IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2020 Term

_______________

No. 19-0754

_______________

STATE OF WEST VIRGINIA EX REL. EVERETT FRAZIER,

COMMISSIONER OF THE WEST VIRGINIA

DIVISION OF MOTOR VEHICLES,

Petitioner

V.

HONORABLE WILLIAM S. THOMPSON,

JUDGE OF THE CIRCUIT COURT OF BOONE COUNTY,

AND DYLAN PRICE,

Respondents

_____________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED AS MOULDED

_____________________________________________

AND

_______________

No. 19-0755

_______________

STATE OF WEST VIRGINIA EX REL. EVERETT FRAZIER,

COMMISSIONER OF THE WEST VIRGINIA

FILED

April 24, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
DIVISION OF MOTOR VEHICLES,

Petitioner

V.

HONORABLE WILLIAM S. THOMPSON,

JUDGE OF THE CIRCUIT COURT OF BOONE COUNTY,

AND NICHOLAS BLANKENSHIP,

Respondents

_____________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED

_____________________________________________

Submitted: January 28, 2020

Filed: April 24, 2020

Patrick Morrisey Wendle Cook

Attorney General Cook and Cook

Elaine L. Skorich Madison, West Virginia

Assistant Attorney General Attorney for the Respondents,

Charleston, West Virginia Dylan Price and

Attorneys for the Petitioner Nicholas Blankenship

JUSTICE JENKINS delivered the Opinion of the Court.
i

SYLLABUS BY THE COURT

1. “Interpreting a statute or an administrative rule or regulation presents a 

purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power 

Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995). 

2. “When a court is attempting to proceed in a cause without 

jurisdiction, prohibition will issue as a matter of right regardless of the existence of other 

remedies.” Syllabus point 10, Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162 (1919). 

3. “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, 
ii

should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 

W. Va. 12, 483 S.E.2d 12 (1996).

4. “Our Administrative Procedures Act, W. Va. Code, 29A-1-2(b), defines a 

contested case before an agency as a proceeding that involves legal rights, duties, interests, 

or privileges of specific parties which are required by law or constitutional right to be 

determined after an agency hearing. Thus, an agency must either be required by some 

statutory provision or administrative rule to have hearings or the specific right affected by 

the agency must be constitutionally protected such that a hearing is required.” Syllabus 

point 1, State ex rel. West Virginia Board of Education v. Perry, 189 W. Va. 662, 434 

S.E.2d 22 (1993).

5. “‘Whenever it is determined that a court has no jurisdiction to entertain 

the subject matter of a civil action, the forum court must take no further action in the case 

other than to dismiss it from the docket.’ Syllabus Point 1, Hinkle v. Bauer Lumber & 

Home Bldg. Ctr., Inc., 158 W. Va. 492, 211 S.E.2d 705 (1975).” Syllabus point 5, Holly 

v. Feagley, 242 W. Va. 240, 834 S.E.2d 536 (2019).

6. “‘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 
iii

will prevail upon the merits and that he will suffer irreparable harm if a stay is not granted.’ 

Syllabus Point 2, Smith v. Bechtold, 190 W. Va. 315, 438 S.E.2d 347 (1993).” Syllabus 

point 2, State ex rel. Miller v. Karl, 231 W. Va. 65, 743 S.E.2d 876 (2013).

7. “A proffer is not sufficient to satisfy the evidentiary requirements of West 

Virginia Code § 17C-5A-2(s) (201[5]) 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.” Syllabus point 3, State ex rel. Miller v. Karl, 

231 W. Va. 65, 743 S.E.2d 876 (2013).

8. “[T]he words of a statute are to be given their ordinary and familiar 

significance and meaning, and regard is to be had for their general and proper use.” 

Syllabus point 4, in part, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va. 

137, 107 S.E.2d 353 (1959). 
1

Jenkins, Justice:

The petitioner in these consolidated cases, Everett Frazier,

1 Commissioner 

of the West Virginia Division of Motor Vehicles (“DMV”), requests this Court to prohibit 

the Circuit Court of Boone County from enforcing orders it entered on August 16, 2018, 

and May 8, 2019. By those orders, the circuit court stayed the administrative revocation 

of the driver’s licenses of the respondent drivers, Dylan Price (“Mr. Price”) and Nicholas 

Blankenship (“Mr. Blankenship”), while their appeals from the revocation rulings were 

pending in the circuit court. In requesting a writ of prohibition to prevent the circuit court 

from enforcing these orders, the DMV contends that the circuit court has, by issuing these 

stays, failed to comply with the statutory procedure prescribed for the issuance of such a 

stay set forth in West Virginia Code section 17C-5A-2(s) (LexisNexis 2017).2

 Having 

reviewed the parties’ arguments and briefs, the appendix records, and the pertinent 

authorities, we agree with the DMV’s assertion that the circuit court has erred by not 

complying with the requisite statutory procedure for granting a stay of an administrative 

revocation of a driver’s license to operate a motor vehicle in this State. Accordingly, and 

in recognition of the different procedural postures of the two instant matters, we grant as 

1

Since the filing of these cases, the Commissioner of the West Virginia 

Division of Motor Vehicles has changed, and the Commissioner is now Everett Frazier. 

