  IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                        January 2013 Term                    FILED
                        _______________                       May 17, 2013
                                                          released at 3:00 p.m.
                                                        RORY L. PERRY II, CLERK
                          No. 12-1213                 SUPREME COURT OF APPEALS
                                                           OF WEST VIRGINIA
                        _______________

STATE OF WEST VIRGINIA, ex rel. JOE E. MILLER, Commissioner,
          West Virginia Division of Motor Vehicles,
                         Petitioner

                                v.

   MARK A. KARL, Judge of the Circuit Court of Marshall County,
                        Respondent

                               and

                  JAMES LEONARD PARKER,
                       Party in Interest

                          ____________

                           No. 12-1224
                          ____________

STATE OF WEST VIRGINIA, ex rel. JOE E. MILLER, Commissioner,
          West Virginia Division of Motor Vehicles,
                         Petitioner,

                                v.

WILLIAM S. THOMPSON, Judge of the Circuit Court of Boone County,
                       Respondent

                               and

                       PATRICK WHITE,
                        Party in Interest
                                    ___________

                                    No. 12-1223
                                   ____________

        STATE OF WEST VIRGINIA, ex rel. JOE E. MILLER, Commissioner,
                  West Virginia Division of Motor Vehicles,
                                 Petitioner

                                         v.

          CHARLES KING, Judge of the Circuit Court of Kanawha County,
                               Respondent

                                        and

                             NICHOLE ERWIN,
                               Party in Interest
       ____________________________________________________________

                   ORIGINAL PROCEEDINGS IN PROHIBITION

                             WRITS GRANTED
       ____________________________________________________________

                             Submitted: February 6, 2013
                                Filed: May 17, 2013

Patrick Morrisey, Esq.                    Herman D. Lantz, Esq.
Attorney General                          Lantz Law Offices
Elaine L. Skorich, Esq.                   Moundsville, West Virginia
Assistant Attorney General                Counsel for the Respondent James
Charleston, West Virginia                 Leonard Parker
Counsel for the Petitioner
                                          Matthew M. Hatfield, Esq.
                                          Madison, West Virginia
                                          Counsel for the Respondent Patrick White

                                          Paul S. Detch, Esq.
                                          Lewisburg, West Virginia
                                          Counsel for the Respondent Nichole Erwin

CHIEF JUSTICE BENJAMIN delivered the Opinion of the Court.

                                         ii
                              SYLLABUS BY THE COURT


              1.     “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.” Syllabus Point 4, State ex

rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).



              2.     “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




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

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



              3.     A proffer is not sufficient to satisfy the evidentiary requirements of

West Virginia Code § 17C-5A-2(s) (2012) 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.



              4.     A stay or supersedeas of the order issued pursuant to W. Va. Code §

17C-5A-2(s) (2012) 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.




                                              ii
Benjamin, Chief Justice:

                These consolidated original proceedings are before the Court upon the

petitions of the Commissioner of the West Virginia Division of Motor Vehicles who

seeks to prohibit the Circuit Courts of Marshall County, Boone County, and Kanawha

County from entering orders staying the license revocations of Respondents James

Leonard Parker, Patrick White and Nichole Erwin.       The Commissioner alleges that the

circuit courts exceeded their jurisdiction and violated the requirements of West Virginia §

17C-5A-2(s) (2012)1 and applicable case law by failing to require the Respondents to

present evidence that there was a substantial probability that the Respondents would

prevail on the merits and the Respondents would suffer irreparable harm if the orders

were not stayed; failing to provide findings of fact and conclusions of law in the orders;

and in failing to limit the stays to 150 days. Upon examination of the petitions, the

responses, the submitted appendices, and the arguments of counsel, this Court concludes

that the stay orders violate the requirements of West Virginia § 17C-5A-2(s) and

applicable case law and that, consequently, the Commissioner is entitled to relief in

prohibition.

       1
           West Virginia Code §17C-5A-2(s) provides, in pertinent part:

       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 exceed one
       hundred fifty days.



                                             1
                                              I.

                   FACTUAL AND PROCEDURAL BACKGROUND

James Leonard Parker

                The Commissioner revoked the driving privileges of Respondent James

Leonard Parker because he was found to have driven under the influence of alcohol

(“DUI”).2 Mr. Parker filed a Petition for Appeal in the Circuit Court of Marshall County

on April 23, 2012, and that appeal is currently pending before the circuit court. Mr.

