IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2017 Term

No. 16-0996

JERRY S. STRAUB, Petitioner

v. PAT S. REED, COMMISSIONER, WEST VIRGINIA DIVISION OF MOTOR VEHICLES, Respondent

Appeal from the Circuit Court of Cabell County The Honorable F. Jane Hustead, Judge Case No. 16-C-274
AFFIRMED

Submitted: October 11, 2017 Filed: November 1, 2017

R. Lee Booten, II, Esq. Patrick Morrisey, Esq. Huntington, West Virginia Attorney General Attorney for Petitioner Janet E. James, Esq. Assistant Attorney General Charleston, West Virginia Attorneys for Respondent JUSTICE WORKMAN delivered the Opinion of the Court. JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion. 

### FILED November 1, 2017 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAi SYLLABUS BY THE COURT
1. “On appeal of an administrative order from a cir cuit court, this Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews questions of law presented de novo ; findings of fact by the administrative officer ar e accorded deference unless the reviewing court belie ves the findings to be clearly wrong.” Syl. Pt. 1, Muscatell v. Cline , 196 W.Va. 588, 474 S.E.2d 518 (1996).

2. “A driver’s license is a property interest and s uch interest is entitled to protection under the Due Process Clause of the W est Virginia Constitution.” Syl. Pt. 1, Abshire v. Cline , 193 W.Va. 180, 455 S.E.2d 549 (1995).

3. “‘A law enforcement officer’s failure to strictl y comply with the DUI arrest reporting time requirements of W.Va. Code, 17C-5A-l(b) [1994] is not a bar or impediment to the commissioner of the Division of M otor Vehicles taking administrative action based on the arrest report, unless there is actual prejudice to the driver as a result of such failure.’ Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999).” Syl. Pt. 3, Carpenter v. Cicchirillo , 222 W.Va. 66, 662 S.E.2d 508 (2008).

4. “On appeal to the circuit court from an order of the Office of Administrative Hearings affirming the revocation of a party’s license to operate a motor vehicle in this State, when the party asserts that his or her constitutional right to due process has been violated by a delay in the issuanc e of the order by the Office ofii

Administrative Hearings, the party must demonstrate that he or she has suffered actual and substantial prejudice as a result of the delay. Once actual and substantial prejudice from the delay has been proven, the circuit court m ust then balance the resulting prejudice against the reasons for the delay.” Syl. Pt. 2, Reed v. Staffileno , __ W.Va. __, 803 S.E.2d 508 (2017).1

WORKMAN, Justice:

Nearly two years after Petitioner Jerry S. Straub w as arrested for driving under the influence of alcohol (“DUI”), Respondent Pat S. Reed, Commissioner of the West Virginia Division of Motor Vehicles (hereinaft er the “DMV”), issued an order revoking his driver’s license. On appeal, the Offic e of Administrative Hearings (the “OAH”), affirmed the license revocation. The circui t court upheld that decision.

On appeal to this Court, Mr. Straub’s primary conte ntion is that the procedural delays were so unreasonably excessive th ey violated his constitutional due process rights. Based upon our review of the briefs , legal authorities, appendix record, and upon consideration of arguments of counsel, thi s Court finds no merit to his arguments. Therefore, we affirm the order of the ci rcuit court.

I. FACTS AND PROCEDURAL HISTORY A police officer with the Ceredo, West Virginia, Po lice Department arrested Mr. Straub for DUI on January 9, 2011. The officer initiated the traffic stop at approximately 3:00 a.m., after he observed Mr. Stra ub backing his vehicle into oncoming traffic and almost striking another vehicle. The of ficer smelled alcohol on Mr. Straub’s breath and noticed his eyes were glassy and bloodsh ot. Mr. Straub admitted to drinking; he told the officer that he had consumed six to eig ht beers that evening. Mr. Straub failed a preliminary breath test, and the results of the s econdary chemical test showed his blood alcohol concentration level was 0.107%.2 Mr. Straub appeared, pro se, before the City of Cer edo Municipal Court on March 10, 2011, and his misdemeanor DUI charge was dismissed.

For reasons not explained in the record, the DMV ma intains that it did not receive the DUI Information Sheet from the arrestin g officer until November 27, 2012. The DMV issued an order revoking Mr. Straub’s drivi ng privileges on December 18, 2012. Thereafter, Mr. Straub requested a hearing wi th the OAH to challenge the revocation.

