Steven O. Dale, Acting Comm. W. Va. DMV v. Jimmie J. Sizemore II , 234 W. Va. 421 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2014 Term
FILED
November 3, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0837 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STEVEN O. DALE, ACTING COMMISSIONER,
WEST VIRGINIA DIVISION OF MOTOR VEHICLES,
Respondent Below, Petitioner
v.
JIMMIE J. SIZEMORE II,
Petitioner Below, Respondent
Appeal from the Circuit Court of Kanawha County
Honorable Jennifer F. Bailey, Judge
Civil Action No. 11-MISC-153
REVERSED
Submitted: October 14, 2014
Filed: November 3, 2014
Patrick Morrisey, Esq. Michael K. Wallace, Esq.
Attorney General South Charleston, West Virginia
Elaine L. Skorich, Esq. Attorney for Respondent
Assistant Attorney General
Charleston, West Virginia
Attorneys for Petitioner
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The standard of appellate review of a circuit court’s order granting relief
through the extraordinary writ of prohibition is de novo.” Syl. Pt. 1, Martin v. W.Va. Div. of
Labor Contracting Licensing Bd., 199 W.Va. 613, 486 S.E.2d 782 (1997).
2. “Pursuant to West Virginia Code § 17C-5A-2(c) (2008), the Commissioner
of the DMV has authority to continue an administrative license revocation hearing on his or
her own motion when an investigative officer, despite a validly issued subpoena, fails to
appear at the hearing and fails to seek an emergency continuance. Good cause for the
continuance exists by virtue of the statutory duty imposed on the Commissioner to secure the
officer’s attendance at the hearing under West Virginia Code § 17C-5A-2(d) (2008) once the
licensee has specifically requested the officer’s attendance at the revocation proceeding.”
Syl. Pt. 2, Miller v. Hare, 227 W.Va. 337, 708 S.E.2d 531 (2011).
3. “‘Prohibition lies only to restrain inferior courts from proceeding[] in causes
over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding
their legitimate powers, and may not be used as a substitute for [a petition for appeal] or
certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).” Syl. Pt.
3, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
LOUGHRY, Justice
The petitioner, Steven O. Dale, Acting Commissioner of the West Virginia
Division of Motor Vehicles (“Commissioner”), appeals the October 3, 2013, order of the
Circuit Court of Kanawha County granting a writ of prohibition requested by the respondent,
Jimmie J. Sizemore II. Through that order, the circuit court prohibited the Commissioner
from conducting a second day of an administrative hearing regarding the revocation of Mr.
Sizemore’s driver’s license.
Upon consideration of the parties’ briefs and arguments, the appendix record
submitted on appeal, and the pertinent legal authorities, including Miller v. Hare, 227 W.Va.
337, 708 S.E.2d 531 (2011), we conclude that the Commissioner had the authority to
schedule and conduct a second day of the administrative hearing. Accordingly, we reverse
the circuit court’s October 3, 2013, prohibition order.
I. Factual and Procedural Background
On February 24, 2009, Mr. Sizemore was arrested for first offense driving
under the influence of alcohol (“DUI”). The arresting officer, Sergeant R. L. Foster of the
Nitro Police Department, completed and forwarded a West Virginia DUI Information Sheet
to the Division of Motor Vehicles (“DMV”). On March 26, 2009, the Commissioner entered
an initial order revoking Mr. Sizemore’s driver’s license on the grounds of DUI and refusal
1
to submit to a secondary chemical breath test. See W.Va. Code § 17C-5A-1 (2008)
(providing for license revocation for DUI or refusal to submit to secondary chemical test);
W.Va. Code § 17C-5-7 (2008) (providing for license revocation for refusal to submit to
secondary chemical test). Mr. Sizemore timely requested an administrative hearing before
the DMV to challenge the initial order, thereby staying the revocation of his license.1
When seeking the administrative hearing, Mr. Sizemore checked a box on the
DMV-provided form to indicate that he also requested the police officer’s attendance at the
hearing. In addition, Mr. Sizemore’s lawyer, Michael K. Wallace, sent a letter to the DMV
seeking the officer’s attendance at the administrative hearing for purposes of cross-
examination. The administrative hearing was initially scheduled for July 31, 2009, but was
thereafter continued on two separate occasions at Mr. Wallace’s request. A hearing was
ultimately set for August 5, 2010.
Complying with Mr. Sizemore’s written demands for the arresting officer’s
presence at the administrative hearing, the Commissioner issued and served a subpoena on
Sergeant Foster commanding him to appear and testify at the August 5, 2010, hearing.
1
Pursuant to West Virginia Code § 17C-5A-2(a) (2008), the Commissioner, upon
receipt of the timely request for an administrative hearing, was required to stay the initial
revocation order.
