Charles Joseph Stevens
V. McGraw, Jr.
Stevens & Stevens Attorney General
Hamlin, West Virginia Janet E. James
Attorney for the Appellee Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
Charles Joseph Stevens
V. McGraw, Jr.
Stevens & Stevens Attorney General
Hamlin, West Virginia Janet E. James
Attorney for the Appellee Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellant
The Opinion of the Court was delivered PER CURIAM.
1. In administrative proceedings under W.Va.Code,
17C-5A-1 et seq., the commissioner of motor vehicles must consider
and give substantial weight to the results of related criminal proceedings
involving the same person who is the subject of the administrative proceeding
before the commissioner, when evidence of such results is presented in the
administrative proceeding.Syl. Pt. 3, Choma
v. West Virginia Div. of Motor Vehicles, 210 W.Va. 256, 557 S.E.2d 310
2. 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. Syl. Pt.
1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
3. Three factors to be considered
in deciding whether to address technically moot issues are as follows: first,
the court will determine whether sufficient collateral consequences will
result from determination of the questions presented so as to justify relief;
second, while technically moot in the immediate context, questions of great
public interest may nevertheless be addressed for the future guidance of
the bar and of the public; and third, issues which may be repeatedly presented
to the trial court, yet escape review at the appellate level because of their
fleeting and determinate nature, may appropriately be decided. Syl. Pt. 1, Israel by Israel v. W. Va. Secondary Schools Activities
Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989).
4. A case is not rendered moot even though
a party to the litigation has had a change in status such that he no longer
has a legally cognizable interest in the litigation or the issues have lost
their adversarial vitality, if such issues are capable of repetition and
yet will evade review. Syl. Pt. 1, State ex rel. M.C.H. v.
Kinder, 173 W. Va. 387, 317 S.E.2d 150 (1984).
5. In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public policy issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions. Syl. Pt. 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).
This matter is before this
Court upon consolidated appeals (See
footnote 1) by the Division of Motor Vehicles, West Virginia
Department of Transportation (hereinafter DMV or Appellant) from
June 13, 2003, decisions of the Circuit Court of Lincoln County reversing
the administrative drivers' license revocations of Tommy Adkins and Tony
J. Arbaugh (hereinafter Appellees) and remanding those cases
to the DMV Commissioner for further proceedings. The Appellees were separately
arrested for DUI and subjected to administrative license revocations by the
DMV. The revocations were stayed pending appeal. Based upon the fact that
criminal charges against the Appellees did not result in convictions, the
Circuit Court of Lincoln County reversed the DMV's administrative license
revocations and remanded for further proceedings consistent with this Court's
decision in Choma v. West Virginia Division of Motor Vehicles, 210
W.Va. 256, 557 S.E.2d 310 (2001). The DMV now appeals that action.
Upon thorough review of the record, briefs, and applicable precedent, we
affirm the decision of the lower court and permit the remand to the DMV Commissioner,
as ordered by the lower court, for further evaluation and final determination
of these administrative license revocation issues.
In administrative proceedings under W.Va.Code, 17C-5A-1 et seq., the commissioner of motor vehicles must consider and give substantial weight to the results of related criminal proceedings involving the same person who is the subject of the administrative proceeding before the commissioner, when evidence of such results is presented in the administrative proceeding.
This Court specified that the consideration requirements announced in Choma would be prospective only. 210 W.Va. at 260 n. 4, 557 S.E.2d at 314 n. 4.
On September 18, 2002, the DMV filed a motion in
the lower court to vacate the stays of licence revocations for the Appellees. In
substantially similar orders entered June 13, 2003, the lower court
reversed the DMV license revocations for both Appellees on the grounds that
Mr. Adkins had received a dismissal of the criminal charges stemming from
his DUI arrest, Mr. Arbaugh had received a verdict of acquittal of the criminal
charges stemming from his DUI arrest, and this Court had issued the Choma decision
requiring consideration of those related criminal proceedings. The lower
court also remanded the matters to the commissioner for further proceedings
in conformity with the principles announced in Choma.