Following several continuances for various reasons, the administrative hearing eventually took place before a hearing exam iner on March 10, 2015. 1 The police officer testified about the events surrounding the arrest. When he testified, Mr. Straub did not dispute the fact that he was driving while into xicated. Rather, Mr. Straub testified that he felt prejudiced by the delay of the revocation o rder being issued over twenty-three months from the time of his arrest, and the inciden t then being over four years old. Mr. Straub testified that he was employed as a pharmace utical sales representative, and his employer issued notices of potential layoffs regula rly. He further testified that during the time frame between his arrest for DUI and the admin istrative hearing, he attempted to secure other employment. Mr. Straub claimed that he was interviewed by recruiters, but

1 During that time, four hearings were scheduled and continued: the first upon Mr. Straub’s motion for continuance, the second for fai lure of the officer to appear, the third on the hearing examiner’s sua sponte motion, and th e fourth due to Mr. Straub’s motion for continuance.3

once they learned that his driver’s license could p ossibly be revoked, the recruiters would no longer continue his job search. Fortunately, Mr. Straub’s employer did not lay him off and he continued working while the matter was pendi ng. At the administrative hearing, Mr. Straub’s counsel moved to dismiss the case base d on the procedural delays.

On February 22, 2016, the OAH issued the decision of the hearing examiner which was adopted by the final order of th e chief hearing examiner. The OAH found that Mr. Straub drove a motor vehicle while u nder the influence of alcohol on January 9, 2011. It ordered Mr. Straub’s driver’s l icense revoked under West Virginia Code § 17C-5A-2(j) (2013). The OAH did not address Mr. Straub’s arguments regarding procedural delays; it noted the OAH “does not have jurisdiction to deal with issues of timing and delay.”

Mr. Straub appealed the OAH order to the circuit co urt and requested a stay of the revocation order pending that appeal pursuan t to West Virginia Code § 17C-5A2(s) (2013). The circuit court held a hearing on th e matter and granted Mr. Straub’s motion for stay. 2 By order entered October 21, 2016, the circuit cou rt affirmed the OAH order, finding no merit to Mr. Straub’s arguments.

2 At this hearing, the DMV moved to dismiss the matt er on jurisdictional grounds, and argued that it was not an appeal of a “conteste d case” pursuant to West Virginia Code § 29A-5-4 (2015), because Mr. Straub did not contes t the fact he was driving under the influence. The DMV asserted that Mr. Straub’s appea l was akin to a request for the (continued . . .)4 Mr. Straub filed this appeal, and presented a motio n to stay the circuit court’s order pending our appeal. On November 1, 20 16, this Court granted this motion.

II. STANDARD OF REVIEW This Court has held that [o]n appeal of an administrative order from a circu it court, this Court is bound by the statutory standar ds contained in W.Va. Code § 29A-5-4(a) and reviews questions of law presented de novo ; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong. Syl. Pt. 1, Muscatell v. Cline , 196 W.Va. 588, 474 S.E.2d 518 (1996). With these standards in mind, we proceed to the merits of this appeal.

III. DISCUSSION Mr. Straub raises four separate, but largely interc onnected, assignments of error on the subject of procedural delays. In the i nterest of brevity, we address the related issues in the context of his core argument. Mr. Str aub asserts that the delays in the administrative proceedings violated his constitutio nal rights guaranteed by the Fifth

extraordinary relief of rescission of a license rev ocation based upon delay in the administrative proceedings. The circuit court denie d the DMV’s motion. This issue is not squarely before the Court.5

Amendment to the United States Constitution and Art icle III, section 10 and section 17 of the West Virginia Constitution. 3

Delays and Procedural Due Process

The Legislature has imposed no time limitations on the DMV’s statutory authority to issue a revocation order following a d river’s DUI arrest. 4 Similarly, the OAH has no statutory or regulatory time limitations wit hin which to issue its decision following an administrative hearing. 5 Nevertheless, this Court has recognized that “[a] driver’s license is a property interest and such in terest is entitled to protection under the Due Process Clause of the West Virginia Constitutio n.” Syl. Pt. 1, Abshire v. Cline , 193 W.Va. 180, 455 S.E.2d 549 (1995). Thus, “due proces s concerns are raised when there are excessive and unreasonable delays in [driver’s] license suspension cases.” Holland v. Miller , 230 W.Va. 35, 39, 736 S.E.2d 35, 39 (2012).

