These days, we may sometimes lose sight of the traditional difference, in law as elsewhere, between matters of grace and matters of right. Older generations are certainly inclined to assign such a deficiency to members of that generation commonly known as X. For X generation members and the rest of us, the Circuit Court of Spotsylvania County recently offered an illustrative lesson in the difference between grace and right in Clay v. Motor Vehicle Dealers Board. The decision, by Judge Ledbetter, appears in latest volume of Hamilton Bryson's Virginia Circuit Court Reports, at 41 Va. Cir. 208 (1996). In Clay, petitioner claimed a violation of his constitutionally guaranteed right to due process by the Board's failure to afford him adequate notice and opportunity to be heard before revoking his license as motor vehicle salesperson. It seems that the board sent notice of the time and place of a formal hearing to petitioner's old address and then acted notwithstanding his failure to appear. Petitioner claimed that this was error on the part of the board, even though when he moved he had neglected to inform the board of the change of his address.
On the ground that he had been convicted of a felony, the Board undertook to revoke Mr. Clay's license. The Board began by scheduling an informal conference, to which Mr. Clay was invited by a notice sent to his address at 204 Fauquier Street in Fredericksburg. According to the court, the record is clear that the notice reached Mr. Clay at that address; indeed, he subsequently requested and received a postponement. Notice of the re-scheduled conference went to Mr. Clay at the same address, and Mr. Clay eventually appeared at the conference. When an adverse decision was reached two days later, the bad news was sent to Mr. Clay, at a different address, 208 Forbes Street. From this, the court deduced that Mr. Clay, or someone on his behalf, had, on the day of the conference, informed someone at the Board that Mr. Clay had moved. At his new address, Mr. Clay received the bad news about his license and requested a formal hearing. So far so good.
The board responded to Mr. Clay's request for a formal hearing by, among other things, reminding him to keep the board apprised of any address change, so that he might receive a hearing notice. Three weeks later, on February 1, 1996, the hearing officer assigned to Mr. Clay's case wrote him, offering him ten days from the date of the letter to reply concerning possible dates for the hearing. The hearing officer addressed the letter to Mr. Clay at 208 Forbes Street. When the hearing officer did not receive a reply within the time specified, he scheduled the hearing for March 12. Afterwards, and almost a week after the deadline, the hearing officer received a note from Mr. Clay suggesting several dates in May. The hearing officer ignored that note.
On March 12, the hearing was convened as scheduled, but Mr. Clay did not appear. In his absence, the hearing officer decided Mr. Clay's license should be revoked. Two weeks later, on March 28, 1996, Mr. Clay called DMV to report that he had moved again -- back on February 10. The agency then sent the bad news about the hearing officer's decision to Mr. Clay at his newest address. Obviously, he received this mailing; he appealed to the circuit court. Among the exceptions Mr. Clay took to the agency's decision was one to conducting the March 12 hearing without him. It cut no ice with Judge Ledbetter, not even when petitioner argued that, had the hearing officer not ignored Mr. Clay's request that the hearing be scheduled in May, he would not have been caught flat-footed by the errant notice of a hearing on March 12. The court cited Eddine v. Eddine, 12 Va. App. 760 (1991), for the unstartling proposition that failure to receive notice because one moves from his residence without notifying the court of his new address does not deprive him of due process of law. That the hearing officer might have taken pity on Mr. Clay and re-scheduled the hearing from March 12 to sometime in May, which might have enabled Mr. Clay to learn in time of the date (when he called DMV on March 28), did not matter for the court's decision. The court found that, while the hearing officer might have taken notice of Mr. Clay's late communique, he had no duty to. Thus, the agency did not violate petitioner's right, even when it declined to favor his request with an act of grace.
Touching also on the matter of timing for appeals is the decision by the Circuit Court for the City of Richmond in Porter-Blain Corp. v. Virginia Employment Commission, reported at 41 Va. Cir. 522 (1997). The commission moved for dismissal of the corporation's appeal, on the ground that it was not perfected by the deadline statutorily imposed. According to Va. Code § 60.2-500, a party has thirty days to initiate an appeal from a VEC decision of the sort in this case. The thirty-day period begins with the commission's mailing notice of its decision. The statute specifies that a party's appeal from such a decision is initiated by "the filing of a petition." It goes on to say that "Service of two copies of such petition upon the Commissioner shall be deemed completed service and such petition shall be filed with the clerk of the court within five days of service thereof."
In this case, the corporation filed its petition and, at the same time, mailed two copies to the Commissioner. Process was not served on the Commissioner, however, until more than three months later. Naturally, the commission argued that this tardiness prevented timely perfection of the appeal, so that it should be dismissed as time barred. Judge Markow was not persuaded. Having resorted to the major law dictionaries for a plain meaning of "service" when the word stands alone, he found several besides service of process, including service by mail. He also relied upon other appeals related contexts in which the word "service" appears, Va Code § 16.1-112 (appeals from district court, by certified mail upon the appellee) and Rule 2A:2 (notice to parties by mail of appeal from agency decisions subject to the Administrative Process Act).
Having concluded that service need not mean service of process, he then found that it could mean service by mail, and finally that, in this case, mailed notice served. Granting that the commission and its counsel, taxpayers and others may have an interest in finality well served by limiting the period in which the commission's final action can be challenged in court, appellee's position in this case required an appellant to turn too square a corner, imposing an unnecessarily strict procedural prerequisite to consideration of the merits. The commission has appealed this decision to the Court of Appeals, where it has been assigned the docket number 1373-97-2. Stay tuned.