2
However, despite the subpoena, Sergeant Foster failed to attend the hearing.2 Mr. Sizemore
declined to waive the officer’s attendance and moved for a dismissal of the revocation order
and the proceedings. The DMV hearing examiner either denied or refused to rule upon the
motion to dismiss.3 After accepting Mr. Sizemore’s testimony and evidence, the hearing
examiner adjourned, but did not conclude, the hearing.
By notice dated November 23, 2010, the Commissioner sua sponte scheduled
the license revocation matter for a further hearing to be held on March 31, 2011. On March
30, 2011, Mr. Sizemore filed a petition for a writ of prohibition and an application for stay
in the Circuit Court of Kanawha County. Citing the arresting officer’s failure to appear on
August 5, 2010, Mr. Sizemore sought to prohibit the DMV from conducting a second day of
the hearing. Mr. Sizemore asserted that Sergeant Foster had made an untimely request for
a continuance of the August 5, 2010, hearing, which the DMV denied.4 Mr. Sizemore argued
2
In an internal memorandum, the DMV hearing examiner stated that he was unaware
of any continuance that may have been requested by, or granted to, Sergeant Foster.
Subsequently, the Commissioner admitted that Sergeant Foster did request a continuance of
the August 5, 2010, hearing, but that request was denied.
3
Because the parties did not include the entire record of the August 5, 2010, hearing
in the appendix record, we are unable to clarify the exact nature of the hearing examiner’s
ruling.
4
The respondent has proffered that Sergeant Foster missed the August 5, 2010, hearing
because he was on a hunting trip. During a hearing held before the circuit court on March
26, 2013, Mr. Wallace verbally proffered additional facts about the officer’s request for a
continuance. Mr. Wallace indicated that the officer telephoned the DMV prior to the hearing
(continued...)
3
that if a driver fails to attend a DMV hearing his driver’s license is automatically revoked;
therefore, it is unfair and contrary to the DMV’s rules to allow the State an additional
opportunity to present evidence when the arresting officer fails to attend.
On the same day the petition for writ of prohibition was filed, the circuit court
issued a rule to show cause order and granted an ex parte stay of the administrative
proceedings. The Commissioner filed an answer on April 19, 2011, asserting that he had the
statutory authority to continue the administrative hearing on his own motion because the
officer failed to appear as required by the validly-issued subpoena. Nothing further occurred
in the case for twenty-two months. On January 30, 2013, the Commissioner filed a motion
to dismiss the petition for writ of prohibition on its merits and for lack of prosecution.
During a hearing on March 26, 2013, the circuit court denied the
Commissioner’s motion to dismiss and announced that it would grant the petition for writ of
prohibition. The circuit court’s Opinion and Order Granting Writ of Prohibition and
Application for Stay, entered on October 3, 2013, prohibited the Commissioner from
conducting a second hearing. The circuit court found no rule that would allow the
4
(...continued)
to seek a continuance and, at the officer’s request, Mr. Wallace also telephoned the DMV to
indicate his consent to a continuance. Regardless of the circumstances of the request for
continuance, it is undisputed that the request was denied.
4
Commissioner to conduct a second hearing or to reschedule a properly convened hearing.
The circuit court opined that while the Commissioner has the authority to continue a hearing
on his own motion, he “may not exercise [his] authority to deny a pre-hearing continuance
request and then, post hearing, schedule a second hearing when the first hearing does not
proceed in a manner that benefits the Commissioner.” The circuit court concluded that the
Commissioner disregarded the procedural law for DMV hearings. See Syl. Pt. 4, State ex rel.
Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996) (setting forth factors to support
award of prohibition relief, including lower tribunal’s persistent disregard for procedural
law).5
II. Standard of Review
As we have previously recognized, “[t]he standard of appellate review of a
circuit court’s order granting relief through the extraordinary writ of prohibition is de novo.”
Syl. Pt. 1, Martin v. W.Va. Div. of Labor Contracting Licensing Bd., 199 W.Va. 613, 486
S.E.2d 782 (1997). With this standard in mind, we examine the parties’ arguments and the
appendix record before us.
5
There is an inconsistency between the circuit court’s decision as announced during
the March 26, 2013, hearing, and the circuit court’s October 3, 2013, written order. During
the hearing, the judge said “I am going to order that Mr. Sizemore’s licensing privileges are
restored[.]” However, the order only “prohibited [the Commissioner] from conducting a
second hearing” and did not address the ultimate issue of whether Mr. Sizemore’s license
should be revoked. Because we conclude that granting extraordinary relief was erroneous,
we need not resolve this inconsistency.
