In re Application of Teresa Jane DAILEY for State License to Carry a Concealed, Deadly Weapon
No. 22964
Supreme Court of Appeals of West Virginia
Submitted Sept. 12, 1995. Decided Nov. 16, 1995. Concurring Opinion of Justice Workman Nov. 22, 1995.
465 S.E.2d 601
State of West Virginia, Intervenor.
RECHT, Justice:
The matter is before this Court upon a certified question from the Circuit Court of Cabell County that challenges the constitutionality of
The Court has before it the Petition for Certified Question, all matters of record and the brief of the State of West Virginia as Intervenor.2
Teresa Jane Dailey, Pro Se.
I. PROCEDURAL BACKGROUND
On June 15, 1995, Teresa Jane Dailey applied to the Circuit Court of Cabell County for a license to carry a concealed, deadly weapon, pursuant to
This Court, by order entered the 29th day of June, 1995, granted review of the certified question and further ordered the Attorney General of the State of West Virginia to intervene in this matter on behalf of the State of West Virginia. The brief filed by the State of West Virginia urging this Court to declare that
The application was assigned to the Honorable L.D. Egnor, Judge of the Circuit Court of Cabell County. By decision entered June 21, 1995, Judge Egnor held that the issuance of such a license is an exercise of the police power of the State and as such the circuit courts lacked jurisdiction of the subject matter “to perform this ministerial and administrative police act.” Accordingly, the Petitioner‘s application not being cognizable by the court was “rejected and held for naught.”
In its Order of Certification of Question at Law, the circuit court held:
The Court, as stated in the Order attached, believes the issuance of a concealed weapon license is an exercise of police power and as such is a legislative function of the State. It is not a judicial function and cannot be made the subject of the exercise of judicial power. The Court therefore lacks jurisdiction of the application which is the subject matter herein.
It is, therefore, a violation of Article V, Section 1 of the West Virginia Constitution for the legislature to impose upon the judiciary[,] legislative and executive powers through West Virginia Code Section 61-7-4.
The posture of this matter is such, that as a question of first impression, we are requested to determine the constitutional boundaries of
II. HISTORICAL OVERVIEW OF THE DOCTRINE OF SEPARATION OF POWERS
This case is about the preservation of the equilibrium of power among the three departments of government so that “a gradual concentration of the several powers in the same department” can be resisted. The Federalist No. 51, at 354 (James Madison) (1917).
The principles of the separation of powers were considered by the Framers of the Federal Constitution as the core guarantee of a just government. James Madison observed that, “No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty” than that the legislative, executive and judicial departments be separate and distinct. The Federalist No. 47, at 329 (James Madison) (1917). The only alternative to maintaining and preserving the separation of the functions of government was tyranny.
The simplicity and yet the strength of avoiding the accumulation of power in the same departments which is the “very definition of tyranny” (The Federalist No. 47, at 329) (James Madison) (1917) is best ex-
The reasons on which Montesquieu grounds his maxim are further demonstration of his meaning. ‘When the legislative and executive powers are united in the same person or body ... there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner ... Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR. Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR.’
Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.4
The Federalist No. 47, at 332) (James Madison) (1917) (emphasis supplied).
This then is the historical atmosphere that we approach the examination of whether the statute vesting in the circuit courts of this State, the power to issue permits to carry concealed, deadly weapons,
III. SEPARATION OF POWERS JURISPRUDENCE IN WEST VIRGINIA
The commitment of this Court to a strict application of the doctrine of separation of powers, while ambiguous in two areas unrelated to the subject matter of the case sub judice, has in all other respects been unwavering.5
The seminal opinion which sanctions the doctrine of separation of powers is generally recognized as Hodges v. Public Service Commission, 110 W.Va. 649, 159 S.E. 834 (1931).6
Hodges arose out of a controversy involving the Water Power Act of 1929,
The reasoning of Hodges which survives to shape the contours of the analysis of the statute under consideration in the case sub judice, is “that the plain language of article 5 calls, not for construction, but only for obedience.” Hodges, 110 W.Va. at 655, 159 S.E. at 836. Obedience to article V, section 1 of the
Next in the developing body of law of this State examining a statute within the context of article V, section 1 is Sims v. Fisher, 125 W.Va. 512, 25 S.E.2d 216 (1943). Sims, which contains an excellent historical discussion of the doctrine of separation of powers required this Court to examine a statute which vested in the circuit courts the power to sell lands for the benefit of public schools. The statutory scheme which was found to be unconstitutional as measured against article V, section 1, was that the circuit court, without first finding whether or not certain lands were subject to sale, served in an administrative capacity in ordering the sale of lands.
