PRESENT: Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons, JJ.,
and Compton, S.J.
COMMONWEALTH OF VIRGINIA OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 010480 March 1, 2002
MICHAEL BRIAN SHAFFER
FROM THE COURT OF APPEALS OF VIRGINIA
At issue in this appeal is the nature of the right to
operate a motor vehicle in the Commonwealth and the extent of
the right to obtain judicial review of a determination by the
Department of Motor Vehicles (DMV) that a person qualifies as an
habitual offender.
The facts are undisputed. In July 1997, the DMV, in an ex
parte proceeding relying on records of criminal convictions,
determined Michael Brian Shaffer to be an habitual offender
pursuant to former Code § 46.2-352(A) (Repl. Vol. 1998), and
revoked his operator's license effective in August 1997. In
July 1997, Shaffer received the notice of revocation.
In 1997, former Code § 46.2-352(B) provided that, "[a]t any
time after receipt of the revocation notice," a person who had
been determined to be an habitual offender may file in the
appropriate circuit court a petition for a hearing and
determination by the court that the person is not an habitual
offender.
Effective July 1, 1999, the General Assembly repealed Code
§§ 46.2-351 through -355, which, of course, included § 46.2-352.
Acts 1999, chs. 945, 987.
In September 1999, Shaffer filed in the Circuit Court of
Stafford County the present petition for review of the DMV
determination. He alleged that the petition was filed pursuant
to the provisions of former Code § 46.2-352(B). The
Commonwealth objected, asserting that the court lacked
jurisdiction to entertain the petition because the statute had
been repealed at the time the petition was filed.
Upon consideration of argument of counsel, the trial court
dismissed the petition in a November 1999 order, ruling that it
lacked jurisdiction to review the DMV determination because the
statute invoked by Shaffer was no longer in force at the time he
filed his petition.
Shaffer appealed to the Court of Appeals of Virginia. That
court reversed the judgment of the trial court, and ruled that
Shaffer's right to appeal the DMV's "order determining him to be
an habitual offender remained extant notwithstanding the repeal
of Code § 46.2-352." Shaffer v. Commonwealth, 34 Va. App. 36,
41, 537 S.E.2d 613, 616 (2000).
The Court of Appeals based its decision upon the following
statement: "The right to operate a motor vehicle is a property
right that cannot be taken away without due process of law."
2
Id. at 39, 537 S.E.2d at 615. Continuing, the court said that
"[a]t a minimum, a person whose license to drive has been
rescinded is entitled to a post-deprivation review." Id.
Tracing the evolution of the habitual offender statutes,
the Court of Appeals pointed out that former Code § 46.2-352(B)
"did not specify a time period within which a petition for
review had to be filed." Id. The court also noted that in the
1999 repeal of Code §§ 46.2-351 through -355, "the General
Assembly did not state that the statute was repealed
retroactively. Thus, it did not explicitly eliminate the right
of those individuals found to be habitual offenders under former
Code § 46.2-352 to petition for judicial review." Id. at 40,
537 S.E.2d at 615.
Concluding, the Court of Appeals stated: "We decline to
apply the statutory repeal retroactively absent an expressed
intent by the legislature to deprive the formerly adjudicated
habitual offenders of their right to obtain judicial review,
particularly when the right in question is a property right,
entitled to due process protection." Id. at 41, 537 S.E.2d at
616.
In this appeal, the Attorney General criticizes as "simply
wrong" the Court of Appeals' statement that "[t]he right to
operate a motor vehicle is a property right." On brief, Shaffer
3
says he "has never argued that the right to operate a motor
vehicle is a property right per se."
We agree with the Attorney General. Neither of the cases
cited by the Court of Appeals as authority for the erroneous
proposition supports the idea. In Walton v. Commonwealth, 255
Va. 422, 428, 497 S.E.2d 869, 873 (1998), we stated: "The right
to operate a motor vehicle is a conditional privilege, which may
be suspended or revoked in the interest of public safety under
the police power of the Commonwealth." We also said: "It is
not a fundamental constitutional right; however, the right may
not be revoked or suspended without due process of law." Id.
In Walton, we relied upon Bell v. Burson, 402 U.S. 535
(1971), also cited by the Court of Appeals. There, the Supreme
Court said that once licenses to operate motor vehicles are
issued, "their continued possession may become essential in the
pursuit of a livelihood." Id. at 539. Continuing, the Supreme
Court stated: "Suspension of issued licenses thus involves
state action that adjudicates important interests of the
licensees. In such cases the licenses are not to be taken away
without that procedural due process required by the Fourteenth
Amendment." Id. According to the Supreme Court, "This is but
an application of the general proposition that relevant
constitutional restraints limit state power to terminate an
4
entitlement whether the entitlement is denominated a 'right' or
a 'privilege.'" Id.
It is true that some cases dealing with deprivation of an
operator's license have labeled a person's interest in the
continued possession of such a conditional privilege as a
"property interest," Mackey v. Montrym, 443 U.S. 1, 10 (1979),
or a "private interest," Dixon v. Love, 431 U.S. 105, 113
(1977). However, use of those terms does not mean that the
right to drive is "a property right" in the sense that it is "a
fundamental constitutional right." Walton, 255 Va. at 428, 497
S.E.2d at 873.
