CHARLESTON – The West Virginia Supreme Court has affirmed a circuit court’s ruling dismissing felony civil rights violations against a former Marshall University football player accused of saying an anti-gay slur before striking two men that he saw kiss.

Steward Butler
Steward Butler

The May 9 opinion, which was authored by Chief Justice Allen Loughry, states that the two dismissed counts charged the defendant with criminal civil rights violations under West Virginia code and the state argued that the circuit court erred when it dismissed the two counts on “its erroneous determination that the word ‘sex’ in West Virginia code…was plain and unambiguous and could not be expanded to include ‘sexual orientation.’”

Justices Robin Jean Davis and Margaret Workman dissented.

“Upon our careful review of the parties’ briefs, the arguments of counsel, the appendix record submitted, and the applicable law, we affirm the circuit court’s ruling and remand this action to the circuit court for further proceedings consistent with this opinion,” Loughry wrote.

On April 5, 2015, Steward Butler was riding in a car with friends in Huntington and, while the car was sitting at a stoplight, he observed two men, Casey Williams and Zackery Johnson, exchange a kiss on the sidewalk.

Butler allegedly voiced homophobic slurs toward Williams and Johnson, exited the vehicle, struck both Williams and Johnson in the face with his fist, knocking Williams to the ground.

On May 21, 2015, a Cabell County Grand Jury returned an indictment against Butler, charging him with two counts with battery in violation of West Virginia code and with violations of an individual’s civil rights under West Virginia code in two counts.

The circuit court directed the parties to draft a certified question to address the issue of whether West Virginia code included protections based on sexual orientation and the Supreme Court refused to docket the certified question.

Later, the circuit court ruled that the two counts regarding violations of West Virginia code should be dismissed. The state then appealed the ruling.

“The state mistakenly assigns legal significance to our exercise of discretion in refusing to docket the previously certified question,” the opinion states. “Viewing our refusal as an indication that the question need not be answered to decide the case, the State argues that the circuit court erred by subsequently ruling on the legal issue.”

Loughry wrote that although the court had previously held that the court would not consider certified questions not necessary to decision of the case, such holding clearly does not preclude them from refusing to docket certified questions for other reasons.

The court further observed the general absence of any language in the administrative orders refusing to docket the certified questions that would restrict the manner in which the circuit court thereafter addresses the issue.

“Accordingly, we take this opportunity to make clear, and we now hold, that this court’s exercise of discretion under Rule 17 of the West Virginia Rules of Appellate Procedure in refusing to docket a certified question presented to this court…is neither an express nor an implicit ruling on the merits of the legal issue presented therein, and the circuit court may thereafter taken such action and make such rulings in the matter as it deems appropriate,” the opinion states.

The court’s 3-2 decision found the Legislature, “said … what it meant and meant what it said,” in concluding the statute’s use of the word “sex” does not include “sexual orientation.”

“The state Supreme Court of Appeals interpreted the law as written, respecting the Legislature’s authority to determine criminal law,” said Attorney General Patrick Morrisey, whose office filed an amicus curiae brief in the case. “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 state is represented by Cabell County Assistant Prosecuting Attorney Lauren E. Plymale. Atlanta attorney Gregory R. Nevins and Charles Town attorney Stephen G. Skinner, a former state senator, represented the Lambda Legal Defense and Education Fund, which filed an amicus curiae brief in the case.

Butler is represented by Raymond A. Nolan of the Nolan Law Firm.

W.Va. Supreme Court of Appeals case number: 16-0543

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