Steve Hardwick and Sharon Nalley v. Town of Ceredo

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Steve Hardwick and Sharon Nalley, FILED January 14, 2013 Defendants Below, Petitioners RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

vs) No. 11-1048 (Wayne County 09-CM-004, 005 & 006) Town of Ceredo, Plaintiffs Below, Respondent

MEMORANDUM DECISION

Petitioners Steve Hardwick and Sharon Nalley, by counsel Cathy L. Greiner, appeal the June 7, 2011 order of the Circuit Court of Wayne County denying their appeal from convictions in municipal court. Respondent Town of Ceredo, by counsel Lora L. Lake, has filed a response.

The Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.

On November 12, 2009, petitioners were convicted in the Municipal Court of Ceredo for violations of § 505.16 of the Codified Ordinances of the Town of Ceredo, which prohibits ownership of pit bull terriers within the Town of Ceredo. Each petitioner was fined $162, plus costs. Thereafter, petitioners appealed their convictions to the Circuit Court of Wayne County. Pursuant to an order entered on June 7, 2011, the circuit court upheld petitioners’ convictions.

On appeal, petitioners allege that the circuit court erred in denying their appeal because the ordinance in question is unconstitutional in that it is arbitrary and unreasonable. According to petitioners, the ordinance assumes a dog to be vicious based merely upon its breed without any further evidence of viciousness. In response, the Town of Ceredo argues that West Virginia Code § 8-12-1, et seq., grants municipalities general police powers to protect their communities. Respondent asserts that it has a legitimate interest in protecting its residents against the dangers of pit bulls and that the ordinance in question is constitutional because it is rationally related to that legitimate interest.

“‘This Court reviews the circuit court’s final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.’ Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).” Syl. Pt. 1, State v. Smith, 225 W.Va. 706, 696 S.E.2d 8 (2010). After careful consideration of the parties’ arguments, this Court concludes that the circuit

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court did not abuse its discretion in denying petitioners’ appeal. Having reviewed the circuit court’s “Order” entered on June 7, 2011, we hereby adopt and incorporate the circuit court’s well-reasoned findings and conclusions as to the assignment of error raised in this appeal. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

For the foregoing reasons, we find no error in the decision of the circuit court and its June 7, 2011 order denying petitioners’ appeal is affirmed.

Affirmed. ISSUED: January 14, 2013 CONCURRED IN BY:

Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Allen H. Loughry II

DISQUALIFIED: Justice Menis E. Ketchum

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