Appealing that decision to this Court, the DMV contends that the lower court erred in applying the requirements of Choma to cases pending on appeal when Choma was decided and that the open-ended stays of the commissioner's original revocation orders were in violation of statutory stay limitations. The DMV maintains that at the time of the 1995 and 1997 license revocations, Choma had not been decided; consequently, the DMV argues that criminal dismissal was not germane to the issue of administrative license revocation when the commissioner first encountered these cases. The DMV further argues that even if Choma applies, it holds only that the commissioner must consider the outcome of criminal charges when presented and made a part of the record. The lower court did not review any records of criminal cases or administrative proceedings. Thus, the DMV assigns the following errors: (1) the lower court erred in considering matters outside the scope of the administrative record and placing the burden of prosecuting the appeal on the DMV; and (2) the lower court erred in applying Choma retroactively.
During oral argument, the DMV informed this Court
that several other pending cases are subject to impermissibly lengthy stays. (See
footnote 3) 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.
In examining the Court's intent in its use of the term prospective in Choma, it is obvious that the Choma Court did not intend a purely prospective application since the Choma Court did indeed apply the newly announced law to the party in question in Choma. A purely prospective application is one which does not even apply the newly pronounced law to the parties to the case which resulted in the new law, as clearly explained in Ketchup v. Howard, 543 S.E.2d 371 (Ga. App. 2000). In Ketchup, the Georgia court stated that a purely prospective application of the principles announced herein was being adopted and concluded as follows: Consequently, the prospective application of this ruling will not affect the instant case. 543 S.E.2d at 379. Likewise, in Prescott v. PNC Bank Corp., 753 A.2d 1222 (N. J. Super 2000), the New Jersey court struggled with the disorderliness of the prospective/retroactive issue and observed as follows:
[W]here the Court believes that a purely prospective application
of a new rule of law is unfair to the successful litigant, and applies the new
rule to the parties, or perhaps the parties and other limited litigants, the
choice is called limited prospectivity, an identical concept to selective
753 A.2d at 1225 (citations omitted).
The creation of a new rule of law by the
Supreme Court requires the Court to address the perplexing doctrine of retroactivity.
Essentially, the Court has four choices. It may:
(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted.
Id. at 1224 (citations omitted). The New Jersey court in Prescott continued by observing that [a]s generally understood, when the new rule of law is to be applied on a 'purely prospective' basis the court refuses to apply the new rule 'not only to the parties before the court but also to any case where the relevant facts predate the decision.' Id. at 1225 (citations omitted). On the other hand, where the court applies the new 'rule to some but not all cases where the operative events occurred before the court's decision, depending on the equities' the option is called 'selective prospectivity.' Id. at 1225 (citations omitted).
The precedent of this Court, while illustrative, does not provide us with an unequivocal answer to the question of prospectivity posed in these consolidated appeals. (See footnote 4) In syllabus point five of Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), this Court outlined the formula for an initial determination of whether a decision should be considered retroactive or prospective, as follows:
In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public policy issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.
The Bradley formula does not give specific guidance to our current situation, in which the decision regarding prospectivity was specified within the Choma decision and application of that prospectivity ruling is now at issue.
We acknowledged in Kincaid v. Mangum, 189 W. Va. 404, 432 S.E.2d 74 (1993), that we continue to recognize that there is no one rule which will answer questions regarding the issue of retroactivity in every case. . . . 189 W. Va. at 416, 432 S.E.2d at 86.
Where an opinion does include a specific reference to retroactive or prospective application, such opinion often specifies a time period within which the newly announced rules should be applied. For instance, in State ex rel. Mitchem v. Kirkpatrick, 199 W. Va. 501, 485 S.E.2d 445 (1997), this Court concluded that our prior decision in State ex rel. Riffle v. Ranson, 195 W. Va. 121, 464 S.E.2d 763 (1995), abrogating the doctrine of forum non conveniens, would be applied prospectively to cases transferred without an appeal. Mitchem, 199 W. Va. at 505, 485 S.E.2d at 449. In explaining its prospectivity ruling, the Mitchem Court specified as follows:
Prospective application means that cases, which were
transferred under the doctrine of forum non-conveniens after October 27,
1995, the date Riffle was filed, should request the circuit court to reconsider
the transfer in light of our decision in Riffle. Unless extraordinary
relief was sought, cases which were transferred under the doctrine of forum
non-conveniens before October 27, 1995, are not entitled to any relief under Riffle.
