IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term FILED
_______________ May 17, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 12-1213 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
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
____________
No. 12-1224
____________
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
___________
No. 12-1223
____________
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
____________________________________________________________
ORIGINAL PROCEEDINGS IN PROHIBITION
WRITS GRANTED
____________________________________________________________
Submitted: February 6, 2013
Filed: May 17, 2013
Patrick Morrisey, Esq. Herman D. Lantz, Esq.
Attorney General Lantz Law Offices
Elaine L. Skorich, Esq. Moundsville, West Virginia
Assistant Attorney General Counsel for the Respondent James
Charleston, West Virginia Leonard Parker
Counsel for the Petitioner
Matthew M. Hatfield, Esq.
Madison, West Virginia
Counsel for the Respondent Patrick White
Paul S. Detch, Esq.
Lewisburg, West Virginia
Counsel for the Respondent Nichole Erwin
CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.
ii
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
i
will prevail upon the merits and that he will suffer irreparable harm if a stay is not
granted.” Syllabus Point 2, State 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.
ii
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.
1
West Virginia Code §17C-5A-2(s) provides, in pertinent part:
The court may grant a stay or supersedeas of the order only upon motion
and hearing, and a finding by the court upon the evidence presented, that
there is a substantial probability that the appellant shall prevail upon the
merits, and the appellant will suffer irreparable harm if the order is not
stayed: Provided, That in no event shall the stay or supersedeas exceed one
hundred fifty days.
1
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.
2
The record does not reflect the date on which the license revocation order was entered.
3
We note that “substantial hardship” is not the burden of proof required in West Virginia
Code § 17C-5A-2(s). See footnote 1, supra.
2
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
3
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
4
The record does not reflect the date on which the license revocation order was entered.
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 argued that Ms. Erwin had not
met the requirements of West Virginia Code § 17C-5A-2(s) because she had not
presented any evidence that there was a substantial probability that she would prevail on
the merits and that she would suffer any “irreparable harm” if the order was not stayed.
In granting Ms. Erwin’s motion for stay at the hearing, the circuit court
stated “I will shorten this too, Ms. Skorich, with all due respect. I hear a number of these
cases and routinely I grant a stay. Okay?” Following that, on August 28, 2012, the circuit
court entered an order prepared by Ms. Erwin’s counsel which summarily stated,
The Court having further reviewed the petition filed herein
and the brief supporting thereof it is ADJUDGED,
ORDERED and DECREED as follows:
1. “I am going to grant the stay, Mr. Detch. I am going to find
that there is irreparable harm, on the record, and also that
there is a substantial likelihood you will prevail.”
5
It is therefore ORDERED that a 90 day stay will be granted to
the petitioner.
II.
STANDARD OF REVIEW
As this Court recently stated in SER Commissioner, West Virginia Division
of Motor Vehicles v. Swope, --- S.E.2d. ---, 2013 WL 1788227 (April 25, 2013),
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 Procedure and 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 State ex rel. 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).
Id.
In the current cases before us, which concern whether the circuit courts
exceeded their 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
6
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. 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).
III.
DISCUSSION
First, the Commissioner argues that the circuit courts exceeded their
authority in granting the stays in the cases before us because (1) a proffer is insufficient
to establish the evidentiary requirements of West Virginia Code § 17C-5A-2(s)5 and (2)
the circuit courts’ orders failed to contain specific findings of fact upon the evidence
presented. The Commissioner asserts that the orders fail to comply with this Court’s
5
See footnote 1, supra.
7
holding in syllabus point 2 of State v. Bechtold, 190 W. Va. 315, 438 S.E.2d 347 (1993),
wherein we stated that,
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.
Id. (emphasis added). The Smith Court stated that “if the circuit court granted the stay
without conducting evidentiary hearings and without meaningfully analyzing the
evidence adduced during the hearings, he exceeded the legitimate powers granted to him
under the statute.” 190 W.Va. at 320, 438 S.E.2d at 352. The Commissioner submits that
although the second part of West Virginia Code § 17C-5A-2(s), providing “the
substantial probability that the appellant shall prevail on the merits,” can be satisfied by
proffer and argument of counsel, a circuit court can only make a reasoned decision as to
the alleged irreparable harm that a driver may suffer through the taking of evidence. We
agree with the Commissioner’s arguments.
“A proffer is not evidence, ipso/facto.” US. v. Reed, 114 F.3d 1067, 1070
(10th Cir. 1977); See also, Crawley v. Ford, 43 Va. App. 308, 597 S.E.2d 264 (2004);
Jones v. US., 829 A.2d 464 (D.C. 2003); Parker v. US., 751 A.2d 943 (D.C. 2000).