Accordingly, the Court has made the necessary substitution of parties pursuant to Rule 

41(c) of the West Virginia Rules of Appellate Procedure.

2

For the relevant language of West Virginia Code section 17C-5A-2(s) 

(LexisNexis 2017), see Sections III.B.1. & -2., infra.
2

moulded the requested writ of prohibition in Case Number 19-0754, and, as to Case 

Number 19-0755, we grant the requested writ of prohibition.

I.

FACTS AND PROCEDURAL HISTORY

Although the two matters before us share many similar aspects, they also 

have distinct differences. Therefore, we will recount the facts and procedural history of 

each of the consolidated cases separately.

A. Case Number 19-0754: Dylan Price

Mr. Price was involved in a single-vehicle accident in Boone County, West 

Virginia, on May 27, 2018. As a result of this incident, and as stated in the DMV’s 

“ORDER OF REVOCATION NOTICE” dated May 31, 2018, Mr. Price was charged with 

“driving a motor vehicle . . . in West Virginia while under the influence of alcohol, 

controlled substances, drugs or a combination of those and . . . proximately caus[ing] the 

death of another person [Mr. Price’s passenger] while acting in reckless disregard of the 

safety of other people.” Further, the DMV determined that, as a result of these charges,

Mr. Price’s “driving privileges will be revoked at 12:01 a.m. ET on Jul[y] 05, 2018.” 

Finally, the revocation order informed Mr. Price that he “may contest the DUI by filing a 

Written Objection Form with the Office of Administrative Hearings (OAH) . . . within 30 

days after receiving the Revocation Notice.” Thereafter, another individual who shares 
3

Mr. Price’s mailing address signed a certified mail receipt on June 2, 2018, reflecting 

delivery and receipt of the DMV’s May 31, 2018 revocation order.

Counsel for Mr. Price then filed the referenced “WRITTEN OBJECTION 

AND HEARING REQUEST FORM” with the Office of Administrative Hearings 

(“OAH”) to challenge the administrative revocation of his driver’s license. The form’s 

instructions also provided the deadline for challenging the DMV’s revocation ruling cited 

in the DMV’s earlier order:

[L]ate written objections may not be considered. If you dispute 

an order revoking . . . your driver’s license for a DUI related 

offense as outlined in W. Va. Code § 17C-5A-2, this form 

MUST BE FILED WITH THE OAH WITHIN THIRTY 

(30) CALENDAR DAYS FROM THE DATE YOU 

RECEIVED THE DMV ORDER YOU ARE 

CONTESTING.

The form, itself, does not reflect the date on which it was submitted, but the OAH stamped 

the document as having been received on July 5, 2018. Because this date was more than 

thirty calendar days from Mr. Price’s receipt of the DMV’s revocation order, the OAH 

determined that his “request for an administrative hearing regarding this matter is untimely 

. . . and must be denied.”

Mr. Price, by counsel, then filed a “PETITION FOR REVIEW OF 

ADMINISTRATIVE ORDER” in the Circuit Court of Boone County. After recounting 

the matter’s procedural history, from arrest and revocation to request for and denial of an 

administrative hearing, Mr. Price argued that the OAH had erred by refusing to grant him 
4

a hearing and incorrectly calculating the period within which he was required to file his 

request for an administrative hearing. Mr. Price also asked the circuit court for relief, 

including

that the Office of Administrative Hearings be required to 

produce a true and accurate copy of the transcript of the hearing 

and all exhibits contained within the file, that an order be 

entered staying the revocation order entered by letter dated 

May 31, 2018, with an effective date of July 5, 2018, and that 

the revocation order be stayed until such time as a hearing on 

the merits of the petition can be held[.]

By ex parte order entered August 16, 2018, the circuit court found “that it 

has jurisdiction over this matter pursuant to Chapter 29A-5-4 of the West Virginia Code. 

It is therefore ordered that this petition be filed.” The court also ordered the DMV to “file 

with the Clerk of this Court a complete copy of all exhibits in the file, and a copy of all 

administrative orders made by the Commissioner within 30 days after receipt of this 

Order.” Finally, the court “ordered that [Mr. Price’s] driving privileges shall be 

temporarily reinstated pending the outcome of this petition.”

