Opinion
No. 16-0543
05-09-2017
STATE of West Virginia, Plaintiff Below, Petitioner v. Steward BUTLER, Defendant Below, Respondent
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
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, and struck both Williams and Johnson in the face with his fist, knocking Williams to the ground.
One of the victims began to video the incident using his cell phone. That video recording, as well as the statements taken from the defendant's companions, were used to identify the defendant as the alleged perpetrator.
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) 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.
West Virginia Code § 61-6-21(b) provides, in full, as follows:
If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the State of West Virginia or by the Constitution or laws of the United States, because of such other person's race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.
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.
Justices Davis and Workman would have accepted the certified question for the Court's consideration and decision.
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.
An amicus brief was submitted by the West Virginia Attorney General that substantively supports the defendant's position in this matter. A separate amicus brief was submitted by the Lambda Legal Defense and Education Fund, Inc. that supports the State's, i.e., the prosecution's position.
A. West Virginia Code § 61-6-21(b)
The State asserts that the word "sex" in West Virginia Code § 61-6-21(b) 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, 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 VII precedent effectively prohibits discrimination based on sexual orientation when the discriminatory behavior is determined to be "because of sex," the State urges this Court to apply Title VII precedent here.
See supra note 2.
Chapter 40 of the Acts of the Legislature of West Virginia, Regular Session, 1987, reflects that the Committee Substitute for Senate Bill 301 was an act "to amend article six, chapter sixty-one of the code of West Virginia ... by adding thereto a new section ... prohibiting violations of an individual's civil rights by reason of that individual's race, color religion, ancestry, national origin, political affiliation or sex[.]"
Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination based on an individual's "race, color, religion, sex and national origin." See 42 U.S.C. §§ 2000e-2.
The State briefly argues that even if sexual orientation is not covered under West Virginia Code § 61-6-21(b), it should still be allowed to prosecute on Counts I and III on the basis that the crimes would not have occurred if one of the victims had been female, i.e., the State contends that the defendant did commit the crimes because of the victims' sex. Although it is unclear from the appendix record whether the State presented this argument below, we find it to be unavailing as it alters not only the sex of one of the victims—from male to female—but it also requires the hypothetical female to be heterosexual. In other words, the argument invokes both the sex and sexual orientation of the alleged victim. To the extent this argument is tied to the State's reliance upon the "because of sex" analyses employed under remedial discrimination statutes such as Title VII, such analysis is inapplicable. See infra note 11.
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, 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."
Sulick, 232 W.Va. at 719, 753 S.E.2d at 876, syl. pt. 7.
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 , [160] W.Va. [371], 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). 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)." Syl. Pt. 2, King v. West Virginia's Choice, Inc. , 234 W.Va. 440, 766 S.E.2d 387 (2014) ; see also Syl. Pt. 2, Crockett v. Andrews , 153 W.Va. 714, 172 S.E.2d 384 (1970) ("Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation."); Syl. Pt. 2, Eggleton v. State Workmen's Comp. Comm'r , 158 W.Va. 973, 214 S.E.2d 864 (1975) ("Where a statute is plain and unambiguous, a court has a duty to apply and not to construe its provisions."). Moreover, "[t]hat the parties disagree as to the meaning ... of [a statutory] provision does not of itself render [the] provision ambiguous[.]" Estate of Resseger v. Battle , 152 W.Va. 216, 220, 161 S.E.2d 257, 260 (1968).The word "sex" in West Virginia Code § 61-6-21(b) is undefined. We have previously addressed other undefined terms in this statute. In Sulick , the defendant asserted that the undefined words "force or threat of force" contained in West Virginia Code § 61-621(b) rendered the statute unconstitutionally vague. Relying upon our precedent, such as that discussed above, we ascribed ordinary meaning to the words "force" and "threat" and concluded that the language was "clear in prohibiting the use of either physical means or a communicated intent to inflict harm or loss on another or on another person's property." Sulick , 232 W.Va. at 725, 753 S.E.2d at 883.
See supra note 2.
As we explained in Sulick, our precedent provides that "[u]ndefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning." Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin , 175 W.Va. 525, 336 S.E.2d 171 (1984) ; see also Syl. Pt. 4, in part, State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars , 144 W.Va. 137, 107 S.E.2d 353 (1959) ("Generally the words of a statute are to be given their ordinary and familiar significance and meaning [.]"). Affording the undefined term "sex" its common and ordinary meaning, and for the reasons set forth below, we find the word to be clear and unambiguous and to have a very different meaning and import than the term "sexual orientation."
The parties and the amici devote a substantial portion of their respective briefs to arguments involving a legal analyses employed in West Virginia Human Rights Act [W.Va. Code § § 5-11-1 to –20 ] and Title VII cases. Because we have found the word "sex" in West Virginia Code § 61-6-21(b) to be unambiguous, such interpretive analysis is inapplicable; rather, "its plain meaning is to be accepted and applied without resort to interpretation." Crockett, 153 W.Va. at 715, 172 S.E.2d at 385, syl. pt. 2, in part. Further, even if we were to find the term "sex" is ambiguous, the "rule of lenity" would require us to strictly construe the statute against the State and in favor of the defendant, thereby commanding a similar outcome. See Syl. Pt. 5, State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257 (1995) ("In construing an ambiguous criminal statute, the rule of lenity applies which requires that penal statutes must be strictly construed against the State and in favor of the defendant."). As we explained in Morgan, the " ‘[t]he rule of lenity serves to ensure ... that there is fair warning of the boundaries of criminal conduct [.]’ " Id. at 262, 465 S.E.2d at 262 (citation omitted).
