No. 32842 - Loyal Order of Moose, Martinsburg Lodge No. 120 v. State Tax
Starcher, J., dissenting:
I dissent because I believe that the majority's opinion ignored the facts
developed in the court below. By ignoring the facts, the majority's opinion made the Tax
Commissioner look like the bad guy beating up on a bunch of sweet, innocent, good
Nothing could be further from the truth.
I concede _ even the Tax Commissioner concedes _ that the Loyal Order of
Moose contributes lots of money to local and national charities that it raises through its
gambling operations. (See footnote 1)
But this case wasn't really about whether this local Moose Lodge
could, or could not, donate money to charitable organizations. There was therefore no need
for the majority opinion to chide the Tax Commissioner into assist[ing] the Moose Lodge
in guiding it through the balkanized maze enveloping West Virginia's charitable raffle laws.
This case was about a local Moose Lodge that routinely conducted gambling
operations without having a license to do so, in plain violation of state law. This Moose
Lodge had its charitable raffle license suspended on October 26, 2001. This order was never,
ever appealed. The Lodge continued its gambling operations. When it then broke the law,
by conducting raffle-type games when the license was suspended, the Tax Commissioner
decided to not renew the Moose Lodge's license.
Now, five-and-a-half years later the majority's opinion has taken it upon itself
to reverse that order. This alone is troubling, because appellate courts are not constitutionally
supposed to reverse orders that haven't been appealed.
Furthermore, how the Tax Commissioner applied the rules regarding the use
of the proceeds of charitable raffles had nothing to do with the denial of the Moose Lodge's
license renewal application. The majority's opinion is, therefore, entirely advisory because
the thrust of the Moose Lodge's lawsuit centered upon the denial of the application.
But most troubling is the complete absence from the majority's opinion of the
facts explaining why
the Tax Commissioner felt compelled to issue the October 26, 2001
order suspending the charitable raffle license.
In 1999, the Tax Commissioner sanctioned the Moose Lodge for prior
problems with its gambling operations, and a notice of intent to suspend the Moose Lodge's
gambling operations was issued in July 1999. The Moose Lodge, by its board of directors,
voluntarily elected to waive its right to any hearing on the notice _ that is, they tacitly
admitted that the facts supporting the suspension of the charitable raffle license were true.
However, to avoid having the license suspended, the Moose Lodge _ with the advice of a
lawyer _ entered into an alternative disposition agreement with the Tax Commissioner on
October 14, 1999.
In the alternative disposition agreement, the Moose Lodge agreed to do two
things: contribute $81,018.00 to charitable or public service purposes; and comply with
charitable gaming laws for the next three years. The Moose Lodge never challenged this
agreement, never filed any collateral proceeding, never asked for a hearing or petitioned the
circuit court for relief. But that didn't matter. The Moose Lodge never complied with either
provision of the agreement.
First, no one disputes that the Moose Lodge failed to make the $81,018.00
contribution. Instead, the majority opinion decides that this contribution amount was
coerced by the Commissioner, and therefore that the Moose Lodge's promise to make this
contribution could be ignored. This is surprising. It is quite rare to see the members of the
majority say that if a law breaker signs an agreement with a prosecutor, and agrees to some
penalty _ say, a fine or jail time _ then this Court will set aside that plea agreement if it was
coerced by the prosecutor. But then, Moose Lodge members vote; most other law-breakers
Second, while most citizens must follow the law as a matter of daily living, the
Moose Lodge in the alternative disposition agreement actually went one step further and said
to the Tax Commissioner, we agree to follow the law! And then, the Moose Lodge broke
the law. The Moose Lodge blatantly violated the State's charitable gaming laws.
On September 18, 2001, investigators for the Tax Commissioner inspected the
Moose Lodge and inventoried the charitable games that were on the premises. Investigators
found numerous raffle-type games for which the Moose Lodge could not produce invoices
or other supporting documents, as was required by law. Moose Lodge employees told the
investigators they had never seen the games, or that the games must have been given to the
Moose Lodge by the raffle distributor as a gift. The employees then suggested that maybe
some other organization had used the Moose Lodge premises and accidentally left the games
behind _ however, a review of the other organizations' records showed none had conducted
any raffle events at the Moose Lodge.
The Moose Lodge's license was suspended for six months effective October
30, 2001. As previously mentioned, the suspension order was never appealed. But the
Moose Lodge kept right on gambling.
On December 23, 2001, investigators entered the Moose Lodge premises and
immediately saw people selling raffle games. When people saw the investigators, they began
dumping raffle tickets into trash cans, grabbing the trash bags out of the cans and hustling
them out the back door of the building. The investigators confiscated tubs, trash cans and
trash bags filled with raffle tickets. When a Moose Lodge employee was asked why they
were selling raffle tickets when their license was suspended, the employee told the
investigator the Moose Lodge was going broke and needed the money. Once gain, the
Moose Lodge had no invoices or receipts for the raffle-type games _ as required by law.
Moose Lodge employees said they weren't sure how the games came to be on
the premises, but one told investigators that the games had been donated by someone who
was not a licensed distributor or wholesaler of games. Instead, he was just an old boy that
buys raffle items. This gentleman later produced an invoice for the Moose Lodge _ but the
Tax Commissioner rightly ignored the invoice, since state law said the Moose Lodge was
legally required to obtain raffle boards or games only from a licensed wholesaler or
distributor. See W.Va. Code, 47-23-9.
In sum, the majority's opinion started with a result designed to be politically
appealing to the Moose Lodge, and then fumbled around to make up some reasoning to
support that result. And to get that result required a fastidious avoidance of the facts. The
facts developed below clearly show that this particular Moose Lodge routinely broke the law,
and was repeatedly given another chance by the Tax Commissioner to clean up its act. The
majority opinion deliberately ignored the evidence, and thereby manufactured a politically
I therefore respectfully dissent.
As the majority opinion says, this Moose Lodge has repeatedly made countless
donations to the United Way, the Berkeley County Senior Services, the Berkeley County
Altzeimer's Association, the Youth Awareness Programs, etc. The Loyal Order of the Moose
also supports Moosehaven, a retirement facility in Florida for senior members of the Moose,
and Mooseheart, a city and school in Illinois for children and teens in need.