Perito v. County of Brooke

• Decision Date: 06 May 2004
• Docket Number: No. 31544.,31544.
• Citation: 215 W.Va. 178,597 S.E.2d 311
• Parties: Mario PERITO, II, Plaintiff, v. THE COUNTY OF BROOKE, A Political Subdivision of the State of West Virginia, Defendant.
• Court: West Virginia Supreme Court

597 S.E.2d 311

215 W.Va. 178

Mario PERITO, II, Plaintiff, v. THE COUNTY OF BROOKE, A Political Subdivision of the State of West Virginia, Defendant.

No. 31544.

Supreme Court of Appeals of West Virginia.

Submitted March 9, 2004.

Decided May 6, 2004.

Stephen D. Herndon, Wheeling, for the Plaintiff.

Darrell V. McGraw, Jr., Attorney General, Jon R. Blevins, Assistant Attorney General, Charleston, for the Amicus Curiae West Virginia Attorney General.

Fred J. Giggenbach, Jr., Drug and Violent Crime Assistant Prosecutor, West Virginia Prosecuting Attorneys Institute, for the Amicus Curiae West Virginia Prosecuting Attorneys Institute.

David B. Cross, Prosecuting Attorney, Wellsburg, for the Defendant.

John A. Rogers, Executive Director, West Virginia Public Defender Services, Russell Cook, Director, Criminal Law Research Center, Charleston, for the Amicus Curiae West Virginia Public Defender Services.

Chief Justice DAVIS delivered the Opinion of the Court.

The Circuit Court of Brooke County presents this Court with a certified question asking whether a convicted felon who has been unconditionally pardoned by the Governor of the State of West Virginia is automatically restored the right to possess a firearm. Having before us the order certifying the question, the briefs and arguments of counsel, and the record submitted in connection with the question presented,¹ we find that such right is not automatically restored, but may be restored only upon compliance with the provisions of W. Va.Code § 61-7-7(c) (2000) (Repl.Vol.2000).

I. FACTUAL AND PROCEDURAL HISTORY

Mario Perito, plaintiff, was convicted by a jury, on or about February 7, 1992, of two counts of malicious wounding in violation of W. Va.Code § 61-2-9 (1978) (Repl.Vol.2000). The events which led to his conviction, according to the circuit court, were that on June 14, 1991, Mr. Perito maliciously wounded Nicholas Edward Lorenz by shooting him with a firearm and then striking him with an automobile. Mr. Perito was sentenced to a term of not less than two nor more than twenty years. After serving one year, Mr. Perito was released and placed on one year of home confinement. He was later placed on probation for the remainder of his sentence. In November, 1996, the Honorable Gaston Caperton, Governor of the State of West Virginia, granted Mr. Perito an unconditional pardon. The pardon stated, in relevant part:

NOW, THEREFORE, I, GASTON CAPERTON, Governor of the State of West Virginia, by virtue of the power vested in me by the Constitution and other law of the State of West Virginia, do hereby GRANT to MARIO A.P. PERITO, II, a full, unconditional and complete PARDON for the said offense of malicious wounding committed by him in Hancock County, West Virginia. FURTHER, I do hereby ORDER that all relevant records maintained by the State of West Virginia and any of its political subdivisions be amended to reflect that MARIO A.P. PERITO, II has this day been fully, unconditionally and completely PARDONED for said offense recorded against him.

Thereafter, on August 13, 1999, Mr. Perito initiated a declaratory judgment action naming the County of Brooke as respondent and seeking a declaration that an unconditional pardon had restored to him various rights, including the right to vote, the right to hold public office, the right to serve on various juries, the right to hold certain employments prohibited to persons with felony convictions, the right to hold certain licenses prohibited to persons with felony convictions, and the right to possess firearms.

On November 8, 1999, the County of Brooke filed its answer admitting that Mr. Perito had been restored all but two of the aforementioned rights. The County indicated that it was without sufficient information to admit or deny whether an unconditional pardon restored to Mr. Perito the right to hold employments prohibited to those convicted of crimes, and it denied that the pardon restored to him the right to possess firearms. Mr. Perito then filed a motion for judgment on the pleadings and/or a motion for summary judgment. The circuit court treated the motion as one for summary judgment, denied the motion, and certified the following question for resolution in this Court:

Whether a convicted felon who has been unconditionally pardoned by the Governor of the State of West Virginia is entitled to a restoration of rights such that the pardoned felon is exempted from the requirements of West Virginia Code § 61-7-7(c)² requiring convicted felons to petition the Circuit Court and prove by clear and convincing evidence that the felon is competent and capable of exercising the responsibility concomitant with the possession of a firearm.

