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State v. Butler

Supreme Court of West Virginia

May 9, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Petitioner
v.
STEWARD BUTLER, Defendant Below, Respondent

          Submitted: April 25, 2017

         Appeal from the Circuit Court of Cabell County Honorable Paul T. Farrell, Judge Criminal Action No. 15-F-242

          Lauren E. Plymale, Esq., Assistant Prosecuting Attorney, Cabell County, Huntington, West Virginia Counsel for Petitioner.

          Raymond A. Nolan, Esq., The Nolan Law Firm, Lavalette, West Virginia, Counsel for Respondent.

          Gregory R. Nevins, Pro Hac Vice Atlanta, Georgia and Stephen G. Skinner, Esq. Skinner Law Firm Charles Town, West Virginia Counsel for Amicus Curiae -Lambda Legal Defense and Education Fund, Inc.

          Patrick Morrisey, Esq. Attorney General Elbert Lin, Esq. Solicitor General Julie Marie Blake, Esq. Assistant Attorney General Charleston, West Virginia Counsel for Amicus Curiae West Virginia Attorney General.

         SYLLABUS

         1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

         2. "The Legislature has power to create and define crimes and fix their punishment[.]" Syl. Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910).

         3. " 'Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syl. Pt. 2, King v. West Virginia's Choice, Inc., 234 W.Va. 440, 766 S.E.2d 387 (2014).

         4."Undefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning." Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984).

         5. "This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation." Syl. Pt. 2, in part, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009).

         6. "It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Syl. Pt. 11, in part, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013).

         7. "The action of this court, in refusing to docket for review a case certified under Code, 58-5-2, is not to be construed as a final adjudication of the questions presented on the certification, or as limiting the court in its decision upon the record presented on final hearing." Syl. Pt. 1, Hastings v. Finney, 119 W.Va. 301, 193 S.E. 444 (1937).

         8. This Court's exercise of discretion under Rule 17(a)(6) of the West Virginia Rules of Appellate Procedure in refusing to docket a certified question presented to this Court under West Virginia Code § 58-5-2 (2012) is neither an express nor an implicit ruling on the merits of the legal issue presented therein, and the circuit court may thereafter take such action and make such rulings in the matter as it deems appropriate.

          OPINION

          LOUGHRY CHIEF JUSTICE.

         The petitioner (plaintiff below), State of West Virginia, appeals the circuit court's order entered May 13, 2016, through which it dismissed two counts of a four-count indictment returned against the respondent (defendant below), Steward Butler. The two dismissed counts charged the defendant with criminal civil rights violations under West Virginia Code § 61-6-21(b) (2014). The State argues that the circuit court erred when it dismissed Counts I and III based on its erroneous determination that the word "sex" in West Virginia Code § 61-6-21(b) was plain and unambiguous and could not be expanded to include "sexual orientation." Upon our careful review of the parties' briefs, the arguments of counsel, the appendix record submitted, and the applicable law, we affirm the circuit court's ruling and remand this action to the circuit court for further proceedings consistent with this opinion.

         I. Facts and Procedural Background

         The State alleges that during the early morning hours of April 5, 2015, the defendant was riding in a car with friends in Huntington, West Virginia. While the car was sitting at a stoplight, the defendant observed two men, Casey Williams and Zackery Johnson, exchange a kiss on the sidewalk. The defendant allegedly voiced homophobic slurs toward Williams and Johnson, exited the vehicle, [1] and struck both Williams and Johnson in the face with his fist, knocking Williams to the ground.

         On May 21, 2015, a Cabell County Grand Jury returned an indictment against the defendant, charging him in Counts II and IV with battery in violation of West Virginia Code § 61-2-9(c) (2014) and with violations of an individual's civil rights under West Virginia Code § 61-6-21(b)[2] in Counts I and III. The defendant states that after the indictment was returned against him, he expressed his intent to challenge the applicability of West Virginia Code § 61-6-21(b) to the acts for which he was indicted.