[T]his Court has long recognized the constitutional mandate that “‘justice shall be administered without . . . delay.’ W.Va. Const. Art. III, § 17.” Frantz v. Palmer, 211 W.Va. 188, 192, 564 S.E.2d 398, 402 (2001). See Petry v. Stump, 219 W.Va. 197, 200, 632 S.E.2d 353, 356 (2006); and Allen v. State, Human Rts. Comm’n, 174 W.Va. 139, 157, 324 S.E.2d 99, 118 (1984). We have further declared that “[j]ust a s circuit court judges ‘have an affirmative duty to render ti mely decisions on matters properly submitted within a re asonable time following their submission,’ Syl. Pt. 1, in pa rt, State ex

3 This is Mr. Straub’s second assignment of error.

4 See W.Va. Code § 17C-5A-1(c).

5 See W.Va. Code § 17C-5C-1 et seq. and 105 W.Va. CSR § 1-1 et seq.6 rel. Patterson v. Aldredge, 173 W.Va. 446, 317 S.E.2d 805 (1984), the obligation to act in a timely fashion i s similarly imposed upon administrative bodies[.]” Frantz, 211 W.Va. at 192, 564 S.E.2d at 402. Indeed, as we held in sylla bus point 2 of Frantz, “‘[A]dministrative agencies performing quasijudicial functions have an affirmative duty to disp ose promptly of matters properly submitted.’ Syl. Pt. 7 , in part, Allen v. State, Human Rights Comm’n, 174 W.Va. 139, 324 S.E.2d 99 (1984).”
Miller v. Moredock , 229 W.Va. 66, 70, 726 S.E.2d 34, 38 (2011). 6

In the present case, Mr. Straub complains about two delays. First, the DMV issued its order revoking his driver’s license twen ty-three months after his arrest for DUI. And second, the OAH issued its decision affirming t hat revocation eleven months following the administrative hearing. Mr. Straub as serts these delays were grossly excessive, unreasonable, and violated his procedura l due process rights guaranteed by the

6 Mr. Straub’s fourth assignment of error is that th e OAH and the DMV’s failure to establish internal procedural time limits violat ed his “constitutional and statutory due process rights.” This contention is premised on Wes t Virginia Code § 29A-5-1(a), which provides that “[e]ach agency shall adopt appropriat e rules of procedure for hearing and contested cases[.]” However, we reject the argument that this language creates a statutory mandate for the DMV and the OAH to establish strict internal procedural time limits. The gist of his argument is that it is unfair to driver s that the DMV and the OAH are not held to clearly established deadlines, especially since they are so lackadaisical in performing their respective administrative duties. However, th is is an argument best made to the Legislature, not this Court. See Syl. Pt. 2, Huffman v. Goals Coal Co. , 223 W.Va. 724, 725, 679 S.E.2d 323, 324 (2009) (“This Court does n ot sit as a superlegislature, commissioned to pass upon the political, social, ec onomic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the Sta te or Federal Constitutions. ”).7

Fifth Amendment to the United States Constitution a nd Article III, sec. 10 and sec. 17 of the West Virginia Constitution.

With regard to the first delay, the DMV counters th at the lag in receipt of the arresting officer’s DUI Information Sheet follo wing the arrest did not relieve the DMV of its statutory duty to revoke Mr. Straub’s dr iver’s license. We agree. As this Court held in syllabus point three of Carpenter v. Cicchirillo , 222 W.Va. 66, 662 S.E.2d 508 (2008): “A law enforcement officer’s failure to strictly co mply

with the DUI arrest reporting time requirements of W.Va. Code, 17C-5A-l(b) [1994] is not a bar or impediment to t he commissioner of the Division of Motor Vehicles taki ng administrative action based on the arrest report, u nless there is actual prejudice to the driver as a result of su ch failure.” Syllabus point 1, In re Burks, 206 W.Va. 429, 525 S.E.2d 310 (1999).

When a driver asserts constitutional error due to a substantial delay in holding the administrative license revocation heari ng, the pivotal issue is whether he or she can demonstrate prejudice. That is, whether the driver’s ability to present his or her defense was affected by the delay. In Meadows v. Reed , No. 14-0138, 2015 WL 1588462 (W.Va. Mar. 16, 2015) (memorandum decision), this C ourt granted the driver relief after we determined that the four-year delay before the m atter went to administrative hearing was prejudicial to the driver’s ability to defend h imself. Significantly, that delay encompassed the death of the investigating officer, whose conclusions in the DUI information sheet were hotly contested by the drive r. In contrast, we declined to grant the8

driver relief in Reed v. Conniff , 236 W.Va. 300, 779 S.E.2d 568 (2015), when there was a four-year delay before the matter went to administr ative hearing; in Coniff , the delay did not prejudice the driver’s ability to mount a defen se to the charge.

