HUNTINGTON, W.Va. — In a 3-2 opinion issued Tuesday, the state Supreme Court has upheld a lower court decision that dismissed hate crime charges against former Marshall University football player Steward Butler.
In arguments before the Court last month, Cabell County Assistant Prosecutor Lauren Plymale said Cabell County Circuit Judge Paul Farrell was wrong when he dismissed the charges against Bulter citing state law does not include sexual orientation as a protective class under the hate crimes statute. Plymale argued the word sex meant sexual orientation.
In early April 2015, Huntington Police said Butler was in a passing car when he spotted the two men on a 9th Street sidewalk. According to the criminal complaint, Butler exited the car, shouted homophobic slurs at the men and then punched the victims, Zackary Johnson and Casey Williams. He was charged with battery and later for violating their civil rights. The current law prohibits civil rights violations based on race, color, religion, ancestry, national origin, political affiliation or sex.
In its opinion authored by Chief Justice Allen Loughry, the Court said the word “sex” is undefined in the code and must be considered under its common and ordinary meaning.
“We find the word to be clear and unambiguous and to have a very different meaning and import than the term ‘sexual orientation,'” Loughry wrote.
The opinion said it also “cannot be ignored” that since the hate crimes statute was passed in 1987 by the legislature, House and Senate members have refused to include “sexual orientation” as a protective class on at least 26 occasions.
“It is certainly not absurd for this Court to recognize not only the Legislature’s right to define crimes and their punishment, but also the Legislature’s indisputable intent not to expand West Virginia Code § 61-6-21(b) to include sexual orientation'” Loughry wrote. “It is imperative to remember that “[i]t is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted.”
State Attorney General Patrick Morrisey, whose office argued in favor of the circuit judge’s ruling, issued a statement following the release of the Court’s opinion.
“The state Supreme Court of Appeals interpreted the law as written, respecting the Legislature’s authority to determine criminal law,” Morrisey said. “The facts of this case are deeply disturbing and heinous, and I remain steadfast in describing the alleged behavior as despicable, but such conduct does not give the judicial system a license to rewrite state law. That authority lies with the state Legislature and this decision preserves that balance.”
The Supreme Court sent the case back to Cabell County.
Chief Justice Loughry, Justice Menis Ketchum and Justice Beth Walker were in the majority while Justice Robin Davis and Justice Margaret Workman dissented and reserved the right to file dissenting opinions.