Upon learning of this ruling, the DMV filed a “NOTICE OF SPECIAL 

LIMITED APPEARANCE; MOTION TO DISMISS FOR LACK OF SUBJECT 

MATTER JURISDICTION, VENUE, AND FAILURE TO JOIN A PARTY; AND 

REQUEST FOR ATTORNEY FEES AND COSTS” also in the Circuit Court of Boone 

County. The DMV primarily objected to the circuit court’s entry of an order granting relief 

to Mr. Price because the OAH had not granted him an administrative hearing or issued a 
5

ruling with regard to his challenge of his driver’s license revocation, and, thus, the DMV 

argued that the circuit court did not have jurisdiction because the matter did not constitute 

a “contested case” under the West Virginia Administrative Procedures Act. Although the 

circuit court held a hearing on the DMV’s motion to dismiss, the court has not entered an 

order either granting or refusing the DMV’s request for relief. Therefore, the DMV now 

seeks a writ of prohibition from this Court to prevent the circuit court from enforcing its 

August 16, 2018 ex parte order finding that it has jurisdiction to entertain Mr. Price’s 

petition for review, granting a stay of his driver’s license revocation during the pendency 

of the circuit court proceedings, and ordering the DMV to compile and file a record of the 

administrative proceedings regarding Mr. Price’s license revocation.

B. Case Number 19-0755: Nicholas Blankenship

Mr. Blankenship was involved in a single-vehicle accident in Logan County, 

West Virginia, on July 19, 2012. The administration of field sobriety tests suggested that 

Mr. Blankenship was impaired, and, as noted in the OAH’s Hearing Examiner’s April 9, 

2019 “FINAL ORDER,” the investigating officer arrested Mr. Blankenship for “driving 

while under the influence of alcohol, controlled substances, drugs or any combination of 

the aforementioned.” Thereafter, “[t]he Commissioner of the West Virginia Division of 

Motor Vehicles entered an Order of Revocation dated October 1, 2013, revoking the 

driving privileges of [Mr. Blankenship] for the offense of driving a motor vehicle in this 

[S]tate while under the influence of controlled substances, and[/]or drugs.” Mr. 

Blankenship filed a timely request for an administrative hearing to challenge the revocation 
6

of his driver’s license; the OAH granted his request; and a hearing was held on Mr. 

Blankenship’s revocation challenge. By “FINAL ORDER OF CHIEF HEARING 

EXAMINER” entered April 10, 2019, the OAH affirmed the DMV’s revocation of Mr. 

Blankenship’s license to drive a motor vehicle in this State.

Counsel for Mr. Blankenship then appealed from the OAH’s order affirming 

Mr. Blankenship’s license revocation by filing a “PETITION FOR REVIEW OF 

ADMINISTRATIVE ORDER” in the Circuit Court of Boone County. In his petition, Mr. 

Blankenship claimed, among other things, that the arresting officer failed to correctly 

administer the field sobriety tests and preliminary and secondary tests; the hearing 

examiner erred by considering the results of allegedly improperly collected blood samples; 

and the yearlong delay in filing the arresting officer’s DUI information sheet prejudiced 

him. Mr. Blankenship also asked the circuit court for relief, including

that the Commissioner b[e] required to produce a true and 

accurate copy of the transcript of the hearing and all exhibits 

contained within the file, that an order be entered staying the 

Final Order dated May 11, 2009 [sic], until such time as a 

hearing on the merits of the petition can be held, [and] that the 

revocation order entered by the Commissioner be reversed and 

set aside in accordance with West Virginia Code [§] 29A-5-

4(g)[.]

By ex parte order entered May 8, 2019, the circuit court ordered the DMV to 

“file with the Clerk of this Court a complete copy of the transcript of hearing, all exhibits 

in the file, and a copy of all administrative orders made by the Commissioner within 30 
7

days after receipt of this Order.” The court additionally “ordered that the Final Order which 

revoked [Mr. Blankenship’s] driving privileges be stayed for a period of 150 days, and that 

[Mr. Blankenship’s] right to drive shall be reinstated pending further Order of this Court 

regarding the outcome of this petition.”

The DMV now seeks a writ of prohibition from this Court to prevent the 

circuit court from enforcing its May 8, 2019 ex parte order granting a stay of Mr. 

Blankenship’s driver’s license revocation during the pendency of the circuit court 

proceedings and ordering the DMV to compile and file a record of the administrative 

proceedings regarding Mr. Blankenship’s license revocation.

II.

STANDARD FOR ISSUANCE OF WRIT

The issue presented by both of these petitions for prohibitory relief concerns 

the circuit court’s interpretation and application of the statutory law governing a driver’s 

request for a stay of the administrative revocation of his/her driver’s license while the 

appeal of that ruling is pending in circuit court. In cases involving a circuit court’s 

determination of matters as to which a statute provides guidance, we previously have held

that “[i]nterpreting a statute or an administrative rule or regulation presents a purely legal 

question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t 

of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995). See also Syl. pt. 1, Chrystal R.M. v. 
8

Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where the issue on an appeal from 

the circuit court is clearly a question of law or involving an interpretation of a statute, we 

apply a de novo standard of review.”).

