M.J. Murnin, III v. PA Game Commission ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael J. Murnin, III, :
Petitioner :
:
v. :
:
Pennsylvania Game Commission, : No. 325 C.D. 2020
Respondent : Submitted: December 8, 2020
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: January 11, 2021
Michael J. Murnin, III (Murnin) appeals from the Commonwealth of
Pennsylvania, Pennsylvania Game Commission’s (Commission) February 26, 2020
Final Order affirming the Commission’s August 3, 2018 one-year revocation of his
hunting/furtaking privileges. Murnin presents two issues for this Court’s review: (1)
whether the Commission abused its discretion because the February 26, 2020 Final
Order was not supported by substantial evidence; and (2) whether the Commission
violated due process by failing to separate its prosecutorial and adjudicatory
functions. After review, this Court affirms.
On December 22, 2017, Murnin was coyote hunting with four hunting
dogs. One or all of the dogs were equipped with monitoring devices and began to
track a coyote. After several hours, one or several of the dogs tracked, then pinned,
an injured coyote on a guardrail adjacent to State Highway Route 170 in Clinton
Township, Wayne County. When Murnin and his dogs caught up with the coyote,
the coyote was immobile along the side of the highway, within a safety zone of at
least one residence. Murnin euthanized the injured coyote with a lawfully possessed,
pistol-type firearm while he was standing on the roadway.
Thereafter, State Game Warden Frank J. Dooley cited Murnin for the
following violations: Unlawful Shooting On or Across a Highway,1 Citation No.
819089 (Shooting On or Across a Highway); and hunting by Use of Vehicle or
Conveyance Propelled by Other than Manpower,2 Citation No. 819086 (Use of a
Vehicle). On July 23, 2018, a Magisterial District Judge (MDJ) found Murnin guilty
of Shooting On or Across a Highway and not guilty of hunting by Use of a Vehicle,
and fined Murnin a total of $300.00, plus court costs. By August 3, 2018 letter, the
Commission notified Murnin of the one-year revocation of his privilege to secure a
license or to hunt or take game or wildlife anywhere in the Commonwealth, with or
without a license, for a period of one year beginning July 1, 2019.
Murnin timely requested a hearing concerning his license revocation.
A Hearing Officer held a hearing on November 8, 2018. On November 9, 2018, the
Hearing Officer recommended that the Commission’s revocation of Murnin’s
1
Section 2504(a) of the Game and Wildlife Code provides:
It is unlawful for any person to shoot at any game or wildlife while
it is on a public highway or on a highway open to use or used by the
public or to shoot across a public highway or a highway or roadway
open to use or used by the public unless the line of fire is high
enough above the elevation of the highway to preclude any danger
to the users of the highway. It shall be unlawful for any person, after
alighting from a motor vehicle being driven on or stopped on or
along a public highway or road open to public travel, to shoot at any
wild bird or wild animal while the person doing the shooting is
within 25 yards of the traveled portion of the public highway or road
open to public travel.
34 Pa.C.S § 2504(a).
2
Section 2308(a)(7) of the Game and Wildlife Code prohibits the hunting of game or
wildlife through the use of “[a] vehicle or conveyance of any kind or its attachment propelled by
other than manpower.” 34 Pa.C.S § 2308(a)(7).
2
hunting and furtaking privileges be rescinded. On November 16, 2018, the
Commission’s Executive Director (Executive Director) issued a Final Order
notifying Murnin that the Commission did not concur with the Hearing Officer’s
recommendation, and that its August 3, 2018 license revocation remained as ordered.
On December 17, 2018, Murnin appealed to this Court from the Commission’s
November 16, 2018 Final Order. On January 29, 2019, the Commission filed its
opinion in support of its November 16, 2018 Final Order (January 29, 2019
Opinion).
On February 6, 2020, after full consideration of the issues presented,
this Court remanded the matter to the Commission to clarify the basis for Murnin’s
license revocation because it was unclear from the Commission’s January 29, 2019
Opinion whether the Executive Director’s departure from the Hearing Officer’s
recommendation was based on hearsay evidence.3 See Murnin v. Pa. Game Comm’n
(Pa. Cmwlth. No. 1646 C.D. 2018, filed February 6, 2020) (Murnin I). In the
Commission’s February 26, 2020 Final Order, the Executive Director clarified:
[T]he above-referenced hearsay evidence was not the
factor that caused my departure from [the] Hearing
Officer[’s] [] recommendation. Rather, that evidence
served only as further illustrative evidence of [Murnin’s]
poor judgment during the events occurring on December
22, 2017. My primary concern in this matter was and
remains the safety of the general public.
February 26, 2020 Final Order at 1. Murnin appealed from the Commission’s
February 26, 2020 Final Order to this Court.4
3
The hearsay evidence was the Prosecution Report, which was admitted into the record
over Murnin’s hearsay objection.
