WEST VIRGINIA RECORD

CHARLESTON – Normally attorneys do all the arguing at the West Virginia Supreme Court of Appeals, but a drunken driving case provoked an argument on the bench.

At one point in the Court's Oct. 9 session, Justices Larry Starcher and Brent Benjamin tried to talk over each other like pundits on a talk show.

They split over whether drivers can escape automatic revocation by pleading no contest to a drunken driving charge rather than pleading guilty.

They fought this battle before, and Benjamin won. In 2005 he wrote a majority opinion in Stump v. Bishop, holding that a plea of no contest counts as a conviction requiring automatic revocation.

Starcher dissented from that opinion, arguing that it handcuffed police and prosecutors in plea bargaining.

The new case matches the Stump case so closely that some might question if it even was worth hearing.

In the new case, Alan Baker entered a no contest plea in 2005 to a charge of driving under the influence. The Department of Motor Vehicles revoked his license.

Attorney E. Laboyd Morgan Jr. of Lewisburg challenged the revocation, claiming Baker deserved a hearing because there was no conviction.

At oral arguments, Chief Justice Robin Davis asked Morgan if the Stump decision was in effect when Baker entered his plea. Morgan said yes.

He nevertheless argued that a plea of no contest cannot be held against a defendant.

Starcher then read a legislative rule supporting Baker's position.

Benjamin said the Legislature last year chose not to change the law. He asked if a legislative rule trumped the law.

Morgan said the rule clarified legislative intent.

"We are thumbing our nose at the Legislature," Starcher said.

Benjamin replied.

"Legislative rules don't change the statute," he said, adding that Stump is the law.

Justice Spike Maynard said, "This is extremely important." He said drunk drivers kill and maim.

For the state, assistant attorney general Janet James said legislators tried to amend the law but the amendment didn't pass.

Justice Joseph Albright said the Department of Motor Vehicles agreed to add language to the legislative rule.

"We were not consulted on the rule," James said.

Benjamin asked if the Court should defer to an agency on the law. James said no.

"The Legislature promulgated the rule," James said.

"The Legislature does not promulgate rules," Albright said. "The agency promulgated the rule."

James said the agency had to do it to pass a law authorizing "interlocks" that prevent intoxicated persons from driving.

She said the agency followed Stump until legislators told them they were wrong.

"That is a full frontal assault on the power of this Court," Maynard said. "It is an abdication of our power to let them do it."

James said the agency stopped revoking on no contest in August 2006 and made the change retroactive to May 2006.

"You're letting these people keep their licenses?" Maynard asked. "Shame on you! Shame on your boss! They're out there on Friday evenings sharing the highways with us."

He said rich people who can afford lawyers will keep their licenses.

Morgan rose for rebuttal but before he could say much, Chief Justice Robin Davis told him he couldn't get around Stump.

"There is no way around it and it is simple to me," Davis said.

Morgan said Stump was erroneous.

"Stump applied at the time of the case," Albright said. "I dissented in Stump but that was the law at the time."

Davis thanked Morgan.

"You had a lot of courage making those arguments today," she said.