(Footnote added). The circuit court answered this question in the negative. We agree.

II. STANDARD OF REVIEW

"`The appellate standard of review of questions of law answered and certified by a circuit court is de novo.' Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996)." Syl. pt. 2, Keplinger v. Virginia Electric & Power Co., 208 W.Va. 11, 537 S.E.2d 632 (2000). Accord Syl. pt. 2, Charter Communications v. Community Antenna Serv., Inc., 211 W.Va. 71, 561 S.E.2d 793 (2002).

III. DISCUSSION

Our analysis of the question herein certified requires us to consider the constitutional right to bear arms, the West Virginia Legislature's power to limit that right, and the nature of a gubernatorial pardon.

Mr. Perito complains that requiring him to petition the circuit court pursuant to W. Va.Code § 61-7-7(c) in order to regain his ability to possess a firearm when he has been granted an unconditional pardon by the Governor violates his right to bear arms as guaranteed by the West Virginia Constitution, Article III, Section 22.³ We disagree. In explaining our rationale for this conclusion we will, for the moment, assume that the Legislature intended W. Va.Code § 61-7-7(c) to apply to individuals who have received unconditional pardons of their convictions. Later in this opinion we will demonstrate the correctness of our assumption.

The right to bear arms is not absolute. In State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988), this Court struck down as unconstitutionally broad W. Va.Code § 61-7-1 (1975) (Repl.Vol.1989), which prohibited "the carrying of a dangerous or deadly weapon for any purpose without a license or other statutory authorization." Syl. pt. 2, in part, Buckner. The Court determined that W. Va.Code § 61-7-1 violated the Article III, Section 22 of the West Virginia Constitution because, "as a total proscription of the carrying of a dangerous or deadly weapon without a license or other authorization," it exceeded the Legislature's power to reasonably regulate the right to bear arms in that it prohibited "the carrying of weapons for defense of self, family, home and state without a license or statutory authorization." Id. at 462, 377 S.E.2d at 144. Nevertheless, the Buckner Court emphasized that its holding "in no way [meant] that the right of a person to bear arms is absolute." Id. at 463, 377 S.E.2d at 145. In this respect, the Court also held:

The West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution, known as the "Right to Keep and Bear Arms Amendment."

Syl. pt. 4, Id. The Court cautioned, however, that "the legitimate governmental purpose in regulating the right to bear arms cannot be pursued by means that broadly stifle the exercise of [the right to bear arms] where the governmental purpose can be more narrowly achieved." Id. at 464, 377 S.E.2d at 146 (citing City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972)).

The purpose for which the Legislature enacted W. Va.Code § 61-7-7 may be ascertained from the section's plain language. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). "When a statute is clear and unambiguous and the legislative intent is plain, the statute should not be interpreted by the courts, and in such case it is the duty of the courts not to construe but to apply the statute." Syl. pt. 5, State v. General Daniel Morgan Post No. 548, VFW, 144 W.Va. 137, 107 S.E.2d 353 (1959). The obvious purpose of W. Va.Code § 61-7-7 is to guard the public safety. We believe the Legislature's method of achieving this goal has been crafted narrowly so as not to offend the Constitution. The statute does not prohibit all individuals who have been convicted of a felony and then received an unconditional pardon from ever possessing a firearm. Rather, it puts in place a procedure for the circuit courts to evaluate such individuals to determine if they are "competent and capable of exercising the responsibility concomitant with the possession of a firearm." W. Va.Code § 61-7-7(c). We need not, however, engage in an elaborate analysis of the constitutionality of this provision, as we expressly recognized in Buckner that "the prohibition against the possession or ownership of handguns by persons previously convicted of a felony or other specified crime is widely accepted." Id. at 465, 377 S.E.2d at 147 (citations omitted). While we have determined that the application of W. Va.Code § 61-7-7(c) to persons who have received unconditional pardons for their convictions does not violate the West Virginia Constitution, the question of whether the Legislature intended the statute to apply to such individuals remains. Thus, we answer that question now.

West Virginia Code Section 61-7-7(a) withholds the right to possess...