Monday, January 26, 2009

Supreme Court injustice

While I'm working on the second part of "Obama and 9/11," I thought you might enjoy reading an op-ed I wrote for the Charleston Gazette a couple weeks ago, but waited to post until they published it, which they did yesterday in the Sunday opinion section. I've already received an angry email from the West Virginia Association of Counties.

Update: Well, the misunderstanding with the Association of Counties has been resolved. And you can now find the Gazette's edited version of this op-ed, with its headline, "Hampshire's 'quiet revolution'," online at Also, I'm sorry I neglected to mention that all the legal documents in this case can be found at the Historic Hampshire website,

Last month, in its ruling in the case, Committee to Reform Hampshire County Government v. Richard Thompson, Speaker of the WV House of Delegates, and Earl Ray Tomblin, President of the WV Senate, the West Virginia Supreme Court of Appeals essentially repealed one of the most truly democratic provisions found in any state constitution in the United States.

Article IX, Section 13 of the West Virginia Constitution allows the citizens of a county to choose the form of government under which they exercise their local democracy. Under this provision, if ten percent of county voters present a petition to “reform, alter or modify” their county commission, and a majority of the county, voting in a referendum, agrees, the Constitution clearly stipulates that, at that point, “the Legislature shall…reform, alter or modify the county commission…and…create another tribunal.” The word “shall” connotes a mandatory duty.

For most of the state’s history, the Supreme Court upheld the intention of the constitution’s framers to give West Virginia citizens the “indubitable, inalienable and indefeasible right” of self-government at the local level—as it said in its Taylor County Commission v. Spencer decision, which also says, “the Legislature is obliged by the constitution to vindicate the desires and designs of the voters of the county.”

In 2004, for the first time in West Virginia history, the Legislature failed to meet this requirement, after Hampshire County submitted a valid petition. In 2005, when the Legislature again refused to pass a bill enabling county citizens to vote on the proposed reform, several Hampshire County residents (including myself) sued the Legislature in Kanawha County circuit court.

Over the course of three separate hearings, the circuit judge decided in our favor on every point. He ruled that the changes our petition proposed (specifically, electing members of an expanded county council by district) were constitutional; that the Legislature has a constitutional obligation to give county citizens a vote on the proposed reform; and that this obligation extends beyond the Legislature to which the petition is submitted.

When the Supreme Court accepted the Legislature’s appeal in early 2008, I knew we were in trouble. The Legislature’s brief was a how-much-spaghetti-will-stick-to-the-wall mishmash, raising issues that had never been litigated at the circuit level. It was a Hail Mary pass whose arguments were easily deflected in the response from our attorney, WVU constitutional law professor Robert Bastress.

My suspicions about our plight were elevated shortly after the Supreme Court hearing in October, in a conversation with another attorney, a friend who has been a close observer of the WV Supreme Court. He told me that, historically, the Court’s decisions were made either “on principle, or on politics,” and our case would likely fall into the “politics” category, so “don’t get your hopes up.” When I replied that he was probably right, since our chief opponent in the legislative process had been the Association of Counties, he just rolled his eyes and said, “Well, there you go.”

I think this is the key to the hidden subtext behind this five-year struggle for our “indubitable” rights. In all the numerous and absurd arguments the Legislature has made for not fulfilling its constitutional duty, its lawyers have raised questions about the constitutionality of virtually every provision in our petition, with one glaring exception: our petition calls for drastically reducing the salaries of the council members, in order to make the reform revenue-neutral.

Of course the Association of Counties was alarmed. If Hampshire County can reduce official salaries, what’s to stop other counties from doing the same thing?

“Politics,” indeed.

Appropriately enough, the Supreme Court decision to quell what a Shepherd University history professor called “the quiet revolution in Hampshire County” was written by Justice Brent Benjamin, who, as a recent Gazette editorial noted, “has become a national symbol of questionable justice.”

Benjamin’s written opinion is as nonsensical as the Legislature’s appeal, but with an Orwellian twist. It claims to be upholding the Spencer precedent, while it completely overturns the real meaning and spirit of that decision. If this decision holds, the fundamental constitutional right of West Virginia citizens to govern themselves at the county level will be left to the whim of legislators who will never have to answer to the citizens whose rights they deny—as it has been for the past five years.

That is why we have filed a motion for the Supreme Court to reconsider its decision. Perhaps, with two new members on the Court, we can get a decision based on principle instead of politics.

But we still don’t have our hopes up.

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