Justice Spike Maynard

The state Supreme Court has ordered the City of Charleston to have an election to allow residents to decide whether to keep the $1-a-week user fee.

In a ruling filed Dec. 1, the court upheld the user fee, saying the city has authority to impose such a fee. However, the court said the city din’t follow the state’s requirements for notice and publication, so the vote is required.

Two notices published by the city before passage of the ordinance did not give people enough time to exercise their right to protest the plan, the court said.

The ruling was 4-1 with Justice Larry Starcher dissenting. Justice Spike Maynard wrote the opinion.

Plaintiff Thornton Cooper, a South Charleston resident who works in Charleston, has fought against the fee since it was enacted in 2003. He calls the fee an unconstitutional tax.

The issue went to the Supreme Court after Cooper appealed a 2004 ruling by Kanawha Circuit Judge James Stucky, who upheld the fee.
The city collects about $2.5 million annually from the fee and uses it for police protection and street maintenance.

"... this Court affirms the decision of the circuit court insofar as it determines that the 'user fee”' is a fee and not a tax and concludes that the City of Charleston had the authority to enact such a fee," the ruling states.

Two other West Virginia cities have similar fees. Huntington and Weirton both have $2-a-week user fees.

Read the full opinion on Pages 4-5.

Supreme Court of Appeals case number: 32612

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