Furthermore, the instant cases are before the Court as petitions for a writ of 

prohibition. As an extraordinary remedy, the writ of prohibition is granted only in 

exceptional cases. In other words,

“[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 writ 

of error, appeal or certiorari.” Syl. pt. 1, Crawford v. Taylor, 

138 W. Va. 207, 75 S.E.2d 370 (1953).

Syl. pt. 2, Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984). Accord Syl. pt. 10, in 

part, State ex rel. Lynn v. Eddy, 152 W. Va. 345, 163 S.E.2d 472 (1968) (“[P]rohibition

may be invoked when it clearly appears that the trial court is without jurisdiction or has 

exceeded its legitimate powers.”). See also Syl. pt. 2, State ex rel. Winter v. MacQueen, 

161 W. Va. 30, 239 S.E.2d 660 (1977) (“Prohibition will lie to prohibit a judge from 

exceeding his legitimate powers.”). In cases involving a lack of jurisdiction, we have held 

that “[w]hen a court is attempting to proceed in a cause without jurisdiction, prohibition 

will issue as a matter of right regardless of the existence of other remedies.” Syl. pt. 10, 

Jennings v. McDougle, 83 W. Va. 186, 98 S.E. 162 (1919). However, where it is claimed 

that a circuit court has jurisdiction over a matter but allegedly has exceeded it, our standard 

for determining whether a writ of prohibition should issue is as follows:
9

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). Guided 

by these standards, we proceed to consider the questions raised by the parties.

III.

DISCUSSION

Because each of the matters in this consolidated case presents different issues 

for this Court’s resolution, we will consider the parties’ arguments in each matter 

separately.

A. Case Number 19-0754: Dylan Price

In this matter, the DMV contends that the circuit court erred by accepting 

Mr. Price’s petition for review and granting him a stay of his driver’s license revocation 
10

because the court lacked jurisdiction to do so. The DMV explains its position by stating 

that because the OAH deemed Mr. Price’s request for an administrative hearing to be 

untimely and, thus, refused to grant him an administrative hearing, the OAH did not render 

a final decision on Mr. Price’s challenge to the DMV’s revocation order. As a result, the 

DMV argues that Mr. Price’s petition for review to the circuit court did not involve a 

“contested case” as required for the circuit court to have jurisdiction pursuant to the 

provision of the West Virginia Administrative Procedures Act (“the Act”), i.e., West 

Virginia Code section 29A-5-4 (LexisNexis 2018), referenced in the circuit court’s order. 

Mr. Price disagrees and contends that his request for review was properly considered by 

the circuit court.3

Whether the circuit court had jurisdiction to entertain Mr. Price’s request for 

relief is governed by statutory law, namely various provisions of the Act and West Virginia 

Code section 17C-5A-2, which pertains to the review of an administrative revocation of a 

driver’s license. See generally W. Va. Bd. of Med. v. Spillers, 187 W. Va. 257, 259, 418 

S.E.2d 571, 573 (1992) (“[P]rocedures for appeals of decisions by administrative agencies 

are governed by the State Administrative Procedures Act.”). In matters involving statutes, 

we are bound by the rules of statutory construction. We first must determine the 

Legislature’s intent in enacting the provision. See Syl. pt. 1, Smith v. State Workmen’s 

3

The DMV also raises additional issues similar to those advanced in Mr. 

Blankenship’s case. See note 4, infra.
11

Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975) (“The primary object in 

construing a statute is to ascertain and give effect to the intent of the Legislature.”). Then, 

we consider the precise words employed in the enactment. Where such language is plain, 

we apply the subject statutory language as written without any further interpretation. See

Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968) (“Where the language of 

a statute is clear and without ambiguity the plain meaning is to be accepted without 

resorting to the rules of interpretation.”); Syl. pt. 5, State v. Gen. Daniel Morgan Post No. 

548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959) (“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.”).

To determine whether the circuit court had jurisdiction to consider Mr. 

Price’s review petition, we first look to the statute the circuit court cited in support of its 

jurisdictional finding. Pursuant to West Virginia Code section 29A-5-4(a), “[a]ny party

adversely affected by a final order or decision in a contested case is entitled to judicial 

review thereof under this chapter[.]” (Emphasis added). We find this language to be plain 

because we previously have recognized that “this [S]tate’s [A]dministrative [P]rocedures 

[A]ct . . . generally provides for judicial review of contested administrative cases[.]” 

Johnson v. Comm’r, Dep’t of Motor Vehicles, 178 W. Va. 675, 677, 363 S.E.2d 752, 754 

(1987) (emphasis added).
12

The Act further defines a “contested case,” in pertinent part, as “a proceeding 

before an agency in which the legal rights, duties, interests or privileges of specific parties 

are required by law or constitutional right to be determined after an agency hearing.” 