Turning to the instant case, we agree with Mr. Stra ub’s general contention that a driver should not be forced to live under th e cloud of a pending revocation for nearly two years. Nevertheless, Mr. Straub fails to raise any serious argument that he was actually prejudiced or unable to adequately present his case when it did go to hearing before the OAH. In fact, Mr. Straub presented no evidence at the OAH hearing in defense of the DMV’s assertion that he was driving under th e influence.

Instead, by way of analogy, Mr. Straub asserts as h is third assignment of error that the one-year statute of limitations for misdemeanors 7 should bar the DMV’s administrative action, considering the fact his arr est was for misdemeanor DUI. This analogy is misplaced on its face and ignores our ca se law regarding the “clear statutory demarcation between the administrative issue on a s uspension and the criminal issue on a charge of driving while under the influence.” Jordan v. Roberts , 161 W.Va. 750, 757, 246 S.E.2d 259, 263 (1978). Accordingly, we find th e statute of limitations for Mr.

7 See W.Va. Code § 61-11-9 (2014).9

Straub’s DUI criminal charge is in no way germane t o his procedural due process challenge to the administrative revocation proceedi ng. 8

The instant case is factually similar to In re Petition of Donley , 217 W.Va. 449, 618 S.E.2d 458 (2005), wherein the driver cont ended that the delay of almost three years between his guilty plea to second offense DUI and the driver’s license revocation order violated his constitutional due process right s. In Donley , this Court found such delay patently unreasonable. Id . at 452, 618 S.E.2d at 461. Nevertheless, we held that the driver was not entitled to relief “because no preju dice flowed from the delay.” Id

.

Likewise, the twenty-three month delay between the DUI arrest and the DMV’s issuance of the revocation order in the insta nt matter was excessive and unreasonable. However, Mr. Straub is still not enti tled to relief because he can show no actual prejudice that flowed from this delay. As me ntioned above, at the administrative

8 See Syl. Pt. 3, Carroll v. Stump , 217 W.Va. 748, 619 S.E.2d 261 (2005) (“Administrative license revocation proceedings for driving a motor vehicle under the influence of alcohol, controlled substances or drug s which are initiated pursuant to Chapter 17C of the West Virginia Code are proceedin gs separate and distinct from criminal proceedings arising from driving a motor v ehicle under the influence of alcohol, controlled substances or drugs. The presentation of a sworn complaint before a magistrate and the magistrate’s finding of probable cause and issuance of a warrant are not jurisdictional prerequisites to the commencement of administrative license revocation proceedings pursuant to Chapter 17C of the West Vir ginia Code.”); see e.g., Alvarez v. State, Dep’t of DMV

, 249 P.3d 286, 291-92 (Alaska 2011) (rejecting arg ument that speedy trial limits apply to driver’s license suspe nsion proceedings because “both the Alaska and United States Constitutions grant the ri ght to a speedy trial only with regard to criminal proceedings, and a license revocation p roceeding is not a criminal proceeding.”) (footnote omitted).10

hearing Mr. Straub did not dispute the fact that he was driving while intoxicated. Therefore, the delay did not hamper Mr. Straub’s de fense of the charge; he advanced

none. 9

We turn now to the second delay. Mr. Straub compl ains that it took the OAH eleven months to issue its final order followin g the hearing. On this issue, the DMV counters that it cannot defend the OAH’s delay beca use the DMV “has no control over”

9 For this reason, the correlated first assignment o f error lacks merit. Mr. Straub argues that the OAH’s hearing officer’s failure to rule upon the procedural delay issue was a violation of his “due process rights, in addi tion to those violations arising from preissuance and post-issuance unreasonable delays[.]” However, Mr. Straub does not cite any authority for the proposition that he would be entitled to relief simply due to the OAH’s failure to rule on his constitutional argumen ts. In Matter of Callaghan , 238 W.Va. 495, 796 S.E.2d 604 (2017), cert. denied sub nom. Callaghan v. W. Virginia Judicial Investigation Comm’n , No. 17-54, 2017 WL 2972601 (U.S. Oct. 2, 2017), t his Court briefly discussed the issue. Looking to other jurisdictions, we noted that an agency before which constitutional challenges are raised g enerally acts with the “presumption that its rules and actions were constitutional and reserve[s] to the appropriate judicial forum the final resolution of constitutionality.” Id . at 510 n.15, 796 S.E.2d at 619 n.15. “[A]lthough the general rule is that agencies do no t have the authority to decide constitutional issues, agencies must consider and a pply constitutional principles in determining procedures and rendering decisions in c ontested cases.” Richardson v. Tenn. Bd. of Dentistry , 913 S.W.2d 446, 453 (Tenn. 1995). More specifical ly, “[w]hen the focus of an aggrieved party’s claim is an ‘as appli ed’ challenge to the constitutionality of a statute or any challenge to the constitutionality of an agency rule, the agency may initially rule on the challenge.” Id . at 455 (emphasis added). Here, Mr. Straub does no t articulate any real prejudice flowing from the OAH’ s failure to address his constitutional arguments.11