In Black's Law Dictionary, the word "sex" is defined as: "1. The sum of the peculiarities of structure and function that distinguish a male from a female organism; gender. 2. Sexual intercourse. 3. Sexual relations [.]" Black's Law Dictionary (10th ed. 2014). Although the State urges this Court to also include "sexual orientation" in that definition, "sexual orientation" has a distinctively different definition, as follows: "A person's predisposition or inclination toward sexual activity or behavior with other males or females; heterosexuality, homosexuality, or bisexuality." Id. The New Oxford American Dictionary ascribes similar meanings, defining "sex" as "either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions]" and "sexual intercourse," and defining "sexual orientation" as "a person's sexual identity in relation to the gender to which they are attracted; the fact of being heterosexual, homosexual, or bisexual." New Oxford American Dictionary (3d ed. 2010). Likewise, Webster's New World College Dictionary defines "sex" as either "male or female," "intercourse," and "genitalia," whereas "sexual orientation" is defined as "a person's sexuality ... with respect to his or her sexual desire; heterosexuality, homosexuality, bisexuality, etc." Webster's New World College Dictionary (5th ed. 2016). These common definitions manifest that the words "sex" and "sexual orientation" have clearly distinct meanings and import. This distinction is reflected in their usage in the federal hate crime law, as well as similar laws enacted in other states.
As indicated above, the State contends the word "sex" in West Virginia Code § 61-6-21(b) could be "construed to encompass multiple meanings," including sexual orientation. Such argument fails. First, unambiguous statutes are applied, not construed. Eggleton, 158 W.Va. at 974, 214 S.E.2d at 865, syl. pt. 2 ("Where a statute is plain and unambiguous, a court has a duty to apply and not to construe its provisions."). Second, the State's "multiple meanings" argument could run afoul of "the fundamental principle that a statute creating a crime must be so certain and definite that a person committing an act which it forbids can tell, when he does so, that he has violated the law." State ex rel. Heck's Inc. v. Gates, 149 W.Va. 421, 432, 141 S.E.2d 369, 377-78 (1965).
An internet search reveals that various organizations also consider sex and sexual orientation to be distinct categories in hate crimes laws. For example, the Movement Advancement Project, a self-described "independent think tank that provides rigorous research, insight and analysis that help speed equality for lesbian, gay, bisexual and transgender (LGBT) people," lists sixteen states, including West Virginia, as having hate crime statutes that do not cover sexual orientation or gender identity. See http://www.lgbtmap.org/equality-maps/hate_crime_laws (last visited May 10, 2017). Similarly, the Anti-Defamation League describes West Virginia as having a hate crime statute that does not include sexual orientation (https://www.adl.org/sites/default/files/documents/assets/pdf/combating-hate/ADL-updated-2016-Excel-State-Hate-Crime-Statutes.pdf (last visited May 10, 2017)), as does the National Gay and Lesbian Task Force (http://www.thetaskforce.org/static_html/downloads/reports/issue_maps/hate_crimes_06_13_color.pdf (last visited May 9, 2017)).
Federal law provides for the prosecution of persons who
willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation , gender identity, or disability of any person[.]
18 U.S.C. § 249(2) (emphasis added). The vast majority of states have enacted hate crime laws. Some states, like West Virginia, have created distinct crimes; other states provide for sentencing enhancements; and some states provide for both. Whether a separate crime, a sentencing enhancement, or both, West Virginia and five other states have statutes that list either "sex" or "gender"; twenty states list either "sex" or "gender" in addition to listing "sexual orientation"; and six states list only "sexual orientation." Certain states list "sexual orientation" and "gender expression" and/or "gender identity" in their hate crime statutes. Other states do not include any of these terms in their hate crime statutes. This nationwide review of hate crime laws indisputably demonstrates that "sex" and "sexual orientation" are being treated as distinct categories. Further, the parties do not cite, nor has our research revealed, any reported decisions where the term "sex" was found to either include or exclude "sexual orientation" in those states whose hate crimes law lists "sex" only.
Arkansas, Georgia, Indiana, South Carolina and Wyoming do not have hate crimes laws.
See Alaska Stat. § 12.55.155(c)(22) ("sex"); Mich. Comp. Laws § 750.147b(1) ("gender"); Miss. Code §§ 99-19-301, 305(3), –307(a) ("gender"); N.D. Cent. Code § 12.1-14-04 ("sex"); Wyo. Stat. § 6-9-102 ("sex").
See Ariz. Rev. Stat. §§ 41-1750(A)(3), 13-701(D)(15) ; Cal. Penal Code §§ 422.55 ; 720 Ill. Comp. Stat. 5/12-7.1 ; Iowa Code §§ 729a.1, a.2; La. Rev. Stat. § 14:107.2 ; Md. Code, Crim. Law §§ 10-304, –305; Me. Rev. Stat. tit. 17-A, § l151; Minn. Stat. § 609.2231(4) ; Mo. Rev. Stat. § 557.035 ; Neb. Rev. Stat. §§ 28-111 to –113; N.H. Rev. Stat. § 651:6(1)(f) ; N.J. Stat. § 2c:16-1 ; N.M. Stat. §§ 31-18B-2, –3; N.Y. Penal Law § 485-05; R.I. Gen. Laws § 12-19-38 ; Tenn. Code § 40-35-114(17) ; Tex. Penal Code § 12.47, Tex. Code Crim. Proc. Art. 42.014 ; Vt. Stat. tit. 13, § 1455 ; Wash. Rev. Code § 9A.36.080 ; see also D.C. Code §§ 22-3701, –3702, –3704.