W. Va. Code § 29A-1-2(b) (LexisNexis 2018). We previously have considered this 

statutory definition of a “contested case” and held as follows:

Our Administrative Procedures Act, W. Va. Code, 29A1-2(b), defines a contested case before an agency as a 

proceeding that involves legal rights, duties, interests, or 

privileges of specific parties which are required by law or 

constitutional right to be determined after an agency hearing. 

Thus, an agency must either be required by some statutory 

provision or administrative rule to have hearings or the specific 

right affected by the agency must be constitutionally protected 

such that a hearing is required.

Syl. pt. 1, State ex rel. W. Va. Bd. of Educ. v. Perry, 189 W. Va. 662, 434 S.E.2d 22 (1993). 

Likewise, we find this language to plainly require, as it pertains to the instant proceeding, 

an administrative agency to hold a hearing and issue a decision of the matter following the 

hearing. These requirements are further reflected in the statute granting Mr. Price the 

ability to challenge the DMV’s decision to revoke his driver’s license for DUI:

Written objections to an order of revocation or 

suspension under the provisions of section one of this article or 

section seven, article five of this chapter shall be filed with the 

Office of Administrative Hearings. Upon the receipt of an 

objection, the Office of Administrative Hearings shall notify 

the Commissioner of the Division of Motor Vehicles, who 

shall . . . afford the person an opportunity to be heard by the 

Office of Administrative Hearings. The written objection must 

be filed with [the] Office of Administrative Hearings in person, 

by registered or certified mail, return receipt requested, or by 

facsimile transmission or electronic mail within thirty calendar 

days after receipt of a copy of the order of revocation or 

suspension or no hearing will be granted . . . . The hearing 
13

shall be before a hearing examiner employed by the Office of 

Administrative Hearings who shall rule on evidentiary 

issues. . . . Upon consideration of the designated record, the 

hearing examiner shall, based on the determination of the facts 

of the case and applicable law, render a decision affirming, 

reversing or modifying the action protested. The decision shall 

contain findings of fact and conclusions of law and shall be 

provided to all parties by registered or certified mail, return 

receipt requested, or with a party’s written consent, by 

facsimile or electronic mail.

W. Va. Code § 17C-5A-2(a) (LexisNexis 2017). We also find this language to be clear 

and note that the method for requesting a hearing to challenge the revocation ruling, as well 

as the time period within which the request must be made, are reiterated in both the 

revocation notice sent to Mr. Price and the administrative hearing request form he 

submitted, but which the OAH rejected as untimely filed.

Moreover, as the definition of a “contested case” specifically requires, and 

as the revocation review statute also recognizes, an administrative hearing must not only 

be requested for a matter to constitute a “contested case.” Rather, the agency also must 

actually hold the hearing and issue a decision to render a case “contested.” See, e.g., State 

ex rel. Miller v. McGraw, No. 12-0380, 2012 WL 3155761, at *3 (W. Va. May 30, 2012) 

(memorandum decision) (finding that “the subject license revocation is not a ‘contested 

case’ within the definition of the [Act]” because the driver failed to appear at the 

administrative hearing he had requested to challenge his license revocation, and, thus, 

“because there was no administrative hearing, there was nothing to make this . . . a 

contested case within the definition of W. Va. Code § 29A-1-2(b)”); Syl. pt. 9, in part, State 
14

ex rel. Miller v. Reed, 203 W. Va. 673, 510 S.E.2d 507 (1998) (“Where an administrative 

hearing is not held in a driver’s license revocation case because the holder of the driver’s 

license failed to pursue his administrative remedies, a circuit court does not have 

jurisdiction to grant . . . relief with respect to issues which are capable of resolution under 

the West Virginia Administrative Procedures Act, West Virginia Code §§ 29A-1-1 to 29A7-4 (1998).”); Cowie v. Roberts, 173 W. Va. 64, 312 S.E.2d 35 (1984) (finding circuit court 

did not have jurisdiction to grant motorist relief where motorist failed to request 

administrative hearing to challenge suspension of his driver’s license). This is so because, 

“[u]nder the Administrative Procedures Act, the task of the circuit court is to determine 

whether the [agency’s] decision was based on a consideration of the relevant factors and 

whether there has been a clear error of judgment.” W. Va. Health Care Cost Review Auth. 

v. Boone Mem’l Hosp., 196 W. Va. 326, 335, 472 S.E.2d 411, 420 (1996) (internal 

quotations and citations omitted). Thus, where “there [i]s no administrative hearing before 

the Division by the Commissioner, there [i]s no ‘contested case’ within the meaning of 

West Virginia Code § 29A-1-2 of the [Act].” Reed, 203 W. Va. at 683, 510 S.E.2d at 517.

Here, it is undisputed that the OAH did not hold a hearing regarding the 

revocation of Mr. Price’s driver’s license because it found his request to be untimely filed. 

