State v. Butler, 16-0543

• Decision Date: 09 May 2017
• Docket Number: No. 16-0543,16-0543
• Citation: 799 S.E.2d 718
• Parties: STATE of West Virginia, Plaintiff Below, Petitioner v. Steward BUTLER, Defendant Below, Respondent
• Court: West Virginia Supreme Court

799 S.E.2d 718

STATE of West Virginia, Plaintiff Below, Petitioner

v.Steward BUTLER, Defendant Below, Respondent

No. 16-0543

Supreme Court of Appeals of West Virginia.

Submitted: April 25, 2017

Filed: May 9, 2017

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

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 VII⁷ 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 , , 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 because of specifically enumerated 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)."...