5
III. Discussion
The Commissioner argues that he had the authority to adjourn the
administrative hearing and sua sponte schedule the matter for a second hearing on a later
date. As explained below, we agree.
At the outset, we recognize that the law applicable to this license revocation
matter is the law that was in effect in 2009, when Mr. Sizemore’s alleged acts of DUI and
refusal to submit to the secondary chemical test occurred. At that time, under statutes
enacted and effective in 2008, it was the duty of the Commissioner, through his designated
hearing examiner, to hold the administrative revocation hearing and decide whether to uphold
or overturn the initial revocation order. See W.Va. Code § 17C-5A-2 (2008).6
The law at the time of Mr. Sizemore’s arrest provided that the investigating
officer “shall not attend the [administrative] hearing” unless requested to do so by the driver
or the Commissioner, and that the DMV was “solely responsible for causing the attendance
6
Effective June 11, 2010, the Legislature changed the procedures by which a driver
may challenge the Commissioner’s initial revocation of a driver’s license. Instead of the
Commissioner and his designated hearing examiner holding the administrative hearing and
making the decision whether to uphold or overturn an initial revocation order, those functions
now rest with an independent hearing board, the Office of Administrative Hearings. See,
W.Va. Code § 17C-5A-2 (2013). As we recognized in Miller v. Epling, 229 W.Va. 574, 584,
729 S.E.2d 896, 906 (2012), and Miller v. Smith, 229 W.Va. 478, 482-83, 729 S.E.2d 800,
804-05 (2012), the Commissioner retained jurisdiction over all cases involving DUI incidents
that occurred prior to June 11, 2010.
6
of the investigating officers.” W.Va. Code § 17C-5A-2(d) (2008). The requirements and
procedures for obtaining a continuance of an administrative hearing were set forth in
legislative rules. These rules provided that the Commissioner could grant a continuance to
the driver or the arresting officer upon good cause shown if the request for continuance was
made in writing and received by the Commissioner at least five days prior to the scheduled
hearing date. W.Va. C.S.R. §§ 91-1-3.8.1, -3.8.2 (2005). “Good cause” included serious
illness, medical appointments, court appearances, or religious holidays. Id. The rules also
specified that the Commissioner could postpone or continue a hearing on his own motion for
good cause, including the unavailability of essential personnel. W.Va. C.S.R. § 91-1-3.8.3
(2005). Finally, the Commissioner was authorized to grant an “emergency continuance” on
fewer than five days notice if there was an unexpected emergency. W.Va. C.S.R. § 91-1­
3.8.4 (2005).7
7
The full text of these legislative rules is as follows:
3.8.1. The Commissioner may grant the person requesting a
hearing a continuance of the scheduled hearing. The person
shall make the request for continuance in writing, and it must be
received by the Commissioner at least five (5) days prior to the
scheduled hearing date. The Commissioner shall grant the
request if good cause is shown. Good cause shall include such
reasons as serious illness, medical appointments, court
appearances, or religious holidays. In no case may the
Commissioner grant more than one continuance per party except
as provided in Subdivisions 3.8.3 and 3.8.4.
3.8.2. In DUI hearings, the Commissioner may also grant a
(continued...)
7
We discussed and applied this law in Miller v. Hare, 227 W.Va. 337, 708
S.E.2d 531 (2011), a case with facts very similar to those in the case sub judice. In Hare, the
Commissioner issued an initial revocation order stemming from an incident of DUI. The
driver requested both an administrative hearing and the arresting officer’s presence at the
hearing. The Commissioner issued a subpoena to the officer but the officer failed to appear,
so the hearing was adjourned and the Commissioner sua sponte rescheduled it for a later date.
The circuit court issued a writ of prohibition precluding the Commissioner from holding the
7
(...continued)
continuance to the arresting officer as prescribed in Subdivision
3.8.1.
3.8.3. The Commissioner may postpone or continue a hearing
on his or her own motion. The motion shall be for good cause
including, but not limited to, docket management, availability of
hearing examiners or other essential personnel, Division error in
scheduling or notice, or mechanical failure of essential
equipment, i.e. recording equipment, file storage equipment, etc.
3.8.4. The Commissioner may grant an emergency continuance
on less than five days notice to the person requesting the hearing
and also the arresting officer in a DUI hearing for unexpected
personal emergencies of the person, attorney, arresting officer,
or subpoenaed witnesses. An emergency situation requiring the
services of an arresting officer en route to a hearing qualifies as
an unexpected personal emergency. Any emergency
continuance request may be made by telephone but also must be
submitted in writing. The written request must be received by
the Division no later than five (5) days after the date the hearing
was scheduled or the provisions of Subsection 3.7 will be
applied as if the party requesting the continuance failed to
appear.
