State ex rel. West Virginia Div. of Nat. Resources v. Cline

• Decision Date: 17 July 1997
• Docket Number: No. 23840,23840
• Citation: 488 S.E.2d 376,200 W.Va. 101
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. the WEST VIRGINIA DIVISION OF NATURAL RESOURCES; Charles B. Felton, Jr., Director, West Virginia Division of Natural Resources; and James D. Fields, Chief, Law Enforcement Division, West Virginia Division of Natural Resources, Relators, v. Honorable Danny O. CLINE, Judge of the Circuit Court of Braxton County; Shelly L. DeMarino, Prosecuting Attorney for Gilmer County; and Ernest V. Morton, Jr., Prosecuting Attorney for Webster County, Respondents.

Page 376

488 S.E.2d 376

200 W.Va. 101

STATE of West Virginia ex rel. the WEST VIRGINIA DIVISION OF NATURAL RESOURCES; Charles B. Felton, Jr., Director, West Virginia Division of Natural Resources; and James D Fields, Chief, Law Enforcement Division, West Virginia Division of Natural Resources, Relators, v. Honorable Danny O. CLINE, Judge of the Circuit Court of Braxton County; Shelly L. DeMarino, Prosecuting Attorney for Gilmer County; and Ernest V. Morton, Jr., Prosecuting Attorney for Webster County, Respondents.

No. 23840.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 14, 1997.

Decided Feb. 20, 1997.

Dissenting Opinion of Justice Maynard

July 17, 1997.

Syllabus by the Court

1. " 'The police power is the power of the state, inherent in every sovereignty, to enact laws, within constitutional limits, to promote the welfare of its citizens. The police power is difficult to define precisely, because it is extensive, elastic and constantly evolving to meet new and increasing demands for its exercise for the benefit of society and to promote the general welfare. It embraces the power of the state to preserve and to promote the general welfare and it is concerned with whatever affects the peace, security, safety, morals, health and general welfare of the community. It cannot be circumscribed within narrow limits nor can it be confined to precedents resting alone on conditions of the past. As society becomes increasingly complex and as advancements are made, the police power must of necessity evolve, develop and expand, in the public interest, to meet such conditions.'

                [200 W.Va. 103] Syl. pt. 5, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965)."   Syllabus point 3,State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988)
                

2. "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.' " Syllabus point 4, State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988).

3. The provisions of W. Va.Code § 20-2-5(10) (1994) (Repl.Vol.1996) prohibiting the vehicular transportation of a loaded firearm do not violate the right to keep and bear arms for lawful hunting purposes enunciated in W. Va. Constitution Article III, Section 22.

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

Shelly L. DeMarino, Prosecuting Attorney for Gilmer County, Glenville, Daniel B. Dotson, III, Assistant Prosecuting Attorney for Webster County, Webster Springs, for Respondents.

DAVIS, Justice:

In this original proceeding for a writ of prohibition, the relator, the West Virginia Division of Natural Resources [hereinafter W. Va. DNR or DNR], ¹ requests that we vacate an order entered June 12, 1996, by the respondent judge, the Honorable Danny O. Cline, of the Circuit Court of Braxton County, ruling that W. Va.Code § 20-2-5(10) (1994) (Repl.Vol.1996), which prohibits the carrying of loaded firearms in or on any vehicle, is an unreasonable restriction of the rights contained in W. Va. Constitution Article III, Section 22. Article III, Section 22 of the W. Va. Constitution permits a person to keep and bear arms "for lawful hunting and recreational use." The relator further requests that we prohibit the respondents, Shelly L. DeMarino, Prosecuting Attorney for Gilmer County, and Ernest V. Morton, Jr., Prosecuting Attorney for Webster County, from refusing to enforce violations of W. Va.Code § 20-2-5(10). We issued a rule to show cause. We grant the writ of prohibition.

I. FACTUAL AND PROCEDURAL HISTORY

The facts underlying this original jurisdiction proceeding are not in dispute. At approximately 4:50 p.m. on December 8, 1994, an officer of the W. Va. DNR charged Hubert Neel with carrying a loaded gun in his vehicle in violation of W.Va.Code § 20-2-5(10). ² Following this incident, Neel was In response to Judge Cline's ruling, Daniel B. Dotson, III, Assistant Prosecuting Attorney for Webster County, ⁴ prepared a memorandum dated June 18, 1996, informing the Department of Natural Resources, the West Virginia State Police, the Webster County Sheriff's Department, the Webster Springs Police Department, and the Cowen Police Department of the above-described order invalidating W.Va.Code § 20-2-5(10). Mr. Dotson further stated, "[b]ased upon the holding of the Hon. Judge Cline, I do hereby instruct all law enforcement officers in Webster County, that this office no longer will prosecute any violation(s) of having a loaded gun in a vehicle, based upon the constitutional ruling of Judge Cline's order." ⁵

