Ancil G Ramey
Robert
W. Full
James D. Gray
Goodwin
& Goodwin, LLP
Hannah B. Curry
Parkersburg,
West Virginia
Steptoe & Johnson, PLLC
Carte
P. Goodwin
Charleston, West Virginia
Goodwin
& Goodwin, LLP
Attorneys for the Plaintiff
Charleston,
West Virginia
Attorneys
for the Defendant
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE ALBRIGHT, deeming himself disqualified, did not participate in the decision of this case.
JUDGE TOD J. KAUFMAN, sitting by temporary assignment.
1. 'When a certified
question is not framed so that this Court is able to fully address the law
which is involved in the question, then this Court retains the power to reformulate
questions certified to it under both the Uniform Certification of Questions
of Law Act found in W. Va. Code, 51-1A-1, et seq. and W. Va.
Code, 58-5-2 [1967], the statute relating to certified questions from
a circuit court of this State to this Court.' Syl. Pt. 3, Kincaid v. Mangum,
189 W. Va. 404, 432 S.E.2d 74 (1993). Syllabus Point 1, Aikens
v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000).
2. 'The appellate standard
of review of questions of law answered and certified by a circuit court is
de novo.' Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc.,
197 W. Va. 172, 475 S.E.2d 172 (1996). Syllabus point 2, Keplinger
v. Virginia Electric & Power Co., 208 W. Va. 11, 537 S.E.2d 632
(2000).
3. ''The primary object in construing a statute is to ascertain and give effect to the intent of the legislature.' Syllabus Point 1, Smith v. State Workmen's Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975). Syllabus point 2, Anderson v. Wood, 204 W. Va. 558, 514 S.E.2d 408 (1999).' Syllabus point 2, Expedited Transportation Systems, Inc. v. Vieweg, 207 W. Va. 90, 529 S.E.2d 110 (2000). Syllabus Point 1, Rhodes v. Workers' Compensation Division, 209 W. Va. 8, 543 S.E.2d 289 (2000).
4. 'Where the language
of a statute is free from ambiguity, its plain meaning is to be accepted and
applied without resort to interpretation.' Syl. Pt. 2, Crockett v. Andrews,
153 W. Va. 714, 172 S.E.2d 384 (1970). Syllabus Point 4, Syncor
International Corp. v. Palmer, 208 W. Va. 658, 542 S.E.2d 479 (2001).
5. W. Va. Code §
24D-2-10 (1999) (Repl. Vol. 2001) is repugnant to the stated intention of
the Legislature in enacting the West Virginia Tenants' Right to Cable Services
Act and is, therefore, inoperative and void.
Davis, Chief Justice:
This case presents a certified question from the Circuit
Court of Wood County. Briefly stated, the question asks whether W. Va.
Code § 24D-2-10 (1999) (Repl. Vol. 2001) permits an exclusivity agreement
between an apartment complex and a cable television provider that violates the
West Virginia Tenants' Right to Cable Services Act, W. Va. Code §
24D-2-1, et seq. We find that W. Va. Code § 24D-2-10 is repugnant
to the purpose of the West Virginia Tenants' Right to Cable Services Act and
is, therefore, void.
Charter filed suit against Community on October
20, 2000, seeking, in part, to enjoin Community from severing and/or using
Charter's bundle of cable lines servicing Amber Hill.
(See footnote 3) In addition, Charter sought
to invalidate Community's exclusivity agreement with Amber Hill, arguing that
the agreement violated the West Virginia Tenants' Right to Cable Services
Act, W. Va. Code § 24D-2-1, et seq., (hereinafter the
Act). The Circuit Court of Wood County initially entered a temporary
restraining order enjoining Community from cutting any wires, cables or other facilities by which
cable television service is now being provided to the Amber Hills Apartments,
from using any cables installed by plaintiff [Charter] within the Amber
Hills apartment or otherwise transferring cable television service customers
of Charter Communications and its subscribers residing at Amber Hills Apartments . . . .
The circuit court additionally scheduled an evidentiary hearing for October
26, 2000, on Charter's request for a preliminary injunction.
