MEMORANDUM DECISION
Petitioner Shale Energy Alliance, Inc. (sometimes referred to as "SEA"), by counsel Jason B. Torchinsky, Kathleen M. Guith,
After considering the parties' written and oral arguments, as well as the record on appeal and the applicable law, this Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
This case concerns whether petitioner was required to register as a PAC and make certain public disclosures regarding its political advertising and its concomitant expenditures. In this regard, the undisputed facts are that petitioner was first incorporated in the State of Delaware in 2015 under Internal Revenue Code § 501(c)(4) as a nonprofit social welfare organization, and was registered to do business in this State later that year.
(Emphasis added).
Petitioner admits that it engages in activities including "social events, fundraisers, and receptions" to advance its purposes, and that from its formation in 2015 through 2018, it spent "over $952,922" on "advertising that touted the benefits of shale energy[,] educating the industry about salient political developments[,]" and "`legislative receptions' designed to get `representatives from natural gas suppliers, delegates, and legislators in the same room so they can talk to each other.'" Petitioner acknowledges that it has made political contributions and expenditures, including
(Footnote and citations to joint appendix omitted).
In specific regard to petitioner's activities relating to the 2018 election cycle, its leadership decided that there had not been much progress with its agenda in the prior two years, so it made a decision to "ramp[] up" the organization's efforts. According to the appendix record, petitioner commissioned a $20,000 video advertisement expressly advocating against the election of a specific candidate and aired it in 468 distinct "spots" in the two weeks preceding the primary. Petitioner also made eighteen distinct expenditures for mailing campaigns, some expressly advocating against a candidate and others expressly advocating for a different candidate. While some of petitioner's mailings to voters focused on issues involving natural gas, oil, and taxes, others endorsed a candidate's position on issues such as the "Second Amendment" and "fight[ing] the opioid crisis." Further, petitioner purchased an ad in a local newspaper expressly advocating "[v]ote to keep [a candidate] in office," again commending the candidate's "Second Amendment" record. Petitioner's disclosures indicate that the cost of its 2018 primary election advocacy campaign totaled $77,178.22.
By letter dated May 29, 2018, Donald M. Kersey, III, Elections Director and Deputy Legal Counsel with the West Virginia Secretary of State's Office, notified petitioner that the Secretary of State had received a formal complaint alleging, among other things, that petitioner had violated West Virginia Code §§ 3-8-2 and 3-8-4(a) "by expressly advocating the defeat of one or more clearly identified candidates without filing the proper organizational paperwork as a political action committee (PAC) with the Secretary of State (or Federal Election Commission) no later than twenty-eight days prior to the Primary Election on May 8, 2018[.]" Thereafter, respondent assisted petitioner with coming into partial compliance, with petitioner filing disclosure forms for its 2018 primary election independent expenditures. However, petitioner did not agree that it was required to register as a PAC, to file the detailed transaction reports required from PACs, or to pay the penalties due to its delinquent filings.
Respondent maintains that even after the complaint was filed, as the 2018 general election got closer, petitioner spent $79,000 on direct mail advocating on behalf of seven distinct candidates, and $10,500 to commission four public opinion polls, which petitioner admitted were done to make its "political advertisements more effective." Once again, petitioner did not disclose these expenditures to respondent until it received a cease and desist letter. The disclosures revealed that petitioner's general election mailing campaign expenditures totaled $78,983.03. Thus, the grand total for petitioner's advertising, mailing, and polling related to the 2018 election cycle was $166,661.25.
The parties ultimately reached a partial settlement in August of 2019, wherein they resolved most of the allegations contained in the complaint. Petitioner was required to file disclosures for the election communications expenses from 2018, and further agreed to make partial disclosures of its financial transactions in order to toll the accrual of timeliness penalties. Petitioner also agreed to "pay all penalties for delinquent filing of independent expenditure reports and electioneering communications disclosures calculated to have accrued as of the Effective Date [August 19, 2019], specifically twelve thousand, nine hundred sixty-three dollars ($12,963) (the "Settlement Amount")." However, the parties were unable to settle the question before us: whether petitioner met the statutory definition of a PAC, requiring it to register with respondent as such.