Id. at 505-06, 485 S.E.2d at 449-50. In footnote three of Mitchem, the Court further spelled out its precise intent, as follows: We are unaware of any petitions pending before this Court concerning transfers made under the now abrogated doctrine of forum non-conveniens. However, if such a petition is pending, our decision today would not automatically reject a consideration of the petition. Id. at 506 n. 3, 485 S.E.2d at 450 n. 3.
Similarly, in LaRue v. LaRue, 172 W.Va. 158, 304 S.E.2d 312 (1983), overruled on other grounds by Butcher v. Butcher, 178 W.Va. 33, 357 S.E.2d 226 (1987), this Court announced a prospectivity ruling and then provided a clarification of situations in which the new rule would apply. In syllabus point fourteen, this Court stated:
Equitable distribution based
on homemaker services should be applied prospectively, that is, only to those
cases filed after the date of this opinion. Since we have applied the homemaker
principles to the present case, we will extend these principles to those cases
presently on appeal to this Court where an equitable distribution claim for homemaker
services has actually been presented in the lower court.
Another example of the prospecitivity issue being conformed to specific perceived equitable needs is found in Belcher v. Goins, 184 W.Va. 395, 400 S.E.2d 830 (1990). In that case, this Court addressed the Bradley factors and ruled that parental consortium claims could be maintained in specified instances where facts had arisen prior to Belcher's alteration of a claimant's rights. Specifically, the Belcher court explained:
However, to prevent
stale claims, a parental consortium claim may not in any event be maintained
if the parent was injured more than two years prior to this opinion. Furthermore,
to accommodate the usual requirement that a parental consortium claim be
joined with the parent's action for physical injuries, a parental consortium action must be brought no later than thirty days after
this opinion is filed, where the parent's action was brought prior to this
opinion for injuries which were inflicted no more than two years prior to
184 W.Va. at 408, 400 S.E.2d at 843.
In State v. Nichols, 208 W.Va. 432, 541 S.E.2d 310 (1999), this Court addressed the issue of the evidence necessary to establish a defendant's previous conviction and authorized bifurcation or stipulation in recidivist DUI prosecutions to avoid possible unfair prejudice from telling jurors about previous DUI offenses, overruling a prior case. In footnote twenty-four of Nichols, this Court addressed the prospectivity issue applicable in the criminal context and specified as follows:
While our holding today is applicable
to any retrial of Mr. Nichols, our decision has no retroactive application and
cannot be used or relied upon by a defendant convicted and sentenced before the
filing date of this opinion. [A] judicial decision in a criminal case is
to be given prospective application only if: (a) It established a new principle
of law; (b) its retroactive application would retard its operation; and (c) its
retroactive application would produce inequitable results. Syl. pt. 5,
in part, State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996).
208 W.Va. at 445 n. 24, 541 S.E.2d at 323 n. 24. Thus, relying upon Nichols, this Court in State v. Davisson, 209 W.Va. 303, 547 S.E.2d 241 (2001), held that the defendant in Nichols was not entitled to retroactive application of Nichols even though the defendant's case was on appeal when Nichols was filed . 209 W.Va. at 309, 547 S.E.2d at 247; see also Dalton v. Doe, 208 W.Va. 319, 540 S.E.2d 536 (2000) (holding that prior decision, overruling requirement of physical contact in order to recover uninsured motorist benefits and failing to specify prospectivity or retroactivity, applied only prospectively and did not apply to accident occurring prior to decision); Ashley v. Bellew, 190 W.Va. 600, 439 S.E.2d 465 (1993) (holding that Kanawha County Correctional Officers Civil Service Commission had erred in relying on case decided after occurrence of events in controversy). (See footnote 5)
An extensive explanation of the Court's intent was also included in the opinion in State ex. rel. Eads v. Duncil, 196 W.Va. 604, 474 S.E.2d 534 (1996), wherein this Court specified:
We specifically decline to make
this decision retroactive as to any revocation made before the order before us.
