0005.,13–0005.
• Citation: 742 S.E.2d 438,230 W.Va. 750
• Court: West Virginia Supreme Court
• Parties: State of West Virginia ex rel. Commissioner, WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Petitioner v. The Honorable Derek SWOPE, Judge of the Circuit Court of Mercer County and Brandon White, Respondents.

230 W.Va. 750

742 S.E.2d 438

State of West Virginia ex rel. Commissioner, WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Petitioner

v.The Honorable Derek SWOPE, Judge of the Circuit Court of Mercer County and Brandon White, Respondents.

No. 13–0005.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 2013.

Decided April 25, 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.” Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. “When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).

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

R. Thomas Czarnik, Esq., R. Thomas Czarnik & Associates, Princeton, WV, for Brandon White.

PER CURIAM:

This original proceeding is before this Court upon the petition of the Commissioner of the West Virginia Division of Motor Vehicles seeking to prohibit further consideration in the Circuit Court of Mercer County of Brandon White's appeal from the order of the Office of Administrative Hearings upholding the revocation of White's driver's license.

White's license was revoked by the Commissioner in 2011 for driving under the influence of alcohol. Following an unsuccessful challenge before the Office of Administrative Hearings, White filed an appeal in circuit court. In an order entered on December 7, 2012, the circuit court stated that the appeal was timely filed. In addition, the order of the circuit court set forth a briefing schedule and time frame for disposition of the case.

The Commissioner contends that White's appeal was not filed in the circuit court within the thirty day period specified in W.Va.Code, 29A–5–4(b) [1998], of the State Administrative Procedures Act, and that, therefore, the circuit court exceeded its jurisdiction in declaring White's appeal timely.

Upon examination of the petition, the response, the exhibits and the argument of counsel, this Court concludes that White's appeal was not filed within the thirty day period specified in the statute and that, consequently, the Commissioner is entitled to relief in prohibition. Having, thus, exceeded its jurisdiction in declaring the appeal timely, the Circuit Court of Mercer County is prohibited from further consideration of White's appeal from the order of the Office of Administrative Hearings upholding the revocation of his driver's license.

I. Factual and Procedural Background

On May 9, 2011, Brandon White, driving a Ford Escort, rear-ended another vehicle in the City of Princeton, Mercer County. White was arrested at the scene for driving while under the influence of alcohol. W.Va.Code, 17C–5–2 [2010]. His secondary chemical test administered soon thereafter produced a reading of .171% blood alcohol by weight. In June 2011, the Commissioner of the Division of Motor Vehicles entered an order revoking White's license for the offense of driving a motor vehicle in this State while under the influence of alcohol. W.Va.Code, 17C–5A–1 [2008].

White challenged the revocation, and an evidentiary hearing was conducted by the Hearing Examiner for the Office of Administrative Hearings. W.Va.Code, 17C–5C–1 [2010], et seq. On July 25, 2012, a joint administrative order was entered reflecting the decision of the Hearing Examiner and, upon review, the decision of the Chief Hearing Examiner. Both the Hearing Examiner and the Chief Hearing Examiner upheld the Commissioner's order of revocation.¹

Addressing White's right to file an appeal in circuit court from the revocation, the decision of the Chief Hearing Examiner stated:

This Final Order shall become effective after the passage of ten (10) business days from the date of entry thereof, exclusive of the date of entry. Any party aggrieved by this decision may petition for appeal of same in accordance with the provisions of West Virginia Code § 29A–5–4.

The Petitioner is hereby directed to contact the West Virginia Division of Motor Vehicles, Driver Services Division ... to verify the effective date of the license revocation which is the subject of this Order, or concerning any questions related to any fees, procedural requirements or suspension or revocation periods that must be met prior to reinstatement of driving privileges.

The Commissioner of the Division of Motor Vehicles and White agree that White received notice of the July 25, 2012, administrative order by certified mail on July 27, 2012. The Commissioner and White also agree that White filed his appeal in the Circuit Court of Mercer County on September 7, 2012.

The Commissioner, by special appearance, filed a motion to dismiss in circuit court, alleging that White's appeal was untimely because it was not filed within thirty days of July 27, 2012, the date White received notice of the administrative order. The thirty day limit cited by the Commissioner is found in W.Va.Code, 29A–5–4(b) [1998], of the State Administrative Procedures Act. We note, however, that if the ten additional days referred to by the Chief Hearing Examiner of the Office of Administrative Hearings is determinative, then the thirty day appeal period would be counted from August 8, 2012, thereby rendering White's appeal to circuit court timely filed.

On December 7, 2012, the circuit court entered an order concluding that the July 25, 2012, administrative order “did not become final until August 8, 2012.” As a result, the circuit court (1) ruled that the appeal was timely filed, (2) denied the motion to dismiss and (3) set forth a briefing schedule and time frame for disposition of the case.

The Commissioner then filed a petition for a writ of prohibition in this Court. Thereafter, this Court entered an order directing the Circuit Court of Mercer County to show cause why relief in prohibition should not be awarded.

II. Standards of Review

This Court has original jurisdiction in prohibition proceedings pursuant to art. VIII, § 3, of The Constitution of West Virginia. That jurisdiction is recognized in Rule 16 of the Rules of Appellate Procedureand in various statutory provisions. W.Va.Code, 51–1–3 [1923]; W.Va.Code, 53–1–2 [1933]. In considering whether to grant relief in prohibition, this Court stated in the syllabus point of Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925): “The writ of prohibition will issue only in clear cases where the inferior tribunal is proceeding without, or in excess of, jurisdiction.” Syl. pt. 1, State ex rel. Johnson v. Reed, 219 W.Va. 289, 633 S.E.2d 234 (2006).

In the current matter, which concerns whether the circuit court exceeded its jurisdiction, the relevant guidelines are found in State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), syllabus point 4 of which holds:

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 persistentdisregard 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.

Syl. pt. 2, State ex rel. West Virginia National Auto Insurance Company v. Bedell, 223 W.Va. 222, 672 S.E.2d 358 (2008); syl. pt. 2, State ex rel. Isferding v. Canady, 199 W.Va. 209, 483 S.E.2d 555 (1997).

Of course, as an extraordinary remedy invoking the original jurisdiction of this Court, a petition for a writ of prohibition may not be used as a substitute for an appeal. Syl. pt. 1, State ex rel. Gibson v. Hrko, 220 W.Va. 574, 648 S.E.2d 338 (2007). As early as 1873, this Court stated that “a mere error in the proceeding may be ground of appeal or review, but not of prohibition.” Syl. pt. 3, in part, Buskirk v. Judge of Circuit Court, 7 W.Va. 91 (1873).

III. Discussion

A. The Statutory Requirements

The provisions of chapter 17C, articles 5A and 5C, of the West...