It is within the language of Sims that we have a clear vision of the unyielding commitment of the courts of this State to assure that the three departments of government remain separate:
In view of these holdings we think it clear that this Court has settled on a policy of strong adherence to the several constitutional provisions relating to the separation of powers, as conferred on the three departments of the State government, and particularly as to the jurisdiction of courts, and the powers they may assume or decline to exercise. Further, that any departure from this strict rule in the past, shall not be permitted to operate as a precedent for additional violations of these provisions now or in the future, under whatever guise such a proposition may be presented. This is as it should be. The Constitution has wisely provided for its amendment, and the way being open therefor, courts are not justified in assuming powers not granted, even though asked to do so by legislative enactment. In this case, the Legislature has required of the circuit courts, and this Court, the exercise of functions not of a judicial nature, and has plainly stated its intent and purpose in that regard. In the same enactment it has required of circuit courts the performance of duties which it terms “judicial” as distinguished from what it terms “its capacity as an administrative agency for the sale of state lands.” With all deference to the will of the Legislature, we do not think it possesses the power to require any court to act as an “administrative agency“; and any court which acts in such capacity violates the plain provisions of our Constitution. We are of the opinion, therefore, that the provisions of Article 4, Chapter 117, Acts 1941, which assumes to require the performance of administrative duties by circuit courts, in connection with the sale of lands for the benefit of the school fund, is plainly unconstitutional.
Sims, 125 W.Va. at 524-525, 25 S.E.2d at 222.
Sims served as a precursor to the opinion that in our view today is dispositive of the question as to the constitutional validity of
After an exhaustive analysis of the sanctions of maintaining separate departments of government, this Court concluded that:
[C]onsiderations of high public policy, and the plain terms of our Constitution, impel us to the conclusion that the licensing and regulation of the sale and distribution of nonintoxicating beer is the exclusive function of the legislative department of our Government, under the police power of the State; is not a judicial function; and cannot be made the subject of the exercise of judicial power, save only in cases where, in the exercise by the Legislature of its power in the premises, there is a violation of the Constitution, or the laws of the State, or some arbitrary or fraudulent exercise of that power, or where its exercise is without excuse or without evidence, which in itself would be an arbitrary exercise of power. Then, and then only may judicial power be invoked. This power, as we have said, may be invoked by direct appeal to the courts, or where the administrative power is improperly used, through the processes of the courts by way of appeal, writ of error or certiorari....
Huber, 129 W.Va. at 221-222, 40 S.E.2d at 25.
Having examined the historical perspective of the separation of powers doctrine, as well as the jurisprudence of that doctrine in this State, we are prepared to apply these principles and precedents to the statutory scheme by which licenses are issued by circuit courts to carry concealed, deadly weapons under the provisions of
IV. THE STATUTORY SCHEME
The regulation of the right to bear arms in this State must be measured in terms of the ratification on November 4, 1986, of article III, section 22 of the
Prior to 1986, and for a period of approximately 70 years, there was no significant change in the regulatory scheme controlling the licensing of the carrying of dangerous weapons.9
Following the passage of the “modern license law” in 1925, and prior to the Amendment, no person was permitted to carry a dangerous or deadly weapon without a license.10
Under the prior statute,
Following the filing of the application, the circuit court was authorized to hear evidence on all matters not only on the application, but also upon any other matters that the court would deem to be relevant. The circuit court thereafter had the discretion to either grant or deny the application. Of particular significance is the empowerment to the circuit court to make a determination as to whether or not there existed good reason and cause
for the applicant to carry a deadly weapon. Specifically,
Upon the hearing of such application, the court shall hear evidence upon all matter stated in such application and upon any other matters deemed pertinent by the court, and if such court be satisfied from the proof that there is good reason and cause for such person to carry such weapon, and all of the other conditions of this article be complied with, the court, or the judge thereof in vacation, may grant such license for such purposes, and no other ...
After the Amendment was ratified, this Court examined
However, in Buckner we did acknowledge that it was within the police power of the Legislature to enact legislation which would impose reasonable regulatory controls over the constitutional right to bear arms. Syllabus Point 4, Buckner, 180 W.Va. 457, 377 S.E.2d 139. A specific caveat was contained in Buckner to the extent that no regulatory control could emasculate the constitutional protection of the Amendment. Syllabus Point 4, Buckner, 180 W.Va. 457, 377 S.E.2d 139.
In the wake of Buckner, the Legislature in 1989 recodified the statutes regulating dangerous weapons which were designed to be in conformity with the Amendment. The most significant changes resulting from this codifi-
The regulatory scheme chosen by the Legislature was directed only to licensing of concealed, deadly weapons without any control of deadly weapons which would not be concealed with the exception of certain restrictions on the possession of machine guns.