[200 W.Va. 104] convicted, in the Magistrate Court of Braxton County, of violating this statute. Neel then filed a petition for writ of prohibition in the Circuit Court of Braxton County challenging the constitutionality of his conviction pursuant to W. Va. Constitution Article III, Section 22. ³ Following a hearing, the respondent judge, the Honorable Danny O. Cline, entered an order on June 12, 1996, ruling, in part, "[t]he provisions of Chapter 20, Article 2, Section 5(10) is [sic] not a reasonable restriction on the rights granted by the constitutional provisions contained in Article 3, Section 22" and ordering, in part, "the said ticket issued to the Petitioner [Neel] on December 8, 1994, be, and the same is hereby, dismissed with prejudice as being violative of the rights guaranteed to the Petitioner by Article 3, Section 22 of the West Virginia Code [sic]."

Shortly thereafter, on June 24, 1996, the respondent Shelly DeMarino, Prosecuting Attorney for Gilmer County, authored a similar memorandum directed to the Department of Natural Resources, the West Virginia State Police, the Gilmer County Sheriff's Department, the Glenville City Police, and the Glenville State College Campus Police. In this correspondence, respondent DeMarino described Judge Cline's decision and "instruct[ed] all law enforcement officers in Gilmer County, that this office no longer will prosecute any violation(s) of having a loaded gun in a vehicle, based upon the constitutional ruling of Judge Cline's order."

Finally, on September 17, 1996, Dotson sent a second memorandum addressed to all law enforcement officers. In this writing, Dotson reiterated that "this [the Webster County Prosecuting Attorney's] office will no longer prosecute that violation of Chapter 20 that deal [sic] with a loaded gun in a vehicle during hunting season pursuant to the law in this Circuit as promulgated by the enclosed order [of Judge Cline entered June 12, 1996]." Dotson additionally stated, "it is my interpretation that should an officer write a ticket to a person for having a loaded gun in the vehicle that the individual would open himself up to a suit of abuse of process in his individual capacity, as well as that officers [sic] agency."

Given respondent Judge Cline's ruling that W.Va.Code § 20-2-5(10) is unconstitutional and the refusal of respondents DeMarino and Morton to enforce violations of this statute, the W. Va. DNR recognized the potential for inconsistent enforcement of this statutory

[200 W.Va. 105] provision throughout the various counties of this State. Accordingly, the DNR filed a petition for writ of prohibition requesting this Court determine the constitutionality of W.Va.Code § 20-2-5(10) with regard to W. Va. Constitution Article III, Section 22.

II. DISCUSSION

In this original proceeding, we are asked to determine whether W.Va.Code § 20-2-5(10) violates the constitutional right to bear arms set forth in W. Va. Constitution Article III, Section 22. Although we have previously reviewed this constitutional amendment, see, e.g., State v. Daniel, 182 W.Va. 643, 391 S.E.2d 90 (1990); State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988), we have never before addressed the validity of the statute at hand. We will begin our discussion with a brief explanation of the applicable standard of review. Then, we will proceed to evaluate the constitutionality of W.Va.Code § 20-2-5(10).

III. STANDARD OF REVIEW

The relators are before this Court pursuant to their petition for writ of prohibition. Typically, we limit our exercise of original jurisdiction through prohibition because "[m]andamus, prohibition and injunction against judges are drastic and extraordinary remedies.... As extraordinary remedies, they are reserved for really extraordinary causes." State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (citations omitted). With specific reference to the writ of prohibition, we have noted that "[t]he rationale behind a writ of prohibition is that by issuing certain orders the trial court has exceeded its jurisdiction, thus making prohibition appropriate." State ex rel. Allen v. Bedell, 193 W.Va. 32, 36, 454 S.E.2d 77, 81 (1994) (Cleckley, J., concurring). Accordingly, in order "[t]o justify this extraordinary remedy, the petitioner has the burden of showing that the lower court's jurisdictional usurpation was clear and indisputable and, because there is no adequate relief at law, the extraordinary writ provides the only available and adequate remedy." Id., 193 W.Va. at 37, 454 S.E.2d at 82. In the case presently before us, we find that the relators have satisfied this burden and may properly challenge, by way of prohibition, the circuit court's invalidation of W.Va.Code § 20-2-5(10) as unconstitutional.

Having determined that prohibition is appropriate in this instance, we turn now to our previous decisions addressing W.Va. Constitution Article III, Section 22. Our...