Shaffer argues, however, that the Court of Appeals'
inaccurate statement is not "central" to its holding that the
trial court erred. According to Shaffer, "once the conditional
privilege to operate a motor vehicle is afforded a citizen by
licensing," the state cannot "revoke that privilege in an ex
parte proceeding without affording the citizen any right to be
heard or to challenge its action." Shaffer contends the Court
of Appeals correctly held "that due process prohibits revoking a
citizen's privilege to operate a motor vehicle without, at a
minimum, affording the citizen a post-deprivation review."
Shaffer also asserts that the right to petition for
judicial review set forth in former Code § 46.2-352(B) was "a
substantive right," and that such right "accrued and vested when
5
DMV acted to revoke his license." He says that the repeal of
the statute in question "cannot be applied retroactively to
divest the appeal rights of those whose right to appeal had
previously vested." We do not agree with Shaffer's contentions.
Our analysis begins with a restatement of the Walton
principle that the right to operate a motor vehicle is a
conditional privilege, which may not be suspended or revoked
without due process of law. Therefore, in this case the
question becomes how much process was due Shaffer.
Initially, we observe, contrary to Shaffer's contentions,
that the entitlement to judicial review in former Code § 46.2-
352(B) was not a substantive right; it was purely a procedural
remedy in which Shaffer had no vested interest when the DMV
revoked his license.
As relevant here, the rule is settled: Mere matters of
procedure may be altered, curtailed, or repealed at the will of
the legislature. Phipps v. Sutherland, 201 Va. 448, 452, 111
S.E.2d 422, 425 (1959); Duffy v. Hartsock, 187 Va. 406, 416, 46
S.E.2d 570, 574 (1948). Persons are given no "right," in the
strict sense, to a particular mode of procedure, unless they
avail themselves of it while the statute is in force. Phipps,
201 Va. at 453, 111 S.E.2d at 426.
Addressing the subject of retroactive legislation, we note
that when Shaffer filed his petition for judicial review, there
6
had been a total repeal of the statute giving circuit courts
authority to review the DMV's determinations. Contrary to
Shaffer's argument, a ruling that no statute existed giving the
courts jurisdiction does not amount to retroactive application
of the repeal. Rather, there is a prospective application,
because the application relates to any petitions for review
filed subsequent to the effective date of the repeal. See Code
§ 1-16 (proceedings had after repeal of former law "shall
conform, so far as practicable, to the laws in force at the time
of such proceedings").
This brings us to consideration of whether, without the
benefit of the repealed statute, Shaffer's due process rights
were violated, under Virginia's habitual offender statutory
scheme, because he failed to receive a post-deprivation remedy.
To state, in the words of the Court of Appeals, that Shaffer was
"entitled to a post-deprivation review," Shaffer, 34 Va. App. at
39, 537 S.E.2d at 615, is not entirely accurate, and is
misleading in the context of this case. Assuming he was
entitled to a post-deprivation review, he failed to resort to
the adequate due process opportunities that were available.
Code § 46.2-410 was in effect at all times pertinent to
this case. It provides for judicial review "in accordance with
the provisions of the Administrative Process Act (§ 9-6.14:1 et
seq.)" (APA) of DMV orders suspending or revoking licenses or
7
registrations. The statute provides, however, that "[n]o appeal
shall lie in any case in which suspension or revocation of the
license or registration was mandatory except to determine the
identity of the person concerned when the question of identity
is in dispute."
Here, revocation of Shaffer's license was mandatory.
Former Code § 46.2-352(A) provided that the Commissioner of the
DMV "shall determine, from the Department's records, whether a
person named therein qualifies as an habitual offender, as
defined in § 46.2-351 . . . and shall revoke the person's
driver's license." Former Code § 46.2-351 provided that "[a]n
habitual offender shall be any . . . person whose record, as
maintained in the office of the [DMV], shows that he has
accumulated the convictions . . . as follows."
However, Shaffer did not avail himself after deprivation of
the opportunity to dispute his identity by employing the
provisions of the APA, which permits review by a "timely court
action," Code § 9-6.14:16(A), subject to a 30-day notice of
appeal requirement. Rule 2A:2. See Tomai-Minogue v. State Farm
Mut. Auto. Ins. Co., 770 F.2d 1228, 1233-36 (4th Cir. 1985)
(provisions of predecessor to Code § 46.2-410 afforded
sufficient review of driver's license revocation to satisfy due
process when revocation mandatory and based on DMV records of
court judgments).
8
Additionally, Shaffer had two years from the July 1997
revocation until the July 1999 repeal of former § 46.2-352(B) to
seek judicial review under that statute, but failed to avail
himself of that post-deprivation opportunity either.
Thus, we hold that, given the foregoing opportunities and
under these facts, Shaffer was not entitled, after repeal of
§ 46.2-352(B), to any other post-deprivation review in order to
satisfy his due process rights.
Consequently, the judgment of the Court of Appeals will be
reversed and final judgment will be entered here dismissing
Shaffer's petition for review.
Reversed and final judgment.
9