Appellant Norma Jean Saunders seeks to overturn a felony conviction (See footnote 1) for violating the Solid Waste Management Act (the Act). (See footnote 2) The violation arose from the continued operation of a construction and demolition landfill known as Rick's Used Auto Parts in contravention of a cease and desist order the West Virginia Department of Environmental Protection (DEP) issued on August 28, 2002. The cease and desist order resulted from Appellant's continuing failure to adhere to the terms of a consent order she executed on August 9, 2001. (See footnote 3) Based on her position that a prior conviction under the Act is an essential element of the felony offense at issue, Appellant argues that the indictment should have been dismissed on the grounds that the State failed to include the essential elements of the offense in the indictment. After carefully reviewing the statutory language at issue, we conclude that while a prior conviction under the Act can be grounds for a felony conviction under West Virginia Code § 22-15-15(b)(4) (2002), a prior conviction is not an essential element of the
offense because the Legislature expressly framed the elements of the offense in the disjunctive. Finding that the Circuit Court of Kanawha County did not commit error, we affirm.
(4) Any person convicted of a second offense or subsequent willful violation of subdivision (2) or (3) of this
subsection or knowingly and willfully violating any provision of
any permit, rule or order issued under or subject to the provisions
of this article or knowingly and willfully violating any provision
of this article, is guilty of a felony and, upon conviction thereof,
shall be imprisoned in a state correctional facility not less than
one nor more than three years, or fined not more than fifty
thousand dollars for each day of violation, or both fined and
W.Va. Code § 22-15-15(b)(4) (emphasis supplied).
Asserting that the statute has to be read as requiring a qualifying prerequisite conviction, Appellant maintains that the indictment issued against her did not lawfully charge her with the felony offense identified in West Virginia Code § 22-15-15(b)(4). (See footnote 6) Given that she was a first time offender of the Act, Appellant argues that she should have been charged with a misdemeanor offense under the preceding subsection. That section provides that:
(3) Any person who willfully or negligently violates any
provision of any permit issued under or subject to the provisions
of this article or who willfully or negligently violates any
provision of this article or any rule of the secretary or any order
of the secretary or board is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than two thousand five
hundred dollars nor more than twenty-five thousand dollars per
day of violation, or imprisoned in a county or regional jail not
more than one year, or both fined and imprisoned.
W.Va. Code § 22-15-15(b)(3) (emphasis supplied).
As additional support for her position, Appellant asserts that a useful purpose would be served by construing West Virginia Code § 22-15-15(b)(4) to require a prior conviction before an individual could be charged with a felony offense under the Act. By interpreting the statute in this fashion, the State is prevented from having the discretion to charge first time offenders with either a misdemeanor or a felony offense. Appellant suggests additionally that there is no real distinction between the terms knowingly and willfully which permits offenses to be readily classified as either misdemeanors or felonies. Consequently, she advocates that the offenses are more easily differentiated by requiring a prior conviction as a predicate requirement for a felony offense under West Virginia Code W.Va. Code § 22-15-15(b)(4).
Emphasizing the legislative decision to assert the elements constituting the felony offense at issue in the disjunctive, the State maintains that Appellant's proposal to require a predicate conviction before charging a felony offense under the Act would constitute a rewriting of the statute. Were we to adopt the position of Appellant, the State argues that principles of statutory construction would be violated. We agree.
An examination of the statute demonstrates a legislative decision to delineate
at least four separate bases that permit a person to be charged with a felony offense of violating
the Act. The first ground for a felony offense is a second offense under the Act and the
second ground is a subsequent willful violation of subdivision (2) or (3) of West Virginia
Code § 22-15-15(b). The third ground for committing a felony offense is knowingly and
willfully violating any provision of any permit, rule or order issued under or subject to the
provisions of this article. The fourth and final ground for a felony offense is knowingly and
willfully violating any provision of this article. W.Va.Code § 22-15-15(b)(4).
