Tuesday, November 29, 2016

A dissent posted today by Justice Benjamin of the West Virginia Supreme Court of Appeals questions whether the state may make it a crime to drive an ATV drunk on your own property.

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 to case law

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.

Irony

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.

The majority opinion is linked here. Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2016/11/a-dissent-posted-today-by-justice-benjamin-of-the-west-virginia-supreme-court-of-appeals-questions-whether-the-state-may-make.html