See Colo. Rev. Stat. § 18-9-121 ; Fla. Stat. § 775.085 ; Kan. St. § 21-6815(c)(2)(C) ; Ky. Rev. Stat. § 532.031 ; Or. Rev. Stat. § 166.155 ; Wis. Stat. § 939.645.
See Conn. Gen. Stat. §§ 53a-181j ; Del. Code tit. 11, § 1304 ; Haw. Rev. Stat. §§ 706-662, 846-51 ; Mass. Gen. Laws ch. 265, § 39 ; Nev. Rev. Stat. § 4l.690.
Our research also failed to reveal any reported decision where a court found the term "gender" to include "sexual orientation" in those three states with hate crime laws that list "gender" but not "sexual orientation." See supra note 15.
Having determined that the word "sex" in West Virginia Code § 61-6-21(b) is unambiguous and clearly imparts being male or female, and does not include "sexual orientation," we further find that our determination is supported by the Legislature's repeated rejection of any attempt to add those terms to the statute in the thirty years since it first enacted the statute in 1987. As the defendant asserts, the Legislature's repeated refusal to amend § 61-6-21 to include "sexual orientation" is undoubtedly indicative of its intent not to include "sexual orientation" therein. In fact, it appears that since 1987, there have been at least twenty-six attempts to amend the statute to include "sexual orientation," and each attempt has failed.
In the Attorney General's amicus brief, the following are cited as the failed legislation: "H.B. 2851 (2008); H.B. 2851 (2007); H.B. 2225 (2006); H.B. 2442 (2006); H.B. 2225 (2005); H.B. 2442 (2005); H.B. 2004 (2003); H.B. 2042 (2003); H.B. 2226 (2003); H.B. 3147 (2003); H.B. 4464 (2002); S. 23 (2001); H.B. 2354 (2001); H.B. 2415 (2001); S. 422 (2000); H.B. 4392 (2000); H.B. 2114 (1999); H.B. 2481 (1998); S. 495 (1997); H.B. 2481 (1997); S. 457 (1996); H.B. 2775 (1995); S. 478 (1994); H.B. 4385 (1994); S. 319 (1993); H.B. 2426 (1993)." During the recent 2017 regular legislative session, a bi-partisan group of legislators introduced House Bill 2748 to amend West Virginia Code § 61-6-21 to include, among other characteristics, "sexual orientation." The bill was referred to the House Judiciary Committee, and no further action was taken. The amicus Lambda Legal Defense and Education Fund, Inc. suggests in its brief that the Legislature has repeatedly declined to add "sexual orientation" to the statute explicitly because it considers such coverage to be already be provided by the statute as it was enacted in 1987. It would be utterly nonsensical, however, for various members of the Legislature to attempt to amend West Virginia Code § 61-6-21 twenty-six times to add the words "sexual orientation" if the statute already so provided.
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, 104 S.Ct. 2249, 81 L.Ed.2d 88 (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 , 446 Md. 183, 130 A.3d 486, 498 (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.
As we instructed in King , "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." 234 W.Va. at 444, 766 S.E.2d at 391 (internal citations omitted); see also State v. J.E. , 238 W.Va. 543, ––––, 796 S.E.2d 880, 886 (2017) (explaining that Court was guided by "the precept that ‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there’ " and concluding that "[h]ad the Legislature intended to include adult offenders convicted of a criminal offense and adjudicated juvenile delinquents in W.Va. Code § 15-12-2(b), we presume it would have done so explicitly.") (internal citation omitted). Through application of the presumption that the Legislature said in West Virginia Code § 61-6-21(b) what it meant and meant what it said, and based upon the common and plain meaning of the word "sex," as well as the Legislature's clear intent, we are left with the ineluctable conclusion that the word "sex" does not include "sexual orientation."
Critically, judicial challenge "is not a license for [this Court] to judge the wisdom, fairness, or logic of legislative choices." MacDonald v. City Hosp., Inc. , 227 W.Va. 707, 722, 715 S.E.2d 405, 420 (2011) (quoting Fed'l Commc'ns Comm'n v. Beach Commc'ns, Inc. , 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) ). Consequently, although the State argues that we should disregard the "literal sense of the words" in West Virginia Code § 61-6-21(b) because not doing so leads to "injustice and absurdity[,]" " we disagree. It is certainly not absurd for this Court to recognize not only the Legislature's right to define crimes and their punishment, but also the Legislature's indisputable intent not to expand West Virginia Code § 61-6-21(b) to include "sexual orientation." Moreover, there is no injustice where the defendant remains charged on two counts of battery arising out of his alleged criminal misconduct.
Syl. Pt. 2, in part, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).
In addition to "sexual orientation," there have been multiple unsuccessful attempts to amend West Virginia Code § 61-6-21 to also include actual or perceived race and gender identity.