Specifically, the protocol embraced within
The statute also contains other provisions which effectively eviscerate any judicial discretion when it compels the granting of the license if all qualifiers on the application are satisfied including proof that the purpose for which the concealed, deadly weapon is to be used is for defense of self, family, home or state or other lawful purpose which, as it turns out, is item six in the list of qualifiers. This analysis of
As will be discussed in the next section of this opinion, to the extent that some judicial discretion is a prerequisite to satisfying the judicial function test under the separation of powers doctrine,
The courts are open to a hearing on any complaint, where powers are exceeded, or for any other reason involving legal rights, the solution of which involves the exercise of judicial power.13
State v. Huber, 129 W.Va. 198, 218, 40 S.E.2d 11, 23 (1946). We have no hesitancy in extrapolating from the language in Huber so as to define “judicial function” within the contemplation of the separation of powers provision in article V, section 1 of the
We recognize that in In re Application of Metheney, 182 W.Va. 722, 391 S.E.2d 635 (1990) (Metheney I) we held that the circuit court has discretion to examine the assertions made by applicants to determine if the reasons for obtaining a license are valid and that
In a later per curiam opinion in In re Application of Metheney, 190 W.Va. 692, 441 S.E.2d 655 (1994) (Metheney III),14 we appear to have retreated somewhat from that position by holding that given the specific requirements of
W.VA.CODE 61-7-4 (1995) IS AN UNLAWFUL DELEGATION OF LEGISLATIVE POWER TO THE JUDICIAL BRANCH OF GOVERNMENT IN VIOLATION OF ARTICLE V, SECTION 1 OF THE WEST VIRGINIA CONSTITUTION
We recognize that the jurisprudence of this State requires great deference be shown the Legislature to the extent that what the Legislature has enacted is constitutional. Syllabus Point 1 of Walter Butler Building Company v. Soto, 142 W.Va. 616, 97 S.E.2d 275 (1957) states:
When a statute is susceptible of two constructions, one of which is, and the other of which is not, violative of a constitutional provision, the statute will be given that construction which sustains its constitutionality unless it is plain that the other construction is required.
Similarly, Syllabus Point 2 in Walter Butler Building provides:
Any doubt as to the constitutionality of an act of the Legislature will always be resolved in favor of the validity of the statute.16
Syllabus Point 2, Walter Butler Building, 142 W.Va. 616, 97 S.E.2d 275.
However, with all due deference, it is axiomatic that the regulation and control of dangerous and deadly weapons is exclusively within the police power of the state exercised through the Legislature and not the Judiciary. In State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 467, 377 S.E.2d 139, 149 (1988), we clearly stated that:
[T]he 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.”
As we previously discussed, the reason that the extant statutory scheme does not require the circuit court to perform “an act judicial in character” is that the application for a license to carry a concealed, deadly weapon within
In other words, the application for a license to carry a concealed, deadly weapon is not: (1) a complaint where powers are exceeded; or (2) a reason involving legal rights, the solution of which involves the exercise of judicial power. See State v. Huber, 129 W.Va. at 218, 40 S.E.2d at 23.
Accordingly, since: (1) no judicial power is exercised in granting or denying a license to carry a concealed, deadly weapon; and (2) the regulation of the right to carry a concealed, deadly weapon is exclusively a legislative function, then
While we recognize that the doctrine of separation of powers is complex and that some flexibility is required in interpreting this doctrine to meet the realities of contemporary government, we have never hesitated to apply the doctrine where we felt that there was a direct and fundamental relinquishment by one branch of its traditional powers to another branch. See Appalachian Power Co. v. Public Service Comm‘n, 170 W.Va. 757, 296 S.E.2d 887 (1982).
Despite our holding today, the Legislature is to be commended for their efforts to attempt to impose reasonable regulations on carrying concealed, dangerous weapons, however, in the words of Judge Hatcher in Hodges v. Public Service Commission:
This attempt of the legislature to commit one of its great responsibilities to the judiciary is a flattering display of confidence in our department. But we must reject this expansion of our power just as firmly as we should resist a reduction of our rightful authority.
Hodges v. Public Service Comm‘n, 110 W.Va. 649, 657, 159 S.E. 834, 837 (1931).