Moreover, a “proffer is not evidence unless the parties stipulate that a proffer will
suffice.” Ford v. State, 73 Md.App. 391, 404, 534 A.2d 992, 998 (1988). In the cases
before us, the Commissioner did not stipulate that a proffer would suffice. Rather, the
8
record reflects that the Commissioner objected to the admission of a proffer as evidence
below. Fundamental fairness dictates that the Commissioner be granted an opportunity to
cross-examine the driver as to irreparable harm. We believe that the Commissioner has
the right to inquire further into the driver’s situation and the alleged harm that will befall
the driver if the license revocation is not stayed pending appeal. Once the Commissioner
has had the opportunity to cross-examine the driver on these issues, the circuit court
should then make the necessary factual and legal findings on the record to satisfy the
requirements of the statute. Thus, we hold that a proffer is not sufficient to satisfy the
evidentiary requirements of West Virginia Code § 17C-5A-2(s) 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.6
6
In so holding, we also wish to address the discrepancy between West Virginia Code §
17C-5A-2(s) and West Virginia Code § 29A-5-4(c) (1998) regarding the requirements
that must be satisfied for a circuit court to properly grant a stay. West Virginia Code §
29A-5-4(c) generally provides, in pertinent part, that “[p]ending the appeal, the court may
grant a stay or supersedeas upon such terms as it deems proper.” (emphasis added).
However, West Virginia Code § 17C-5A-2(s) more specifically provides that “[t]he court
may grant a stay or supersedeas of the order only upon motion and hearing, and a finding
by the court upon the evidence presented, that there is a substantial probability that the
appellant shall prevail upon the merits, and the appellant will suffer irreparable harm if
the order is not stayed.” To the extent that the terms of West Virginia Code § 17C-5A-
2(s) more specifically delineate the requirements that must be satisfied before a stay can
be granted by the circuit court, we find the language of West Virginia Code § 17C-5A-
2(s) to be the controlling and superceding authority on this issue.
9
Additionally, the Commissioner argues that the circuit courts exceeded
their authority because this Court has held that open-ended stays are in violation of the
Code. The last sentence of West Virginia Code § 17C-5A-2(s) provides, in pertinent part
that “in no event shall the stay or supersedeas of the order exceed one hundred fifty
days.” In addressing the 150-day requirement, this Court stated the following in Adkins
v. Cline, 216 W. Va. 504, 607 S.E.2d 833 (2004):
The open-ended stays ordered in these consolidated
cases were in direct violation of West Virginia Code § 17C-
5A-2, which at the time the stays were instituted contained a
thirty-day limitation of stays in such matters and currently
contains a 150-day limitation of stays. [footnote omitted]
Once these open-ended stay orders were instituted, the
Appellees quite understandably made no attempt to bring
these matters to a resolution. Thus, the DMV was required to
carry the burden of bringing these issues to the attention of
the lower court, requesting the court to vacate the stays, and
then initiating this appeal when the lower court reversed the
revocations and remanded to the commissioner.
During oral argument, the DMV informed this Court
that several other pending cases are subject to impermissibly
lengthy stays. [footnote omitted] Such stays cannot be
permitted due to their obvious violation of statute, as well as
the unreasonable delay in providing final legal resolution to
these administrative revocation matters. Thus, we direct that
stays of administrative license revocation proceedings in
violation of the 150-day statutory limitation of West Virginia
Code § 17C-5A-2 must proceed to final resolution as soon as
practicable, and no additional stays in violation of such
statute should be ordered.
Id. at 508, 607 S.E.2d at 837.
In the cases presently before us, two of the three stay orders do not
expressly limit the duration of the stay to 150 days. Although Ms. Erwin’s order
10
expressly limits the stay to ninety days, Mr. Parker and Mr. White’s orders do not
expressly limit the duration of the stay. We agree with the Commissioner that a stay
order which does not delineate the duration of the stay creates an open-ended stay which
is contrary to West Virginia Code § 17C-5A-2(s) and Adkins, 216 W. Va. at 508, 607
S.E.2d at 836. A stay or supersedeas of the order issued pursuant to West Virginia Code
§ 17C-5A-2(s) 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. Thus, we find that the stay orders issued in Mr. Parker’s and Mr.
White’s cases violate the law.
IV.
CONCLUSION
For the reasons stated above, this Court concludes that the stay orders
entered by the circuit courts violate the requirements of West Virginia Code § 17C-5A-
2(s) and applicable case law and that, consequently, the Commissioner is entitled to relief
in prohibition. There is no other remedy available because the orders granting the stays
are not final and appealable. In that regard, immediate relief from this Court is
appropriate. Having found that the circuit courts exceeded their jurisdiction in granting
the Respondents’ respective motions, the Circuit Courts of Marshall County, Boone
County and Kanawha County are prohibited from granting the specific stays before us in
these matters pursuant to West Virginia Code § 17C-5A-2(s).
11
Writs granted.
12
SER Joe E. Miller v. Mark A. Karl, Judge, etc.
Court: West Virginia Supreme Court
Date filed: 2013-05-17
Citations: 231 W. Va. 65, 743 S.E.2d 876
Copy CitationsCombined Opinion