Dorman v. Commonwealth

CARL DORMAN v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES AND RICHARD D. HOLCOMB, COMMISSIONER

Record No. 0170-19-2

COURT OF APPEALS OF VIRGINIA

SEPTEMBER 24, 2019

UNPUBLISHED

Present: Chief Judge Decker, Judges Petty and Huff

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE GLEN A. HUFF

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Beverly W. Snukals, Judge

Rob Starnes (Starnes Law Office, on brief), for appellant.

Christian A. Parrish, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; Jeffrey R. Allen, Senior Assistant Attorney General/Chief, on brief), for appellees.

Carl Dorman ("appellant") appeals the Virginia Department of Motor Vehicles' ("DMV" or "agency") informal conference decision denying his application for renewal of his Virginia driver's license. Appellant first appealed the agency decision to the Circuit Court for the City of Richmond, which affirmed. Appellant raises two assignments of error to this Court:

1. The Circuit Court erred in affirming the agency decision where the record showed the agency did not consider Mr. Dorman's Due Process Arguments, substantive nor procedural, unilaterally dismissing them out of hand.

2. The Circuit Court erred in finding substantial evidence in the agency record to support the agency decision where it was undisputed that Florida provided a release letter and Georgia's punishment for Driving Suspended was dissimilar to Virginia's proscribed punishment.

Although not included in these assignments of error, appellant also contends that the DMV's decision violates his right to interstate travel under the Commerce Clause, the Privileges and Immunities Clause of Article Four, and the Equal Protection Clause of the United States Constitution.

Because the agency's factual findings are supported by evidence in the record and appellant's legal arguments are without merit, this Court affirms the circuit court decision affirming the informal conference decision of the DMV.

I. BACKGROUND

On August 23, 1987, appellant was arrested for driving under the influence of alcohol in Tennessee. At the time, appellant was licensed in Florida. On October 23, 1987, appellant was convicted in Tennessee for driving under the influence of alcohol in violation of former Tennessee Code § 55-10-40. The same day, Florida revoked appellant's driving privileges because of that conviction.

On September 10, 1990, appellant was again convicted for driving under the influence of alcohol—this time in Georgia. Appellant was licensed in Georgia at the time of this conviction. The same day he was convicted, Georgia suspended his driving privileges. On May 24, 1991, appellant was arrested for driving on a suspended license. Meanwhile, appellant's driving privileges were reinstated by Georgia on September 10, 1991. Yet, on December 4, 1991, appellant was convicted on the pending charge of driving on a suspended license in violation of former Georgia Code § 40-5-121. As a result, Georgia re-suspended appellant's license.

By 1995, appellant had relocated to Virginia. Appellant applied for and was issued a Virginia driver's license. In the years since, the Commonwealth has renewed his driver's license multiple times, with the two most recent occasions being November 3, 2005, and October 5, 2009. On October 24, 2017, appellant went to the Gate City DMV to renew his driver's license.The DMV employee assisting appellant queried the National Driver Registry ("NDR") to determine his eligibility. The NDR report listed appellant as "not eligible" for a Virginia driver's license. The DMV employee denied appellant's request to renew his driver's license and voided a temporary license that had been issued to him.

On December 13, 2017, appellant's counsel received a letter from the Florida Department of Highway Safety and Motor Vehicles which stated that appellant's revocation based on a 1983 conviction for driving under the influence was closed and that he was eligible to receive a driver's license. The letter did not mention the 1987 conviction from Tennessee. Subsequently, appellant's counsel wrote to the DMV requesting a new license be issued to his client. On January 28, the DMV obtained a new NDR report which contained two entries from Florida. The first listed the name "Dorman, Carl, E" and reported him as "not eligible" due to the 1987 revocation resulting from his Tennessee conviction for driving under the influence of alcohol. The second listed the name "DORMAN@CARLE" and reported him as "eligible." This entry did not mention the 1987 revocation. The NDR report also listed appellant as "not eligible" in Georgia because of the suspension resulting from his 1991 conviction for driving on a suspended license.

On February 1, 2018, Richard Holcomb, the Commissioner of the DMV ("Commissioner"), denied appellant's request to renew his license. The Commissioner stated that Code § 46.2-316 prohibits issuance of a license to appellant. The decision explained that the DMV had contacted Florida and Georgia, and it relayed what steps appellant must take to resolve the revocation and suspension in those states. The next day, appellant requested a hearing.