4
“Our scope of review is limited to determining whether an error of law was committed,
whether constitutional rights were violated or whether necessary findings of fact are supported by
substantial evidence.” Buoncuore v. Pa. Game Comm’n, 777 A.2d 1222, 1224 n.7 (Pa. Cmwlth.
2001).
3
Initially, Section 929(a) of the Game and Wildlife Code (Code)
provides, in relevant part:
[A]ny hunting or furtaking license . . . granted under the
authority of [the Code] may be denied, revoked or
suspended by the [C]ommission when the holder of the
license . . . is convicted of an offense under [the Code] or
has acted contrary to the intent of the registration or
permit[.]
34 Pa.C.S. § 929(a) (emphasis added). Further, Section 2741(b) of the Code
specifies:
In addition to any penalty and costs imposed by [the
Code], the [C]ommission may revoke any hunting or
furtaking license and deny any person the privilege to
secure a license or to hunt or take furbearers anywhere in
this Commonwealth, with or without a license, . . . if the
licensee or person:
(1) Has [] been convicted . . . of violating any of the
provisions of [the Code] for such periods as are specified
in this subchapter.
34 Pa.C.S. § 2741(b) (emphasis added). Finally, Section 2742(a) of the Code
prescribes a revocation period:
[F]or the first offense any person convicted . . . of violating
any of the provisions of [the Code] may be denied the
privilege to hunt or take wildlife anywhere in this
Commonwealth, with or without a license, for a period not
to exceed three years as the [C]ommission determines.
34 Pa.C.S. § 2742(a) (emphasis added).
Here, Murnin was convicted of Shooting On or Across a Highway.
Although the Hearing Officer recommended rescinding Murnin’s one-year license
revocation based on mitigating circumstances, he opined: “In consideration of the
evidence presented and arguments made by the parties, this [H]earing [O]fficer
agrees that the underlying violation is serious in nature, involves a serious safety
4
violation and a [license] revocation is authorized and typically warranted.” Hearing
Officer Recommendation at 5.
With respect to the above-quoted statement, the Executive Director
declared in the Commission’s February 26, 2020 Final Order:
I was and remain in full concurrence with [the] Hearing
Officer [] in this regard. However, I continue to find that
the gravity of [Murnin’s] poor choices and the significance
of the risks that [he] created to the general public on that
day outweigh the mitigating evidence presented in this
case. As such, I do not and cannot concur with [the]
Hearing Officer [] that rescission of the Commission’s
revocation of [Murnin’s] hunting/furtaking privileges is
warranted.
February 26, 2020 Final Order at 1. This Court acknowledges that Murnin’s
conviction alone constitutes substantial evidence to support the Commission’s
February 26, 2020 Final Order. See 34 Pa.C.S. §§ 929(a), 2741(b), 2742(a).
Murnin first argues that the February 26, 2020 Final Order is as much
an abuse of discretion as the Commission’s November 16, 2018 Final Order, in that
it is still unsupported by record evidence. Murnin contends the February 26, 2020
Final Order ignores this Court’s Order to re-examine the circumstances consistent
with the fact that the underlying act was a merciful act intended to euthanize a
suffering animal. Murnin further asserts that the Executive Director removed the
troublesome language evidencing the Commission’s original reasoning and replaced
it with a statement that he weighed the reasons differently than the Hearing Officer.
Murnin thus asserts: (1) the language adjustment of the February 26, 2020 Final
Order is to conceal the reasoning underpinning its logic; (2) the Executive Director
merely rearranged the words on the page; and (3) the decision’s reasoning remains
the same.
5
The Commission rejoins that Murnin fails to recognize the legal
significance of his conviction for Shooting On or Across a Highway. The
Commission contends that Murnin compounds this error by seemingly ignoring the
fact that this Court has already determined that Murnin’s conviction alone
constitutes substantial evidence to support the Commission’s Final Order. The
Commission maintains that the only remaining issue to be addressed is what basis
the Commission used for Murnin’s license revocation. The Commission concludes
that the record evidence establishes that public safety, not the contents of the
Prosecution Report, is and has always been the basis of the Commission’s decision
to revoke Murnin’s hunting/furtaking privileges.
Preliminarily, this Court notes that Murnin confuses the Concurring
Opinion with the Majority Opinion in this Court’s prior decision. It was the
Concurrence that stated: “I submit that these cases compel the careful consideration
of circumstances to determine if they reflect an intent to prevent seriously injured
animals from the ‘agony of slow death.’” Murnin, slip op. at 4 (McCullough, J.,
concurring). However, the Concurrence acknowledged:
I am fully aware that any attempt by Murnin to raise the
argument here would amount to an unauthorized
collateral attack on his underlying conviction, see
Levan v. [Pa.] Game Comm[’n], 429 A.2d 1241 (Pa.
Cmwlth. 1981), I nevertheless offer my view, lest this case
be consulted in the future, that, consistent with prior
precedent, Murnin was not engaged in the conduct that
[S]ection 2504 of the Code was designed to prohibit.
Murnin I, slip op. at 1-2 (McCullough, J., concurring) (emphasis added).