Parker moved for a stay of the revocation, and at the hearing on the motion for stay on

June 8, 2012, his counsel proffered the reasons why Mr. Parker would suffer a

“substantial hardship”3 if a stay was not granted, arguing that Mr. Parker would not be

able to travel to do the various odd jobs he normally does to make money, that he would

not be able to baby-sit his grandchildren on a regular basis, grocery shop, and attend

medical appointments without obtaining transportation.         Although counsel submitted

these proffers to the court, no testimony was taken and no evidence was admitted to the

record. The Commissioner argued that Mr. Parker had not met the requirements of West

Virginia Code § 17C-5A-2(s) because he had not presented any evidence, other than mere

proffer, that there was a substantial probability that he would prevail on the merits and

that he would suffer any “irreparable harm” if the order was not stayed.

2
    The record does not reflect the date on which the license revocation order was entered.
3
 We note that “substantial hardship” is not the burden of proof required in West Virginia
Code § 17C-5A-2(s). See footnote 1, supra.


                                               2
                In granting Mr. Parker’s motion for stay at the hearing, the circuit court

relied on Mr. Parker’s proffers and stated, “Mr. Lantz has indicated there’s going to be

irreparable harm in that he’s not able to do his work, he’s not able to get to medical

appointments. I, as a matter of course, grant stays.” The Commissioner requested that the

stay be self-terminating at 150 days, and the circuit court indicated that it would do so.

However, on July 23, 2012, the circuit court entered the order prepared by Mr. Parker’s

counsel which failed to limit the stay to 150 days and contained no findings by the circuit

court. It summarily stated,

                Upon hearing the representations of both counsel, the Court
                does hereby grant the Petitioner’s Application for Stay and
                does Order that the License Revocation entered by the
                Commissioner of Division of Motor Vehicles on April 9,
                2012 is hereby stayed until further order of this Court. Upon
                receipt of the record from the prior proceedings, the court will
                review the same and schedule this matter for further
                proceedings on the Petition for Review.


Patrick White

                The Commissioner revoked the driving privileges of Respondent Patrick

White on August 10, 2012, because he was found to have driven under the influence of

alcohol. Mr. White filed a Petition for Review of Administrative Order in the Circuit

Court of Boone County on or about August 16, 2012, which is currently pending. Mr.

White moved for a stay of the revocation on August 21, 2012. At the hearing on the

motion for stay on August 28, 2012, Mr. White’s counsel proffered reasons that Mr.

White would suffer irreparable harm if a stay was not granted, arguing that Mr. White is

                                               3
currently enrolled in college and is the married father of minor children for whom he is

responsible for transporting to extra-curricular activities in the evening while his wife

works as a registered nurse. However, it appears from the record that no testimony was

taken and no evidence was admitted to the record. The Commissioner argued that that

the requirements of West Virginia Code § 17C-5A-2(s) had not been satisfied because he

had not presented any evidence, other than mere proffer, that there was a substantial

probability that he would prevail on the merits and that he would suffer any “irreparable

harm” if the order was not stayed. However, the circuit court granted the motion for stay

without requiring testimony to be taken.



                Following the hearing, both parties submitted proposed orders.           On

September 10, 2012, the circuit court entered the order prepared by Mr. White which did

not limit the stay to 150 days. On September 12, 2012, the Commissioner filed a Motion

to Vacate Order Granting Temporary Stay on the grounds that the order granting the stay

failed to limit the stay to 150 days.       The circuit court has taken no action on the

Commissioner’s pending Motion to Vacate.



Nichole Erwin

                The Commissioner revoked the driving privileges of Respondent Nichole

Erwin because she was found to have driven under the influence of alcohol (“DUI”).4

4
    The record does not reflect the date on which the license revocation order was entered.


                                               4
Ms. Erwin filed a Petition for Review of Administrative Order in the Circuit Court of

Kanawha County on May 16, 2012, which is currently pending. Ms. Erwin moved for a

stay of the revocation, and at the hearing on the motion for stay on June 26, 2012, Ms.