Thereafter, the parties filed cross-motions for summary judgment concerning the PAC issue. See W. Va. Code § 3-8-1a(21). Petitioner primarily argued that it did not meet the statutory definition of a PAC because it was not organized for the sole purpose of expressly advocating for or against candidates. See id. Significantly, petitioner did not raise any arguments relating to the constitutionality of West Virginia Code § 3-8-1a(21). Conversely, respondent argued that petitioner met the statutory definition of a PAC, see id., and was required to register as such and comply with the requirements associated therewith. The circuit court held a hearing on the motions on March 9, 2020, and by order entered April 2, 2020, it granted summary judgment to respondent, and denied petitioner's cross-motion.
Specific to the issues herein, the circuit court found that "[a] political action committee is distinct from other groups that `influence the election or defeat' of candidates based on one feature: whether it is `organized' for that purpose. W. Va. Code§ 3-8-la(21) (2018)[.]" (Footnote omitted). The circuit court concluded that because the word "organized" was not defined in the election statute, under rules of statutory construction, it is given its "ordinary and plain meaning."
The circuit court then concluded that
The circuit court ultimately found that petitioner
(Footnote added). Accordingly, the circuit court determined that petitioner "is `organized for the purpose of supporting or opposing one or more candidates' in West Virginia elections, and it is required to register as a Political Action Committee." This appeal followed.
Petitioner raises two primary errors:
At the outset, we emphasize that this case concerns only the question of whether petitioner is required to register as a "political action committee" under the 2013 statutory definition of that term, thus requiring it to complete and file versions of various transaction reports with respondent that are required of such groups. This case is not about either the facial constitutionality of West Virginia Code § 3-8-1a(21), or whether the application of the statute to petitioner was constitutionally overbroad. Petitioner never raised any constitutional question before the circuit court. Indeed, petitioner replied to respondent's memorandum in response to petitioner's summary judgment motion, stating affirmatively that it had "not addressed the constitutionality of W. Va. Code § 3-8-1a(21) (201[3]) in its Motion for Summary Judgment or Memorandum in Opposition to Plaintiff's Motion for Summary Judgment; however, SEA does not waive this defense. SEA may assert this defense at oral argument and at trial." Petitioner did not raise any constitutional issues at oral argument before the circuit court, and there was no trial below. Accordingly, the circuit court did not make any determinations regarding the constitutionality of the statute, or its application to petitioner. Further, in this appeal from the circuit court's order, petitioner does not raise any constitutional issue as an assignment of error. See Syl. Pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981) ("Assignments of error that are not argued in briefs on appeal may be deemed by this Court to be waived."). Respondent asserts that petitioner "raises constitutional arguments [in its appeal] obliquely, rather than through a direct assignment of error[.]" We agree. We therefore find that petitioner not only waived any direct constitutional challenge concerning the relevant statute, but we also decline to address any indirect constitutional arguments that petitioner makes on appeal. As we have held: "When it is not necessary in the decision of a case to determine the question of the constitutionality of a statute, this Court will not consider or determine such question." Syl. Pt. 5, State ex rel. Titus v. Hayes, 150 W.Va. 151, 144 S.E.2d 502 (1965); accord Syl. Pt. 1, Priester v. Hawkins, 168 W.Va. 569, 285 S.E.2d 396 (1981). It is unnecessary to address any constitutional arguments raised by petitioner because the constitutionality of the 2013 version of the statute is not likely to recur given the Legislature's amendment to the statute in 2019, and respondent's representation to the Court that "no other litigation is pending under the 201[3] definition."
The first issue concerns the 2013 statutory definition of "political action committee," which means "a committee organized by one or more persons for the purpose of supporting or opposing the nomination or election of one or more candidates."