Our decision herein is guided by the principle that "this Court is not permitted to engage in an examination of the public policy ramifications potentially resulting from [the statute's] application or to comment upon the wisdom of the legislation as unambiguously expressed." State ex rel. Biafore v. Tomblin , 236 W.Va. 528, 533, 782 S.E.2d 223, 228 (2016). Accordingly, although we do not comment on whether it would be good or bad policy for the Legislature to amend West Virginia Code § 61-6-21 to include "sexual orientation," we observe that our own rules expressly prohibit bias and discrimination in the courts of this state based on several categories, including both "sex" and "sexual orientation." Rule 2.3 of the Code of Judicial Conduct provides, in part:
We observe that in 2014, the Legislature enacted West Virginia Code § 18-2-5h and chose to provide protections based on an individual's sexual orientation in subsection (e)(4), which provides that "[s]chools shall not collect ... (4) Any data concerning the sexual orientation or beliefs about sexual orientation of the student or any student's family member[.]"
(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex , gender, religion, national origin, ethnicity, disability, age, sexual orientation , marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge's direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex , gender, religion, national origin, ethnicity, disability, age, sexual orientation , marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.
Id. (emphasis added). Similarly, Rule 3.6(A) of these same rules provides that "[a] judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex , gender, religion, national origin, ethnicity, or sexual orientation ." Id. (emphasis added). Likewise, our Trial Court Rules guard against bias by providing that
[a]s to matters in issue before any court, conduct and statements toward one another must be without bias with regard to such factors as gender, race, ethnicity, religion, handicap, age, and sexual orientation when such conduct or statements bear no reasonable relationship to a good faith effort to argue or present a position on the merits.
T.C.R. 4.06, in part.
Unlike criminal statutes that impose penalties, including the potential for imprisonment, our court rules do not. Thus, although the enumerated characteristics that trigger criminal responsibility under West Virginia Code § 61-6-21 are not as expansive as the enumerated characteristics under our court rules, just as the Legislature does not prescribe our rules, "[t]his Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation." Syl. Pt. 2, in part, Huffman v. Goals Coal Co. , 223 W.Va. 724, 679 S.E.2d 323 (2009) ; see also Banker v. Banker , 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (internal citation omitted) ("It is not for this Court arbitrarily to read into [a statute] that which it does not say."); State ex rel. Frazier v. Meadows , 193 W.Va. 20, 24, 454 S.E.2d 65, 69 (1994) ("Courts are not free to read into the language what is not there, but rather should apply the statute as written."); Tug Valley Pharmacy, LLC v. All Plaintiffs Below In Mingo Cnty. , 235 W.Va. 283, 298, 773 S.E.2d 627, 642 (2015) (Benjamin, J., concurring) ("The principles of judicial conservatism require us ... not to bestow upon ourselves the role of superlegislature simply because we do not believe [the Legislature] went far enough."); accord State ex rel. Curry v. Carr , 847 S.W.2d 561, 567 (Tx. Crim. App. 1992) (Miller, J., dissenting) ("Today a majority of this Court ... acts ... as a superlegislature making laws which the legislature has repeatedly rejected and effectuating its own intent rather than that of The Legislature.").
It is imperative to remember that "[i]t is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Syl. Pt. 11, Brooke B. v. Ray , 230 W.Va. 355, 738 S.E.2d 21 (2013). This precept is particularly crucial to our analysis when the State essentially asks this Court to judicially amend West Virginia Code § 61-6-21 by expanding it to create a new felony when the Legislature has repeatedly chosen not to do so. As we explained in Morgan v. Trent , the " ‘legislatures, not courts, define criminal liability.’ " 195 W.Va. at 262, 465 S.E.2d at 262 (citation omitted).
Accordingly, we adhere to our to law that "[w]hen 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." General Daniel Morgan Post No. 548, 144 W.Va. at 137, 107 S.E.2d at 354, syl. pt. 5. Applying West Virginia Code § 61-6-21(b), as it is currently written, the State cannot prosecute the defendant for an alleged criminal civil rights violation arising out of the victims' sexual orientation. Accordingly, we affirm the circuit court's dismissal of Counts I and III of the indictment. The State may move forward with its prosecution on Counts II and IV charging the defendant with battery under West Virginia Code § 61-2-9.
During oral argument, a question was raised as to whether there was an Eighth Amendment equal protection issue from the perspective of the alleged victims. The parties neither raised nor briefed an equal protection argument, either below or on appeal. Consequently, such constitutional challenge is not properly before the Court.
B. Certified Question
The State asserts that the circuit court erred in dismissing Counts I and III of the indictment subsequent to this Court's refusal to docket the question certified by the circuit court. Arguing that this Court only hears certified questions that are necessary to reach a decision in the pending case and then speculating that our refusal to docket the certified question meant the question need not be answered to decide the case, the State asserts that the circuit court also erred when it proceeded to answer the question, which resulted in its dismissal of Counts I and III of the indictment.
The State also asserts that the circuit court erred by certifying the question under the Uniform Certification of Questions of Law Act, W.Va. Code §§ 51-1A-1 to –13, which is to be used by federal and foreign jurisdictions. The State correctly argues that the circuit court should have followed West Virginia Code § 58-5-2, which requires the circuit court to answer the question in the first instance, which the circuit court did not do in its certification order. Rule 17(a)(1) of our Rules of Appellate Procedure also requires a circuit court to answer the certified question presented. Although the circuit court should have followed West Virginia Code § 58-5-2 and our rule, that issue is now moot.
This argument is linked to the State's assertion that it may prosecute on more than one legal theory. As previously discussed, the State offers the alternative theory that had one of the alleged victims been a female, the crime would not have occurred, therefore, the defendant allegedly committed the crime because of the victims' sex. We have found this argument to be unavailing. See supra note 8.
