Frazier v. McCabe

851 S.E.2d 100

Everett FRAZIER, Commissioner of the West Virginia Division of Motor Vehicles, Respondent Below, Petitioner

v.Timothy R. MCCABE, Petitioner Below, Respondent

No. 19-0484

Supreme Court of Appeals of West Virginia.

Submitted: October 28, 2020

Filed: November 12, 2020

Patrick Morrisey, Esq., Attorney General, Steven E. Dragisich, Esq., Assistant Attorney General, Charleston, West Virginia, Attorneys for Petitioner.

James G. Bordas, III, Esq., Erica Cross Conti, Esq., Bordas & Bordas, PLLC, Wheeling, West Virginia, Attorneys for Respondent.

HUTCHISON, Justice:

The petitioner, Everett Frazier in his official capacity as Commissioner of the West Virginia Division of Motor Vehicles ("Commissioner" or "DMV"),¹ appeals the April 30, 2019, final order of the Circuit Court of Ohio County that ordered the DMV to grant the application for a motor vehicle salesperson license submitted by the respondent, Timothy R. McCabe. In this appeal, the Commissioner contends that the circuit court erred by finding that West Virginia Code § 17A-6E-4(c)(5) (2006),² which prohibits the issuance of a motor vehicle salesperson license to an applicant previously convicted of a felony involving financial matters or the motor vehicle industry, could not be applied to the respondent. Upon consideration of the parties’ briefs and oral arguments, the appendix record, and pertinent authorities, we reverse the circuit court's order and remand this case for entry of an order reinstating the Commissioner's decision denying the respondent's application for a motor vehicle salesperson license.

I. Facts and Procedural Background

On April 5, 2018, the respondent submitted an application for a motor vehicle salesperson license to the DMV after obtaining employment at Matt Jones Preowned Auto, LLC, in Wheeling, West Virginia.³ The respondent was granted a temporary license but was subsequently informed on April 30, 2018, that he was being denied a permanent motor vehicle salesperson license pursuant to West Virginia Code § 17A-6E-4(c)(5)⁴ because of his previous felony conviction that involved a financial matter and the motor vehicle industry. The respondent appealed the decision of the Commissioner as provided in West Virginia Code § 17A-6E-10 (2006).⁵

On August 21, 2018, a hearing was held before an independent hearing examiner appointed by the Commissioner. At the hearing, the respondent admitted that he was convicted of a felony in 2006 for falsifying a loan application while employed at a different motor vehicle dealership in Wheeling. The respondent testified that the loan application was for a customer at the dealership; that he knew the application he completed was inaccurate; and that the customer eventually defaulted on the loan. Elaborating further on the circumstances that resulted in his felony conviction, the respondent explained that he began working in the automobile industry in 1998 as a finance manager, and in 2000, he became general manager of Marhefka Autos in Wheeling. He later "stepped down" from that position to become more involved in the auto sales. According to the respondent, the FBI began investigating the business practices of Marhefka Autos in 2005. As an employee of the business, the respondent says he cooperated with the investigation but was informed that if there was any evidence of wrongdoing, he would be criminally charged because he had been the general manager. The respondent said that to avoid a formal and public investigation for his family's sake, he agreed to plead guilty to a felony charge of falsifying a loan application.

On October 10, 2005, the respondent signed a plea agreement whereby he agreed to waive his right to an indictment and plead guilty to a felony charge of falsifying a loan application. The plea agreement was filed with the United States District Court for the Northern District of West Virginia on March 14, 2006. On June 2, 2006, the respondent was sentenced to two years of probation. According to the respondent, after his conviction, he began working in the automobile industry in Ohio and continued his employment in that state for more than a decade.

In addition to providing information regarding his felony conviction at the August 21, 2018, hearing, the respondent also submitted character/reference letters from five individuals. The respondent's current employer also testified on his behalf.⁶ On October 19, 2018, the Commissioner's final order was entered denying the respondent's application for a motor vehicle salesperson license. The order contained the following findings:

8. The Applicant has not had any related issues since 2006. Regardless, the Statute is very clear that an exemption cannot be given in this situation.