The circuit court correctly applied these fundamental principles in recognizing that the provisions of West Virginia Code § 3-8-1a(21) were unambiguous, and in determining that under the plain language of the statute, the word "organized" means "having a formal organization to coordinate and carry out activities." Moreover, we find no error in the circuit court's ruling that the statute "expressly contemplates the possibility that an entity organized for non-electoral purposes can also be organized for the purpose of influencing elections." To agree with the petitioner's position that "advocating the election or defeat of a candidate must be the sole or primary purpose of a `political action committee,'" in order for an organization to meet the statutory definition, see id., is untenable and requires the Court to read into the statute words that simply are not there. As we have previously held, "[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." Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996); accord Lamar v. Outdoor Advert. v. W. Va. Dep't of Transp., Div. of Highways, 228 W.Va. 68, 72, 717 S.E.2d 255, 259 (2011) (same); Williamson v. Greene, 200 W.Va. 421, 426, 490 S.E.2d 23, 28 (1997) (same); see Bullman v. D & R Lumber Co., 195 W.Va. 129, 133, 464 S.E.2d 771, 775 (1995) ("That is to say, every word used is presumed to have meaning and purpose, for the Legislature is thought by the courts not to have used language idly."). Further, the exact language that petitioner sought to be added to the 2013 definition of a PAC — "primary purpose" language — was added to the definition of a PAC by the 2019 Legislature. See W. Va. Code § 3-8-la(28) (2019). The fact that the Legislature amended the statute by inserting the very language at issue herein undermines petitioner's claim that this language always existed within the statute by implication. See Syl. Pt. 2, Butler v. Rutledge, 174 W.Va. 752, 329 S.E.2d 118 (1985) ("`The Legislature must be presumed to know the language employed in former acts, and, if in a subsequent statute on the same subject it uses different language in the same connection, the court must presume that a change in the law was intended.' Syl. pt. 2, Hall v. Baylous, 109 W.Va. 1, 153 S.E. 293 (1930)."); see also Davis Mem'l Hosp. v. W. Va. State Tax Comm'r, 222 W.Va. 677, 687 n.25, 671 S.E.2d 682, 692 n.25 (2008) ("`We have traditionally held that where a statute is amended to use different language, it is presumed that the legislature intended to change the law.'" (citation omitted)); W. Va. Bd. of Dental Exam'rs v. Storch, 146 W.Va. 662, 670, 122 S.E.2d 295, 300 (1961) ("`It will be presumed that the legislature, in adopting an amendment, intended to make some change in the existing law, * * *'. 82 C.J.S. Statutes § 384b(2)."). Consequently, the circuit court did not err in its determination of the statutory definition of a PAC under West Virginia Code § 3-8-1a(21) (2013).
The second issue concerns the circuit court's evaluation of the evidence, which resulted in its determination that petitioner is a PAC. In this regard, petitioner attacks the circuit court's factual findings that were based on undisputed facts, contending that the court erred: 1) in looking at only two select calendar years of its spending to determine the organization's purpose; 2) in finding that petitioner consistently devoted more than half of its expenditures to expressly advocating for and against candidates in West Virginia elections; 3) in its calculations of petitioner's express advocacy spending in 2016, which petitioner claims was based on mistaken attributions of 2015 activity; 4) by including public opinion polls in its calculation of express advocacy expenditures for 2018; and 5) by failing to independently examine each of petitioner's expenses. Conversely, respondents argue that the circuit court, relying upon its evaluation of the facts, correctly determined that petitioner was a PAC based upon the structure of petitioner's stated mission to "advocate for candidates seeking public office whose views align with the organization's priorities," the structure of the organization, and petitioner's "direct[ing] a majority of its annual expenditures towards advocating for and against candidates in West Virginia." We agree.
Petitioner's challenges amount to no more than objections to the circuit court's factual findings, and those objections are insufficient to alter our determination that the circuit court did not err, as a matter of law, in concluding that petitioner is a PAC as defined in West Virginia Code § 3-8-1a(21) (2013). Upon close examination of the objections, we find them to be unsupported by any controlling legal authority. Further, we view petitioner's challenges to be largely irrelevant because none of them have any bearing either on petitioner's organizational structure or on whether petitioner was organized for the purpose of candidate advocacy.
For the foregoing reasons, we affirm.
Affirmed.
Chief Justice Evan H. Jenkins, Justice Tim Armstead, Justice John A. Hutchison and Justice William R. Wooton, concurred.
