648 S.E.2d 818
Submitted: April 17, 2007
Filed: May 11, 2007
| Jason Huber, Esq.|
Forman & Huber, L.C.
Charleston, West Virginia
Attorney for the Appellants
| Steven A. Jones
Harrisville, West Virginia
Attorney for the Ritchie County
Joseph S. Beeson, Esq.
David L. Yaussy, Esq.
Robinson & McElwee, PLLC
Charleston, West Virginia
Attorneys for the Intervening Appellees
JUSTICE STARCHER delivered the opinion of the Court.
JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision of the Court.
JUDGE DONALD COOKMAN, sitting by temporary assignment.
2. In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt. Syllabus Point 1, Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).
3. The West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution, known as the 'Right to Keep and Bear Arms Amendment.' Syllabus Point 4, State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988).
4. The police power is the power of the state, inherent in every sovereignty, to enact laws, within constitutional limits, to promote the welfare of its citizens. The police power is difficult to define precisely, because it is extensive, elastic and constantly evolving to meet new and increasing demands for its exercise for the benefit of society and to promote the general welfare. It embraces the power of the state to preserve and to promote the general welfare and it is concerned with whatever affects the peace, security, safety, morals, health and general welfare of the community. It cannot be circumscribed within narrow limits nor can it be confined to precedents resting alone on conditions of the past. As society becomes increasingly complex and as advancements are made, the police power must of necessity evolve, develop and expand, in the public interest, to meet such conditions. Syllabus Point 5, Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).
5. Article III, Section 22 of the West Virginia Constitution protects a person's right to keep and bear arms for lawful hunting. This clause preserves the State's right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful.
6. 'Where economic rights are concerned, we look to see whether the classification is a rational one based on social, economic, historic or geographic factors, whether it bears a reasonable relationship to a proper governmental purpose, and whether all persons within the class are treated equally. Where such classification is rational and bears the requisite reasonable relationship, the statute does not violate Section 10 of Article III of the West Virginia Constitution, which is our equal protection clause. Syllabus Point 7, [as modified,] Atchinson v. Erwin,  W.Va. , 302 S.E.2d 78 (1983).' Syllabus Point 4, as modified, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984). Syllabus Point 4, Gibson v. West Virginia Dept. of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991).
In this appeal from the Circuit Court of Ritchie County, we are asked to examine the constitutionality of a statute that prohibits Sunday hunting in certain circumstances. The circuit judge entered a declaratory judgment finding that the statute, W.Va. Code, 20-2-5(28) , was constitutional.
After careful review of the briefs of the parties, the record created in the court below, and the arguments of the attorneys, (See footnote 1) we too find that W.Va. Code, 20-2-5(28) is constitutional. As set forth below, we affirm the circuit judge's judgment.
The first subsection _ W.Va. Code, 20-2-5(27) _ eliminated hunting on any publicly-owned land on Sundays. (See footnote 3)
The second subsection _ W.Va. Code, 20-2-5(28) _ provided that each of West Virginia's fifty-five counties could hold an election to determine whether hunting on privately-owned land on Sundays would be prohibited. (See footnote 4)
In May 2002, pursuant to W.Va. Code, 20-2-5(28), the Ritchie County Commission held an election to determine whether Sunday hunting on private land would be authorized in Ritchie County. Voting on a ballot identical to that specified the statute, the voters chose to prohibit Sunday hunting by a vote of 1,454 to 859. (See footnote 5)
The appellants in this case (and the plaintiffs in the court below) include the Hartley Hill Hunt Club, a private hunting club with about fifty members which rents 2,034 acres in Ritchie County. It appears that the members of the Hartley Hill Hunt Club are West Virginia citizens, but they do not live in Ritchie County. (See footnote 6) Appellant Nolan Aleshire is a West Virginia citizen who owns land in Ritchie County. However, the appellants' complaint states that Mr. Aleshire does not reside there, but rather spends numerous days over a variety of hunting seasons . . . hunting and recreating on his property. The one appellant that is differently situated from the others is the American Civil Liberties Union of West Virginia, which is an organization dedicated to defending citizens' rights that are contained in the United States and West Virginia Constitutions. On July 21, 2003, the appellants brought a lawsuit against the appellee (and defendant-below) Ritchie County Commission seeking a declaratory judgment. The West Virginia Farm Bureau, as well as several local farm bureaus and their individual members, were later granted permission to intervene in the case as defendants. The appellants essentially claimed that the West Virginia Constitution contained numerous provisions that protect a citizen's right to hunt on private land. The appellants argued that by holding an election under W.Va. Code, 20-2-5(28) to bar Sunday hunting on private land, the Ritchie County Commission had violated those constitutional provisions. The appellants asked the circuit judge to issue an order declaring the statutory subsection invalid and unconstitutional.
