No. 33654 - Jeffrey D. Carpenter v. Joseph Cicchirillo, Commissioner of the West Virginia Division of Motor Vehicles



Albright, Justice, concurring:

      I concur with the result of the majority opinion and write separately only to illumine the unfortunate degree of inconsistency present in this Court's determinations regarding the impact of technical violations of rules and statutes. In the present case, this Court was correct in finding that the arresting officer's violation of the reporting period did not deprive the DMV of its jurisdiction to consider revocation of Mr. Carpenter's driver's license. Certainly, important public interests are at stake in this matter, and an officer's failure in reporting should not alter the responsibility of the DMV to proceed with license revocation.

      As I recently lamented in my dissent to Guido v. Guido, ___ W.Va. ___, ___ S.E.2d ___ (No. 33599, June 18, 2008), however, this Court does not always apply the guiding precepts in a uniform manner. See Guido, ___ W.Va. at ___, ___ S.E.2d at ___ (Albright, J., dissenting). As in this case, a technical violation of a statutory guideline was presented in Guido. Yet, in Guido, a majority of this Court erroneously found that the pro se litigant's technical violation deprived the court of jurisdiction to hear his appeal.

      I find it disquieting that this Court, for good reasons, is willing to excuse a technical violation by a public agency, freeing it to proceed against the interest of a citizen, but cannot find good cause to excuse a similar technical violation by a citizen. Looking at the two cases, it seems to me that we have developed a double standard, picking and choosing who is to be thrown out of court.