ELIZABETH D. WALKER, J., dissenting:
Respectfully, I disagree with the majority's decision to affirm the circuit court's order granting summary judgment to the Secretary of State. I would find that Shale Energy Alliance, Inc. (SEA) was not a political action committee as that term was defined in West Virginia Code § 3-8-1a(21) (2013) and so would reverse the circuit court's order and remand with direction that SEA's motion for summary judgment be granted.
West Virginia Code § 3-8-1a(21) defines "political action committee" as "a committee organized by one or more persons for the purpose of supporting or opposing the nomination or election of one or more candidates." When considering the issue of whether SEA's activities
The majority endorses that same definition of "organized," the adjective. But, I would find that the word serves a different function in § 3-8-1a(21): it is the past tense of "organize." "Organize" is a transitive verb meaning "to form into a coherent unity or functioning whole," or "to set up an administrative structure for."
I also question the majority's acceptance of the circuit court's ruling, and stating that "the statute `expressly contemplates the possibility that an entity organized for non-electoral purposes can also be organized for the purpose of influencing elections.'"
The majority's analysis is at odds with the plain language of § 3-8-1a(21), which, again, defines a political action committee as "a committee organized by one or more persons for the purpose of supporting or opposing the nomination or election of one or more candidates."
"The" is a definite article. This Court has stated that:
Given this authority, I do not agree with the majority's conclusion that there was "no error in the circuit court's ruling that the statute `expressly contemplates the possibility that an entity organized for non-electoral purposes can also be organized for the purpose of influencing elections.'"
I also do not agree with the majority's relegation of Center for Individual Freedom, Inc. v. Ireland to a footnote.
Like the Southern District of West Virginia, I would find that the word "the"—a definite article—in § 3-8-1a(21) demonstrates the Legislature's intent that a political action committee should be defined by one purpose, that of supporting or opposing the nomination or election of a particular candidate(s). So, again, I respectfully disagree with the majority's conclusion that SEA was a political action committee under § 3-8-1a(21).
Finally, I disagree with the majority that the 2019 amendment to § 3-8-1a(21) (2013) cuts against a finding that SEA was not a political action committee under the earlier version of the statute. In 2019, the Legislature amended the definition of political action committee as follows: "`Political action committee' means a committee organized by one or more persons, the primary purpose of which is to support or oppose the nomination or election of one or more candidates."
The majority cannot bridge that gap by inverting SEA's argument. In rejecting the import of the 2019 amendments for the breadth of the definition of "political action committee," as found in § 3-8-1a(21), the majority states that,
I disagree with the majority's construction of SEA's argument regarding the effect of the Legislature's 2019 addition of "the primary purpose of which is" to the definition of "political action committee." Here is how SEA set forth its argument on this point in its response to the Secretary of State's motion for summary judgment:
The logical construct of SEA's argument is this: the Legislature knew that § 3-8-1a(21) did not extend to organizations with the primary purpose—rather than "the purpose"—of supporting or opposing the election of particular candidates, and so added "the primary purpose of which" in 2019 to broaden the definition's reach. That argument comports with the traditional holding "that where a statute is amended to use different language, it is presumed that the legislature intended to change the law."
These concerns are not pedantic. A definite article carries meaning and conveys legislative intent. Ireland and its consideration of "the purpose," found in § 3-8-1a(21), demonstrates this:
I would not discount the precise language used by the Legislature in § 3-8-1a(21). For these reasons, I respectfully dissent.
FootNotes
The Legislature amended and reenacted West Virginia Code § 3-8-1a in 2019, rewriting and substantially altering the statute, including the definition of a PAC. See W. Va. Code § 3-8-1a(28) (2019) (providing "`[p]olitical action committee' means a committee organized by one or more persons, the primary purpose of which is to support or oppose the nomination or election of one or more candidates.") (emphasis added). See infra discussion. Although not relevant to the case before us, and not yet effective, the statute was also amended in 2021; however, the 2021 change to the subsection defining a PAC is only to renumber it. See H.B. 2927, 2021 Reg. Sess.; W. Va. Code § 3-8-1a(29) (2021).
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