Means v. Sidiropolis

McHUGH, Justice,

dissenting:

I dissent from the majority opinion because I believe that W.Va.Code, 18-8-11 [1988] is unconstitutional for two reasons: (1) the statute does not contain appropriate procedural due process safeguards which are traditionally required before suspension of a right or even a privilege; and (2) the statute is vague in its use of terms which constitute key elements in the statute’s application. Specifically, these two constitutional deficiencies violate the due process clauses of the United States Constitution and the West Virginia Constitution. See U.S. Const, amend. XIV, § 1; W.Va. Const, art. Ill, § 10. The majority opinion is problematic in that it addresses the legislature’s laudatory goal of keeping minors in school rather than the legal issues arising under the application of the statute.

I

It is well established that procedural due process is required in administrative proceedings. For example, chapters 17 to 17D of the W.Va.Code contain statutory enactments pertaining to roads, highways, motor vehicle administration and safety. Under those statutes, before the Department of Motor Vehicles may revoke an operator’s or chauffeur’s license for most offenses, a hearing must be conducted by the Department. W.Va.Code, 17B-3-6 [1989].

W.Va.Code, 18-8-11 [1988], however, was enacted as a part of this state’s education laws, along with all of the other laws pertaining to schools, school personnel, and education that may be found in chapters 18 and 18A of the W.Va.Code. Chapters 18 and 18A, like chapters 17 to 17D, establish mechanisms for ensuring that due process is afforded to persons who are aggrieved by certain administrative actions. For example, under the provisions of W.Va.Code, 18A-2-8 [1990], before an employee is suspended or dismissed from employment by a county board of education, such employee must be given written notice of the charges as well as notice that within five days, the employee may request a hearing pursuant to the grievance procedures established by article 29 of chapter 18.

The statutory provision at issue in this case, namely, W.Va.Code, 18-8-11 [1988], *521however, provides no such hearing or even notice by school authorities to a student that the student is in jeopardy of losing his or her license to drive.

Rather than reiterating the fundamental principles of procedural due process, for an excellent discussion of such principles, see this Court’s opinion, authored by Justice Charles H. Haden II, in State ex rel. Payne v. Walden, 156 W.Va. 60, 190 S.E.2d 770 (1972).1

Under W.Va.Code, 18-8-11 [1988], once the superintendent makes the decision that a student is withdrawn from school, and that the student’s withdrawal was not due to circumstances beyond his or her control, then the superintendent notifies the Department of Motor Vehicles of such withdrawal. The Department of Motor Vehicles then conducts a hearing on the revocation. That hearing merely determines: (1) whether the student is under the age of eighteen; and (2) whether the student is enrolled in school. It does not review the superintendent’s decision of whether or not the student withdrew from school due to circumstances beyond his or her control. Consequently, at no point does the student have an opportunity to demonstrate to either the superintendent or the Department of Motor Vehicles that the circumstances for withdrawal are beyond his or her control.

The majority acknowledges the absence of due process in the revocation proceedings in this case, but by holding that “it becomes only reasonable that the hearing should be held before the responsible public or private school official,” the majority opinion, in essence, has enacted its own amendment to W.Va.Code, 18-8-11 [1988] in order to save the statute from a constitutional failure. Furthermore, the majority opinion goes on to state that the Department of Motor Vehicles, whose function under the statute is purely mechanical, should notify the revokee that he or she has “a right to a hearing before the appropriate school official.” (emphasis supplied) Still another amendment to W.Va.Code, 18-8-11 [1988].2

Noticeably absent from the majority opinion is any reference to other states that have enacted similar legislation, and in particular, one state that has installed a procedure by which a person is afforded at least a hearing to determine the necessity of possessing a drivers’ license.