         The parties represent that during a status conference held on September 29, 2015, the circuit court directed the parties to draft a certified question to address the issue of whether West Virginia Code § 61-6-21(b) includes protections based on "sexual orientation." The parties did so and, by order entered December 16, 2015, the circuit court submitted the following certified question to this Court: "Whether the provision of West Virginia Code §61-6-21 embodies a protection of an individual's civil rights if the violative act is based solely upon said individual's sexual orientation?" By order entered February 9, 2016, this Court refused to docket the certified question.[3]

         Following a status conference held on February 29, 2016, the circuit court entered an order on March 4, 2016, directing the parties to submit briefs addressing the applicability of West Virginia Code § 61-6-21(b). Following this briefing, the circuit court entered an order on May 13, 2016, in which it stated that it could not "reasonably hold that West Virginia Code § 61-6-21(b) is ambiguous"[;] that a review of similar laws from other states demonstrated that "there are two distinct categories of potential discrimination: discrimination based on sex and discrimination based on sexual orientation"[;] that the "West Virginia legislature could have included sexual orientation as an area of protection . . . [as] [n]umerous other states have done"[;] that it was "bound to apply the law as it stands"[;] and that it "cannot expand the word 'sex' to include 'sexual orientation' within West Virginia Code § 61-6-21(b)." In this same order, the circuit court ruled that Counts II and IV charging the defendant with battery "shall remain[, ]" and it dismissed Counts I and III charging the defendant with violating West Virginia Code § 61-6-21(b). The State appeals these rulings.

         II. Standard of Review

         The circuit court dismissed Counts I and III of the indictment after concluding that the word "sex" in West Virginia Code § 61-6-21(b) was plain and unambiguous and could not be expanded to include "sexual orientation." The circuit court ruled that the State could not properly bring such charges against the defendant under the current law of this state. These findings meet the criteria under West Virginia Code § 58-5-30 (2012), which permits the State to appeal the dismissal of an indictment that "is held bad or insufficient by the judgment of a circuit court." Id.

         Through this appeal, we are asked to examine the meaning of the word "sex" as used in West Virginia Code § 61-6-21(b). As we have previously held, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With this plenary standard in mind, we proceed to determine whether the circuit court erred in dismissing Counts I and III of the indictment on the basis that the word "sex" in West Virginia Code § 61-6-21(b) is unambiguous and does not include "sexual orientation."

         III. Discussion

         The State asserts that the circuit court erred by ruling that West Virginia Code § 61-6-21(b) does not provide protection for an individual's civil rights where the violative act is based upon the individual's sexual orientation and by ordering Counts I and III of the indictment dismissed. The State also challenges the propriety of the circuit court ruling upon the legal issue that had been raised in the circuit court's certified question after this Court refused to docket the same. We address these issues, in turn, below.[4]

         A. West Virginia Code § 61-6-21(b)

         The State asserts that the word "sex" in West Virginia Code § 61-6-21(b)[5] is ambiguous and should be interpreted to include "sexual orientation." Arguing that the legislative history for West Virginia Code § 61-6-21 does not reflect whether sexual orientation was intended to be a protected status under the statute, [6] the State contends the word "sex" could nonetheless be reasonably construed to encompass multiple meanings in the context in which the word is used. The State recites the definitions of the word "sex" in Black's Law Dictionary and Merriam-Webster Dictionary in support of its argument that West Virginia Code § 61-6-21 would provide protection based on sexually motivated phenomena or behavior, including sexual orientation. Asserting that Title VII[7] precedent effectively prohibits discrimination based on sexual orientation when the discriminatory behavior is determined to be "because of sex, "[8] the State urges this Court to apply Title VII precedent here.

         Contrary to the State's position, the defendant argues that West Virginia Code § 61-6-21(b) clearly and unambiguously includes "sex, " but not "sexual orientation." Citing State v. Sulick, 232 W.Va. 717, 753 S.E.2d 875 (2012), wherein this Court held that the West Virginia Code § 61-6-21 was not unconstitutionally vague, [9] the defendant asserts that the absence of the words "sexual orientation" in § 61-6-21(b) reflects that the Legislature did not intend for the statute to include sexual orientation. Arguing that words are to be given their common usage, the defendant argues that this Court's precedent demonstrates that courts are not free to read into a statute language that is not there but should apply statutes as they are written. The defendant also quotes dictionary definitions for the words "sex" and "sexual orientation" in support of his argument that these terms have very different meanings. Maintaining these terms are treated as separate and distinct categories, the defendant highlights the fact some states have hate crime statutes that protect and/or prohibit conduct based on "sexual orientation, " while other states list both "sex" and "sexual orientation."

         We begin our analysis by recognizing that more than a century ago, this Court held that "[t]he Legislature has power to create and define crimes and fix their punishment[.]" Syl. Pt. 2, in part, State v. Woodward, 68 W.Va. 66, 69 S.E. 385 (1910). Since then,

[w]e have consistently held that subject to certain constitutional limitations there exists in the Legislature the broad right to define crimes and their punishment. State ex rel. Cogar v. Kidd, W.Va., 234 S.E.2d 899 (1977); State ex rel. Heck's v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950).