Accordingly, because the Commission was not required to re-examine the
circumstances consistent with the fact that the underlying act was a merciful act
intended to euthanize a suffering animal, the Commission did not abuse its discretion
by not doing so.
6
Concerning Murnin’s assertion that the Executive Director’s omission
of the hearsay evidence references did not change the Commission’s reasoning,
Murnin misconstrues this Court’s prior decision. This Court did not declare that the
Commission abused its discretion by relying on hearsay evidence. Rather, because
it was “unclear” whether the November 16, 2018 Final Order was based on hearsay
evidence, this Court remanded the matter to the Commission “to clarify the basis for
Murnin’s license revocation.” Murnin I, slip op. at 6.
In response thereto, the Executive Director declared:
[T]he Court sought clarification as to whether my January
29, 2019 Opinion in Support of [the Final] Order departed
from the Hearing Officer[’s] . . . recommendation based
upon certain hearsay evidence contained within the
Commission’s administrative record. I can confirm that
the above-referenced hearsay evidence was not the factor
that caused my departure from [the] Hearing Officer[’s]
recommendation.
February 26, 2020 Final Order at 1.
The Executive Director expounded:
On June 21, 2018, [an MDJ] . . . convicted [Murnin] of
violating [Section] 2504(a) [of the Code] (relating to
shooting on or across highways). On November 8, 2018,
[Murnin] provided testimony highlighting that this
violation occurred along State Highway Route 170, a
heavily trafficked highway. [Murnin] further clarified that
[he] killed the injured coyote while [he was] standing on
the active roadway. [Murnin] then later confirmed that
‘[a]t the time - [he] underst[oo]d that it wasn’t the right
thing to do.’ Additionally, [Murnin is] not an individual
authorized by law to euthanize critically injured wildlife
under [Section] 2307 (d) and (f) [of the Code]. Simply
put, in my discretion as Executive Director I find that
[Murnin’s] actions on December 22, 2017 created an
unreasonable and substantial risk of harm to the general
public that warrants revocation of [his] hunting/furtaking
privileges.
7
February 26, 2020 Final Order at 2.
This Court is satisfied that the Commission’s February 26, 2020 Final
Order is not based on hearsay evidence. Accordingly, because the conviction alone
supports the license revocation, substantial evidence supports the Commission’s
February 26, 2020 Final Order.
Murnin next argues that the Commission’s February 26, 2020 Final
Order is the result of the commingling of both the Commission’s prosecutorial and
investigatory functions. See Lyness v. State Bd. of Med., 605 A.2d 1204 (Pa. 1992).
Murnin contends that the Executive Director is responsible for all of the
Commission’s functions, and as a human being, he is unable to remove himself
completely from one function in order to step into the other. Murnin declares that
the Executive Director extended himself to overrule the impartial Hearing Officer’s
findings and recommendations based on public safety, and clearly exercised a
prosecutorial role at the expense of the abundant mitigating evidence the Hearing
Officer found in the adjudicatory process he was also tasked with overseeing.
Murnin thus concludes that such commingling: (1) creates an appearance of
impropriety; (2) results in a violation of the norms of due process; and (3)
undermines public confidence in the integrity of the Commission’s administrative
adjudications.
The Commission rejoins that Murnin waived this issue because he did
not present or preserve the issue during the administrative proceeding before the
Commission; and the law and the facts do not support a due process violation as it
relates to the revocation of hunting/furtaking license privileges.
Relative to waiver, this Court has long held: “Our Supreme Court and
this [C]ourt have both concluded that a constitutional challenge to agency
proceedings must be timely raised and preserved for purposes of appellate review.”
McGrath v. State Bd. of Dentistry, 632 A.2d 1027, 1031 (Pa. Cmwlth. 1993). Here,
8
Murnin raised the commingling-of-functions issue for the first time in his brief in
support of his appeal after remand filed with this Court.5 “Because [Murnin] did not
raise his procedural due process argument before the [Commission], nor was he
prevented from raising it there, he has waived the issue on appeal.”6 Id. at 1033.
For all of the above reasons, the Commission’s February 26, 2020 Final
Order is affirmed.
___________________________
ANNE E. COVEY, Judge
5
Indeed, Murnin did not raise the commingling-of-functions issue in his brief to this Court
in his first appeal. See Murnin I.
6
Notwithstanding, the Pennsylvania Supreme Court has held that “hunting is not a property
or liberty interest to which the full panoply of [Lyness] due process protections attach.” Pa. Game
Comm’n v. Marich, 666 A.2d 253, 257 (Pa. 1995).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael J. Murnin, III, :
Petitioner :
:
v. :
:
Pennsylvania Game Commission, : No. 325 C.D. 2020
Respondent :
ORDER
AND NOW, this 11th day of January, 2021, the Commonwealth of
Pennsylvania, Pennsylvania Game Commission’s February 26, 2020 Final Order is
affirmed.
___________________________
ANNE E. COVEY, Judge