West Virginia Record

Thursday, February 20, 2020

Huntington wants residency ordinance reinstated

By Kelly Holleran | Sep 4, 2008

CHARLESTON -- A Huntington ordinance that requires all civil service employees to live in Huntington city limits was declared void, but the city of Huntington would like to see it reinstated.

On Sept. 3, the city asked the state Supreme Court to reverse Cabell Circuit Court Judge John L. Cummings's 2007 decision that declared the ordinance void.

Jason Eastham, who is employed by the Huntington Fire Department, claims the ordinance is a violation of his due process rights. He says the ordinance mandates "immediate termination" of civil service employees who do not live in city limits, and that is where the violation occurs.

Eastham was hired by the city after July 1, 2002. The ordinance states that anyone hired after this time is required to become a resident of Huntington.

The ordinance also states that, "failure of any officer, employee of appointee in the classified civil service of the unclassified positions of the City of Huntington to comply with the provisions of this section shall result in the immediate discharge from the City service," according to a brief Bert Ketchum and Paul T. Ferrell, counsel for Eastham, filed in the West Virginia Supreme Court of Appeals.

Eastham claims that because the ordinance is a violation of his due process right, it is unconstitutional.

"Ordinances that are not in accordance with the Constitution should be stricken," Ketchum said during an oral argument before the Justices. "I don't think it works any more. It's antiquated."

Huntington argues that Cabell Circuit Court construed the language to make the ordinance unconstitutional.

"Whether the ordinance indicates 'removal or discharge' or 'immediate discharge' the application and interpretation should be identical," Scott McClure, counsel for Huntington, wrote in a brief. "A simple analysis of the operative language shows that the Circuit Court had drawn an unwarranted distinction."

Further, the city claims the court could have taken the word "immediate" out of the ordinance and declared it legal.

"It strikes down a whole charter provision when it could have struck one word," McClure said during an oral argument before the Justices.

The ordinance was put on the books to make people who enforce the laws part of the community and is not out-of-date, McClure said.

"It's not nearly as antiquated as Mr. Ketchum's made you believe," he said.

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West Virginia Supreme Court of Appeals