No. 32531 _
In
Re: Petition of Kenneth D. Donley for Judicial Review of Administrative Decision
Made by Roger Pritt, Commissioner, Department of Transportation, Division
of Motor Vehicles
Albright, Chief Justice, concurring:
While I concur with the result reached by
the majority, I write separately to recognize that principles of fairness suggest
that the same promptness concerns that are imposed upon a defendant who requests
a hearing in connection with an administrative revocation of his operator's license
should be similarly imposed upon the West Virginia Department of Motor Vehicles
(“DMV”). To permit the DMV to grant itself an extension of the 180-day
deadline for revocation hearings that is mandated by West Virginia Code § 17C-5A-2(b)
(2004) without providing for any limits on the length of such extensions encourages
the establishment of a lopsided system _ a system that proves inherently unjust
for the defendant whose revocation proceedings are protracted, not because of
his requests, but because of lengthy administrative delays.
(See
footnote 1) Barring express legislative amendment on this issue of
timely scheduled hearings following the granting of a continuance requested
by the DMV, it is likely that the system will continue to be tilted in favor
of the DMV with regard to issues of timely action.
While the DMV had a legitimate basis for
continuing the revocation hearing _ the unavailability of a hearing examiner
on the date originally selected for the hearing _ the continuation of the hearing
for another six months seems patently unreasonable. A thirty- or sixty-day continuance
in this situation might prove acceptable, but to permit an entire year to pass
between the defendant's request for the hearing and the holding of the revocation
hearing seems excessive when the legislative scheme involved
mandates the
holding of such hearings within a 180-day period, barring demonstration of good
cause for a continuance.
See W.Va. Code § 17C-5A-2(b).
While the majority had no problem concluding
that the delay in the proceedings involved in this case (June 1998 entry of guilty
plea to September 2002 revocation hearing) was “unreasonable” for purposes
of considering whether the delay amounted to a violation of the defendant's due
process rights, the majority chose not to view the six-month continuation of
the revocation hearing as unreasonable. In finding the continuation acceptable,
the majority placed undue weight on the statutory inclusion of language that
permits a postponement or continuance upon a request from either side.
See W.Va.
Code § 17C-5A-2(b). To grant the DMV
carte blanche authority to reschedule
revocation hearings with no countervailing concern for the passage of time
based solely on legislative authorization of postponements or continuances
appears shortsighted in light of the legislative scheme that requires prompt
action on the part of the defendant if he/she wishes to challenge the revocation
or suspension of a motor vehicle license. Simply put, the legislative inclusion
of language authorizing a continuance upon permissible grounds should not abrogate
the time-based concerns that permeate the legislative framework governing administrative
sanctions for DUI violations. By turning a blind eye to this need for timely
hearings when a continuance has been granted, the majority overlooks the continuing
concern for prompt action _ an issue that should be applied equally to both
defendants and the administrative agency in charge of enforcing this legislative
scheme.
(See footnote 2)
I note an additional need for legislative
consideration of whether a temporal requirement should be imposed for purposes
of governing the length of time permitted for the transmittal of an abstract
of judgment by a magistrate. The almost three-year delay between the defendant's
entry of a guilty plea and the transmittal of the abstract of judgment to the
DMV was clearly beyond the pale of acceptable time allowances for such routine
procedural duties.
In my view, the Legislature ought to address
these two gaps in its scheme for prompt disposition of license revocation issues
in the administrative setting. I agree, however, that the statute, as presently
written, does not provide the Appellant with any relief for the unseemly delays
that were imposed upon him.
Therefore, I reluctantly concur with the
majority's opinion. I am authorized to say that Justice Starcher joins with me
in this concurring opinion.
Footnote: 1 This seems only fair in
light of the fact that the statutory scheme at issue requires that any procedural
rule adopted by the DMV “governing the postponement or continuance of
any such [revocation] hearing on the commissioner's own motion or for the benefit
of any law-enforcement officer or any person requesting the hearing” “shall
be enforced and applied to all parties equally.” W.Va. Code § 17C-5A-2(b).