Following the hearing, the circuit court concluded
that the agreement between Community and Amber Hill did not violate the Act.
The circuit court based its conclusion upon a provision of the Act removing
mutual agreements of its terms. The provision relied upon by the circuit court
states: Notwithstanding any provision in this article to the contrary,
a landlord and cable operator may by mutual agreement establish the terms
and conditions upon which cable television facilities are to be installed
within a multiple dwelling premises without having to comply with the provisions
of this article. W. Va. Code § 24D-2-10.
(See footnote 4) In accordance with its determination
that the agreement between Community and Amber Hill did not violate the Act,
the circuit court declined to grant Charter's request for a preliminary injunction.
In addition, the temporary restraining order that had been previously entered against Community was dissolved.
Charter then filed a motion asking the circuit court to certify a question
to this Court regarding the enforceability of a contract such as the one between
Community and Amber Hills. The circuit court granted Charter's motion and
certified the following question:
(See footnote 5)
Where one cable operator is already providing cable
television services to a multiple dwelling premises without a written mutual
agreement between the landlord and the operator, does W. Va. Code §
24D-2-1, et seq., and in particular, W. Va. Code § 24D-2-10,
which provides, Notwithstanding any provision in this article to the
contrary, a landlord and cable operator may by mutual agreement establish
the terms and conditions upon which cable television facilities are to be
installed within a multiple dwelling premises without having to comply with
the provisions of this article, permit a landlord and another cable
operator to enter into and enforce a mutual agreement, without obtaining the
consent or agreement of all of the residents, whereby the other cable operator
is given the exclusive right by the landlord to provide cable television services
to all of the residents in the multiple dwelling premises, the terms of which
include the other cable operator providing free services to the landlord for
the term of the agreement?
The circuit court answered this question affirmatively.
The question certified in this action requires us to
examine W. Va. Code § 24D-2-10 to determine whether it condones
an exclusionary agreement between a landlord and a cable operator that presumptively
violates certain provisions of the West Virginia Tenants' Right to Cable Services
Act. (See footnote
6) W. Va. Code § 24D-2-10 appears to authorize such
an agreement: Notwithstanding any provision in this article to the contrary,
a landlord and cable operator may by mutual agreement establish the terms and
conditions upon which cable television facilities are to be installed within
a multiple dwelling premises without having to comply with the provisions of
this article. However, any interpretation of this provision must be reconciled
with the Legislature's purpose for passing the Act.
'The primary object in construing a statute
is to ascertain and give effect to the intent of the legislature. Syllabus
Point 1, Smith v. State Workmen's Compensation Commissioner, 159 W. Va.
108, 219 S.E.2d 361 (1975).' Syllabus point 2, Anderson v. Wood, 204
W. Va. 558, 514 S.E.2d 408 (1999). Syllabus point 2, Expedited
Transportation Systems, Inc. v. Vieweg, 207 W. Va. 90, 529 S.E.2d 110
(2000).
Syl. pt. 1, Rhodes v. Workers' Comp. Div., 209 W. Va. 8, 543 S.E.2d
289 (2000).
The Legislature has expressly stated its intent with
respect to the Act:
The Legislature finds and declares
as follows:
(a) Cable television has become
an important medium of public communication and entertainment.
(b) It is in the public interest
to assure apartment residents and other tenants of leased residential dwellings
access to cable television service of a quality and cost comparable to service
available to residents living in personally owned dwellings.
(c) It is in the public interest
to afford apartment residents and other tenants of leased residential dwellings
the opportunity to obtain cable television service of their choice and to prevent
landlords from treating such residents and tenants as a captive market for the
sale of television reception services selected or provided by the landlord.
W. Va. Code § 24D-2-1 (1999) (Repl. Vol. 2001). As clearly demonstrated
above, the purpose behind the Act is two fold. First, it seeks to provide apartment
residents with the right to access their choice of available cable television
service at a reasonable price. Second, in reaching this end, it is the goal
of the Act to prohibit landlords from treating apartment dwellers as a captive
market.