The indictment at issue in this case charged Appellant with three counts of unlawfully, feloniously, knowingly, and willfully violat[ing] a cease and desist order. . . . in conformity with the third alternative ground for committing a felony offense under the Act. There was no use of the disjunctive in the charging document; (See footnote 7) the separate counts were differentiated solely by the month of the alleged violation. (See footnote 8) While Appellant seeks to circumvent the legislative use of the disjunctive grounds provided for charging a felony offense under the Act, the rules of statutory construction do not permit the interpretation she advocates.
It is axiomatic that 'where the disjunctive or is used, it ordinarily connotes an alternative between the two [or more] clauses it connects.' State v. Taylor, 176 W.Va. 671, 675, 346 S.E.2d 822, 825 (1986) (citations omitted). We expounded on the legislative use of a disjunctive clause in Tennant v. Smallwood, 211 W.Va. 703, 568 S.E.2d 10 (2002):
This Court has previously observed that the word 'or' is 'a
conjunction which indicate[s] the various objects with which it is
associated are to be treated separately.' Holsten v. Massey, 200
W.Va. 775, 790, 490 S.E.2d 864, 879 (1997) (quoting State v.
Carter, 168 W.Va. 90, 92 n. 2, 282 S.E.2d 277, 279 n. 2 (1981)).
Moreover, the use of this term ordinarily connotes an alternative
between the two clauses it connects. Albrecht v. State, 173
W.Va. 268, 271, 314 S.E.2d 859, 862 (1984) (citing State v.
Elder, 152 W.Va. 571, 577, 165 S.E.2d 108, 112 (1968)).
211 W.Va. at 712, 568 S.E.2d at 19; accord Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 517, 207 S.E.2d 897, 921 (1974) (Recognizing the obvious, the normal use of the disjunctive 'or' in a statute connotes an alternative or option to select); see also Smith v. Godby, 154 W.Va. 190, 199, 174 S.E.2d 165, 171 (1970) (stating that [i]t is significant that the statute uses the words 'fail' or 'refuse' in the disjunctive and manifestly attaches a different meaning to each word).
Given the longstanding recognition that the legislative use of the disjunctive signifies an alternative between at least two separate clauses, we must reject Appellant's argument that the statutory language obscures ready discernment of which types of conduct constitute a felony offense under the Act. Clearly, one qualifying method for committing a felony violation of the Act is the knowing and willful violation of any provision of a permit, rule or order. See W.Va. Code § 22-15-15(b)(4). The record is replete with documentation that demonstrates repeated violations by Appellant of both the consent order and the cease and desist order. Critically, Appellant does not deny that these violations occurred. Instead, she seeks solely to condemn the legislative means of establishing a felony offense under the Act.
We are not persuaded by Appellant's attempt to characterize the statute at issue as an enhancement statute. The legislative schema indicates otherwise. Having carefully studied the language at issue, we conclude that while a prior conviction under the Act can be grounds for a felony conviction under West Virginia Code § 22-15-15(b)(4), a prior conviction is not an essential element of the offense because the Legislature expressly framed the elements of the offense in the disjunctive. Accordingly, we determine that the lower court did not commit error in refusing to dismiss the indictment on the grounds of insufficiently pleading the elements of a felony offense under West Virginia Code § 22-15-15(b)(4).
Willful misconduct has been variously defined in
opinions dealing with facts similar to those established in this
case. In Glass v. Sullivan, 170 Tenn. 230, 94 S.W.2d 381, it is
said that willful misconduct means more than negligence and
carries the idea of deliberation and intentional wrongdoing.
Willful misconduct includes all conscious or intentional
violations of definite law or rules of conduct, as distinguished
from inadvertent, unconscious, or involuntary violations.