In fact, the failure to hold a hearing is one of the errors Mr. Price assigns in the petition for 

review he filed in the circuit court. Nevertheless, as the preceding authorities make clear, 

a circuit court has jurisdiction under the Act to review only “contested cases.” See W. Va. 

Code § 29A-5-4(a). Therefore, because the OAH did not hold a hearing to review the 
15

propriety of Mr. Price’s license revocation, the instant matter does not meet the definition 

of a “contested case” so as to confer jurisdiction on the circuit court to consider the petition 

for review therein filed by Mr. Price. See Syl. pt. 9, in part, Reed, 203 W. Va. 673, 510 

S.E.2d 507. See also Syl. pt. 1, Cowie, 173 W. Va. 64, 312 S.E.2d 35 (“‘The general rule 

is that where an administrative remedy is provided by statute or by rules and regulations 

having the force and effect of law, relief must be sought from the administrative body, and 

such remedy must be exhausted before the courts will act.’ Syl. pt. 1, Daurelle v. Traders 

Federal Savings & Loan Association, 143 W. Va. 674, 104 S.E.2d 320 (1958).”).

Moreover, where, as here, a circuit court does not have jurisdiction over a 

matter, the proper course is to dismiss the proceeding from the circuit court’s docket as we 

recently held in Syllabus point 5 of Holly v. Feagley, 242 W. Va. 240, 834 S.E.2d 536 

(2019):

“Whenever it is determined that a court has 

no jurisdiction to entertain the subject matter of a civil action, 

the forum court must take no further action in the case other 

than to dismiss it from the docket.” Syllabus Point 1, Hinkle v. 

Bauer Lumber & Home Bldg. Ctr., Inc., 158 W. Va. 492, 211 

S.E.2d 705 (1975).

Accord McGraw, No. 12-0380, 2012 WL 3155761; Syl. pt. 5, State ex rel. Dale v. Stucky, 

232 W. Va. 299, 752 S.E.2d 330 (2013) (per curiam). See also Syl. pt. 3, Richmond v. 

Henderson, 48 W. Va. 389, 37 S.E. 653 (1900) (“Where a justice has no jurisdiction of a 

civil action, neither has a circuit court on appeal, though such circuit court would have 

original jurisdiction in the case, and therefore such court must dismiss the action for want 
16

of jurisdiction.”). Accordingly, we find that the circuit court exceeded its jurisdiction by 

entering its August 16, 2018 order whereby it granted relief to Mr. Price by staying the 

revocation of his driver’s license and requiring the DMV to produce the underlying 

administrative record. As such, we grant as moulded the writ of prohibition requested by 

the DMV4 and direct the Circuit Court of Boone County to dismiss5 the matter in which it 

entered its August 16, 2018 order.

B. Case Number 19-0755: Nicholas Blankenship

In this matter, the DMV contends that the circuit court erred by entering its 

May 8, 2019 ex parte order staying the revocation of Mr. Blankenship’s driver’s license 

and ordering the DMV to produce the record of the underlying administrative proceedings. 

To support its argument, the DMV states that West Virginia Code section 17C-5A-2(s)

establishes precise procedures that a circuit court is required to follow when issuing a stay 

of an administrative license revocation and also directs which party is responsible for 

compiling the administrative record to be considered by the circuit court. By contrast, Mr. 

4

Because we have determined that the DMV is entitled to the prohibitory 

relief it seeks with regard to Mr. Price’s circuit court proceeding, we need not consider the 

additional issues raised by the DMV in this matter. See supra note 3.

5

Should Mr. Price wish to pursue his challenge of the OAH’s decision to 

deny his request for an administrative hearing regarding the revocation of his driver’s 

license because it found his request to be untimely filed, he may apply for a writ of 

mandamus in the Circuit Court of Kanawha County. See generally Holly v. Feagley, 242 

W. Va. 240, 834 S.E.2d 536 (2019); Williams v. W. Va. Div. of Motor Vehicles, 226 W. Va. 

562, 703 S.E.2d 533 (2010) (per curiam); State ex rel. Miller v. Reed, 203 W. Va. 673, 510 

S.E.2d 507 (1998).
17

Blankenship responds that the circuit court did not err in its rulings staying the revocation 

of his driver’s license and ordering the DMV to prepare the administrative record of his 

license revocation proceedings. We will address the issues raised by the DMV in turn.

1. Stay of administrative revocation of driver’s license. The DMV first 

argues that the circuit court erred by entering an ex parte order staying Mr. Blankenship’s 

license revocation. As with our resolution of the DMV’s petition for writ of prohibition in 

Mr. Price’s matter, the DMV’s petition for writ of prohibition in this case also is governed 

by statutory law, and our consideration of the relevant language is guided by the rules of

statutory construction. See generally Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 

159 W. Va. 108, 219 S.E.2d 361 (holding that effect must be given to the Legislature’s 

intent); Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (accepting plain meaning 

of clear and unambiguous statutory language); Syl. pt. 5, State v. Gen. Daniel Morgan Post 

No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (applying clear statutory language 

without further interpretation).