The DMV obtained an additional NDR report on April 16, 2018, which confirmed the same information as the previous reports, but appeared to consolidate the two Florida profiles. A hearing was held on May 24, 2018, and the Commissioner issued an informal conferencedecision on June 27, 2018, holding that the DMV was prohibited from issuing or renewing appellant's license. Appellant appealed to the Circuit Court for the City of Richmond pursuant to the Virginia Administrative Process Act ("VAPA"). That court affirmed the agency decision by final order entered January 2, 2019. This appeal followed.

II. STANDARD OF REVIEW

Agency actions are presumed valid on review. Env. Def. Fund, Inc. v. Va. State Water Control Bd., 15 Va. App. 271, 277 (1992). The appellant bears the burden of overcoming this presumption. Id. Judicial review is limited to examining the agency decision for: "(i) accordance with constitutional right[s], (ii) compliance with statutory authority, (iii) observance of required procedures where any failure therein is not mere harmless error, and (iv) the substantiality of the evidentiary support for findings of fact." Virginia Bd. of Med. v. Hagmann, 67 Va. App. 488, 500 (2017) (citations omitted).

The deference accorded to an agency's determination of law depends on the law being interpreted. Commonwealth ex rel. Va. State Water Control Bd. v. Blue Ridge Env. Def. League, Inc, 56 Va. App. 469, 480 (2010). If the law falls within that agency's "specialized competence," the agency decision is "entitled to special weight" and will be overturned only if it "constitutes a clear abuse of the delegated discretion." Id. (quoting Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 243-44 (1988)). "However, courts do not defer to an agency's interpretation '[i]f the issue falls outside the area generally entrusted to the agency, and is one in which the courts have a special competence, i.e., the common law or constitutional law . . . .'" Id. at 481 (quoting Johnston-Willis, 6 Va. App. at 243) (alteration in original). Accordingly, an agency's "'legal interpretations of statutes' is accorded no deference because '[w]e have long held that pure statutory interpretation is the prerogative of the judiciary.'" Id. (quoting TheMattaponi Indian Tribe v. Commonwealth, Dep't of Envt'l Quality, 43 Va. App. 690, 707 (2004)).

"We review an administrative agency's factual decisions only for whether they have support in substantial evidence." Mazloumi v. Dep't of Envtl. Quality, 55 Va. App. 204, 208 (2009). "This Court may reverse an agency's factual conclusions only where 'a reasonable mind would necessarily reach a different conclusion.'" Id. at 208-09 (quoting Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 441 (2005)).

III. ANALYSIS

A. Appellant's Alleged Due Process Violations

Appellant asserts a single, but layered, due process violation. Appellant contended below that the imposition of any additional requirements to renew his license based on old convictions violates his due process rights. To this Court, appellant avers only that the DMV failed to afford him due process of law by refusing to consider his underlying due process argument. Appellant contends that this effectively denied him a hearing.

A person's right to operate a motor vehicle cannot be taken away without the protections of procedural due process. Commonwealth v. Shaffer, 263 Va. 428, 431-32 (2002). Post-deprivation procedures are sufficient to satisfy the requirements of procedural due process. Id. at 433-34. To comport with constitutional guarantees of procedural due process, any post-deprivation hearing must provide certain minimum requirements including timely and adequate notice; the right to present evidence and confront adverse witnesses; the right to assistance of retained counsel; and the right to an impartial decision maker. Hagman, 67 Va. App. at 501.

Appellant does not assert that any of the above minimum requirements were absent. Appellant contends only that the DMV effectively denied him a hearing when it refused toconsider his underlying due process arguments. But, the record belies appellant's assertion. The Commissioner did determine that the agency was "not the proper forum to determine whether a statute or the application of a statute is constitutional."¹ However, the Commissioner went on to reject appellant's argument by holding that "Virginia is not the proper jurisdiction to raise this argument since it is not imposing [the] requirements."

In sum, appellant received an adequate post-deprivation hearing in which he presented his due process arguments. The Commissioner considered those arguments and rejected them. These actions were sufficient to satisfy the constitutional guarantees of due process with regard to...