123 W.Va. at 70, 13 S.E.2d at 398 (some citations omitted).
With regard to the facts of this case, the word willfully refers to Appellant's intentional acceptance of money in exchange for the dumping of waste at the landfill after being told by DEP that the landfill was in noncompliance; being specifically instructed not to accept additional waste products; and executing a consent order the terms of which required that she cease accepting such products. There is no question that Appellant's continuing and repeated acceptance of money for the privilege of dumping waste products at the landfill qualifies as intentional and purposeful conduct after she was instructed not to so act on multiple occasions and had expressly agreed to abide by DEP directives under the terms of the consent order.
In contrast to the misdemeanor offense which only requires conduct that is willful or negligent, a felony offense requires conduct that is both knowing and willful. Cf. W.Va. Code § 22-15-15(b)(3), (4) (emphasis supplied). When grouped together and used in the penal sense, the terms willfully and knowingly connote the necessary mental element for the commission of a crime. See State v. Pearls, 35 W.Va. 320, 322, 13 S.E. 1006, 1007 (1891) (recognizing that general criminal intent is established by showing that defendant wilfully and knowingly did the unlawful act). Appellant suggests that there is no real difference between the terms knowingly and willfully. (See footnote 9) The law proves otherwise. The term knowing is defined as [h]aving or showing awareness or understanding; well-informed. Black's Law Dictionary 876 (7th ed., West 1999). Within the meaning of West Virginia Code § 22-15-15, the term willfully connotes conduct that was intentionally engaged in that had as its consequences the violation of the law, while the term knowingly requires the additional element of demonstrating that the actor was consciously aware when engaging in the illegal conduct that such conduct was in violation of the law. In this case, the law which Appellant knew she was violating was initially the consent order and then later the cease and desist order. (See footnote 10)
Despite the clear demarcation between the type of conduct that constitutes a
misdemeanor versus a felony offense under the statute, Appellant seeks to negate the
legislative significance that underlies such differentiation. Only by disregarding the fact that
the misdemeanor offense is described in the disjunctive (willfully or negligently) whereas the
felony offense is expressly denoted in the conjunctive (knowingly and willfully), can
Appellant make the argument that there is no difference between the elements of these two
offenses. Moreover, Appellant's position flies in the face of established rules of statutory
We are required to operate under the presumption that the Legislature attaches specific meaning to every word and clause set forth in a statute. See State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 698, 143 S.E.2d 535, 551 (1965) (A cardinal rule of statutory construction is that significance and effect must, if possible, be given to every section, clause, word or part of a statute.); accord Ex Parte Watson, 82 W.Va. 201, 205, 95 S.E. 648, 649 (1918) (stating that [a]n interpretation of a statute or clause thereof which gives it no function to perform . . . must be rejected as unsound; for it is presumed that the legislature had a purpose in the use of every word and clause found in a statute, and intended the terms used to be effective). To accept Appellant's contention that the terms willfully
and knowingly were intended by the Legislature to operate in synonymous fashion is simply untenable.
That the Legislature intended to separate felonious conduct from misdemeanor conduct under the Act by requiring the additional element of proving that the individual engaged in the proscribed conduct while being expressly aware that such conduct was in violation of a permit, rule or order is clear from the statutory language at issue. See W.Va. Code § 22-15- 15(b)(3),(4). One method of committing a misdemeanor offense under the Act is the intentional or purposeful engagement in the conduct whose result is a violation of a permit, rule or order. (See footnote 11) See W.Va. Code § 22-15-15(b)(3). With such an offense there is no proof required that the actor knew that his or her conduct was in violation of a permit, rule or order _ only that he or she intended to commit the proscribed conduct. To be charged with a felony offense under the Act, however, requires proof of the actor's cognition or specific awareness that such conduct was in violation of a permit, rule or order. The cognitive requirement inserted by use of the term knowingly is what separates a misdemeanor offense from a felony offense under the Act. Consequently, we must reject Appellant's position that the Legislature has failed to effectively differentiate conduct which qualifies as a misdemeanor offense from that which qualifies as a felony offense under the Act. (See footnote 12)
Based on the foregoing, the decision of the Circuit Court of Kanawha County
is hereby affirmed.