Justice Larry Starcher

Justice Brent Benjamin

CHARLESTON -- The city of Charleston is weighing its options a week after the state Supreme Court said it must put its user fee up for vote.

Meanwhile, one Supreme Court justice said the $1 weekly fee is a burden on low-income workers in the city. While another justice said the city shouldn't be forced to have an election on the issue.

On Dec. 1, the court ruled Charleston's fee was constitutional but said the city hadn't followed proper notification procedures when enacting the fee. So, the Court ruled, the city must allow residents to vote on the issue.

Rod Blackstone, assistant to Mayor Danny Jones, said the city still is weighing all of its options.

"We're still considering what our options might be," Blackstone said Thursday. "There has been some talk about the city asking the court to reconsider the case."

But, Blackstone stressed, nothing has been decided yet.

In a concurring opinion issued Dec. 1, Supreme Court Justice Brent Benjamin said he wouldn't have ordered an election. Rather, he said state code allows cities to file public notice before imposing a new fee. During the 30 days after that, opponents have the opportunity to gather signatures from 30 percent of city voters to trigger a special election.

If that doesn't happen, "the city and its citizens should be spared the expense of a special election," Benjamin wrote in his concurring opinion.

In his concurring filed last week, state Supreme Court Justice Larry Starcher called Charleston's fee a burden on low-income workers in the city.

"I recognize the importance of the purposes for which the fee was enacted and I have no personal objection to paying the fee," Starcher wrote. "The fee, however, is not assessed against some segments of the population that receive the same services paid for by the fee, while the fee overly burdens others. For these reasons I believe the City should seek a more equitable assessment mechanism."

As an example, he states that wealthy, retired residents living in Charleston avoid the fee because they're not on a payroll somewhere in the city. Other professionals, such as physicians, may live in Charleston and work elsewhere, he said. Yet they still receive the benefits of police protection and paved roads.

Starcher also writes that some people might have to work two jobs in the city and pay double.

"Counsel for the City confessed before this Court in oral argument that there was no practical mechanism in place to avoid this," Starcher wrote.

If a city does end up having a special election on the fee, officials say it will cost about $190,000.

Blackstone said the city will need $70,000 for election costs, such as printing ballots, and paying poll workers. The other $120,000 would be needed for city payrolls because state law requires the city to give its workers the day off for elections.

"We're confident the citizens of Charleston realize the benefits derived form the user fee," Blackstone said. "As the mayor says, 'The fee is for that which you can see.' You can see the police on the street, and you can see the all of the paving.

"We continue to fulfill the promise we gave when we enacted the fee to use it only for those two purposes.

"We think the citizens of Charleston support the fee. And if not, we'll be back to the police force we had few years ago and almost no new paving."

Jones repeatedly has said he won't raise Charleston's fee while he is in office. Blackstone said the fee has brought about $4 million – about $2.5 million a year – to the city coffers since it was enacted.

Also last week, state Sen. Vic Sprouse, R-Kanawha, proposed last week that a $2 weekly cap be placed on city user fees across the state. Currently, Charleston and Weirton have $1 weekly fees, and Huntington has a $2 weekly fee.

Supreme Court of Appeals case number: 32612

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