The General Assembly of Kentucky recently enacted a statutory provision to accomplish the same result as W.Va.Code, 18-8-11 [1988]. Ky.Rev.Stat.Ann. § 159.051 (Michie 1990). Apparently though, the Kentucky law has recognized the difficulties of the procedural due process question, and this is reflected in that state’s statute. Under the Kentucky statute, after the superintendent of schools notifies that state’s department of transportation and the person’s license is revoked, the student may request an ex parte hearing before a district court, which is a court of record. Unlike W. Va. Code, 18-8-11 [1988], which provides that the superintendent of schools “shall be the sole judge of whether [the withdrawal from school] is due to circumstances beyond the control of such person,” a district court, under the Kentucky statute, determines whether “the license is needed to meet family obligations or family economic consideration which if unsatisfied would create an undue hardship or that the student is the only licensed driver in the household or the student is not considered a dropout or academically *522deficient[.]” Ky.Rev.Stat.Ann. § 159.051(3) (Michie 1990). Furthermore, the Kentucky statute allows the student to appeal to a circuit court the district court’s decision.3

I can appreciate the majority’s point that the driver’s license at issue in this case is only a “junior or probationary operator’s license.” W.Va.Code, 17B-2-3(l) [1988]. However, this fact will not support overlooking the procedural due process deficiencies of W.Va.Code, 18-8-11 [1988]. Simply stated, the students affected by this statute are entitled to due process.4

Moreover, the United States Supreme Court has articulated the view that before a drivers’ license may even be suspended, procedural due process is required. In so holding, the Supreme Court does not differentiate student drivers under the age of eighteen from other drivers:

Once [drivers’] licenses are issued, ... their continued possession may become essential in the pursuit of a livelihood. 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_ This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a ‘right’ or a ‘privilege.’

Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94 (1971) (citations omitted).

Therefore, because the opportunity to possess a drivers’ license is extended to persons between the ages of sixteen and eighteen, procedural due process is required before such a license may be revoked. This includes the opportunity to be heard on the most critical element in determining whether a drivers’ license shall be revoked: the circumstances leading to the student’s withdrawal from school.

II

W.Va.Code, 18-8-11 [1988] should also be declared void for vagueness.

“It is a general principle of statutory law that a statute must be definite to be valid.” 16A Am.Jur.2d Constitutional Law § 818, at 988 (1979). In State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974), Justice James M. Sprouse, writing for a unanimous Court, thoroughly delineated principles of the vagueness doctrine, particularly as such principles apply to criminal statutes.5 In Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984), Justice Miller expounded upon these principles further, pointing out that “[t]he vagueness standard may vary *523depending on the type of statute involved.” Id., 174 W.Va. at 546, 328 S.E.2d at 152.

In Hartsock-Flesher, we held: “It is appropriate under the Due Process Clause vagueness doctrine to apply a less restrictive test to statutes or ordinances involving economic matters in which criminal penalties are not at issue.” Id., syl. pt. 3.

Certainly then, the statute at issue in this case, W.Va.Code, 18-8-11 [1988], would be subject to more scrutiny under the vagueness doctrine than a statute involving economic matters, as the object of the statute in this case is to revoke a drivers’ license.

The provisions of W.Va.Code, 18-8-11 [1988], which ultimately lead to revocation of a student’s drivers’ license, do not apply if the student’s withdrawal from school is due to “circumstances beyond the control” of such student.

This term, which, in essence, constitutes the most critical element in the decision to revoke, is not defined by the statute nor are there any guidelines which the superintendent may follow in determining whether a student’s withdrawal is due to circumstances beyond his or her control.

Clearly, because application of the statute depends upon an interpretation of that term, standards should be set forth to guide the “sole judge,” the superintendent, in so interpreting.

Therefore, I disagree with the majority opinion that the phrase “circumstances beyond the control” of the student “create[s] a quite specific standard.”

Furthermore, W. Va. Code, 18-8-11 [1988] is silent with respect to the student whose drivers’ license is revoked due to a withdrawal from school, but later, is unable to return to school for reasons which, at the later time, might be beyond his or her control. The statute is not clear as to how this student can retain his or her driving privileges.

