Justices rule against Hampshire residents

By Steve Korris | Dec 17, 2008

Benjamin

CHARLESTON – Kanawha Circuit Judge Paul Zakaib overstepped constitutional lines when he ordered West Virginia legislators to authorize a reform election in Hampshire County, the state Supreme Court has ruled.

Four Justices on Dec. 11 reversed Zakaib, who last year imposed a mandatory duty on legislators to grant a petition of the Committee to Reform Hampshire County Government.

The committee intended to abolish the county commission and establish a tribunal.

"To find that the Legislature has no discretion in deliberating whether to enact enabling legislation to authorize the reform of county government upon receipt of a petition, including whether the matters set forth in the petition would be constitutional, would lead to bizarre and unacceptable results," Justice Brent Benjamin wrote.

Zakaib's reading of the West Virginia Constitution "thwarts the legislative process and the fundamentals of our system of government," Benjamin wrote.

A mandatory duty does not arise for legislators until local voters approve the change, he wrote.

Chief Justice Spike Maynard, Justice Robin Davis and senior status Justice Thomas McHugh agreed.

Justice Larry Starcher dissented and reserved the right to file an opinion.

In 2003, reform committee members Michael Hasty, Vera Anderson, Robert Shilling, Frank Whitacre, Kay Davis, Robert Walker, Shirley Carnahan and Marvin Hott circulated a petition asking the legislature to replace the commission with a tribunal.

Their power rested in Article IX of the state constitution, which allows legislators to "create another tribunal for the transaction of the business required to be performed by the county commission," with the assent of a majority of county voters.

The petition stated that the tribunal would be made up of one member from each voting district and that voters in each district would elect their members.

The petition stated that eight members would serve six year terms.

Winners of the first election would draw lots to determine which two would serve two years, which three would serve four years, and which three would serve six years.

The committee gathered signatures from a tenth of registered voters, triggering a duty on the part of the county commission to relay the petition to legislators.

In 2004, the West Virginia Senate passed an enabling bill but added an expression of serious reservations about the constitutionality of the tribunal.

The bill would have directed the attorney general to test its constitutionality.

The House of Delegates didn't pass the Senate bill or its own bill.

After another legislative failure in 2005, the reform committee sued Speaker Bob Kiss and Senate president Earl Ray Tomblin in Kanawha County circuit court.

Kiss and Tomblin challenged the court's constitutional authority.

They argued that legislators have a right and duty to exercise judgment on all proposals before them and they may examine constitutional parameters of legislation before them.

They maintained that the petition died when the 2004 session ended and the reform committee would have to circulate another petition in order to seek an election.

In April 2007, Zakaib granted the reform committee's declarations.

He found that the Legislature had a duty to enact the enabling legislation and that the duty didn't expire when the session ended.

He found that a county could elect tribunal members by districts.

He found that citizens of each county have a constitutional right to change their county government into any democratically elected form.

County commissioners then passed a resolution voiding the petition, finding it no longer met the ten percent test because the number of registered voters had increased.

When the resolution reached Tomblin and Speaker Richard Thompson, who had replaced Kiss, they moved for relief from Zakaib's order.

In August 2007, Zakaib denied the motion for relief.

On appeal, Tomblin and Thompson argued that Zakaib imposed a constitutional duty to enact unconstitutional legislation.

The petition did not define voting districts, they argued.

The reform committee responded that a court can interpret the constitution to determine a legislative duty without intruding upon legislative prerogative.

The committee cited cases, but four justices agreed that none of their cases resulted in mandatory legislation.

Benjamin wrote that the only mandatory duty imposed on the Legislature is the duty to create another tribunal after a majority of county voters have assented.

"A preceding petition for reformation alone does not trigger this directive for legislative action under the plain language of this constitutional provision," he wrote. "Rather, the petition seeking reformation is an initial step in the process which may lead to such an election."

He spotted another deficiency in the drawing of lots for terms, writing that "a voter would be forced to cast a vote for a tribunal member without knowledge of the length of the term the member would serve."

Finally, the majority held that a reform petition expires at the end of a legislative term.

Earlier this year, while the Supreme Court of Appeals reviewed the case, legislators enacted a bill setting guidelines for reform petitions and legislative review.

Rita Pauley and Ray Ratliff of Charleston represented the Senate, and Joe Altizer represented the House of Delegates. Bob Bastress of Morgantown represented the reform committee.

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