Describing the procedural history related to the circuit court's certified question, the defendant asserts that the State never objected to the manner by which the lower court proceeded and, once this Court refused to docket the certified question, the issue of certification, itself, was moot. Regarding the manner in which the circuit court proceeded thereafter, the defendant asserts that the parties agreed upon a scheduling order for the submission of briefs on the issue of the applicability of West Virginia Code § 61-6-21(b), after which the circuit court ruled that it could not expand § 61-6-21(b) to include sexual orientation. The defendant notes that the circuit court stayed its order dismissing Counts I and III of the indictment to allow the State to pursue this appeal, which has brought the legal issue back to this Court for decision.
As provided in West Virginia Code § 58-5-2 (2012),
Interestingly, our research revealed very few reported decisions where this Court has answered certified questions in criminal proceedings. See, e.g., State v. Bias, 177 W.Va. 302, 352 S.E.2d 52 (1986) (answering certified questions on basis that questions concerned circuit court's jurisdiction); State v. Vollmer, 163 W.Va. 711, 711-12, 259 S.E.2d 837, 838 (1979) (answering certified question on basis it raised issue of jurisdiction, as provided under W.Va. Code § 58-5-2 ); State v. De Spain, 139 W.Va. 854, 81 S.E.2d 914 (1954) (finding Court did not have jurisdiction to answer certified question addressed to sufficiency of search warrant which fell outside parameters of W.Va. Code § 58-5-2 ). In State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992), however, this Court questioned its jurisdiction to consider a certified question in a criminal case, holding that "W.Va. Code, 58-5-2 (1967), is designed for certifying questions in civil cases." Lewis, 188 W.Va. at 86, 422 S.E.2d at 808, syl. pt. 4, in part. Five years after Lewis was decided, West Virginia Code § 58-5-2 was amended to provide for "any question of law" without limitation.
[a]ny question of law, including, but not limited to, questions arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the Supreme Court of Appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back.
This statute further provides that "[t]he procedure for processing questions certified pursuant to this section shall be governed by rules of appellate procedure promulgated by the Supreme Court of Appeals." In turn, this Court's procedural rules provide that when a certified question is submitted, this Court "may, in its discretion , schedule the case for argument under Rule 19 or Rule 20, issue an order declining to accept the certified question, or issue an otherwise appropriate order." R.A.P. 17(a)(6), in part (emphasis added).
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 Court will not consider certified questions not necessary to a decision of the case [,]’ " such holding clearly does not preclude us from refusing to docket certified questions for other reasons. Moreover, 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 in its decision upon the record presented on final hearing." Syl. Pt. 1, Hastings v. Finney , 119 W.Va. 301, 193 S.E. 444 (1937). The holding in Hastings clearly contemplates the circuit 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.
Syl. Pt. 6, West Va. Water Serv. Co. v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957) ; see also Syl. Pt. 5, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990) (same); Syl. Pt. 7, Shell v. Metropolitan Life Ins. Co., 181 W.Va. 16, 380 S.E.2d 183 (1989) (same).
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.").
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 error in the circuit court ruling on the legal question once this Court refused to docket the certified question.
IV. 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
JUSTICES DAVIS and WORKMAN dissent and reserve the right to file dissenting opinions.
Workman, Justice, dissenting, joined by Justice Davis :
I respectfully dissent to the majority opinion because it evidences a fundamental misunderstanding of the three-word phrase, "because of ... sex." W.Va. Code § 61-6-21(b) (2014). The statute clearly provides:
If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States, because of such other person's race, color, religion, ancestry, national origin, political affiliation or sex , he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.
Id . (emphasis added). As a matter of statutory application, the question to be answered is whether Counts I and III of the indictment in this case should have been dismissed where it is alleged that acts of violence were committed against persons because of their sex.
I am in agreement with the majority's quotations regarding statutory application and the absence of justification for judicial alteration of unambiguous statutory pronouncements. Thus, absent constitutional considerations, no construction is warranted where a statute is unambiguous; only application of such statute is required. "Where 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) ; see also Syl. Pt. 6, in part, State ex rel. Cohen v. Manchin , 175 W.Va. 525, 336 S.E.2d 171 (1984) ("Undefined words and terms used in a legislative enactment will be given their common, ordinary and accepted meaning."); cf ., Jackson v. Belcher , 232 W.Va. 513, 518, 753 S.E.2d 11, 16 (2013) ("this Court is required to consider the entire language of a legislative enactment when presented with a case questioning the statute's meaning; we are not at liberty to selectively read a portion of the challenged statutory section and to disregard the remainder of the language employed by the Legislature."). This Court is consequently called upon to apply the "common, ordinary and accepted" meaning of the phrase "because of ... sex."
In my opinion, the meaning of "because of ... sex" is unambiguous. Pursuant to the statute, a crime is considered a hate crime if certain conditions are met. In the hate crime setting, it is the bias and motivation that are ultimately being sanctioned. So, some of the pertinent questions become: What was the motivation for the conduct alleged to be criminal under West Virginia Code § 61-6-21(b) ? Was the alleged conduct affected by the victim's sex? Was the crime committed because of the victim's sex? What is the meaning of the phrase "because of"?