State ex rel. Winter v. MacQueen, 161 W.Va. 30, 35, 239 S.E.2d 660, 663 (1977).

         In 1987, our Legislature exercised its right to define crimes when it enacted West Virginia Code § 61-6-21(b) through which it became a felony to violate a person's civil rights by threat, intimidation and/or injury to another person or another person's property becauseof specificallyenumerated characteristics, including the victim's "sex." W.Va. Code § 61-6-21(b).[10] In determining what is meant by the word "sex, " we are mindful that "'[w]here the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.' Syl. Pt. 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968)." Syl. Pt. 2, King v. West Virginia's Choice, Inc., 234 W.Va. 440, 766 S.E.2d 387 (2014); see also Syl. Pt. 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) ("Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation."); Syl. Pt. 2, Eggleton v. State Workmen's Comp. Comm'r, 158 W.Va. 973, 214 S.E.2d 864 (1975) ("Where a statute is plain and unambiguous, a court has a duty to apply and not to construe its provisions."). Moreover, "[t]hat the parties disagree as to the meaning . . . of [a statutory] provision does not of itself render [the] provision ambiguous[.]" Estate of Resseger v. Battle, 152 W.Va. 216, 220, 161 S.E.2d 257, 260 (1968).

         The word "sex" in West Virginia Code § 61-6-21(b) is undefined. We have previously addressed other undefined terms in this statute. In Sulick, the defendant asserted that the undefined words "force or threat of force" contained in West Virginia Code § 61-6-21(b) rendered the statute unconstitutionallyvague. Relying upon our precedent, such asthat discussed above, we ascribed ordinary meaning to the words "force" and "threat" and concluded that the language was "clear in prohibiting the use of either physical means or a communicated intent to inflict harm or loss on another or on another person's property." Sulick, 232 W.Va. at 725, 753 S.E.2d at 883.

         As we explained in Sulick, our precedent provides that "[u]ndefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning." Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin, 175 W.Va. 525, 336 S.E.2d 171 (1984); see also Syl. Pt. 4, in part, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959) ("Generally the words of a statute are to be given their ordinary and familiar significance and meaning[.]"). Affording the undefined term "sex" its common and ordinary meaning, and for the reasons set forth below, we find the word to be clear and unambiguous and to have a very different meaning and import than the term "sexual orientation."[11]

         In Black's Law Dictionary, the word "sex" is defined as: "1. The sum of the peculiarities of structure and function that distinguish a male from a female organism; gender. 2. Sexual intercourse. 3. Sexual relations[.]" Black's Law Dictionary (10th ed. 2014). Although the State urges this Court to also include "sexual orientation" in that definition, [12] "sexual orientation" has a distinctively different definition, as follows: "A person's predisposition or inclination toward sexual activity or behavior with other males or females; heterosexuality, homosexuality, or bisexuality." Id. The New Oxford American Dictionary ascribes similar meanings, defining "sex" as "either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions]" and "sexual intercourse, " and defining "sexual orientation" as "a person's sexual identity in relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or bisexual." New Oxford American Dictionary (3d ed. 2010). Likewise, Webster's New World College Dictionary defines "sex" as either "male or female, " "intercourse, " and "genitalia, " whereas "sexual orientation" is defined as "a person's sexuality . . . with respect to his or her sexual desire; heterosexuality, homosexuality, bisexuality, etc." Webster's New World College Dictionary (5th ed. 2016). These common definitions manifest that the words "sex" and "sexual orientation" have clearly distinct meanings and import. This distinction is reflected in their usage in the federal hate crime law, as well as similar laws enacted in other states.[13]

         Federal law provides for the prosecution of persons who

willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person[.]

18 U.S.C. § 249(2) (emphasis added). The vast majority of states have enacted hate crime laws.[14] Some states, like West Virginia, have created distinct crimes; other states provide for sentencing enhancements; and some states provide for both. Whether a separate crime, a sentencing enhancement, or both, West Virginia and five other states have statutes that list either "sex" or "gender";[15] twenty states list either "sex" or "gender" in addition to listing "sexual orientation";[16] and six states list only "sexual orientation."[17] Certain states list "sexual orientation" and "gender expression" and/or "gender identity"[18] in their hate crime statutes. Other states do not include any of these terms in their hate crime statutes. This nationwide review of hate crime laws indisputably demonstrates that "sex" and "sexual orientation" are being treated as distinct categories. Further, the parties do not cite, nor has our research revealed, any reported decisions where the term ...


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