....

10. The felony offense described in the record and testified to by the Applicant is of a financial matter or of the motor vehicle industry.

11. The Applicant is not eligible for a grant of an exemption under the provision of W.Va. Code § 17A-6E-4(c), and should not be allowed to be licensed as a salesperson.

The respondent appealed the decision of the Commissioner to the circuit court.⁷

By order entered April 30, 2019, the circuit court reversed the Commissioner's decision and ordered that the respondent's application for a motor vehicle salesperson license be granted. The circuit court found that West Virginia Code § 17-A-6E-4(c)(5) cannot lawfully be applied to applicants seeking a license who were convicted of felonies prior to the enactment of the statute because it violates the ex post facto clause of the West Virginia and United States Constitutions. The court further found that the respondent was denied due process as a result of the Commissioner's denial of his license application and that West Virginia Code § 17A-6E-4(c)(5) contravenes both the West Virginia and United States Constitutions because it is both overly broad and overly narrow. Upon entry of the circuit court's order, the Commissioner filed this appeal.

II. Standard of Review

This Court's standard of review for a circuit court's decision in an administrative appeal is well established. In syllabus points one and two, respectively, of Muscatell v. Cline , 196 W.Va. 588, 474 S.E.2d 518 (1996), this Court held:

On appeal of an administrative order from a circuit court, this Court is bound by the statutory standards contained in W. Va. Code § 29A-5-4(a) and reviews questions of law presented de novo ; findings of fact by the administrative officer are accorded deference unless the reviewing court believes the findings to be clearly wrong.

In cases where the circuit court has [reversed] the result before the administrative agency, this Court reviews the final order of the circuit court and the ultimate disposition by it of an administrative law case under an abuse of discretion standard and reviews questions of law de novo.

In this case, we are asked to examine the constitutionality of West Virginia Code § 17A-6E-4(c)(5). This Court has long held that "[w]hen the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. Pt. 3, Willis v. O'Brien , 151 W.Va. 628, 153 S.E.2d 178 (1967). To that end,

"[i]n considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syllabus Point 1, State ex rel. Appalachian Power Company v. Gainer , 149 W.Va. 740, 143 S.E.2d 351 (1965).

Syl., Johnson v. Bd. of Stewards of Charles Town Races , 225 W.Va. 340, 693 S.E.2d 93 (2010). With these standards in mind, we consider the parties’ arguments.

III. Discussion

The Commissioner first contends that the circuit court erred by finding that West Virginia Code § 17A-6E-4(c)(5) cannot lawfully be applied to applicants who were convicted of felonies prior to the enactment of the statute because it results in a violation of the ex post facto clause of the West Virginia Constitution and the United States Constitution.⁸

Under Ex post facto principles of the United States and West Virginia Constitutions, a law passed after the commission of an offense which increases the punishment, lengthens the sentence or operates to the detriment of the accused, cannot be applied to him.

Syl. Pt. 1, Adkins v. Bordenkircher , 164 W.Va. 292, 262 S.E.2d 885 (1980). The license requirement for motor vehicle salespersons became effective on January 1, 2008,⁹ and provides that a license cannot be issued to an applicant who "has been convicted of a felony" involving financial matters or the motor vehicle industry. W.Va. Code § 17A-6E-4(c)(5).¹⁰ The circuit court found that "the statute constitutes an unlawful ex post facto law" when applied to the respondent because there was no licensing requirement for motor vehicle salespersons when he entered his guilty plea to the felony charge. The circuit court reasoned that because the respondent was unaware at the time he entered his guilty plea that his felony conviction would foreclose his employment as a motor vehicle salesperson in the future, the respondent suffered an additional punishment when the Commissioner denied his license application. In other words, the circuit court found that West Virginia Code § 17A-6E-4(c)(5) operates to ...