                                                                               FILED
                                                                          November 28, 2016
No. 15-1044 – Patricia S. Reed v. Joshua D. Beckett                           RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA 


BENJAMIN, Justice, dissenting:

              The most solemn duty of an American court lies in its pledge to protect the

rights and liberties of private citizens from encroachment by the State. Here, the Majority

not only badly misread applicable statutory law, it also sanctioned the infringement of two

of our most basic natural rights: the right to do what one wants to do in the privacy of

one’s estate so long as another is not harmed and the right to be left alone. As trustees of

the wisdom and vision of our founders, this Court failed mightily.



              It is unquestioned that Joshua Beckett’s use of his property was a matter of

his own free choice. That it may be said that operating an all-terrain vehicle (“ATV”)

exclusively on one’s private property, i.e., the family farm, after having consumed alcohol

was a “stupid” use of the property misses the point. So long as Mr. Beckett did not infringe

upon the rights of others or put others at risk, it was his choice to act “stupidly.” As set

forth by Justice Potter Stewart:

              The right to enjoy property without unlawful deprivation, no
              less than the right to speak or the right to travel, is in truth, a
              “personal” right . . . . In fact, a fundamental interdependence
              exists between the personal right to liberty and the personal
              right in property. Neither could have meaning without the
              other.

Lynch v. Household Fin. Corp., 405 U.S. 538, 552 (1972).




                                              1
 
                             The essence of our rights lies not in words on a paper, but in their full

realization from the enjoyment we experience in the pursuit of our daily affairs.1 Indeed,

it is the use of one’s estate from which life and liberty take form.2 In classic Jeffersonian

thought, embodied in the opening sentences of the Declaration of Independence, the

legitimate end of government is to protect the private realm whereby citizens may freely

embrace their natural rights, not to intrude into such private estates thereby frustrating the

exercise of such rights.3

                                                            
              1
                     [I believe] that a right to property is founded in our natural wants, in
              the means with which we are endowed to satisfy these wants, and the right
              to what we acquire by those means without violating the similar rights of
              other sensible beings; that no one has a right to obstruct another, exercising
              his faculties innocently for the relief of sensibilities made a part of his nature
              ....

Letter of Thomas Jefferson to P.S. DuPont de Nemours, April 24, 1816, Writings, v.10,
p.24.
              2
          The realization of liberty lies in terms of non-interference by public authorities in
the lives of citizens. This concept, essential to our nation’s founding and our Virginia
heritage, derives from the political thoughts of John Locke, Adam Smith, George Mason,
Thomas Jefferson, James Madison, and our other Founders. The Founders firmly believed
that the human right to private property had to be protected as the basis for individual
liberty, a free society and a free economy. The limitation on state power, being so clearly
linked to liberty, derives from our natural rights (i.e., the inalienable rights that are
independent of and antecedent to the institutions of men and governments—thereby not
being subject to the whims or wants of such institutions) and is embodied in our Declaration
of Independence, the United States Constitution, the Constitution of West Virginia, the
Virginia Declaration of Rights, and the Constitution of Virginia.
              3
        This justification for government by Jefferson echoes the moral philosophy of John
Locke, in his Second Treatise on Government (1690). In a letter, Jefferson wrote:

              Our legislators are not sufficiently apprized [sic] of the rightful limits of their
              power; that their true office is to declare and enforce only our natural rights
              . . . and to take none of them from us. No man has a natural right to commit
                                                               2
 
                             It is from this proposition of natural law, upon which our society is founded,

that one has the unfettered right to act as he will in the privacy of his home and property,

whether that be smart or stupid, save only that he be competent and that he not infringe the

rights of others.4 The West Virginia Legislature, in expressly limiting by definition the

reach of West Virginia Code § 17C-5-2(e) (2010), understood this. The Majority of this

Court did not.



                             Driving under the influence of an intoxicant may be a serious threat to the

individual rights of other citizens. The power of the State to monitor and regulate the


                                                            
              aggression on the equal rights of another; and this is all from which the laws
              ought to restrain him . . . and the idea is quite unfounded, that on entering
              into society we give up any natural right.