Disagreement among the parties "as to the meaning or the applicability of [a statutory] provision does not of itself render [the] provision ambiguous or of doubtful, uncertain or unsure meaning." Habursky v. Recht, 180 W.Va. 128, 132, 375 S.E.2d 760, 764 (1988) (internal quotations and citations omitted). A statute "is not ambiguous simply because different interpretations are conceivable." State v. Keller, 143 Wash.2d 267, 19 P.3d 1030, 1035 (2001) (footnote omitted), cert. denied, 534 U.S. 1130, 122 S.Ct. 1070, 151 L.Ed.2d 972 (2002) ; see also T. Weston, Inc. v. Mineral Cty., 219 W.Va. 564, 568, 638 S.E.2d 167, 171 (2006) ("[t]he fact that parties disagree about the meaning of a statute does not itself create ambiguity or obscure meaning." (internal citations omitted)).
Illustrations are useful in contemplating the meaning of the phrase. For instance, if a woman works for a corporation, fails to conform to that corporation's expectations of appropriate "femininity" or gender identity, and is denied opportunities for promotion, has she been discriminated against because of her sex? Yes, but not simply because she possesses female anatomical parts; rather, the actions occurred because she was perceived to be behaving outside the social expectation of how a woman should conduct herself in that corporate environment. But for her sex, she would not have been discriminated against. See Price Waterhouse v. Hopkins , 490 U.S. 228, 235, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), superseded by statute on other grounds , 42 U.S.C. § 2000e-5(g)(2)(B) (1991), as stated in Landgraf v. USI Film Prods ., 511 U.S. 244, 251, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). In Price Waterhouse , the United States Supreme Court applied prohibitions contained in Title VII of Civil Rights Act of 1964 making it unlawful for employers to discriminate "because of ... race, color, religion, sex, or national origin" and found the phrase "because of ... sex" includes treatment based on sex stereotyping where a female manager in an accounting firm was denied partnership and advised she could improve her chances for partnership if she were to take "a course at charm school," "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Price Waterhouse , 490 U.S. at 235, 109 S.Ct. 1775 (internal quotation marks omitted).
See also, Zachary R. Herz, Note, Price's Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396 (2014).
If a Caucasian man is fired because he is married to an African-American woman, has he been discriminated against because of his race? Yes, but not simply because of the hue of his skin; rather, the act was committed because he was perceived to be behaving outside the social expectation of how a Caucasian man should behave with an African-American woman. But for his race, he would not have been fired. See Holcomb v. Iona Coll. , 521 F.3d 130, 132-39 (2d Cir. 2008) (holding "that an employer may violate Title VII if it takes action against an employee because of the employee's association with a person of another race" and "where an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race."); Whitney v. Greater N.Y. Corp. of Seventh-Day Adventists , 401 F.Supp. 1363, 1366 (S.D.N.Y. 1975) (holding employment termination was because of disapproval of interracial relationship); Gresham v. Waffle House, Inc ., 586 F.Supp. 1442, 1445 (N.D. Ga. 1984) ("but for their being white, the plaintiffs in these cases would not have been discriminated against."); West Virginia Human Rights Comm'n v. Wilson Estates, Inc. , 202 W.Va. 152, 160, 503 S.E.2d 6, 14 (1998) (evaluating Fair Housing Act and holding: "Consistent with that goal [to encourage fair housing opportunities for all people] and with the actual language of the Act, which specifically proscribes discriminatory treatment against any person based on race, we hold that under the West Virginia Fair Housing Act, a cause of action exists for discrimination directed against a tenant based on the race of those individuals with whom the tenant chooses to associate.").
This Court also observed in Wilson Estates that we have "consistently looked to federal discrimination law dealing with Title VII of the Civil Rights Act of 1964 when interpreting provisions of our state's human rights statutes." 202 W.Va. at 158, 503 S.E.2d at 12 (citation omitted).
If a woman is denied an employment opportunity because she is a lesbian, has she been discriminated against because of her sex? Yes, but not simply because she possesses female anatomical parts; rather, the actions occurred because she was in a relationship with a woman and "[t]he discriminatory behavior does not exist without taking the victim's biological sex (either as observed at birth or as modified, in the case of transsexuals) into account." Hively v. Ivy Tech Cmty. College of Ind. , 853 F.3d 339, 346-47 (7th Cir. 2017). "Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex." Id. at 347.
The Hively court also astutely observed that a "because of race" analysis would lead to the inevitable conclusion that "both parties to [an] interracial marriage were being denied important rights by the state solely on the basis of their race." Hively, 853 F.3d at 347.
If a man stands on a corner kissing a man and is beaten because he is kissing a man, has he been assaulted because of his sex? Yes, but not simply because he possesses male anatomical parts; rather, the crime occurred because he was perceived to be acting outside the social expectations of how a man should behave with a man. But for his sex, he would not have been attacked.
As noted in Hively,
[T]o the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate. No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.
Id. at 349.
The indictment in this case properly alleged the attack occurred because of the victims' sex. Certain individuals are targeted for violence because they are perceived to violate socially-established protocols for gender and sex roles. The perpetrators in such instances have drawn conclusions that the victim has contravened certain unspoken rules, and the bias-motivated crime thus ensues. See generally , Karen Franklin, Unassuming Motivations—Contextualizing the Narratives of Antigay Assailants, in Stigma and Sexual Orientation—Understanding Prejudice Against Lesbians, Gay Men and Bisexuals 1, 15-20 (Gregory M. Herek ed., 1998).
