SER State of West Virginia v. Hon. Robert A. Burnside, Jr., and Richard Hardison, Jr. (Dissenting Opinion by Sims, Judge) ( 2014 )

No. 13-0733 SER State of West Virginia v. Honorable Robert A. Burnside, Jr., Judge,
of the Circuit Court of Raleigh County; and Richard E. Hardison, Jr.
FILED
April 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
Sims, Judge., dissenting: OF WEST VIRGINIA
I respectfully dissent from the majority opinion.
The issue in this case is the statutory construction of the West Virginia Wiretapping Act,
W.Va. Code §62-1D-1, et seq. [1987].
The law of statutory construction in West Virginia is well settled. In State of West Va. v.
Cont'l Cas. Co., 130 W.Va. 147, 42 S.E.2d 820 (1947), the Court held
When a statute is clear and unambiguous, and the legislative intent is plain, the
statute should not be interpreted by the courts. 50 Am. Jur., Statutes, Section 225.
See State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37 S.E.2d 85 (1946). In
such case the duty of the courts is not to construe but to apply the statute. In
applying the statute its words should be given their ordinary acceptance and
significance and the meaning commonly attributed to them. 50 Am. Jur., Section
225. See Moran v. Leccony Smokeless Coal Co., 122 W. Va. 405, 10 S.E.2d 578
(1940), 137 A.L.R. 1007.
In State v. Epperly, 65 S.E.2d 488, 135 W.Va. 877 (1951), the Court reiterated that
When a statute is clear and unambiguous, and the legislative intent is plain, the
statute should not be interpreted by the courts. Hereford v. Meek, 132 W.Va. 378,
52 S.E.2d 740 (1949); State of West Virginia ex rel. Department of
Unemployment Compensation v. Continental Casualty Company, 130 W.Va. 147,
42 S.E.2d 820 (1947); State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37
S.E.2d 85 (1946); State v. Patachas, 96 W.Va. 203, 122 S.E. 545 (1924); 50
Am.Jur., Statutes, Section 225. In such case the duty of the courts is not to
construe but to apply the statute, and in so doing, its words should be given their
ordinary acceptance and significance and the meaning commonly attributed to
them. 50 Am.Jur., Statutes, Section 225.
Likewise, the United States Supreme Court has stated "[w]e begin with the familiar
canon of statutory construction that the starting point for interpreting a statute is the language of
the statute itself. Absent a clearly expressed legislative intention to the contrary, that language
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must ordinarily be regarded as conclusive." Consumer Product Safety Commission et al. v. GTE
Sylvania, Inc. et al., 447 U.S. 102 (1980). "[I]n interpreting a statute a court should always turn
to one cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a
statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v.
Germain, 503 U.S. 249, 253-254 (1992). "When the words of a statute are unambiguous, then,
this first canon is also the last: 'judicial inquiry is complete.' Rubin v. United States, 449 U.S.
424, 430 (1981).” 503 U.S. 249, 254.
The final clause of W.Va. Code §62-1D-9(d) at issue in this case states as follows:
That notwithstanding any provision of this article to the contrary, no device
designed to intercept wire, oral or electronic communications shall be placed or
installed in such a manner as to intercept wire, oral or electronic communications
emanating from the place of employment of any attorney at law, licensed to
practice law in this state.1
Simply put, the clause precludes law enforcement from electronically intercepting any
communications emanating from a law office of any attorney licensed to practice law in this
state. Period. The clause is clear, concise, unambiguous, plain in its meaning, and means
exactly what it plainly expresses. Therefore, the clause must be applied, not construed, and
“judicial inquiry is complete.” Move along, nothing here to see.
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Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §2516(2)
(the corresponding federal wiretapping act) permits the states to “adopt coordinate statutes
permitting the interception or wire, oral or electronic communications, and to grant greater, but
not lesser, protection than that available under federal law.” The West Virginia Wiretapping
Act, as enacted, clearly evidences the West Virginia Legislature’s intent to grant greater
protections to West Virginia licensed attorneys than that available under federal law. The
majority notes that the absence of such a provision in the federal statute “demonstrates that
Congress chose not to treat communications emanating from a law office differently than
communications emanating from other locations.” Therefore, it logically follows that the
inclusion of the provision in the West Virginia statute clearly demonstrates that the West
Virginia Legislature chose to treat communications emanating from a law office differently than
communications emanating from other locations.
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However, the majority finds otherwise. Out of thin air, the majority has determined that
“an ambiguity arises” in the above-referenced clause. The majority declares that the clause
“appears to place a prohibition on any communication, privileged or otherwise, occurring
between any persons located in a law office.” (Emphasis added.) Any reasoned, rational reading
of the clause in question leads to only one conclusion: that the statute does not “appear” to place
such a prohibition, it unequivocally and affirmatively establishes such a prohibition.
