West Virginia Record

Thursday, April 2, 2020

Appeal accepted in Sunday hunting case

By John O'Brien | Nov 22, 2006


HARRISVILLE - Jason Huber admittedly has been as good a lawyer as he's been a hunter lately.

Of course, the early returns on hunting season suggest that that's not necessarily a good thing.

"I went out one day," said a laughing Huber, an attorney at Charleston firm Forman and Huber. "I've been about as successful hunting as I've been with this case."

Huber is representing the Hartley Hill Hunt Club and the state's American Civil Liberties Union in a lawsuit he is preparing for appeal against the Ritchie County Commission and an intervening West Virginia Farm Bureau over the county's ban on Sunday hunting.

During the 2001 session, the state Legislature passed a bill that allowed citizens to hunt on Sundays, provided a majority vote during a referendum approved it. Ritchie was one of 41 counties that voted Sunday hunting down.

In 2003, Huber, a member of the Hartley Hill Hunt Club -- the club has approximately 50 members and leases 2,034 acres of land in Ritchie County on which to hunt -- filed the lawsuit against the County Commission.

It is Huber's contention that the Sunday hunting bill violated the state's Constitution in three ways:

* It interferes with the right to bear arms for lawful hunting and recreational purposes;

* The Legislature unlawfully delegated authority to several counties the right to completely prohibit hunting activity one day a week;

* And the language on Ritchie County's ballot violates the due process provisions because it did not accurately present the issue on which was being voted.

Ritchie Circuit Judge Robert Holland in February granted the motion for summary judgment proposed by the defense, Ritchie County Prosecuting Attorney Steven Jones and Robinson and McElwee attorney Joseph Beeson, saying that he found there was no constitutional right to hunt and, even if there was, the Sunday hunting bill provided appropriate restrictions and was designed legally as to not violate the separation of powers.

Huber's petition for appeal was approved Sept. 7 in a 2-2 tie by the state Supreme Court. Justices Larry Starcher and Robin Davis voted to hear the appeal, while Justices Elliott Maynard and Joseph Albright refused. The potential tiebreaker, Justice Brent Benjamin, abstained from the vote because he previously worked at Robinson and McElwee, the firm now representing the West Virginia Farm Bureau.

"A tie means we're in," Huber said.

Before the Justices, he'll present a similar argument to that of Charleston attorney Jim Lees, who is representing a group of teachers that do not want their pensions switched over to a differently structured plan.

A statewide vote of teachers, organized by the Legislature, triggered the switch. Lees has been arguing that the Legislature does not have the right to delegate decision-making to citizens in a vote.

"If they can do this, then what did we elect the legislators for? Where does it say they are free to delegate law-making ability to a small group of people?" Lees has said.

Huber couldn't agree more.

"The fundamental case issue this presents is whether or not the Legislature can delegate power to the people of the counties based on majority approval or disapproval," Huber said. "Constitutional rights are never subject to majority disapproval."

The ballot itself, Huber adds, was misleading.

"The ballot language just says, 'Shall Sunday hunting be authorized in (blank) county?'" he said. "It doesn't take into account the distinction of private and public property."

Hunting on public property has never been allowed, Huber said, and he feels that anyone who wanted to keep it that way would vote "no," even if they didn't oppose hunting on private property.

Each county's vote resulted in a ban on Sunday hunting, Huber said. The small group of counties that still allow it refused to put it on the ballot, he added.

"If were successful in Ritchie County, for all practical purposes, it would call into question the other counties' prohibitions," Huber said. "I am sure that the Circuit Court of Ritchie County looked carefully at these issues, and I'm equally confident that the West Virginia Supreme Court of Appeals will look carefully at these issues and hopefully agree with my petition.

Huber is now preparing to re-present his case, arguing that he is protecting a "deep and rich hunting history" in the state.

He's hoping to write his own chapter in that history. And he wouldn't object to bagging a deer of his own somewhere along the way.

Maybe even on a Sunday.

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West Virginia Supreme Court of Appeals