In late 2005, both the appellants and the appellees filed motions for summary judgment. After hearing arguments from both sides, on February 9, 2006, the circuit judge entered an order granting the appellees' motion for summary judgment, and denying the appellants' motion. The circuit judge concluded that W.Va. Code, 20-2-5(28) did not violate any part of the West Virginia Constitution.
The appellants now appeal the circuit judge's February 9, 2006 order.
Because this appeal presents questions of law involving the interpretation of a statute and the interpretation of the West Virginia Constitution, we may review all parts of the circuit judge's decision. As we have said before, [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. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
When this Court is asked to weigh the constitutionality of a statute, we are guided in our deliberations by several fundamental principles. These principles were summarized by the Court in Syllabus Point 1 of Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965):
In considering the constitutionality of a legislative enactment,
courts must exercise due restraint, in recognition of the principle
of the separation of powers in government among the judicial,
legislative and executive branches. Every reasonable
construction must be resorted to by the courts in order to sustain
constitutionality, and any reasonable doubt must be resolved in
favor of the constitutionality of the legislative enactment in
question. Courts are not concerned with questions relating to
legislative policy. The general powers of the legislature, within
constitutional limits, are almost plenary. In considering the
constitutionality of an act of the legislature, the negation of
legislative power must appear beyond reasonable doubt.
Under these principles, the Court cannot question or review the wisdom of any legislative policy; instead, the Legislature's policy choices can only be subjected to review by the ultimate constitutional reviewing authority: the scrutiny of the people at the ballot box. (See footnote 7) The Court can only measure the language of W.Va. Code, 20-2-5(28) against the language of the West Virginia Constitution. In doing so, we must attempt to carefully interpret W.Va. Code, 20-2-5(28) to give the statute, if it is reasonably possible, a meaning or use that is constitutional. The statute may only be struck down as unconstitutional if the statute is unconstitutional beyond a reasonable doubt.
We now turn to the parties' arguments.
A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.
The appellants concede that the rights protected by Article III, Section 22 are not absolute, because in State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988), this Court approved the Legislature's right to enact reasonable limitations upon a person's right to keep and bear arms. As we stated in Syllabus Point 4 of Buckner:
The West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution, known as the Right to Keep and Bear Arms Amendment.
Still, the appellants argue that the limitation on Sunday hunting in W.Va. Code, 20-2-5(28) is unreasonable and contrary to Article III, Section 22, and that the circuit judge erred in concluding otherwise.
The appellees' argument in response is that nothing in Article III, Section 22, or in any other part of the Constitution, creates a right to hunt on Sundays. They argue that the Constitution protects a person's right to keep and bear arms . . . for lawful hunting, and argue that nothing in W.Va. Code, 20-2-5(28) restricts a person's right to keep or bear arms. Further, the appellees contend _ and counsel for the appellants conceded at oral argument _ that nothing in the Constitution deprives the Legislature of its ability to regulate hunting. In sum, the appellees take the position that Article III, Section 22 preserves the Legislature's power to define lawful hunting, and argue that that power includes the right to enact a statute defining Sunday hunting on private land to be unlawful. We agree.
The Legislature, through the exercise of its police power, (See footnote 8) is vested with the authority to enact laws that, within constitutional limits, will tend to promote the general welfare of the people. As part of its police power, the Legislature has declared it to be the public policy of the State of West Virginia that the wildlife resources of this State shall be protected for the use and enjoyment of all the citizens of this State. W.Va. Code, 20-2-1 . To carry out this public policy, the Legislature has enacted numerous regulatory statutes for hunters, trappers and fisherman, including the statute being challenged in this case.
Article III, Section 22 does not create an unfettered right to hunt, but rather preserves an individual's right to bear arms for purposes of lawful hunting. We have previously interpreted this clause as presupposing that limits can be imposed on a person's right to hunt in West Virginia. As we once stated, [a] strict application of this constitutional provision indicates that a person may keep and bear arms with regard to hunting only if such hunting is lawful. State ex rel. West Virginia Div. of Nat. Resources v. Cline, 200 W.Va. 101, 107, 488 S.E.2d 376, 382 (1997) (upholding under Article III, Section 22 the Legislature's right to prohibit hunters from carrying loaded firearms in a moving vehicle).
We conclude that Article III, Section 22 of the West Virginia Constitution protects a person's right to keep and bear arms for lawful hunting. This clause preserves the State's right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful.
The appellants take the position that the prohibition of Sunday hunting on
private land in W.Va. Code, 20-2-5(28) is an unreasonable law restricting the rights protected
by Article III, Section 22. The appellees, however, note that W.Va. Code, 20-2-5 contains
numerous limitations on the time, place and manner in which persons may hunt in West
Virginia. (See footnote 9) None of these other hunting limitations is being challenged by the appellants. In
fact, the appellees point out that among the statutory limitations that the appellants do not challenge as unconstitutional is W.Va. Code, 20-2-5(27), the provision prohibiting hunting on public property on Sunday.