8
second hearing, but this Court reversed the prohibition order and allowed the Commissioner
to proceed. We concluded in Hare that the Commissioner’s statutory duty to secure the
officer’s presence at the hearing upon the driver’s request provided good cause to continue
the hearing when the officer failed to appear pursuant to subpoena.
Pursuant to West Virginia Code § 17C-5A-2(c) (2008),
the Commissioner of the DMV has authority to continue an
administrative license revocation hearing on his or her own
motion when an investigative officer, despite a validly issued
subpoena, fails to appear at the hearing and fails to seek an
emergency continuance. Good cause for the continuance exists
by virtue of the statutory duty imposed on the Commissioner to
secure the officer’s attendance at the hearing under West
Virginia Code § 17C-5A-2(d) (2008) once the licensee has
specifically requested the officer’s attendance at the revocation
proceeding.
Hare, 227 W.Va. at 338, 708 S.E.2d at 532, syl. pt. 2. Importantly, in Hare, we rejected the
same arguments that Mr. Sizemore made to the circuit court regarding the alleged unfairness
of granting a continuance due to an officer’s non-appearance.8
Mr. Sizemore argues, and the circuit court found, that Hare is distinguishable
from the instant case because Sergeant Foster requested a continuance of the administrative
8
Subsequent to Hare, we had another opportunity to address the ramifications under
the 2008 law of an officer’s failure to appear at a DMV hearing. In Holland v. Miller, 230
W.Va. 35, 38, 736 S.E.2d 35, 38 (2012), we concluded that the holding in Hare did not apply
when the driver had failed to request the officer’s presence at the administrative hearing.
Because Mr. Sizemore and his attorney did request Sergeant Foster’s presence at the hearing,
Holland is wholly inapposite.
9
hearing, while the officer in Hare did not request a continuance. However, the critical fact
defeating this argument is that Sergeant Foster’s request for a continuance was denied by the
Commissioner. Pursuant to § 91-1-3.8.1 of the West Virginia Code of State Rules, the
Commissioner was not obligated to grant Sergeant Foster’s request.9 Because Sergeant
Foster was a subpoenaed witness for the August 5, 2010, DMV hearing, he was legally
required to attend.
We find that Hare is controlling and dictates the outcome of the instant appeal.
Mr. Sizemore requested the officer’s presence at the hearing and, in compliance with his
statutory duty to obtain the officer’s presence, the Commissioner issued a subpoena
commanding Sergeant Foster to appear. When the officer failed to attend the hearing despite
the validly-issued subpoena, and when Mr. Sizemore declined to waive the officer’s
presence, the Commissioner had good cause to adjourn and continue the hearing to a later
day in order to secure the officer’s testimony.10
9
West Virginia Code of State Rules § 91-1-3.8.1 allowed the Commissioner to grant
a continuance so long as specific conditions were met. The appendix record on appeal
contains little information about Sergeant Foster’s request for a continuance of the August
5, 2010, hearing, so we are unable to ascertain exactly why the request was denied. We note,
however, that Mr. Sizemore averred in his petition for a writ of prohibition that Sergeant
Foster’s request for a continuance was untimely made, and during the circuit court hearing,
Mr. Wallace indicated that the officer’s request was made verbally. Pursuant to the rules, a
request for a continuance had to be made in writing at least five days before the scheduled
hearing date. Id.
10
Although Hare, syllabus point 2, provides an exception if the investigating officer
(continued...)
10
It is well-settled that “‘[p]rohibition lies only to restrain inferior courts from
proceeding[] in causes over which they have no jurisdiction, or, in which, having jurisdiction,
they are exceeding their legitimate powers, and may not be used as a substitute for [a petition
for appeal] or certiorari.’ Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370(1953).” Hoover, 199 W.Va. at 14, 483 S.E.2d at 14, syl. pt. 3. Because the Commissioner
acted within his legitimate powers, the circuit court erred in granting this writ of
prohibition.11
IV. Conclusion
For the foregoing reasons, we reverse the circuit court’s prohibition order and
direct that the Commissioner may proceed with the administrative revocation matter.
Considering the passage of time, the Commissioner is instructed to conclude the
administrative matter with the utmost alacrity.
Reversed.
10
(...continued)
requests an “emergency continuance,” there is no indication that Sergeant Foster requested
an “emergency continuance” of the August 5, 2010, hearing. Pursuant to West Virginia Code
of State Rules § 91-1-3.8.4, the Commissioner could grant an “emergency continuance” for
“unexpected personal emergencies.” Assuming Sergeant Foster’s request was based on a
planned hunting trip, as the respondent has proffered, such would not constitute an
unexpected personal emergency.
11
Although the Commissioner raises additional assignments of error on appeal, our
holding renders it unnecessary for us to address those issues.
11