State ex rel. Hechler v. Christian Action Network, No. 23573

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH; First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague la
Citation201 W.Va. 71,491 S.E.2d 618
PartiesSTATE of West Virginia ex rel. Ken HECHLER, West Virginia Secretary of State, Plaintiff Below, Appellee, v. CHRISTIAN ACTION NETWORK, a Tax-Exempt Virginia Corporation, Defendant Below, Appellant
Docket NumberNo. 23573
Decision Date16 July 1997

Page 618

491 S.E.2d 618
201 W.Va. 71
STATE of West Virginia ex rel. Ken
HECHLER, West Virginia Secretary
of State, Plaintiff Below, Appellee,
v.
CHRISTIAN ACTION NETWORK, a Tax-Exempt Virginia Corporation,
Defendant Below, Appellant
No. 23573.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 22, 1997.
Decided July 16, 1997.

Page 620

[201 W.Va. 73] Syllabus by the Court

1. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

2. "A statute that is ambiguous must be construed before it can be applied." Syl. pt. 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

3. " 'The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.' Syllabus Point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl. pt. 2, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992).

4. " 'In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.' Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975)." Syl. pt. 3, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).

5. An organization which "holds itself out to be a[n] ... educational ... organization" is a "charitable organization" within the meaning of W. Va. Code, 29-19-2(1) [1992] of the Solicitation of Charitable Funds Act and, thus, is subject to the requirements of that Act.

6. Pursuant to W. Va. Code, 29-19-8 [1992] of the Solicitation of Charitable Funds Act all charitable organizations must include the following statement on every printed solicitation: " 'West Virginia residents may obtain a summary of the registration and financial documents from the Secretary of State, State Capitol, Charleston, West Virginia 25305. Registration does not imply endorsement.' " The mandated statement does not violate the First Amendment to the Constitution of the United States or article III, section 7 of the Constitution of West Virginia because it burdens no more speech than is necessary to further the substantial state interest of "prevent[ing] deceptive and dishonest statements and conduct in the solicitation and reporting of funds for or in the name of charity." W. Va. Code, 29-19-1a [1986].

7. The due process clause found in article III, § 10 of the Constitution of West Virginia requires that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he or she may act accordingly.

8. "In the construction of a legislative enactment, the intention of the legislature is to be determined, not from any single part, provision, section, sentence, phrase or word, but rather from a general consideration of the act or statute in its entirety." Syl. pt. 1, Parkins v. Londeree, 146 W.Va. 1051, 124 S.E.2d 471 (1962).

Page 621

[201 W.Va. 74] 9. "In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies." Syl. pt. 3, Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984).

10. W. Va. Code, 29-19-8 [1992] does not authorize the Secretary of State to require charitable organizations to submit to his office copies of any solicitation materials mailed to the public.

Darrell V. McGraw, Jr., Attorney General, Daynus Jividen, Senior Assistant Attorney General, Charleston, for Appellee.

William J. Hanna, Flaherty, Sensabaugh & Bonasso, Charleston, David Wm. T. Carroll, Columbus, OH, for Appellants.

McHUGH, Justice:

The Christian Action Network appeals the December 19, 1995 order of the Circuit Court of Kanawha County which, pursuant to the Solicitation of Charitable Funds Act found in W.Va. code, 29-19-1 et seq., permanently enjoined the organization from soliciting funds in West Virginia until it conspicuously places the statement mandated by W. Va. code, 29-19-8 [1992] on all of its public mailings and sends a copy of each of its public mailings to the Secretary of State's office. For reasons explained below, we affirm, in part, and reverse, in part, the December 19, 1995 order of the circuit court.

I.

The Christian Action Network is a Virginia nonprofit corporation which is registered as a lobbyist in both the United States House of Representatives and the United States Senate for the primary purpose of advocating family value issues. More specifically, the Christian Action Network's articles of incorporation state that the organization's purposes are, inter alia:

(a) To educate the general public and to advance the social welfare through the promotion of traditional Judeo-Christian moral values in areas of social concern, including, but not limited to, the advancement of:

(1) freedom of religious beliefs, practices, assembly and autonomy;

(2) sanctity-of-life for the unborn, the mentally and physically handicapped and the hopelessly ill;

(3) traditional interpersonal morality and ... family values;

(4) a strong national defense; and

(5) fair taxation and elimination of wasteful spending by the Federal government;

(b) To advise the United States Congress and local and state legislative bodies and public officials about, and/or to seek legislation in furtherance of, the topics described in clause (a) above.

(c) To provide educational materials by the use, implementation and production of publications, media presentations, lectures, debates, seminars and workshops in furtherance of the nonprofit purposes of the Corporation[.]