In spite of this inescapable conclusion, the majority declines to construe the plain
meaning of the clause and seeks to interpret it. The majority finds that the clause’s meaning is
not abundantly clear “[a]s demonstrated by the differing interpretations given the final clause by
the parties to this appeal.” The majority then cites, but inexplicably ignores, the holding in State
v. Gibson, 226 W.Va. 568, 571, 703 S.E.2d 539, 542 (2010) that “the fact that parties disagree
about the meaning of a statute does not itself create ambiguity or obscure meaning.”
In rejecting the plain language of the clause, the majority sets out to rewrite the clause
and, in doing so, manipulates the outcome in this matter to one more preferable to the majority.
This type of judicial moonwalking has all of the earmarks of a “result-oriented decision.”
The majority proceeds to do a judicial tap dance around the “legislative intent” of the
statute and concludes that the statute’s legislative history “does not provide guidance.” The
majority ignores the fact that the statute, enacted in 1987, was written by lawyers and then
passed into law by a significant number of lawyers in the legislature. The statute says exactly
what the legislature intended it to say. It places an absolute bar on law enforcement intercepting
any communications occurring in a law office in this state of a licensed West Virginia lawyer.
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The clear intent of the statute is to protect a centuries-old2 sacrosanct public policy which
predates the founding of this nation: the sanctity of attorney-client communication, the
corresponding privilege afforded to the client, and the indispensable confidence and trust that
must exist between an attorney and a client. Without a client’s unfettered confidence and trust,
the attorney-client relationship would be meaningless and non-existent. Any erosion of that
confidence and trust threatens the very foundation of the legal profession.
In United States v. Costen, 38 F. 24, 24 (C.C.D. Colo. 1889), Justice Brewer stated
Now, it is the glory of our profession that its fidelity to its client can be depended
on; that a man may safely go to a lawyer and converse with him upon his rights or
supposed rights in any litigation with the absolute assurance that that lawyer's
tongue is tied from ever disclosing it; and any lawyer who proves false to such an
obligation, and betrays or seeks to betray any information or any facts that he has
attained while employed on the one side, is guilty of the grossest, breach of trust. I
can tolerate a great many things that a lawyer may do,—things that in and of
themselves may perhaps be criticised [sic] or condemned when done in obedience
to the interest or supposed interest of his own client, and when he is seeking
simply to protect and uphold those interests. If he goes beyond, perhaps, the limits
of propriety, I can tolerate and pass that by; but I cannot tolerate for a moment,
neither can the profession, neither can the community, any disloyalty on the part
of a lawyer to his client. In all things he must be true to that trust, or, failing it, he
must leave the profession.
The majority bases its rationale on the premise that “lawyers engaging in alleged criminal
activity should be investigated and prosecuted to the same extent as non-lawyers.” No one
would disagree with that assertion. Indeed, law enforcement has significant tools, advantages
and resources to investigate and bring to justice those who violate the law, including attorneys.
However, the West Virginia Legislature, as a co-equal branch of government and is its right as a
legislative body, definitively determined that protecting the sanctity of the attorney-client
relationship from undo intrusion by law enforcement clearly outweighed law enforcement’s
2
The attorney-client privilege finds its roots in Roman law. See E. Cleary, McCormick
on Evidence § 87 (2d edition 1972).
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interests in utilizing the weapon of electronically intercepted communications emanating from a
law office of any attorney licensed to practice law in this state.
The majority next finds that the clause, as written, leads to an “absurdity” by shielding
attorneys, and others engaged in criminal activity in a law office, from being subject to electronic
surveillance or wiretapping simply because the criminal activity allegedly is occurring in a law
office. As a result, the majority has rewritten the clause to read:
That notwithstanding any provision of this article to the contrary, no device
designed to intercept wire, oral or electronic communications shall be placed or
installed in such a manner as to intercept wire, oral or electronic communications
emanating from the place of employment of any attorney at law, licensed to
practice law in this state unless said device intercepts communications which are
determined by law enforcement, in its discretion, not to be attorney-client
privileged communications.
The rewritten statute opens a Pandora’s Box of problems and challenges to open
communication, complete confidentiality, and the indispensable trust that must exist between
attorneys and clients in this state.
Consider the following:
A large law firm in Huntington/Charleston (pick one) employs an experienced and trusted
paralegal. Unbeknownst to the law firm, paralegal is engaged in small time bookmaking/selling
small amounts of marijuana (pick one) out of his office at the law firm. Law enforcement has
probable cause and places a device to intercept oral conversations/telephone calls/email (pick
one or more) in paralegal’s office.