Erwin failed to appear, but her counsel proffered the reasons why she would suffer

irreparable harm if a stay was not granted, arguing that the loss of an automobile driver’s

license can cause irreparable harm in that it can cause the loss of employment and

inconvenience. She further asserted that the inability to drive can cause risks to non-

license holders in case of an emergency. However, no testimony was taken and no

evidence was admitted to the record. The Commissioner argued that Ms. Erwin had not

met the requirements of West Virginia Code § 17C-5A-2(s) because she had not

presented any evidence that there was a substantial probability that she would prevail on

the merits and that she would suffer any “irreparable harm” if the order was not stayed.



              In granting Ms. Erwin’s motion for stay at the hearing, the circuit court

stated “I will shorten this too, Ms. Skorich, with all due respect. I hear a number of these

cases and routinely I grant a stay. Okay?” Following that, on August 28, 2012, the circuit

court entered an order prepared by Ms. Erwin’s counsel which summarily stated,

              The Court having further reviewed the petition filed herein
              and the brief supporting thereof it is ADJUDGED,
              ORDERED and DECREED as follows:

          1. “I am going to grant the stay, Mr. Detch. I am going to find
             that there is irreparable harm, on the record, and also that
             there is a substantial likelihood you will prevail.”



                                             5
             It is therefore ORDERED that a 90 day stay will be granted to
             the petitioner.



                                            II.

                              STANDARD OF REVIEW

             As this Court recently stated in SER Commissioner, West Virginia Division

of Motor Vehicles v. Swope, --- S.E.2d. ---, 2013 WL 1788227 (April 25, 2013),

             This Court has original jurisdiction in prohibition proceedings
             pursuant to art. VIII, § 3, of The Constitution of West
             Virginia. That jurisdiction is recognized in Rule 16 of the
             Rules of Appellate Procedure and in various statutory
             provisions. W.Va.Code, 51–1–3 [1923]; W.Va.Code, 53–1–2
             [1933]. In considering whether to grant relief in prohibition,
             this Court stated in the syllabus point of State ex rel. Vineyard
             v. O’Brien, 100 W.Va. 163, 130 S.E. 111 (1925): “The writ of
             prohibition will issue only in clear cases where the inferior
             tribunal is proceeding without, or in excess of, jurisdiction.”
             Syl. pt. 1, State ex rel. Johnson v. Reed, 219 W.Va. 289, 633
             S .E.2d 234 (2006).

Id.



             In the current cases before us, which concern whether the circuit courts

exceeded their jurisdiction, the relevant guidelines are found in State ex rel. Hoover v.

Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), syllabus point 4 of which holds:

             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

                                            6
                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. 2, State ex rel. West Virginia National Auto Insurance Company v. Bedell, 223

W.Va. 222, 672 S.E.2d 358 (2008); syl. pt. 2, State ex rel. Isferding v. Canady, 199

W.Va. 209, 483 S.E.2d 555 (1997).




                                             III.

                                       DISCUSSION

                First, the Commissioner argues that the circuit courts exceeded their

authority in granting the stays in the cases before us because (1) a proffer is insufficient

to establish the evidentiary requirements of West Virginia Code § 17C-5A-2(s)5 and (2)

the circuit courts’ orders failed to contain specific findings of fact upon the evidence

presented. The Commissioner asserts that the orders fail to comply with this Court’s




5
    See footnote 1, supra.


                                              7
holding in syllabus point 2 of State v. Bechtold, 190 W. Va. 315, 438 S.E.2d 347 (1993),

wherein we stated that,

              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.

Id. (emphasis added). The Smith Court stated that “if the circuit court granted the stay

without conducting evidentiary hearings and without meaningfully analyzing the

evidence adduced during the hearings, he exceeded the legitimate powers granted to him

under the statute.” 190 W.Va. at 320, 438 S.E.2d at 352. The Commissioner submits that

although the second part of West Virginia Code § 17C-5A-2(s), providing “the

substantial probability that the appellant shall prevail on the merits,” can be satisfied by

proffer and argument of counsel, a circuit court can only make a reasoned decision as to

the alleged irreparable harm that a driver may suffer through the taking of evidence. We

agree with the Commissioner’s arguments.



              “A proffer is not evidence, ipso/facto.” US. v. Reed, 114 F.3d 1067, 1070

(10th Cir. 1977); See also, Crawley v. Ford, 43 Va. App. 308, 597 S.E.2d 264 (2004);

Jones v. US., 829 A.2d 464 (D.C. 2003); Parker v. US., 751 A.2d 943 (D.C. 2000).