Letter of Thomas Jefferson to Francis W. Gilmer, June 27, 1816, Writings, v. 10, p. 32.
Stated differently, without the rights attendant to property, there is no liberty.
              4
         The Constitution of West Virginia, at Article III, Section 1 expressly recognizes
this Jeffersonian/Lockean view of natural rights whereby life and liberty is realized by the
enjoyment of the use of one’s property:

                             All men are, by nature, equally free and independent, and have
                             certain inherent rights, of which, when they enter into a state
                             of society, they cannot, by any compact, deprive or divest their
                             posterity, namely: The enjoyment of life and liberty, with the
                             means of acquiring and possessing property, and of pursuing
                             and obtaining happiness and safety.

When the use and enjoyment of one’s property is unreasonably constrained, it logically
follows that the natural rights of life and liberty become severely restricted.
 
                                                               3
 
behavior of a given citizen with respect to such driving derives from the obligation of the

State to protect the health, safety and general welfare rights of its other citizens. This is

commonly referred to as the “police power” doctrine and is based in the Tenth Amendment

of the United States Constitution as restricted by the Privileges and Immunities Clause

made applicable to the various states by the Fourteenth Amendment.5 In other words,

government control and regulation over an individual’s private use and enjoyment of his

or her property must be reasonable and have a clear relation to some legitimate purpose

which protects the rights of other citizens; otherwise, the State’s actions constitute an

unwarrantable invasion of that individual’s natural rights.



                             Proper governmental action is calculated to prevent a conflict of rights and

to insure to each citizen the uninterrupted enjoyment of his or her own rights, so far as is

reasonably consistent with a like enjoyment of rights by others. Thomas M. Cooley, A

Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the

States of the American Union 572 (Little, Brown & Co. ed., 1868). Thus, the exercise of

one’s rights should not be restricted by the state unless such a restriction is both necessary

and proper. West Virginia’s Legislature understood this in enacting West Virginia Code §

17C-5-2(e) (2010), by utilizing language, defined elsewhere in the statutory section, which

expressly excludes Mr. Beckett’s private behavior herein from coverage under the statute.


                                                            
              5
          Article III, Section 3-3 of the Constitution of West Virginia provides:
“Government is instituted for the common benefit, protection and security of the people,
nation or community.”
                                                               4
 
              West Virginia Code § 17C-5-2(e) (2010), in effect at the time Mr. Beckett

operated his ATV, proscribes any intoxicated person from driving “a vehicle in this state.”

At issue is whether Mr. Beckett’s conduct comes within this language. It does not. The

Majority focuses exclusively on the phrase “in this state,” misapplying its statutory

definition. The Majority fails completely to consider the statutory definition of the term,

“vehicle.” This was error upon error.



              The Majority correctly looks to West Virginia Code § 17C-5-2a(a) to define

“in this state.” In so doing, however, the Majority ignores the clear import of the

Legislature’s limiting language that for there to be applicability of West Virginia Code §

17C-5-2(e), the use of a subject vehicle must be in a location “nonetheless open to the use

of the public for purposes of vehicular travel.” By the addition of this instructive language,

the Legislature understood the limitations of its police powers, consistent with the rights

of private property owners. Mr. Beckett’s use of his ATV was purely private, on private

family land, for purely private purposes. There is no evidence in the record whatsoever

that this private use had any impact on other citizens. Likewise, there is no evidence that

Mr. Beckett’s behavior in any way would have any adverse impact on any other citizen.

To the extent that the Department of Motor Vehicles (“DMV”) contends that the State has

an interest in regulating or constraining Mr. Beckett’s private behavior on his private

family farm, it failed to introduce such evidence by which a consideration of

reasonableness for state action might be made. An interest in saving Mr. Beckett from the

                                              5
 
consequences of his own stupidity, though admittedly a tempting endeavor, is insufficient

to overcome Mr. Beckett’s right to do as he pleases.



