                                                                            FILED
No. 16-0996 – Straub v. Reed, DMV Commissioner                          November 1, 2017
                                                                             released at 3:00 p.m.
                                                                         EDYTHE NASH GAISER, CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
Justice Ketchum dissenting:

             “Justice shall be administered without . . . delay.” W.Va. Const. art. III, §

17. That commendable constitutional mandate was heinously ignored in this case. It took

the DMV almost two years after the defendant was arrested and charged with DUI to

enter its administrative revocation.   Thereafter, it took the Office of Administrative

Hearings (“OAH”) nearly one year to affirm the administrative revocation. All of these

delays have caused this defendant, who was arrested in 2011, to live with the specter of a

pending driver’s license revocation for the better part of a decade. This is completely

unreasonable and at odds with our constitutional mandate that justice be administered

without delay.

                                A. Unreasonable Delay

             “A driver’s license is a property interest and such interest is entitled to

protection under the Due Process Clause of the West Virginia Constitution.” Syllabus

Point 1, Abshire v. Cline, 193 W.Va. 180, 455 S.E.2d 549 (1995). Similarly, this Court

stated in Jordan v. Roberts, 161 W.Va. 750, 756, 246 S.E.2d 259, 262 (1978), “There is

not much question that in our mobile society the suspension of a driver’s license . . .

constitutes a serious deprivation.” Further, in Petry v. Stump, 219 W.Va. 197, 200, 632

S.E.2d 353, 356 (2006), we observed, “[d]ue process rights must be considered under our

general rules concerning unreasonable delay.” In sum, this Court has left no doubt that

“due process concerns are raised when there are excessive and unreasonable delays in


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license suspension cases.” Holland v. Miller, 230 W.Va. 35, 39, 736 S.E.2d 35, 39

(2012).

              This Court discussed unreasonable delay in the context of an administrative

proceeding in Frantz v. Palmer, 211 W.Va. 188, 192, 564 S.E.2d 398, 402 (2001):

                     Among the list of guarantees set forth in article III,
              section 17 of our state constitution is the laudatory mandate
              that “justice shall be administered without . . . delay.”
              W.Va. Const. art. III, § 17. Just as circuit court judges “have
              an affirmative duty to render timely decisions on matters
              properly submitted within a reasonable time following their
              submission,” Syl. Pt. 1, in part, State ex rel. Patterson v.
              Aldredge, 173 W.Va. 446, 317 S.E.2d 805 (1984), the
              obligation to act in a timely fashion is similarly imposed upon
              administrative bodies, as we recognized in syllabus point
              seven of Allen v. State Human Rights Commission, 174
              W.Va. 139, 324 S.E.2d 99 (1984): “[A]dministrative agencies
              performing quasi-judicial functions have an affirmative duty
              to dispose promptly of matters properly submitted.”

(Emphasis added).

              The defendant was arrested on January 9, 2011. The DMV’s revocation

order was entered on December 18, 2012, about two years later. This near two-year

delay in entering the revocation order violates this Court’s long recognized constitutional

mandate that “justice shall be administered without . . . delay.” Id. As Frantz makes

clear, administrative bodies performing quasi-judicial functions have a duty to promptly

dispose of these matters.1 My review of the record reveals no logical reason justifying


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          Similarly, in the criminal context, the state may not deprive a person of their
liberty for more than two terms of court without presenting the case to the grand jury. See
Syllabus Point 5, State ex rel. Shifflet v. Rudloff, 213 W.Va. 404, 582 S.E.2d 851 (2003)
(“A person who has been committed to jail on a criminal offense, to answer an indictment
which may be returned against him by the court, to which he is held, will be discharged
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the two-year delay, nor can I find a reason explaining why it thereafter took the OAH yet

another whole year to affirm the administrative revocation order.

                                       B. Prejudice

              The defendant offered unrebutted testimony that the unreasonable delay in

this matter caused him to suffer prejudice.           The defendant is a pharmaceutical

salesperson. After his employer announced a series of layoffs, he sought other

employment opportunities and contacted various recruiters in his industry. However,

once he informed these recruiters about the uncertainty regarding his driver’s license

revocation, the recruiters would not assist him and, in one instance, stated that they would

never work with him again.

              In Syllabus Point 2 of Reed v. Staffileno, __ W.Va. __, 803 S.E.2d 508

(2017), this Court held:

                      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 issuance 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. Once actual and
              substantial prejudice from the delay has been proven, the
              circuit court must then balance the resulting prejudice against
              the reasons for the delay.




by writ of habeas corpus from further imprisonment on that charge, if he be not indicted
before the end of the second term of court, unless it appear that material witnesses for the
state have been enticed or kept away, or are prevented from attendance by sickness or
inevitable accident.” Syllabus, Ex parte Blankenship, 93 W.Va. 408, 116 S.E. 751
(1923).”).
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             The defendant offered unrebutted testimony that he suffered real and

significant prejudice as a result of the DMV’s delay. The DMV failed to offer any

logical reason explaining why this delay occurred. Thus, when balancing the defendant’s

prejudice against the reason for the substantial delay under Syllabus Point 2 of Reed, the

result is clear—the defendant should have prevailed.

             Based on all of the foregoing, I dissent.




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