Moreover, a “proffer is not evidence unless the parties stipulate that a proffer will

suffice.” Ford v. State, 73 Md.App. 391, 404, 534 A.2d 992, 998 (1988). In the cases

before us, the Commissioner did not stipulate that a proffer would suffice. Rather, the

                                             8
record reflects that the Commissioner objected to the admission of a proffer as evidence

below. Fundamental fairness dictates that the Commissioner be granted an opportunity to

cross-examine the driver as to irreparable harm. We believe that the Commissioner has

the right to inquire further into the driver’s situation and the alleged harm that will befall

the driver if the license revocation is not stayed pending appeal. Once the Commissioner

has had the opportunity to cross-examine the driver on these issues, the circuit court

should then make the necessary factual and legal findings on the record to satisfy the

requirements of the statute. Thus, we hold that a proffer is not sufficient to satisfy the

evidentiary requirements of West Virginia Code § 17C-5A-2(s) 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.6



6
  In so holding, we also wish to address the discrepancy between West Virginia Code §
17C-5A-2(s) and West Virginia Code § 29A-5-4(c) (1998) regarding the requirements
that must be satisfied for a circuit court to properly grant a stay. West Virginia Code §
29A-5-4(c) generally provides, in pertinent part, that “[p]ending the appeal, the court may
grant a stay or supersedeas upon such terms as it deems proper.” (emphasis added).
However, West Virginia Code § 17C-5A-2(s) more specifically provides that “[t]he 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.” To the extent that the terms of West Virginia Code § 17C-5A-
2(s) more specifically delineate the requirements that must be satisfied before a stay can
be granted by the circuit court, we find the language of West Virginia Code § 17C-5A-
2(s) to be the controlling and superceding authority on this issue.


                                               9
              Additionally, the Commissioner argues that the circuit courts exceeded

their authority because this Court has held that open-ended stays are in violation of the

Code. The last sentence of West Virginia Code § 17C-5A-2(s) provides, in pertinent part

that “in no event shall the stay or supersedeas of the order exceed one hundred fifty

days.” In addressing the 150-day requirement, this Court stated the following in Adkins

v. Cline, 216 W. Va. 504, 607 S.E.2d 833 (2004):

                      The open-ended stays ordered in these consolidated
              cases were in direct violation of West Virginia Code § 17C-
              5A-2, which at the time the stays were instituted contained a
              thirty-day limitation of stays in such matters and currently
              contains a 150-day limitation of stays. [footnote omitted]
              Once these open-ended stay orders were instituted, the
              Appellees quite understandably made no attempt to bring
              these matters to a resolution. Thus, the DMV was required to
              carry the burden of bringing these issues to the attention of
              the lower court, requesting the court to vacate the stays, and
              then initiating this appeal when the lower court reversed the
              revocations and remanded to the commissioner.

                      During oral argument, the DMV informed this Court
              that several other pending cases are subject to impermissibly
              lengthy stays. [footnote omitted] 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.

Id. at 508, 607 S.E.2d at 837.


              In the cases presently before us, two of the three stay orders do not

expressly limit the duration of the stay to 150 days.       Although Ms. Erwin’s order

                                            10
expressly limits the stay to ninety days, Mr. Parker and Mr. White’s orders do not

expressly limit the duration of the stay. We agree with the Commissioner that a stay

order which does not delineate the duration of the stay creates an open-ended stay which

is contrary to West Virginia Code § 17C-5A-2(s) and Adkins, 216 W. Va. at 508, 607

S.E.2d at 836. A stay or supersedeas of the order issued pursuant to West Virginia Code

§ 17C-5A-2(s) 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. Thus, we find that the stay orders issued in Mr. Parker’s and Mr.

White’s cases violate the law.


                                           IV.

                                    CONCLUSION

              For the reasons stated above, this Court concludes that the stay orders

entered by the circuit courts violate the requirements of West Virginia Code § 17C-5A-

2(s) and applicable case law and that, consequently, the Commissioner is entitled to relief

in prohibition. There is no other remedy available because the orders granting the stays

are not final and appealable.     In that regard, immediate relief from this Court is

appropriate. Having found that the circuit courts exceeded their jurisdiction in granting

the Respondents’ respective motions, the Circuit Courts of Marshall County, Boone

County and Kanawha County are prohibited from granting the specific stays before us in

these matters pursuant to West Virginia Code § 17C-5A-2(s).




                                            11
     Writs granted.




12