A circuit court has the authority to stay the administrative revocation of a 

driver’s license to operate a motor vehicle in this State while the driver’s appeal of the 

administrative ruling is pending in the circuit court. However, this authority is not 

unlimited but, rather, is clearly defined both in its scope and in the manner in which such 

relief is to be granted. Pursuant to the relevant language of West Virginia Code section 

17C-5A-2(s), paragraph 2,
18

[a] person whose license is at issue and the 

commissioner shall be entitled to judicial review [of the OAH’s 

final order] as set forth in chapter twenty-nine-a of this code. 

Neither the commissioner nor the Office of Administrative 

Hearings may stay enforcement of the order. 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 of the order 

exceed one hundred fifty days. . . .

(Emphasis added).

We previously have considered this statutory language, found it to be plain, 

and held that a circuit court has discretion as to whether to grant the requested stay, but that 

the aggrieved motorist must first request a stay by motion, the circuit court must hold a 

hearing on the motorist’s stay motion, and the circuit court must make the findings required 

by statute before it may grant the stay:

“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.” Syllabus Point 2, Smith v. Bechtold, 190 W. Va. 315, 

438 S.E.2d 347 (1993).

Syl. pt. 2, State ex rel. Miller v. Karl, 231 W. Va. 65, 743 S.E.2d 876 (2013). Thus, “if the 

circuit court grant[s] the stay without conducting evidentiary hearings and without 

meaningfully analyzing the evidence adduced during the hearings, [t]he [circuit court has]
19

exceeded the legitimate powers granted to [the court] under the statute.” Bechtold, 190 

W. Va. at 320, 438 S.E.2d at 352.

Moreover, the circuit court may grant the requested stay only if it specifically 

finds that “there is a substantial probability that the [driver] shall prevail upon the merits 

and the [driver] will suffer irreparable harm if the order is not stayed.” W. Va. Code § 17C5A-2(s). In this regard, we specifically have held that 

[a] proffer is not sufficient to satisfy the evidentiary 

requirements of West Virginia Code § 17C-5A-2(s) (201[5]) 

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.

Syl. pt. 3, Karl, 231 W. Va. 65, 743 S.E.2d 876. 

Finally, if the court stays the revocation order, such stay is limited to one 

hundred fifty days. See Syl. pt. 4, Karl, 231 W. Va. 65, 743 S.E.2d 876 (“A stay or 

supersedeas of the order issued pursuant to W. Va. Code § 17C-5A-2(s) (201[5]) 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.”).

During the proceedings below, Mr. Blankenship, as part of his “PETITION 

FOR REVIEW OF ADMINISTRATIVE ORDER,” requested the circuit court to stay his 
20

driver’s license revocation during the pendency of the circuit court proceedings. However, 

it is undisputed that the circuit court did not hold a hearing on Mr. Blankenship’s request 

for a stay insofar as it entered its ex parte order granting the stay on the same day that Mr. 

Blankenship filed his review petition in the circuit court. Neither did Mr. Blankenship aver 

that there was a “substantial probability” that he would prevail on the merits of his appeal 

or that he would “suffer irreparable harm” if the circuit court did not grant the stay as 

required by the express language of West Virginia Code section 17C-5A-2(s). Nor did the 

circuit court make findings as to either of these points in its May 8, 2019 order granting 

Mr. Blankenship’s requested stay. In fact, the only part of the statutory provisions for 

granting a stay that the circuit court followed in this case concerns the length of the stay 

because, in awarding Mr. Blankenship the stay he had requested, the circuit court limited 

it to “a period of 150 days.”

Because both the clear statutory language of West Virginia Code section 

17C-5A-2(s) and the prior decisions of this Court considering this language dictate that a 

circuit court does not have the discretion to ignore these guidelines, but, rather, must 

faithfully follow these strictures in staying an administrative revocation of a driver’s 

license, we find that the circuit court erred as a matter of law in granting the stay in Mr. 

Blankenship’s case when it failed to follow the prescribed procedure for granting a stay. 

In this regard, the circuit court did not hold a hearing on Mr. Blankenship’s request for a 

stay, did not take evidence as to whether Mr. Blankenship would substantially prevail on 

the merits of his appeal and whether he would be irreparably harmed if his license 
21

revocation was not stayed, and did not make findings as to Mr. Blankenship’s likelihood 

of success on appeal or the harm he would suffer absent a stay. Accordingly, we find that 

the DMV is entitled to the relief it requests in this regard and grant the writ of prohibition 

to prevent the circuit court from enforcing the stay issued to Mr. Blankenship in its May 8, 

2019 order.