the OAH. Nevertheless, the DMV states that Mr. Stra ub’s argument regarding this delay lacks merit because he can demonstrate no actual pr ejudice. 10 We agree.

When evaluating a procedural due process challenge regarding the OAH’s delay in issuing its order after the administrative hearing, we again focus on whether the driver demonstrates actual prejudice. And in this c ircumstance, “the issue of prejudice necessarily involves prejudice to a party that occu rred after the hearing was held.” Reed v. Staffileno , __ W.Va. __, __, 803 S.E.2d 508, 513 (2017) (emph asis added).

In Staffileno , the driver put forth compelling evidence of preju dice because he made a career change during the thirty-nine mont h period between the OAH administrative hearing and its final order. ___ W.V a. at ___, 803 S.E.2d at 513. We affirmed the circuit court’s finding that Mr. Staff ileno was prejudiced by this delay because he would not have retired from his desk job when he did and changed his employment to that of a school bus driver, if the O AH had issued a timely decision. Id

.

10 The DMV also asserts that Mr. Straub’s failure to b ring an action for extraordinary relief against the OAH to issue its d ecision in a timely fashion renders moot his complaint about the delay. We disagree. This Co urt rejected similar arguments in Miller v. Moredock , and stated that despite the availability of extra ordinary relief as a means of seeking issuance of delayed decisions, a p arty whose driver’s license has been revoked should not have to resort to such relief to obtain a decision within a reasonable period of time following an administrative hearing. 229 W.Va. at 72 n.7, 726 S.E.2d at 40 n.712 Our holding in syllabus point two of Staffileno is dispositive of this issue: On appeal to the circuit court from an order of the Office of Administrative Hearings affirming the rev ocation of a party’s license to operate a motor vehicle in thi s State, when the party asserts that his or her constitutional ri ght to due process has been violated by a delay in the issuanc e of the order by the Office of Administrative Hearings, the party must demonstrate that he or she has suffered actual and substantial prejudice as a result of the delay. Onc e actual and substantial prejudice from the delay has been prove n, the circuit court must then balance the resulting preju dice against the reasons for the delay. ___ W.Va. at ___, 803 S.E.2d at 510.

Accordingly, we find the OAH’s eleven-month delay i n issuing its final order in this matter egregious. A driver should not have to wait this long to receive an order following an administrative hearing, and thes e delays cannot be condoned. Nevertheless, we decline to grant Mr. Straub relief because he can identify no actual and substantial prejudice, e.g., some type of detriment al change in his circumstances, related to the delay in OAH issuing its final order.

The circuit court was correct in finding that Mr. Straub demonstrated no prejudice by either the delay of the DMV in issuing the revocation order, or the delay in13

the OAH’s issuing its final order. Thus, we find Mr . Straub’s related assignments of error regarding procedural delays lack merit. 11

IV. CONCLUSION We affirm the October 21, 2016, order of the Circui t Court of Cabell County.

Affirmed.

11 As his fifth assignment of error, Mr. Straub chall enges West Virginia Code § 17C-5A-2(s)—the procedure for obtaining a stay from the circuit court pending appeal— and claims the statute violates “the United States and West Virginia constitutional guarantees of due process of law, and their concept s of procedural due process, substantive due process, and equal protection of la w.” This Court is at a loss to comprehend why Mr. Strau b would assign this error considering the fact the circuit court granted his request to stay the revocation order pending appeal. “It is an established principle of law that one may not urge the unconstitutionality of a statute if he is not harmf ully affected by the particular feature of the statute alleged to be in conflict with the Cons titution.” Wilson v. State , 264 A.2d 510, 511 (Del. 1970). “A closely related principle is th at constitutional rights are personal and may not be asserted vicariously.” Broadrick v. Oklahoma , 413 U.S. 601, 610 (1973). These principles “reflect the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Id . at 610-11. Accordingly, we decline to address thi s assignment of error.