             The Majority opinion furthermore fails because, by statutory definition, an

ATV does not come within the definition of “vehicle” under West Virginia Code § 17C-5-

2(e) (“drives a vehicle in this state”). The term, “vehicle,” is defined by West Virginia

Code § 17A-1-1(a) (2010) as “every device in, upon or by which any person or property is

or may be transported or drawn upon a highway.” (Emphasis added). Here, Mr. Beckett

was not transported or drawn upon a highway, so the term “is” is not applicable. The term

“may,” being permissive, requires that the transportation device may properly be used upon

a highway. By statutory definition, however, an ATV is neither designed for nor permitted

to be used on highways. West Virginia Code § 17A-1-1(ii) defines an “ATV” as “any

motor vehicle designed for off-highway use.” (Emphasis added). Furthermore, West

Virginia Code § 17F-1-1(a) (2004) provides:

                      No all-terrain vehicle may be operated in this state:
                     (1) On any interstate highway except by public safety
             personnel responding to emergencies; or
                     (2) On any road or highway with a center line or more
             than two lanes except for the purpose of crossing the road,
             street or highway . . . .

An ATV may not be used upon a highway—a necessary requisite to applicability of West

Virginia Code § 17C-5-2(e) to the conduct at issue. While Mr. Beckett’s use of an ATV on

his family farm after consuming alcohol may be condemned on any number of moral and




                                            6
 
health-related grounds, his use of the ATV simply is not covered by the statute for DUI

purposes.



                             To support its expansive creativity, the Majority asserts that its research,

listed in a footnoted string citation, shows that “nearly two dozen jurisdictions” support its

logic. A careful review, however, reveals that none of the cited cases, save one, supports

the Majority’s conclusions that the private use of an ATV by an individual on his private

property while intoxicated is criminal conduct.6



                                                            
              6
        Madden v. State, 555 S.E.2d 832, 834 (Ga. Ct. App. 2001), involved an individual
driving a car trying to run down a pedestrian in a mobile home park. State v. Allen, 431
S.E.2d 563, 564 (S.C. 1993), involved an individual driving a truck in another person’s
private driveway. Sanders v. State, 846 S.W.2d 651 (Ark. 1993), involved a private
roadway open to public use. People v. Malvitz, 14 Cal. Rptr. 2d 698, 701 (Cal. App. Dep’t
Super. Ct. 1992), involved a private paved road in a storage area open to members of the
storage area. Chilcutt v. State, 544 N.E.2d 856, 858–59 (Ind. Ct. App. 1989), set forth that
the “facts reveal that there were third parties who were permitted on this property, an
example being the owners of the property, who could have been endangered by defendant’s
operation of the vehicle.” Allen v. Girard, 745 P.2d 192, 194 (Ariz. Ct. App. 1987),
involved an individual “driving on the wrong side of the road in La Reserve, an Estes
Company subdivision development project. It is undisputed that La Reserve was private
property at the time, although it was not appellant’s property.” State v. MacDonald, 527
A.2d 758, 759 (Me. 1987), involved the operation of a motor vehicle in a private driveway.
Zink v. State, 448 So. 2d 1196, 1197 (Fla. Dist. Ct. App. 1984), involved a trespassing
individual “‘spinning donuts’ in the dirt of a construction site on private property owned
by Alton Box Company. He had no possessory or proprietary interest in the property.”
Dayhoff v. State, Motor Vehicle Div., 595 P.2d 1051, 1053 (Colo. App. 1979), involved a
parking lot located on private property used by the public. People v. Guynn, 338 N.E.2d
239, 241 (Ill. App. Ct. 1975), stated that “[t]here is nothing in the record to indicate the
circumstances surrounding defendant’s arrest. There is no showing where defendant was
when arrested or what he was doing at that time.” State v. Layssard, 310 So. 2d 107, 110
(La. 1975), set forth that a

                                                               7
 
                                                            
              witness was looking out his front door when he caught a glimpse of a vehicle
              pass on the road in front of his house, heard the noise of gravel, and
              immediately heard the sound of a vehicle striking something. He looked up
              and saw the defendant behind the wheel of his truck, having crashed through
              a fence and into a utility line and into a tree in a neighbor’s yard across the
              street.