As a result, the following scenarios occur:
Scenario 1: Lawyer A is defending a highly contested criminal case. Lawyer A directs
paralegal to interview potential witnesses who have not been listed in the prosecution’s
discovery or witness disclosure. Paralegal interviews witnesses who provide information which
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is potentially damaging to defendant’s case. The interviews are not privileged under West
Virginia law. Law enforcement shares the intercepted recordings of paralegal’s interviews of
said witnesses with the prosecutor, who then amends the State’s witness list to include the
witnesses not previously known to him. As a direct result of the new witnesses’ testimony,
defendant is convicted.
Scenario 2: Lawyer B directs paralegal to assist him in drafting a settlement brochure for
a client who was hit by a drunk driver. Lawyer informs paralegal that the case has significant
settlement value, but client is about to be laid off from work and is in a difficult financial
situation. As a result, client wants to settle quickly for the best pre-suit offer that is made. This
communication is privileged under West Virginia law, but law enforcement is not up to speed on
the law of privilege. Law enforcement is on a bowling team with the insurance adjuster and
informs him of client’s dire financial situation and desire for a quick settlement. Insurance
adjuster makes a ridiculous, low-ball offer and refuses to settle for any amount near fair
settlement value for the claim. Client directs Lawyer B to accept the bad faith, lowball offer.
Scenario 3: Lawyer C directs paralegal to assist him with drafting a plea agreement and
sentencing memorandum in a low level, non-violent felony case, for which such offense a
defendant routinely receives probation. Lawyer C casually informs paralegal that the judge in
the case is a primate with low intellectual functioning and that the prosecutor is a slob with poor
hygiene. This is a non-privileged communication under West Virginia law. Law enforcement, a
former bailiff for the judge, gleefully informs the judge and the prosecutor of Lawyer C’s
opinions of them. Defendant pleads guilty. In an unprecedented move, prosecutor deviates from
his standard practice and seeks the maximum penalty. To the surprise of Lawyer C, judge denies
defendant probation and sentences him to the maximum penitentiary sentence.
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Scenario 4: Lawyer D directs paralegal to assist in drafting a property settlement
agreement in an uncontested divorce action. Lawyer D informs paralegal that client wants the
matter finalized as quickly as possible because client recently engaged in an extra-marital affair,
which is unknown to client’s spouse. This communication is privileged under West Virginia
law, but law enforcement doesn’t care because client’s spouse is law enforcement’s second
cousin once removed. Law enforcement informs client’s spouse of client’s dalliance, and
client’s spouse proceeds to do extreme physical violence to client and client’s paramour.
The rewritten clause produces absurd, unjust and unconscionable results in each of the
above four scenarios. The clause, as originally written, would prevent each of these results. It is
eminently predictable that the rewritten clause will, in the future, produce equally troubling and
disastrous results for lawyers and their clients alike.
The majority finally concludes that if it were to interpret the statute to say what is clearly
says, that “law offices in West Virginia could become staging areas for criminal conduct.” This
conclusion is made without a scintilla of empirical data to support it. In the 27 years since the
statute was first enacted, there is no evidence that lawyers in West Virginia have turned their
offices into “staging areas for criminal conduct.” In fact, the evidence is wholly to the contrary.
The sparse history of the investigations and prosecutions of criminal activity by lawyers using
their law offices as “staging areas for criminal conduct” has rarely, if ever, involved
electronically intercepted communications emanating from a law office. Law enforcement
indisputably has sufficient resources, without the use of electronically intercepted
communications, to weed out those very few in the legal profession who are engaged in criminal
activity out of their law office.
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In paraphrasing Justice Samuel Ervin, Jr.’s eloquent dissent in State v. Bridges, 56 S.E.2d
397, 231 N.C. 163 (1949), what may be the ultimate fate of the accused in his case is of
relatively minor importance in the sum total of things. In any event, his role on life's stage, like
ours, soon ends. But what happens to the law in this case is of gravest moment. It must be
realized that the consequences of the decision of this Court will not be confined to a single legal
proceeding. This decision will be invoked in other legal proceedings as a guiding and binding
precedent. This decision may now be used as a waterfall to steadily and relentlessly erode a bed
rock and essential time-tested public policy of the inviolability of the attorney-client relationship.
Such an end is far less desirable than that of hurrying a single sinner to what may be his merited
doom.
“They who would give up essential liberty, to purchase a little temporary safety, deserve
neither liberty nor safety.” Benjamin Franklin for the Pennsylvania Assembly in its Reply to the
Governor (November 11, 1755).
In permitting electronically intercepted non attorney-client communications emanating
from a law office of any attorney licensed to practice law in this state, the majority has placed the
sanctity of the attorney-client relationship on a dangerous slope. If the majority opinion does not
cause significant concern for all attorneys and their clients in this state, it ought to. Beware: you
are on notice that someone may be listening.
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