The point of origin in the majority's opinion is sound; the statute indisputably does not include the words "sexual orientation." But the majority concludes its analysis prematurely. Simply finding the absence of those two magic words fatal to the State's contention is the most effortless answer this Court could conjure. But while an answer without more in-depth analysis may be the path of least resistance, it also gives the shortest shrift to real critical thinking. The majority's answer is overly simplistic and constricted; the absence of the specific reference does not definitively resolve the question presented by this case. The pertinent question is not whether the statute contains the words "sexual orientation." Rather, it is whether the crime was committed because of the victims' sex. The phrase "because of ... sex" encompasses the actions taken against the victims in this case.
The court in Hively recognized "[t]he question before us is not whether this court can, or should, ‘amend’ Title VII to add a new protected category to the familiar list of ‘race, color, religion, sex, or national origin.’ 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power." 853 F.3d at 343. Amendments are not permissible; nor are they required. The statute in this case, as written, is sufficient to warrant the result espoused herein.
Nor is the absence of statutory amendments particularly enlightening.
Legislative history ... is notoriously malleable. Even worse is the temptation to try to divine the significance of unsuccessful legislative efforts to change the law. Those failures can mean almost anything, ranging from the lack of necessity for a proposed change because the law already accomplishes the desired goal, to the undesirability of the change because a majority of the legislature is happy with the way the courts are currently interpreting the law, to the irrelevance of the non-enactment, when it is attributable to nothing more than legislative logrolling or gridlock that had nothing to do with its merits.
Id. at 343-44 ; see also United States v. Craft, 535 U.S. 274, 287, 122 S.Ct. 1414, 152 L.Ed.2d 437 (2002) ("[c]ongressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already incorporated the offered change." (internal citation and quotation omitted)); Local 598, Council 58 Am. Fed'n v. City of Huntington, 173 W.Va. 403, 405, 317 S.E.2d 167, 168-69 (1984) ("The failure of the legislature to enact a particular law is not evidence that the legislature rejected the policy underlying that bill.").
An illuminating examination of the meaning of "because of ... sex" was undertaken by Chief Judge Robert Katzmann in his concurrence to Christiansen v. Omnicom Group, Inc ., 852 F.3d 195 (2d Cir. 2017). In prior decisions, Simonton v. Runyon , 232 F.3d 33 (2d Cir. 2000), and Dawson v. Bumble & Bumble , 398 F.3d 211 (2d Cir. 2005), the Second Circuit had held that sexual orientation discrimination claims were not cognizable under Title VII. Christiansen , 852 F.3d at 202 (C.J. Katzmann, concurring). In recognizing the analytical deficiencies of those prior decisions, Judge Katzmann addressed the phrase "because of ... sex" and noted the recognition by the United States Supreme Court that an individual is discriminated against " ‘because of ... sex’ if that person is ‘exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ " Id. (quoting Oncale v. Sundowner Offshore Servs., Inc ., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (internal citations omitted)). Further, Judge Katzmann addressed the associational theory of discrimination (actions based upon disapproval of one's relationships, such as interracial or homosexual); gender stereotyping (actions based upon disapproval of one's failure to adhere to socially-imposed expectations of appropriate behavior as woman or man); and traditional sex discrimination. Each of those theories ultimately led Judge Katzmann to the conclusion that discrimination based upon sexual orientation is an act occurring "because of ... sex." See also Evans v. Georgia Reg'l Hosp. , 850 F.3d 1248, 1261 (11th Cir. 2017) (J. Rosenbaum, concurring, in part and dissenting, in part) ("Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer's image of what women should be.... And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer's stereotyped view of women. That is discrimination ‘because of ... sex[.]’ "); Prowel v. Wise Bus. Forms, Inc. , 579 F.3d 285, 291 (3d Cir. 2009) (recognizing "the line between sexual orientation discrimination and discrimination ‘because of sex’ can be difficult to draw" and holding Title VII protects homosexual man for deviating from gender stereotypes even if not for "sexual orientation"); Videckis v. Pepperdine Univ ., 150 F.Supp.3d 1151, 1159 (C.D. Cal. 2015) ("Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct." (internal citations omitted)); Willis v. Wal-Mart Stores, Inc ., 202 W.Va. 413, 417, 504 S.E.2d 648, 652 (1998) (addressing "because of sex" language and finding discrimination based on same-sex sexual harassment is recognized cause of action in West Virginia).The precedent for application of the "because of ... sex" statutory language has been within the civil realm of sex discrimination cases, rather than hate crimes, primarily because most states now include the more precise "sexual orientation" nomenclature in their statutes. Thus, courts have had very limited opportunity to address the meaning of "because of ... sex" within the realm of hate crimes. The phrase has the same meaning within hate crimes as within discrimination prohibitions. Attacking a male and shouting homophobic slurs because he is kissing a man most certainly qualifies as committing an act "because of ... sex." While the majority might find the crime was actually committed "because of sexual orientation," it is a "common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex." Hively , 853 F.3d at 351.
See, e.g., Boutillier v. Hartford Pub. Sch., No. 3:13-CV-01303-WWE, 221 F.Supp.3d 255, 2016 WL 6818348 (D. Conn. Nov. 17, 2016) ("[H]omosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus."); Centola v. Potter, 183 F.Supp.2d 403, 410 (D. Mass. 2002) (observing that sexual orientation discrimination "is often, if not always, motivated by a desire to enforce heterosexually defined gender norms. In fact, stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women....").
Because Title VII, like the West Virginia statute at issue herein, does not include the words "sexual orientation," it is the most analogous statutory scheme in which precedent on the definition of "because of ... sex" has been extensively developed.