State v. Bruce, 231 A.2d 107, 109 (Vt. 1967), set forth that “[t]he attendant at the station
first saw the respondent’s car as it was pulling off the road and entering the driveway into
the filling station.” Farley v. State, 170 So. 2d 625, 627 (Miss. 1965), set forth that
“[a]ctually the state’s evidence showed that the defendant, while under the influence of
intoxicating liquor, not only drove the motor vehicle down the driveway, but that he also
drove it onto the right-of-way of the highway and to the edge of the pavement.” State v.
Piette, 16 Conn. Supp. 357, 357 (Conn. Super. Ct. 1949), set forth that “it would appear
that the operation [of the vehicle] was upon property which had at least a quasi-public use.”
State v. Weston, 202 S.W.2d 50, 53 (Mo. 1947), set forth that

              [a] highway patrolman saw the appellant drinking in the Womack Hotel
              about 11 o’clock in the morning. The city marshal of Fredericktown testified
              that he saw the appellant drive an automobile from in front of the Womack
              Hotel, on the south side of the courthouse, towards the east. A state liquor
              officer saw him get out of the automobile in front of Hunter’s Cafe. At that
              time he staggered as he walked. In a few minutes the city marshal arrested
              him.

State v. Dowling, 216 N.W. 271 (Iowa 1927), set forth that the defendant was driving “over
and upon the streets of Webster City, Iowa.” Gray v. Commonwealth, 477 S.E.2d 301, 302
(Va. Ct. App. 1996), involved a privately owned parking lot open to the public. Locklear
v. State, 614 A.2d 1338, 1341 (Md. Ct. Spec. App. 1992), involved a trespasser who
“grab[bed] a white female . . . by the hair, dragging her towards the Dodge truck.” The
defendant “had no permission to drive his truck on the Genstar property.” Id. State v.
Frank, 442 N.E.2d 469, 470 (Ohio Ct. App. 1981), set forth that “the defendant-appellant
conceded that she had been operating a late model automobile on the parking lot of a
shopping center in the early morning hours of April 26, 1980.” Commonwealth v.
Campbell, 28 Pa. D. & C. 260, 260 (1936), set forth that “[t]he facts are that on June 13,
1936, defendant, while under the influence of intoxicating liquor, drove his car for a
distance of about two blocks on the West Hill road located in Snowden Township.” This
was a privately owned road maintained by a coal company that was used by many other
people, including a settlement known as Montour Ten Patch. Id.

      One cannot make any conclusion as to the precedential effect of State v. Watson,
787 P.2d 691, 692 (Haw. 1990), because there was no factual development in the written
                                                               8
 
                             By no measure does the Majority opinion find legitimacy in constitutional,

statutory, or common law. While the rights with which we are endowed are scarcely a

topic of measured circumspection in our fast moving society, it falls to our courts to be

vigilant that such natural rights are protected. This includes, as here, the importance of

protecting the right to the private use and enjoyment of one’s private property.



                             In 1816, Jefferson wrote to his friend, Samuel Kercheval, a Virginia writer:

“The true foundation of republican government is the equal right of every citizen, in his

person and property, and in their management.” Letter of Thomas Jefferson to Samuel

Kercheval, June 12, 1816, Writings, v. 10, p. 39. This quotation crowns the courtroom of

the Supreme Court of Appeals of West Virginia. How ironic.




                                                            
opinion. The only case which might lend support to the Majority opinion is Lynch v.
Commonwealth, 902 S.W.2d 813, 814 (Ky. 1995), wherein the

              Appellant had finished work and returned to his home situated on agricultural
              property which is reached by a private driveway (one-quarter of a mile or
              more) from the public road to the dwelling. A confrontational argument at
              the home ensued, which resulted in the placing of a 911 telephone call.
              Appellant, while continuing to drink intoxicants, then operated his motor
              vehicle from the dwelling to approximately halfway down the drive, where
              he encountered two police vehicles which had entered the driveway.
                                                               9
 
