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WV Supreme Court Dismisses Steward Butler’s Felony Civil Rights Violations

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HUNTINGTON – Former Marshall University student-athlete Steward Butler today saw the West Virginia Supreme Court dismiss the two remaining felony charges against him.  Butler was accused of saying an anti-gay slur and striking Zackary Johnson and Casey Williams in their faces moments after they kissed at Fifth Avenue and Ninth Street in Huntington in April of 2015. This story was updated at 6:30 p.m. on May 9.

In 2016, Cabell County Circuit Judge Paul T. Farrell ruled the two charges of felony civil rights violations against Butler should be dismissed, but to not dismiss the remaining two misdemeanor battery charges – which was Farrell’s interpretation of the state civil rights laws. Today’s ruling by the State Supreme Court, a 3-2 decision, after the state of West Virginia appealed the lower court ruling means that court affirmed the Cabell Co. Circuit court ruling, as reported in April by Courtney Hessler of Huntington’s The Herald-Dispatch.

Today, after the state of West Virginia appealed the lower court ruling, the W.Va. Supreme Court affirmed the lower court ruling. Lauren E. Plymale, Esq., Assistant Prosecutor, Cabell County, Huntington, West Virginia, was Counsel for Petitioner. Raymond A. Nolan, Esq., Attorney of The Nolan Law Firm, Lavalette, West Virginia, was Counsel for Respondent.

Nolan spoke with the First Sentry Bank Sportsline show Tuesday evening, talking with Woody Woodrum and Paul Swann. “This is not policy driven,” Nolan said on the daily sports show, “the Supreme Court was interpreting the law, which it affirmed the challenged law was passed by the Legislature, and the word sex, the court found, does not include sexual orientation. It means the felony charges are dismissed against Steward Butler.

“Now we will deal with the two misdemeanor battery charges in the Cabell County court. Understand, a conviction for a felony means you will spend time in the state prison if you are convicted. But now Steward will defend himself against misdemeanor battery charges. Understand, this ruling was regarding a point of law, discussed by lawyers and judges.”

Cabell County Assistant Prosecutor Lauren Plymale appealed Farrell’s ruling to the State Supreme Court, asking if the word “sex” could be expanded to include “sexual orientation” and argued Butler would not have attacked the men had they been in a heterosexual relationship. The West Virginia Civil Rights Code (enacted in 1987) includes protections against persons or property from violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.

Nolan and Solicitor General Elbert Lin – working out of the West Virginia Attorney General’s office – argued the legislature had a clear avoidance to adding sexual orientation. Justice Margaret Workman begged the question of whether excluding sexual orientation all together was a violation of equal protection laws.

Lin, at that time, argued if sexual orientation were to be added to the statute, every class with constitutional rights would have been added. Lin also noted the court would have to rule in favor of Butler even if they did find sexual orientation was covered because the protection was not clearly written in the statute.

There is some question of why this point of law was pressed to the highest court in the state. Many believe the celebrity of Butler, a former running back for the Thundering Herd football program of Coach Doc Holliday, contributed to the push for the felony charges and the case being pressed to the State Supreme Court.

Along those lines, W.Va. State Attorney General Patrick Morrisey issued the following statement regarding Tuesday’s decision by the West Virginia Supreme Court of Appeals that affirmed the unambiguous definition of the word ‘sex’ in the state’s hate crime statute. The court’s 3-2 decision, in State v. Butler, found the Legislature, “said … what it meant and meant what it said,” in concluding the statute’s use of the word “sex” does not include “sexual orientation,” Morrisey said.

“The state Supreme Court of Appeals interpreted the law as written, respecting the Legislature’s authority to determine criminal law,” Morrisey said in the release. “The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law. That authority lies with the state Legislature and this decision preserves that balance.”

Morrisey, it should be noted, is a Republican and has been said to be considering a run for the U.S. Senate seat of Democratic Senator Joe Manchin, a former Secretary of State and Governor. On Monday, a Republican member of the House of Representatives, Evan Jenkins – who was a member of the Democratic party as a member of the W.Va. House and Senate in the state Legislature, 1995-2001 in the House, then the Senate from 2003-14 – announced he will be running against Manchin in the coming election. Jenkins earned the House seat in 2014, defeating incumbent Democrat and long-time House member Nick Jo Rahall as a newly minted member of the GOP.

Here are some significant parts of the ruling, written by Chief Justice Loughry of the West Virginia Supreme Court:

(read the entire document here: http://www.courtswv.gov/supreme-court/docs/spring2017/16-0543.pdf)

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.

From the ruling:

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. 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.

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.”

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 (the) 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)).