Moreover, W.Va.Code, 18-8-11 [1988] does not even differentiate between students who have drivers’ licenses from those who do not. Consequently, following the procedures set forth therein, that the attendance director or chief administrator notify the Department of Motor Vehicles of the student’s withdrawal, the Department of Motor Vehicles is saddled with the unnecessary duty of determining which students are even affected by the statute.

Rather than attempting to salvage the statute by clarifying its terms, we should declare it void for vagueness and allow the legislature to enact a version which would rise to a level of constitutional competency.

Ill

Because the statute at issue in this case does not pass constitutional muster, then it must be declared invalid. “An Act of the Legislature which clearly violates one or more provisions of the State Constitution will be declared invalid.” Syl. pt. 5, Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964).

If the legislature wanted to encourage school attendance until the age of eighteen, then it should have chosen a more direct means, such as amending W.Va.Code, 18-8-1 [1990], to increase the age of compulsory school attendance to the age of eighteen.6

In any event, this does not change the constitutionally deficient nature of W.Va. Code, 18-8-11 [1988], which violates principles of due process and is vague under section 1 of the fourteenth amendment to the United States Constitution as well as article III, section 10 of the West Virginia Constitution.

Accordingly, I dissent.

*524I am authorized to state that Justice MILLER joins me in this dissenting opinion.

. Justice Haden was a member of this Court between 1972-75. He is currently the Chief Judge of the United States District Court for the Southern District of West Virginia.

. Although the majority opinion sets forth notice requirements by which the Department of Motor Vehicles must follow, it fails to articulate any specific procedure that the Department must follow so as to ensure that the revokee is fully apprised of his or her right to a hearing before school officials. This will more than likely place a burdensome duty on the Department of Motor Vehicles, an agency whose procedures are otherwise set forth by clear statutory prescriptions. See, e.g., ~W.Va.Code, 17C-5A-1, et seq., which establishes administrative procedures for suspension and revocation due to drunk driving offenses.

Consequently, the procedures set forth by the majority opinion are as vague as the statute itself.

.The Kentucky statute also provides that revocation "shall not be permitted unless the local school district shall operate an alternative education program approved by the Department of Education designed to meet the learning needs of students who are unable to succeed in the regular program." Ky.Rev.Stat.Ann. § 159.051(2) (Michie 1990).

Obviously, the Kentucky statute, unlike this state’s statute and the majority's interpretation of such statute, is primarily concerned with implementing every possible means to keep students in school before resorting to drastic measures, such as revoking the student's drivers' license.
Louisiana and Tennessee have passed similar laws as well. Their statutes resemble W.Va. Code, 18-8-11 [1988] more closely than does Kentucky’s. However, even under the Louisiana version, the procedures for a hearing before the agency which revokes the student’s license is clearly set forth in the statute. See La.Rev.Stat. Ann. § 32:431 (West 1989); Tenn.Code Ann. § 49-6-3017 (1990).

. For example, in the context of school suspension procedures,

the high school student, perhaps even more than the university student, deserves careful adherence to concepts of procedural fairness and reasonableness by school officials ... in that as minors they occupy a different status under the law and often are too inexperienced or immature to know how to protect themselves against charges of misconduct.

68 Am.Jur.2d Schools § 269, at 593 (1973). See also Goss v. Lopez, 419 U.S. 565, 581, 95 S.Ct. 729, 740, 42 L.Ed.2d 725, 739 (1975) (“Students facing temporary suspension have interests qualifying for protection of the Due Process Clause[.]”)

. Justice Sprouse was a member of this Court from 1973-75. He is now a Judge on the United States Court of Appeals for the Fourth Circuit.

. The majority’s suggestion that “stay-ins pose a greater threat to our nation’s education than drop-outs” is irrelevant to deciding the constitutionality of W. Va.Code, 18-8-11 [1988].

One would hope that more compassion would be exercised by public officials in seeking ways to improve education for all instead of resigning to the notion that the educational system is beyond repair, as the majority opinion so implies.