The circuit court's interpretation of W. Va. Code
§ 24D-2-10, finding that it allows agreements between landlords and cable
operators that violate the Act, thwarts the expressed purpose of the Act and
renders meaningless numerous of its provisions that go to the heart of that
purpose. At least two of the provisions of the Act expressly prohibit certain
agreements between landlords and cable operators. For example, W. Va. Code
§ 24D-2-3(c) prohibits a cable operator from entering an agreement with
a landlord that would have the effect, directly or indirectly, of diminishing
or interfering with existing rights of any tenant or other occupant of such
building to use or avail himself of master or individual antenna equipment.
Similarly, W. Va. Code § 24D-2-4 prohibits landlords from executing
certain agreements with cable operators: [e]xcept as provided in this
article, no landlord may demand or accept any payment from any cable
operator in exchange for permitting cable television service or facilities on
or within the landlord's property or multiple dwelling premises. (Emphasis
added). These two statutes, in particular, are clearly intended to advance the
goal of the Act to safeguard apartment tenants' right to access their choice
of cable services at a reasonable cost, and to prevent landlords and cable operators
from contracting away those rights. Thus, attempting to reconcile them with
W. Va. Code § 24D-2-10 reveals considerable tension between the various
provisions.
Acknowledging, to some degree, that W. Va.
Code § 24D-2-10 is at odds with the remainder of the Act, Community asserts that the statute is a proviso,
the natural function of which is to 'modify, restrain, or conditionally
qualify the preceding subject to which it refers.' Syl. pt. 1, in part,
State ex rel. Browne v. Hechler, 197 W. Va. 612, 476 S.E.2d 559
(1996). In this respect, Community contends, the statute should be inconsistent
with the Act. We disagree with Community's analysis.
Notwithstanding the fact that W. Va. Code §
24D-2-10 is titled Exception, we agree with Community that it
is actually more in the nature of a proviso.
(See footnote 7) We disagree, however, with
Community's conclusion that because the statute is a proviso, its complete
antagonism with the fundamental purpose of the Act may be excused. Provisos
are construed using the same general criteria of decision
applied to other kinds of provisions. However, where there is doubt concerning
the extent of the application of the proviso on the scope of another provision's
operation, the proviso is strictly construed. The reason for this is that
the legislative purpose set forth in the purview of an enactment is assumed
to express the legislative policy, and only those subjects expressly exempted
by the proviso should be freed from the operation of the statute.
2A Norman J. Singer, Statutes and Statutory Construction § 47:08,
at 235-38 (6th ed. 2000) (footnotes omitted). In the instant case, we find no
need to strictly construe the language contained in W. Va. Code §
24D-2-10, as that language is plain. 'Where the language of a statute
is free from ambiguity, its plain meaning is to be accepted and applied without
resort to interpretation.' Syl. Pt. 2, Crockett v. Andrews, 153 W. Va.
714, 172 S.E.2d 384 (1970). Syl. pt. 4, Syncor Int'l Corp. v. Palmer,
208 W. Va. 658, 542 S.E.2d 479 (2001).
From the plain language of W. Va. Code §
24D-2-10, it is readily apparent that the statute is completely inconsistent
with the rights the legislature intended to grant apartment tenants and is
contrary to specific provisions of the Act that are designed to protect those
rights. The Act clearly establishes that landlords and cable operators may
not enter into certain agreements. Yet, under the operation of W. Va.
Code § 24D-2-10, when a landlord and cable operator do enter into
an agreement they need not comply with the Act. Such a result is illogical
and repugnant to the stated purpose of the Act.
A well established cannon of statutory construction
counsels against such an irrational result. It is the 'duty of this
Court to avoid whenever possible a construction of a statute which leads to
absurd, inconsistent, unjust or unreasonable results.' State v. Kerns,
183 W. Va. 130, 135, 394 S.E.2d 532, 537 (1990). Expedited Transp.
Sys., Inc. v. Vieweg, 207 W. Va. 90, 98, 529 S.E.2d 110, 118 (2000). We
have also explained that this rule may apply even where the statutory language
is plain:
Although courts should
not ordinarily stray beyond the plain language of unambiguous statutes, we
recognize the need to depart from the statutory language in exceptional circumstances.