2. Preparation of record of administrative proceedings. The DMV 

additionally argues that the circuit court erred by requiring it to prepare the record of the 

administrative proceedings for Mr. Blankenship’s appeal of his license revocation to the 

circuit court. This issue also is governed by statutory law, namely West Virginia Code 

section 17C-5A-2(s), paragraph 2, and the rules of statutory construction again guide our 

analysis. See generally Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 

108, 219 S.E.2d 361; Syl. pt. 2, Elder, 152 W. Va. 571, 165 S.E.2d 108; Syl. pt. 5, Gen. 

Daniel Morgan, 144 W. Va. 137, 107 S.E.2d 353.

Here, the DMV argues that the circuit court erroneously ordered it to prepare 

and submit the administrative record upon which Mr. Blankenship’s appeal to the circuit 

court is based. The preparation of the administrative record on appeal from an 

administrative license revocation proceeding is governed by West Virginia Code section 

17C-5A-2(s), the pertinent part of which provides:

The party filing the appeal shall pay the Office of 

Administrative Hearings for the production and transmission 

of the certified file copy and the hearing transcript to the court. 
22

Notwithstanding the provisions of section four, article five of 

said chapter, the Office of Administrative Hearings may not be 

compelled to transmit a certified copy of the file or the 

transcript of the hearing to the circuit court in less than sixty 

days.

(Emphasis added). Unlike the other statutory language at issue in this matter, we have not 

previously considered this precise provision of West Virginia Code section 17C-5A-2(s). 

Nevertheless, we find the enactment to plainly require that the party filing the appeal to the 

circuit court is the party responsible for arranging for the preparation and submission of 

the administrative record to that tribunal.

In determining the meaning of statutory language, we look to the specific 

words employed by the Legislature to ascertain the legislative intent and meaning of the 

provision at issue. “It is not the prerogative of this Court to arbitrarily disregard the plain 

meaning of clearly written statutes.” McVey v. Pritt, 218 W. Va. 537, 540, 625 S.E.2d 299, 

302 (2005). Instead, “the words of a statute are to be given their ordinary and familiar 

significance and meaning, and regard is to be had for their general and proper use.” Syl. 

pt. 4, in part, Gen. Daniel Morgan, 144 W. Va. 137, 107 S.E.2d 353. Additionally, “courts 

may not find ambiguity in statutory language which laymen are readily able to comprehend

. . . . Plain language should be afforded its plain meaning.” Crockett v. Andrews, 153 

W. Va. 714, 718-19, 172 S.E.2d 384, 387 (1970).
23

The portion of West Virginia Code section 17C-5A-2(s) that addresses the 

preparation of the administrative record specifically directs that the “[t]he party filing the 

appeal shall pay the Office of Administrative Hearings for the production and transmission 

of the certified file copy and the hearing transcript to the court.” (Emphasis added). This 

language plainly directs the appealing party to arrange for the submission of the 

administrative record to the circuit court. In this case, Mr. Blankenship filed the appeal 

from the OAH’s order in the circuit court, and, thus, Mr. Blankenship, and not the DMV, 

is the party responsible for ensuring the circuit court has the administrative record of the 

proceedings from which the appeal has been taken. Furthermore, the Legislature’s use of 

the word “shall” in this context makes this directive to the appealing party mandatory. See, 

e.g., Syl. pt. 1, Nelson v. W. Va. Pub. Emps. Ins. Bd., 171 W. Va. 445, 300 S.E.2d 86 (1982) 

(“It is well established that the word ‘shall,’ in the absence of language in the statute 

showing a contrary intent on the part of the Legislature, should be afforded a mandatory 

connotation.”); Syl. pt. 2, Terry v. Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969) 

(“The word ‘shall’ in the absence of language in the statute showing a contrary intent on 

the part of the legislature, should be afforded a mandatory connotation.”).

Therefore, we conclude that the circuit court erred by disregarding the plain, 

and mandatory, statutory language of West Virginia Code section 17C-5A-2(s) that 

imposes upon the party appealing from the OAH to the circuit court the duty of arranging 

for the preparation of the record of the underlying administrative proceedings by paying 

the OAH “for the production and transmission of the certified file copy and the hearing 
24

transcript” because the circuit court improperly shifted this burden to the non-appealing 

party. Accordingly, we grant the writ of prohibition requested by the DMV on this ground 

and prohibit the circuit court from enforcing its May 8, 2019 order requiring the DMV, as 

the non-appealing party, to file the administrative record with the circuit court.

IV.

CONCLUSION

For the reasons explained in this opinion, we grant as moulded the requested 

writ of prohibition in Case Number 19-0754 and direct the Circuit Court of Boone County 

to dismiss the matter in which it entered its August 16, 2018 order. Furthermore, in Case 

Number 19-0755, we grant the requested writ of prohibition and prohibit the Circuit Court 

of Boone County from enforcing its May 8, 2019 order.

Case Number 19-0754 – Writ Granted as Moulded.

Case Number 19-0755 – Writ Granted.