Certainly, unsuccessful legislative efforts can be attributed to a myriad of reasons, but regardless of the reasons behind the numerous failed attempts to amend § 61-6­ 21 to include “sexual orientation,” the very fact that there have been twenty-six failed attempts cannot be ignored. Indeed, other courts have found the repeated rejection of legislation to be clear expressions of intent.

See Heckler v. Day, 467 U.S. 104, 118 n.30, 119  (1984) (recognizing repeated congressional rejection of imposing mandatory deadlines on agency adjudication of disputed disability claims and describing fact that “Congress has rejected repeated demands for mandatory deadlines” as a “clear . . . expression of congressional intent”); State v. Gen. Paving Co., 590 F.2d 680, 683 (7th Cir. 1979) (finding that “[i]f the [p]rima facie evidence standard of Section 5(a) is to be changed, it is for Congress to do so” and giving weight to “the repeated refusals of Congress to enact the suggested provision”); Yonga v. State, 130 A.3d 486, 498 (Md. 2016) (“[W]hile intent may be discerned from legislative inaction, it is considered most appropriate generally only when a specific bill has been repeatedly brought to the General Assembly and rejected[.]”).

Moreover, these unsuccessful legislative efforts are not only indicative of intent, but they are germane to the Legislature’s right to define crimes. In this regard, the Legislature has chosen–repeatedly–not to amend West Virginia Code § 61-6-21(b) so as to include any additional characteristics that trigger criminal responsibility under the statute.

Further down in the ruling is found:

The State mistakenly assigns legal significance to our exercise of discretion in refusing to docket the previously certified question. Viewing our refusal as an indication that the question need not be answered to decide the case, the State argues that the circuit court erred by subsequently ruling on the legal issue. Although we previously held that “‘this

Although we previously held that “‘this Court will not consider certified questions not necessary to a decision of the case[,]’”28 such holding clearly does not preclude us from refusing to docket certified questions for other reasons, as we also previously held, “[t]he 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.

Even in cases where we have docketed a certified question, we have sometimes declined to answer it for a variety of reasons. [See, e.g., Williamson v. Greene, 200 W.Va. 421, 428 n.12, 490 S.E.2d 23, 30 n.12 (1997) (“We decline to answer certified question 3 in light of plaintiff’s failure to address the issue raised therein.”); Holloman v. Nationwide Mut. Ins. Co., 217 W.Va. 269, 272, 617 S.E.2d 816, 819 (2005)] “Finding the answer to the first question to be dispositive, this Court declines to address the second certified question, and the decision upon the record presented on final hearing.” Syl. Pt. 1, Hastings v. Finney, 119  court ruling upon the issue raised in a certified question, following this Court’s refusal to docket the same, and this Court retaining the ability to address the issue if raised in a subsequent appeal, as in the case at bar.

In addition, we further observe the general absence of any language in our administrative orders refusing to docket certified questions that would restrict the manner in which the circuit court thereafter addresses the issue. Accordingly, we take this opportunity to make clear, and we now hold, that this Court’s exercise of discretion under Rule 17 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.

Once this Court refused to docket the certified question, the circuit court ruled upon the legal issue, which led to its dismissal of Counts I and III of the indictment. The State has appealed that ruling, as provided under West Virginia Code § 58-5-30. As contemplated in Hastings, the legal issue is now before us for decision. In short, we find no

In short, we find no error in the circuit court ruling on the legal question once this Court refused to docket the certified question.

Conclusion:

For the foregoing reasons, the circuit court’s May 13, 2016, order dismissing Counts I and III of the defendant’s indictment is hereby affirmed. This action is remanded for additional proceedings consistent with this opinion.

Affirmed and Remanded

About Woody Woodrum

Senior Editor and columnist/writer for Herd Insider since 2003, with Kindred Communications on radio for Marshall football/men's basketball pregame and postgame shows since 1996 and with First Sentry Bank Sportsline (Also Scott on Sports, Sideline Sports and Herd Insider Sportsline) since 1997. Married to Liz (12-22-1990) and one son, Tre' (11-7-1997). National Sportswriters & Sportscasters West Virginia Broadcaster of the Year winner for radio, 2000; won W.Va. Broadcasters Best Talk Show in 2013 with co-host Paul Swann and W.Va. Broadcasters Best Play-by-Play in 2015 with Jason Toy (Huntington at South Charleston, state AAA semifinals). Member of (College) Football Writers Association of America, (College) Basketball Writers Association of America and National Collegiate Baseball Writers Association. Color commentator for Marshall football (1999-2000), for Marshall basketball (2004-2016) and Marshall baseball (2004-2016). Color for high school football at Spring Valley (1999-2008), Cabell Midland (2009-2012) and Huntington (W.Va.) High School (2013-2016).

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