After carefully reviewing the language of W.Va. Code, 20-2-5(28), we conclude that the restrictions on Sunday hunting on private land created by the statutory subsection are not unreasonable, and are well within the broad authority of the Legislature to enact policy as it sees fit. Prohibiting Sunday hunting allows one day of the week during hunting season when citizens can enjoy private and public property without being startled or threatened by gunshots, or fear being hit by stray bullets or arrows (including bullets or arrows launched by a hunter standing on the hunter's own property). These restrictions are policy determinations that are subject to the ultimate review of the voters, not this Court.
The appellants' second argument is that W.Va. Code, 20-2-5(28) unconstitutionally delegates the Legislature's power to regulate hunting to the citizens of West Virginia's various counties. The appellants concede that the Legislature may enact statutes that regulate the exercise of the constitutional rights guaranteed by Article III, Section 22, so long as there is a rational and reasonable basis for those regulations. However, the appellants argue that it is improper for the Legislature to delegate its power to the electorate, because constitutional rights can never be subject to arbitrary and capricious majority approval.
As support for their argument, the appellants cite to the seminal 1943 U.S. Supreme Court case of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In Barnette, the West Virginia Legislature had enacted a law requiring schoolchildren to salute the flag and say the Pledge of Allegiance, or face expulsion. Several Jehovah's Witnesses _ whose religion forbade them from saluting or pledging to political institutions or symbols _ challenged the law as unconstitutional. The U.S. Supreme Court struck down the law, finding that the First Amendment to the United States Constitution protected students from being forced to proclaim support for the government by saluting a flag or saying a pledge.
The appellants argue that Barnette stands for the principle that constitutional rights _ like those contained in Article III, Section 22 _ are not subject to majority approval at the ballot box. In Barnette, the Court examined a 1940 U.S. Supreme Court case (See footnote 10) where it was stated that only legislatures, and not courts, have the power to define and guard constitutional liberties. In the older case, the Court had asserted that the existence and limits of constitutional rights are best fought in the arena of public opinion _ in the ballot box rather than the jury box.
The Court in Barnette rejected this position and overruled the 1940 case. As the Court stated, in an oft-quoted passage:
The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and to
establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on the outcome
of no elections.
319 U.S. at 638 (emphasis added). The appellants argue that this passage means that the local option elections authorized by W.Va. Code, 20-2-5(28) are _ because they might raise questions impacted by Article III, Section 22 _ unconstitutional. We disagree, because when this passage is viewed in context, it takes on a different, greater meaning: that fundamental constitutional rights are legal principles to be applied by the courts, and not solely by legislatures under the supervision of voters.
In other words, Barnette established the principle that courts may define and guard constitutional rights. Barnette simply does not, as the appellants argue, preclude local option elections when a constitutional right might be implicated.
Furthermore, this Court has, on numerous past occasions, written approvingly
of local elections on various issues. See, e.g., Rutter & Co. v. Sullivan, 25 W.Va. 427 (1885)
(statute creating a municipal court, but providing that its operation should be suspended until
it was approved by the voters, was constitutional and valid); Haigh v. Bell, 41 W.Va. 19, 23
S.E. 666 (1895) (statute prohibiting hog owners from allowing their livestock to run at large
yet providing, upon an appropriate petition, that counties could hold an election to determine if the prohibition would be enforced in their county, was constitutional); Koen v. Fairmont Brewing Co., 69 W.Va. 94, 70 S.E. 1098 (1911) (lease of property to operate a saloon was voidable, but not void, after county local option election barred the sale of liquor); Boyles v. Barbour County Court, 116 W.Va. 689, 182 S.E. 868 (1935) (Legislature had authority to permit county local option elections to prohibit manufacture and sale of liquor, even after repeal of Prohibition); Tweel v. West Virginia Racing Commission, 138 W.Va. 531, 76 S.E.2d 874 (1953) (approving operation of a horse racing track without local option election, because local option election statute exempted tracks in operation prior to statute's passage); Charles Town Raceway, Inc. v. West Virginia Racing Commission, 143 W.Va. 257, 101 S.E.2d 60 (1957) (after county voters approved construction of horse racing track in a local option election, racing commission had a duty to issue construction permit for track); State ex rel. Bess v. Black, 149 W.Va. 124, 139 S.E.2d 166 (1964) (compelling a county commission to call a local option election to determine whether there should be work, labor, or business on Sunday in the county); Tri-State Greyhound Racing, Inc. v. Johnson, 160 W.Va. 33, 37, 230 S.E.2d 837, 840 (1976) (approving a local option election regarding construction of a dog racetrack in Cabell County, stating society's collective experience indicates that public policy is best served when a community is given ample opportunity to object to activities which potentially place in jeopardy the moral order of the community.).
The appellants correctly argue that the Legislature cannot delegate its power to enact laws, because the West Virginia Constitution, Article VI, Section 1, states that all legislative power shall be vested in a senate and house of delegates. However, this constitutional clause does not prevent the Legislature from passing a law, and then providing that whether or not the law will operate in a particular locality depends upon the popular will as expressed through a local option election. (See footnote 11) As we once stated in Haigh v. Bell, 41 W.Va. 19, 23, 23 S.E. 666, 667 (1895),
The propriety and necessity of a certain class of police regulations depend upon time, place, and circumstances. What is required in one district or town may not be in another.
After carefully examining the circuit judge's order, we find no error in the circuit judge's conclusion. The Legislature's decision to permit statewide local option elections in W.Va. Code, 20-2-5(28), to determine whether Sunday hunting on private land would be authorized or prohibited, did not violate the Constitution.
The third argument raised by the appellants is that the ballot language chosen by the Legislature is misleading, and therefore violates the due process protections of our Constitution. (See footnote 12) The appellees counter that the ballot language was not only accurate, it was elegant in its simplicity.
A court must determine, under an objective standard, whether the ballot
language could have mislead or confused a reasonable voter. State ex rel. Cooper v.
Caperton, 196 W.Va. 208, 215 n.10, 470 S.E.2d 162, 169 n.10 (1996). W.Va. Code, 20-2-
5(28) provided that the ballot was to say:
A strained reading of the ballot language might create some ambiguity _ for instance, the ballot does not say that the election was to decide Sunday hunting only on privately-owned land. This ambiguity is tempered, however, when one considers that W.Va. Code, 20-2-5(27) (passed at the same time as W.Va. Code 20-2-5(28)) already barred Sunday hunting on public land. Because citizens are presumed to know the law, (See footnote 13) we must assume that Ritchie County voters knew that their vote did not apply to public land. Further, this Court is restrained in its standard of review, and the burden of proof is on the appellants to show that the statute, and the ballot language it mandated, is unconstitutional beyond a reasonable doubt. This Court also has some concerns about the ballot language mandated by the Legislature. But while the appellants bore the burden of proof, it appears that the appellants _ none of whom live or vote in Ritchie County _ did not introduce before the circuit judge any evidence suggesting that any one Ritchie County voter was misled or confused by the ballot language.
Accordingly, after careful consideration of the record created in the court below, we cannot say _ under an objective standard _ that the ballot language mandated by W.Va. Code, 20-2-5(28) could have mislead or confused a reasonable voter. (See footnote 14)
The appellants' fourth and final argument is that W.Va. Code, 20-2-5(28) violates the equal protection guarantee found in Article III, Section 10 of our Constitution. The appellants take the position that the local option elections permitted by the statute create two unreasonable classifications _ those citizens in counties where a majority of voters prohibited Sunday hunting on private property, and those where Sunday hunting is permitted _ and arbitrarily treats those similarly-situated individuals differently.
To pass constitutional scrutiny, we look to see
. . . whether the classification is a rational one based on social,
economic, historic or geographic factors, whether it bears a
reasonable relationship to a proper governmental purpose, and
whether all persons within the class are treated equally. Where
such classification is rational and bears the requisite reasonable
relationship, the statute does not violate Section 10 of Article III
of the West Virginia Constitution, which is our equal protection
Syllabus Point 4, Gibson v. West Virginia Dept. of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991) (quoting and modifying Syllabus Point 7, Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983) and Syllabus Point 4, Hartsock-Flesher Candy Co. v. Wheeling Wholesale Grocery Co., 174 W.Va. 538, 328 S.E.2d 144 (1984)).
The appellants' objection to local option elections on equal protection grounds is somewhat difficult to comprehend. It is the nature of our federal system of government, and does not violate any constitutional right to equal protection, to allow voters in one jurisdiction to choose to treat themselves differently than voters in another. States, counties, townships, boroughs and cities throughout America have chosen different laws and different systems of government that reflect differing needs and wishes. Local option elections are just one manifestation of that system, and as stated previously, there are plenty of examples of local option elections in West Virginia's history.
We believe that W.Va. Code, 20-2-5(28) passes equal protection scrutiny. The statute certainly bears a reasonable relationship to a proper governmental purpose: the management of the wildlife resources of the State, including preserving the economic contributions of wildlife for the best interests of the people of this State[.] W.Va. Code, 20-2-1(2). The Legislature's creation of county-based classes was also a rational one that recognized the different social, economic, historic and geographic needs of each county. Lastly, all persons within the classes _ that is, the citizens of the entire state _ are treated equally. The Legislature passed a general law that embraces all persons and places within the State, (See footnote 15) and properly left it to the various political subdivisions to determine the impact of that general law. (See footnote 16)