As to orders made since that time until our order today is effective, no person incarcerated pursuant to such order shall be subject to release solely by reason of our order today. As to any such cases in which a majority of the Parole Board has both considered the record of the revocation proceeding and concurred with the decision, the member of the Parole Board so considering and concurring in such decision shall forthwith file with the secretary of the Parole Board a written concurrence, and the secretary of the Parole Board shall prepare and certify an order in the nature of a nunc pro tunc and furnish and deliver copies thereof to those entitled to copies of the original order. In cases in which a majority of the Parole Board has not considered the record and concurred in the decision heretofore rendered, the Parole Board shall either proceed to reconsider the record, if available, and issue a new order revoking parole or setting aside the order of revocation or convene a new hearing, the record of which shall be considered and acted upon in the manner consistent with this opinion. A person shall be entitled to release only upon the entry of an order of the Parole Board setting aside its prior revocation order and upon the terms and conditions set forth in such order.
196 W.Va. at 612, 474 S.E.2d at 542.
An examination of the issue of the definition and application of the term prospective by other jurisdictions is also beneficial. In Gallik v. County of Lake, 781 N.E.2d 522 (Ill. App. 2002), the Illinois court explored the issue of prospectiveness and concluded: Prospective application means that, on the date of filing, the new rule will affect pending cases and all cases brought after the date of filing. 781 N.E.2d at 527; see also People ex rel. Klaeren v. Village of Lisle, 2004 WL 2331808 (Ill. App. 2004). (See footnote 6)
In State v. Swainston, 676 P.2d 1153 (Ariz. App. 1984), the Arizona court explained its prospectivity ruling as follows:
While this appeal was pending,
the Arizona Supreme Court issued its opinion in State v. Fettis, 136 Ariz.
58, 664 P.2d 208 (1983), holding that in the absence of extraordinary circumstances,
a sentence may not be imposed on a convicted defendant in absentia. The court
further held that its decision should have prospective application only.
Although the Arizona cases construing the meaning of prospective application have
produced inconsistent results, the supreme court has recently indicated that prospective
application means that a decision applies to cases on appeal on the date the
decision is rendered as well as to cases tried after that date . State
v. Nunez, 135 Ariz. 257, 660 P.2d 858 (1983).
676 P.2d at 1154 (emphasis supplied). Likewise, in >State v. LeMaster, 669 P.2d 592 (Ariz. App. 1983), the Arizona court recognized that it has indicated that prospective application of a decision means that a decision applies to cases tried after the date of filing as well as to cases pending on appeal as of that date. 669 P.2d at 601. The court noted that such interpretation is consistent with the general rule that when there is a change of law by judicial decision between the time of trial and the time of appeal the appellate court will apply the law prevailing at the time of the appellate disposition. Id. (citations omitted); see also >State v. Hanson, 91 P.3d 888, 892 (Wash. 2004) (examining prior opinion and holding that it applies prospectively to include cases not yet final when the . . . decision was decided).
The United States Supreme Court has also
grappled with these issues of prospective application of newly announced
principles. See United States v. Johnson, 457 U.S. 537, 562 (1982) (Broadening Linkletter v. Walker, 381 U.S. 618 (1965)
and holding that, subject to certain exceptions, a decision of this
Court construing the Fourth Amendment is to be applied retroactively to all
convictions that were not yet final at the time the decision was rendered).
In Griffith v. Kentucky, 479 U.S. 314 (1987), the United Stated Supreme
Court held that a new rule for the conduct of criminal prosecutions
is to be applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in which the
new rule constitutes a 'clear break' with the past. 479 U.S. at 328.
Subsequent to the Griffith decision, the United States Supreme Court
decided Teague v. Lane, 489 U.S. 288 (1989), finding that [r]etroactivity
is properly treated as a threshold question because once a new constitutional
rule of criminal procedure is applied to the defendant in the case announcing
the rule, evenhanded justice requires that it be applied retroactively
to all who are similarly situated. 489 U.S. at 300. In Teague,
the Court distinguished between cases pending on direct review and cases
pending on collateral review. Id. at 301.