As noted by the circuit court in its December 19, 1995 final order, the

Christian Action Network accomplishes the purposes for which it was incorporated by, inter alia, producing video tape programming designed to educate citizens around the country regard[ing] [the issue of homosexuals in the United States military]; by publishing a book entitled Defending the American Family, intended to educate Congress, 'key people inside the White House,' and 'the common public,' regarding pro-family Contract With America issues; producing television commercials, for public broadcast, regarding candidate Bill Clinton's position on homosexual issues; placing newspaper ads in large circulation newspapers regarding candidate Clinton's views on homosexuality; publishing a 'government report card' intended to help people in their home understand where their member of Congress stands on the issues of [family values, Judeo-Christian values, homosexuality and the like]; [and] circulating petitions to the public intended to encourage various corporations and agencies (e.g., Levi Strauss Corp., the United Way of America) to adopt funding and contribution strategies more amenable to Christian Action Network's views on

Page 622

[201 W.Va. 75] pro-family, Judeo-Christian, and anti-homosexuality values.

(citations to record of the October 6, 1995 hearing omitted).

The Christian Action Network funds its lobbying programs by national direct mail solicitations. Indeed, in the three years it has engaged in fundraising in this State, it has collected between $10,000 and $50,000 a year from West Virginia residents. Although the Christian Action Network is exempt from income taxation pursuant to § 501(c)(4) of the Internal Revenue Code (26 U.S.C. § 501(c)(4)) (hereinafter " § 501(c)(4)"), 1 any contributions made to it are not tax-deductible, unlike the organizations qualified under § 501(c)(3) of the Internal Revenue Code (26 U.S.C. § 501(c)(3)) (hereinafter " § 501(c)(3)"). 2

Each year since 1992, the Christian Action Network has registered in West Virginia as a charitable organization with the Secretary of the State and has paid a registration fee pursuant to the requirements of the Solicitation of Charitable Funds Act. 3 See W. Va. code, 29-19-5 [1992]. However, on its 1992 registration form, the Christian Action Network noted that "[w]e are not a charity." Though the later registration forms did not contain this notation, the Christian Action Network left blank the line on the registration forms for amounts "disbursed for charitable purposes." Furthermore, the Christian Action Network did not include on any of its public mailings the following statement which is mandated by W. Va. code, 29-19-8 [1992]: " 'West Virginia residents may obtain a summary of the registration and financial documents from the Secretary of State, State Capitol, Charleston, West Virginia 25305[;] [r]egistration does not imply endorsement[,]' " nor did the Christian Action Network send copies of its solicitation materials to the Secretary of State.

On February 17, 1995, the Secretary of State received a complaint from Chuck Hamsher about the Christian Action Network's solicitation activities in West Virginia.

Page 623

[201 W.Va. 76] Mr. Hamsher asserted that the Christian Action Network had failed to comply with the requirements of the Solicitation of Charitable Funds Act by not including the statement required by W. Va. code, 29-19-8 [1992] on its public solicitation mailings. After investigating Mr. Hamsher's complaint, the Secretary of State contacted the Christian Action Network in March and April of 1995 and directed that it comply with the Act. In response, the Christian Action Network requested the Secretary of State to withdraw its registration stating that it was not a charitable organization and, therefore, was not subject to the requirements of the Solicitation of Charitable Funds Act.

After denying the Christian Action Network's request and after the organization continued to refuse to comply with the Act, the Secretary of State filed a "Petition for Declaratory Judgment and Injunctive...

To continue reading

Request your trial
38 practice notes
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2013
    ...disposition are reviewed under an abuse of discretion standard. Syl. Pt. 1, in part, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997). The more specific standards of review will be incorporated into the discussion below.III. Discussion As set forth abov......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2011
    ...disposition are reviewed under the abuse of discretion standard. Syllabus Point 1, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997). The more specific standards of review applicable to each assignment of error will be incorporated into the discussion be......
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...pt. 2, Mills v. Van Kirk, 192 W.Va. 695, 453 S.E.2d 678 (1994). See also Syl. pt. 4, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997) ("`"In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole ......
  • State v. Newcomb, No. 34142.
    • United States
    • Supreme Court of West Virginia
    • June 23, 2009
    ...disposition are reviewed under the abuse of discretion standard. Syllabus Point 1, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 More specifically, with regard to whether a trial court committed error in refusing the appellant's motions to strike potential ......
  • Request a trial to view additional results
38 cases
  • DeVane v. Kennedy, No. 25206.
    • United States
    • Supreme Court of West Virginia
    • March 26, 1999
    ...intent may be apparent from companion statutory enactments. See Syl. pt. 4, in part, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997) ("In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so......
  • State v. White, No. 11–1336.
    • United States
    • Supreme Court of West Virginia
    • June 7, 2013
    ...disposition are reviewed under an abuse of discretion standard. Syl. Pt. 1, in part, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997). The more specific standards of review will be incorporated into the discussion below.III. Discussion As set forth abov......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • November 17, 2011
    ...disposition are reviewed under the abuse of discretion standard. Syllabus Point 1, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997). The more specific standards of review applicable to each assignment of error will be incorporated into the discussion be......
  • Kessel v. Leavitt, No. 23557.
    • United States
    • Supreme Court of West Virginia
    • July 22, 1998
    ...pt. 2, Mills v. Van Kirk, 192 W.Va. 695, 453 S.E.2d 678 (1994). See also Syl. pt. 4, State ex rel. Hechler v. Christian Action Network, 201 W.Va. 71, 491 S.E.2d 618 (1997) ("`"In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT