799 S.E.2d 718
W. Va.2017Background
- In April 2015 Steward Butler allegedly assaulted two men after they kissed; video and witness statements identified him.
- A Cabell County grand jury indicted Butler on four counts: two battery counts (W.Va. Code § 61-2-9(c)) and two criminal civil-rights/hate-crime counts under W.Va. Code § 61-6-21(b) (prohibiting injury/intimidation because of race, color, religion, ancestry, national origin, political affiliation, or sex).
- Butler signaled he would challenge whether § 61-6-21(b)’s reference to “sex” includes “sexual orientation.” The circuit court certified that question to the WV Supreme Court; the Court declined to docket the certified question.
- The circuit court later held the term “sex” in § 61-6-21(b) was plain and unambiguous, did not include “sexual orientation,” and dismissed the two § 61-6-21(b) counts while leaving the battery counts intact.
- The State appealed the dismissal, arguing “sex” is ambiguous and should encompass sexual orientation (or that Title VII precedent interpreting “because of sex” applies), and also challenged the circuit court’s action after the Supreme Court declined the certified question.
- The WV Supreme Court affirmed the dismissal, holding “sex” does not include sexual orientation, and also held that the Supreme Court’s refusal to docket a certified question is not a merits ruling and the circuit court may rule thereafter.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether “sex” in W.Va. Code § 61-6-21(b) includes “sexual orientation” | “Sex” is ambiguous and can reasonably be read to cover sexual orientation; Title VII precedent supports reading discrimination against sexual orientation as discrimination “because of sex.” | “Sex” is plain and ordinary language meaning male/female (or gender); the Legislature omitted “sexual orientation” and courts must apply statutes as written. | Court: “sex” is unambiguous in § 61-6-21(b) and does not include sexual orientation; Counts I and III dismissed. |
| Whether the repeated legislative failure to add “sexual orientation” informs statutory meaning | The absence of legislative history clearly adding the term supports ambiguity (State urged broader reading). | Repeated failed amendment efforts indicate the Legislature did not intend to include sexual orientation. | Court: Legislative inaction (numerous failed attempts) supports interpretation that “sex” excludes sexual orientation. |
| Whether Title VII or human-rights interpretive doctrines should be applied to construe the criminal statute | State urged borrowing Title VII analyses (associational theory, sex-stereotyping) to interpret “because of sex.” | Defendant said such civil-law interpretive analyses are inapplicable to this unambiguous criminal statute. | Court: Because the statutory term is unambiguous, civil anti-discrimination interpretive frameworks are inapplicable; rule of lenity would favor defendant if ambiguous. |
| Effect of the Supreme Court’s refusal to docket the certified question on the circuit court’s authority | State: refusal to docket signaled the question need not be answered; circuit court erred by answering and dismissing counts. | Defendant: parties jointly proceeded; circuit court properly ruled after briefing. | Court: Refusal to docket is discretionary and not a merits ruling; circuit court may rule on the question and this Court may review on appeal. |
Key Cases Cited
- Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (W.Va. 1995) (statutory interpretation questions reviewed de novo)
- State v. Sulick, 232 W.Va. 717, 753 S.E.2d 875 (W.Va. 2014) (gave ordinary meaning to undefined statutory terms in § 61-6-21)
- King v. West Virginia's Choice, Inc., 234 W.Va. 440, 766 S.E.2d 387 (W.Va. 2014) (presumption that legislature says what it means)
- State ex rel. Morgan v. Trent, 195 W.Va. 257, 465 S.E.2d 257 (W.Va. 1995) (rule of lenity applies to ambiguous criminal statutes)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (U.S. 1989) (sex stereotyping recognized as discrimination “because of sex”)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (U.S. 1998) (discrimination “because of sex” includes exposure to disadvantageous terms faced by one sex but not the other)
- Hastings v. Finney, 119 W.Va. 301, 193 S.E. 444 (W.Va. 1937) (refusal to docket certified question is not a decision on the merits)