2A G. Sutherland, Statutory Construction § 46.07 at 126 (5th ed.
1991) (collecting exceptions). Courts, therefore, may venture beyond the plain
meaning of a statute in the rare instances in which there is a clearly expressed
legislative intent to the contrary, Russello v. United States, 464
U.S. 16, 20-21, 104 S. Ct. 296, 299-300, 78 L. Ed. 2d 17, 22-23
(1983); in which a literal application would defeat or thwart the statutory
purpose, Commissioner v. Brown, 380 U.S. 563, 571, 85 S. Ct. 1162,
1166, 14 L. Ed. 2d 75, 82 (1965); Griffin v. Oceanic Contractors,
Inc., 458 U.S. 564, 571, 102 S. Ct. 3245, 3250, 73 L. Ed. 2d
973, 980-81 (1982); or in which a literal application of the statute would
produce an absurd or unconstitutional result, United States v. Amer. Trucking
Ass'ns, 310 U.S. 534, 543-44, 60 S. Ct. 1059, 1063-64, 84 L. Ed.
1345, 1351 (1940). Where warranted a departure must be limited to what is
necessary to advance the statutory purpose or to avoid an absurd or unconstitutional
result.
Taylor-Hurley v. Mingo County Bd. of Educ., 209 W. Va. 780, 787,
551 S.E.2d 702, 709 (2001) (quoting State ex rel. Frazier v. Meadows,
193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994)). Thus, although the language
of W. Va. Code § 24D-2-10 is plain, in may not be read in a way
that leads to an absurd, inconsistent, unjust or unreasonable result.
Charter argues that W. Va. Code § 24D-2-10
should be applied to exempt from the operation of the Act only initial installations
of cable television services. We find this construction of the statute equally repugnant to the purposes the Act
was clearly intended to serve, namely, providing apartment residents with
the right to access their choice of available cable television service at
a reasonable price and prohibiting landlords from treating apartment dwellers
as a captive market. An agreement entered into at the time of an initial installation
of cable television services is no less of an impediment to the rights granted
to apartment tenants by the Act than an agreement entered into at some later
date. Charter's resolution merely eliminates any choice at the outset, rather
than removing an existing choice. Therefore, we must reject Charter's analysis.
After thoroughly considering W. Va. Code §
24D-2-10, we find no interpretation of the statute that is not repugnant to
the Act. The rule now generally approved is that a proviso which is
directly repugnant to the purview or body of the act is inoperative and void
for repugnancy. In re Robert H., 199 Conn. 693, 703, 509 A.2d
475, 481 (1986) (citations omitted). See also Kane v. City of Marion,
251 Iowa 1157, 1163, 104 N.W.2d 626, 630 (1960) (a proviso repugnant
to the main statute is void); American Can Co. v. McCanless,
183 Tenn. 491, ___, 193 S.W.2d 86, 89 (1946) (the modern rule is that
a proviso or saving clause which is directly repugnant to the purview or body
of the act is inoperative and void for repugnancy.). See generally
73 Am. Jur. 2d Statutes § 220, at 407 (2001) (since
the office of a proviso is not to repeal the main provisions of the act but
to limit their application, no proviso should be so construed as to destroy those provisions. While there is contrary authority, the general
rule is that a proviso which is directly repugnant to the purview or body
of the act is inoperative and void for repugnancy. (footnotes omitted));
82 C.J.S. Statutes § 370, at 493 (1999) (a proviso is not
to be so construed as to make it plainly repugnant to the body of the provision
it limits, and a proviso which is directly repugnant to the purview or body
of the act is inoperative and void.). In this regard, it has been observed
that [t]he legislature cannot be presumed to destroy at birth its own
enactment. Singer, supra, § 47:09, at 241 (footnote omitted).
In accordance with the foregoing authority, we hold
that W. Va. Code § 24D-2-10 (1999) (Repl. Vol. 2001) is repugnant
to the stated intention of the Legislature in enacting the West Virginia Tenants'
Right to Cable Services Act and is, therefore, inoperative and void. Consequently,
a landlord and cable operator may not enter into and enforce an agreement
that does not comply with the provisions of the Act.