During our consideration of the constitutionality of
Our research has revealed that among the other states that have determined to regulate the carrying and possession of concealed, deadly weapons, twenty have enacted statutory schemes whereby some law enforcement agency is the issuing authority;17 five have empowered non-law enforcement and non-judicial agencies as the issuing authority;18 and two have vested the authority in the courts of their states.19
VI. PROSPECTIVE APPLICATION OF DECISION
While we have no reluctance to invalidate
If we were to extend full retroactivity of this decision, the effect on extant licenses would be to deprive a person of a license which they thought they had the right to obtain by conforming to all of the requirements of what the Legislature said to do. Such a result would not only be unfair but would create chaos within the law enforcement community in terms of determining whether or not a person has a valid license, particularly within the meaning of
This Court has formulated its own test in determining whether to extend full retroactivity in civil cases as set forth in Syllabus Point 5 in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).22
While this decision does not represent a clear departure from prior precedent in terms of separation of powers jurisprudence, it does represent the first occasion that we have examined this particular licensing statute using separation of powers standards. Accordingly, since substantial public issues are involved arising from a constitutional interpretation of a statute on first impression, this decision shall apply prospectively and shall not impair or impact upon any license previously granted under
Certified Question Answered.
WORKMAN, J., concurs, and reserves the right to file a concurring opinion.
ALBRIGHT, J., did not participate.
MILLER, Retired Justice, sitting by temporary assignment.
WORKMAN, Justice, concurring:
(Filed Nov. 22, 1995).
I concur with the majority but write separately primarily to clarify that nothing in our opinion precludes the Legislature from expanding on the requirements of the law for a license to carry a concealed weapon, and to urge the Legislature, when it crafts new legislation governing concealed weapon permits, to create reasonable conditions for such a permit.
While this Court held in State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988), that “the statutory proscription against carrying a dangerous or deadly weapon is overbroad and violative of article III, section 22 of the West Virginia Constitution ...,” clearly nothing in our constitution entitles one as a matter of right to carry a concealed weapon. 180 W.Va. at 458, 377 S.E.2d at 140. This fact is quite clearly substantiated in a three page legal memorandum on the proposed constitutional amendment, prepared by an attorney for the National Rifle Association (“NRA“) and sent to all members of the West Virginia Legislature prior to the amendment‘s 1986 enactment, wherein the NRA recognized that “[t]he bearing of constitutionally protected arms may be regulated. Concealed carrying statutes, e.g., are routinely upheld.” “Analysis of Proposed West Virginia Constitutional Guarantee to Keep and Bear Arms,” reprinted in James W. Neely, The Right of Who to Bear What, When, and Where—West Virginia Firearms Law v. The Right-to-Bear-Arms Amendment, 89 W.Va.L.Rev. 1125, 1176 (1987); see Stephen P. Halbrook, Rationing Firearms Purchases and the Right to Keep Arms: Reflections on the Bills of Rights of Virginia, West Virginia and the United States, 96 W.Va.L.Rev. 1, 68-69 (1993).
Generally, [c]oncealed weapon permits are issued based on a variety of criteria, such as: (1) the objective or subjective (or both) personal qualifications of the individual; (2) background investigations; (3) fingerprint checks for criminal information; and (4) safety training courses or qualification to use a weapon. Richard Getchell, Comment, Carrying Concealed Weapons in Self-Defense: Florida Adopts Uniform Regulations for the Issuance of Concealed Weapons Permits, 15 Fla.St.U.L.Rev. 751, 757 (1987). Consequently, in establishing the new legislation regarding concealed weapons permits, hopefully the Legislature will look to other state statutes which combine not only certain objective and subjective requirements, but interject other reasonable conditions as a prerequisite to obtaining the necessary permit. For instance, as the majority noted in footnote 19, supra, the Delaware Legislature not only requires a person to establish certain subjective and objective elements of age, sobriety, good moral character, and a reputation for peacefulness in the community before a concealed weapons permit can be issued, but also provides that “the court ‘may or may not, in its discretion, approve any application, and, in order to satisfy the Judges thereof fully in regard to the propriety of approving the same, may receive remonstrances and hear evidence and arguments for and against the same, and establish general rules for that purpose.‘”
Should the Legislature enact such requirements thereby creating “an act judicial in character,” the issuance of concealed weapon permits could then be returned to the courts or could be placed in an administrative agency of state government. See State v. Huber, 129 W.Va. 198, 214, 40 S.E.2d 11, 21 (1946). Who the Legislature directs to oversee this process (the judicial or executive branch) is immaterial. The more significant concern is the enactment of reasonable conditions, and hopefully a requirement that a person seeking a concealed weapon permits articulate a legitimate need for the permit before it is issued.
465 S.E.2d 614
Barbara GRAHAM, Plaintiff Below, Appellee, v. Simon GRAHAM, Defendant Below, Appellant.
No. 22701.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 13, 1995. Decided Nov. 17, 1995.