These rules of application have been explicitly extended to civil cases. In James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991), a majority of Justices agreed that a rule of federal law, having been announced and applied to the parties to the controversy, must be given full retroactive effect by all courts adjudicating federal law. 501 U.S. at 540. The Court stated that the equality principle, that similarly situated litigants should be treated the same, carried comparable force in the civil context. Id. In Harper v. Virginia Dep't of Taxation, 509 U.S. 86 (1993), the Court expanded the Beam pronouncements as follows:
When this Court applies a rule of federal law to the
parties before it, that rule is the controlling interpretation of federal law
and must be given full retroactive effect in all cases still open on direct review
and as to all events, regardless of whether such events predate or postdate our
announcement of the rule. This rule extends Griffith's ban against selective
application of new rules. 479 U.S., at 323. Mindful of the basic
norms of constitutional adjudication that animated our view of retroactivity
in the criminal context, id., at 322, we now prohibit the erection of
selective temporal barriers to the application of federal law in non-criminal
cases. In both civil and criminal cases, we can scarcely permit the substantive
law [to] shift and spring according to the particular equities of
[individual parties'] claims of actual reliance on an old rule and of harm
from a retroactive application of the new rule. Beam, supra, at
543 [111 S.Ct. 2439] (opinion of Souter, J.). Our approach to retroactivity heeds
the admonition that [t]he Court has no more constitutional authority in
civil cases than in criminal cases to disregard current law or to treat similarly
situated litigants differently.
509 U.S. at 97 (citations omitted).
In the cases sub judice, this Court has the opportunity
to clarify the prospectivity statement in Choma. Based upon the foregoing
analysis, we conclude that prospectivity, within the context of the responsibilities
imposed upon the commissioner by Choma, permits the Choma decision
to be applied in any judicial determination of administrative license revocation
made after the date of Choma's filing, November 28, 2001. This would
include a case in which the operative facts occurred prior to November 28,
2001, where (1) the commissioner had not yet rendered a decision; or (2)
a direct appeal of that decision is pending. We predicate our holding
upon our conclusion that this Court's use of the term prospective in Choma indicated
an intent to apply the requirements enunciated in that opinion to all cases in which administrative license revocation determinations
had not been finalized at the time of Choma's issuance, November 28,
Further, we believe that our resolution of this
matter is in accord with the factors identified in Bradley. No substantive
issue was significantly altered or overruled by Choma; an additional
consideration for the commissioner was simply added. This additional requirement
is of narrow impact and affects few parties. It in no manner demonstrates
a dramatic departure from prior case law and does not impinge any party's
previously vested rights. Since Choma requires the commissioner only
to give consideration to the results of any criminal prosecution,
we believe this resolution of the matter is fair to all parties.
Because the Appellees' cases were pending when this Court issued Choma, Choma is applicable to final resolution of their cases. We consequently affirm the decision of the lower court and permit remand to the DMV Commissioner, as ordered by the lower court, for reevaluation of the Appellees' cases and the entry of an order decided in accordance with the requirements of Choma. We further direct, as emphasized above, that stays granted to administrative DUI license revocation proceedings must be properly limited. The commissioner should promptly file and bring on for hearing appropriate motions in every case where an open-ended stay is in effect, and the circuit courts should promptly hear and determine the issues pending in such appeals. Moreover, all stays issued hereafter must respect the legislative limitation of 150 days.
[P]ending . . . appeal, the [circuit] 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 thirty days.
West Virginia Code § 17C-5A-2(q) (2004) currently provides, in pertinent part, as follows:
The commissioner may not 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.
In the absence of any countervailing
factors, where a new rule of criminal law is made of a nonconstitutional
nature, it will be applied retroactively only to those cases in litigation
or on appeal where the same legal point has been preserved.
See also State v. Blake, 197 W.Va. 700, 711-12, 478 S.E.2d 550, 561-62 (1996) (A conviction and sentence becomes final for purposes of retroactivity analysis when the availability of direct appeal to this Court is exhausted or the time period for such expires. Concededly, the general rule in this country is to apply new law retroactively to cases that were pending on direct appeal at the time the new rule was adopted).