Monday, September 29, 2008

Reflections on a lawsuit

Today's post is an op-ed I sent this afternoon to the Hampshire Review, where I used to write a column. It's about a lawsuit, in which I'm a plaintiff, against the West Virginia legislature. The WV Supreme Court hears their appeal next week.

Thanks to Online Journal and Smirking Chimp for picking up the "Obunny" post.

Next week, on Tuesday, October 7th, the West Virginia Supreme Court will hear the Legislature’s appeal in the case, Committee to Reform Hampshire County Government v. Richard Thompson, Speaker of the West Virginia House of Delegates, and Earl Ray Tomblin, President of the West Virginia Senate. The legislature has lost three times at the circuit court level.

The suit was filed in August 2005, in response to the legislature’s failure to pass an enabling bill, which would allow the citizens of Hampshire County to vote in a referendum on the changes to county government proposed in a petition signed by ten percent of the county’s voters, and submitted to the legislature in 2003—the first time in West Virginia history that a legislature has failed to perform this required constitutional function.

The petition proposes that a county “tribunal” (an unfortunate term that we’d change to “council” if we had to do it over again, but we got it straight from the Constitution), consisting of representatives from each electoral district (eight in our case, replacing the present three at-large county commissioners), and paid $250 per meeting each (instead of the fulltime salary and benefits commissioners get now), hire a fulltime county administrator to execute the day-to-day functions of the county government.

The change would be that the county’s ruling body would function more as a part-time citizen legislature, with a representative elected from each district, and with more efficiency than the current part-time, legislative/executive hybrid. The present county commission system is left over from colonial Virginia’s aristocracy, and designed to keep the peasants in their place—as Shepherd University history professor John Stealey observed in his study of our historically altered process, “Quiet Revolution in Hampshire County.”

The change was designed to be revenue-neutral—counter to its opponents’ claims. The savings that would come from paying eight council members, per meeting, instead of paying three county commissioners full salary and benefits, is almost, in itself, enough to pay a fulltime county administrator. The rest would come from the efficiencies that would result from having a fulltime executive coordinating the activities of the existing county offices, which would retain their single-purpose autonomy. The council/administrator model is one of the most common forms of county government in America.

As a plaintiff in the lawsuit, and the only Hampshire County citizen who’s attended all three circuit court hearings, I thought Review readers might be interested in a few of my observations.

First, I will attend next week’s Supreme Court hearing with some sense of dread. We have won every question about the legislature’s responsibility presented to the circuit judge, but the Supreme Court declined to accept our petition for confirmation of the judge’s rulings. The legislature’s appeal was a how-much-spaghetti-sticks-to-the-wall laugh riot, raising issues that had never been litigated at the circuit level. The fact that the Supremes took their case is a bad sign, because our entire case is based on an earlier Supreme Court decision, Spencer v. Taylor County Commission, which gives the final word on the form of county government to the citizens of the county—not the state legislature.

The recent anti-democratic trend throughout the American system of justice (and not just in now-notorious West Virginia), like the US Supreme Court ruling about using eminent domain for private profit, for example, is also worrisome. And our biggest opponent in the legislature has been the Association of Counties, representing all those local officials who are worried that if we cut salaries in Hampshire County, their citizens can cut theirs—and judges in West Virginia are elected by local machines.

We carry the additional legal burden that our pro bono attorney, WVU constitutional law professor Bob Bastress, ran against the chief justice, who’ll be sitting on the bench Tuesday, in last May’s Democratic primary (they both lost).

Second, from the very beginning, I have been impressed by the nonpartisan cooperation that has characterized our local campaign. The plaintiffs list includes Democrats, Republicans and independents. I think it’s important to mention two in particular.

Republican Bob Shilling is no longer on the list, because he passed away last year. Bob had a gentle good humor about him, and we kidded each other about our political opinions mercilessly. As everyone who knew him (and most did) recognized, he was a tireless contributor to the community, from the teen center to the library, and he always put his “country first.” We were both veterans, so we spoke with the understanding that brings. The last time we talked was on his front porch, and he was hoping he’d live long enough to vote in the referendum. We carry on in his honor.

Democrat Frank Whitacre is still on the plaintiffs list, but come January, he’ll no longer occupy the office of county assessor, having lost the primary. Frank is the innocent victim of a crazy real estate market and his own scrupulous honesty, but the last time I saw him, he was looking forward to retirement. Frank was alone among his fellow elected officials, in having the courage and integrity to support a change in county government that he believes will make the county better, and supporting it for all the right and honest and patriotic reasons.

This brings me to my final observation. Where Frank and I agree is that this is an important case—certainly more important than the attention it’s received so far.

At the heart of this case is the most basic principle of republican government—that citizens have the right to choose the form of government under which they govern themselves in a democracy, with a level of representation in the governing body that they themselves design. Article IX, Section 13 of the West Virginia Constitution is one of the most radically democratic provisions in any state constitution in America, in putting true power in the hands of local citizens.

If the West Virginia Supreme Court reverses its own precedent in this case, another door to real democracy in America will have closed.

I’ll be writing about the Supreme Court hearing in future posts. Legal documents from the case can be viewed at the Historic Hampshire website (

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