In fact, other than states that include the words "sexual orientation" in their hate crime statutes, only West Virginia and three other states use the word sex in their listings of protections. Those other states' hate crime statutes have not been challenged in the manner we encounter in this case.
Additionally, committing an act of violence because the victims were presumed to have violated stereotypical expectations of males would also constitute an act committed "because of ... sex," entirely circumventing the need to grapple with concepts regarding the role of sexual orientation.
Critically, the meaning of the phrase "because of ... sex" is not altered when one makes the transition from civil to criminal statutes. Nor do traditional tools of statutory "construction" of criminal statutes interfere with such smooth passage; as addressed above, tools of statutory construction are not implicated or invoked where a statute is unambiguous. The rule of lenity, requiring criminal statutes to be construed in favor of a defendant, is not applicable where the statute is unambiguous. See State v. Green , 207 W.Va. 530, 538, n.13, 534 S.E.2d 395, 403 n.13 (2000) (holding that when court finds "the statutory text to be unambiguous ..., we do not consider the rule of lenity."). Thus, applying the statute by employing common, ordinary meanings of phrases does not abrogate existing constitutional or statutory protections for criminal defendants, despite the reality that definitions of such phrases may have received more attention in litigation in the civil realm. See, e.g., People v. Swain , 959 P.2d 426, 433 (Colo. 1998) (holding definition of the word "driving" in civil driver's license revocation context also applies in criminal context and specifying that rule of lenity for statutory construction is inappropriate absent statutory ambiguity); In re M.S. , 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365, 1375 and 1377 n.7 (1995) (quoting Price Waterhouse discussion regarding meaning of "because of" and finding definitions utilized in civil discrimination realm equally applicable to criminal prosecution for violation of hate crime statutes, reasoning that " ‘[b]ecause of’ is a term in common usage. It connotes a causal link between the victim's characteristic and the offender's conduct, and resembles language found in other civil rights and antidiscrimination statutes."). The prohibitions against bias-motivated actions as separately expressed in civil discrimination statutes and criminal hate crime statutes are intertwined and have developed, to some degree, in concert with one another.
In recent years, an upsurge in racial hostility and gender tension has been identified in apparently increasing incidents of hate crimes. In response, numerous local, state, and federal statutes, widely viewed as a type of civil rights legislation, have been enacted. This nascent wave of legislation has emerged in the context of a vast expansion of penal legislation on the federal level and a widespread movement to respond harshly to crime.
John Valery White, Vindicating Rights in A Federal System: Rediscovering 42 U.S.C. S 1985(3)'s Equality Right , 69 Temp. L. Rev. 145, 235-36 (1996) (footnotes omitted). Anti-hate legislation has typically taken the form of either penalty enhancement or independent legislation. "Both types generally define the unlawful act as acts motivated ‘because of’ (‘based on,’ ‘on the basis of,’ ‘by reason of,’ etc.) ... [certain protected statuses]. This form is similar to Title VII, the federal employment discrimination statute, a point Chief Justice Rehnquist invoked in upholding the Wisconsin [criminal] statute." Id. at 235 n.293 ; see also Wisconsin v. Mitchell , 508 U.S. 476, 487, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993).
Any concerns regarding a potential violation of the fair warning doctrine are also unfounded. "The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by [the United States Supreme] Court." Bouie v. Columbia, 378 U.S. 347, 350-51, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The statutory application espoused herein is not an unforeseeable judicial expansion, as commonly prompts a fair warning doctrine analysis; the statute makes it reasonably clear that the conduct was punishable as a criminal act. See generally United States v. Lanier, 520 U.S. 259, 267, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997). Moreover, this issue has not been addressed previously; nor is this definition indefensible or unexpected in any way. "Due process is not ... violated simply because the issue is a matter of first impression." Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 159 (2d Cir. 2009). Consequently, there is no "marked and unpredictable departure from prior precedent" that would ... constitute "an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect." Rogers v. Tennessee, 532 U.S. 451, 467, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001).
The forthright application of the plain statutory language at issue herein, as I propose, does not place this Court in the proverbial and untenable role of both judge and jury. The present procedural stance is the indictment stage, rather than the trial stage. Allowing Counts I and III to stand would provide the prosecution ample time to prove the assertions, the jury would be properly instructed on evidentiary requirements and burdens of proof, and the State would be required to prove its allegations of statutory violation beyond a reasonable doubt. At this juncture, however, the evaluation must concentrate upon the sufficiency of the indictment for a hate crime, and it is my firm belief that the majority of this Court adopted an overly narrow focus, metaphorically missing the forest for the trees.
This Court subjects sufficiency of indictment findings to de novo review. Syl. Pt. 7, in part, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998) (" ‘[g]enerally, the sufficiency of an indictment is reviewed de novo.’ " (citation omitted)); see also State v. Minigh, 224 W.Va. 112, 119, 680 S.E.2d 127, 134 (2009) (holding standard of review regarding motion to dismiss indictment is generally de novo); State v. Zain, 207 W.Va. 54, 58, 528 S.E.2d 748, 752 (1999), cert. denied, 529 U.S. 1042, 120 S.Ct. 1541, 146 L.Ed.2d 354 (2000).
Based upon the foregoing, I respectfully dissent to the unnecessarily constrained view articulated by the majority herein. I would have found Counts I and III of the indictment sufficient, and I believe the circuit court erred in dismissing those counts.
I am authorized to state that Justice Davis joins me in this separate opinion.