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IN THE
CIRCUIT COURT OF KANAWHA COUNTY
STATE OF WEST VIRGINIA
THE COMMITTEE TO REFORM HAMPSHIRE
COUNTY GOVERNMENT, MICHAEL HASTY,
VERA ANDERSON, ROBERT SHILLING,
FRANK WHITACRE, KAY DAVIS, ROBERT
WALKER, SHIRLEY CARNAHAN, and
MARVIN HOTT,
Plaintiffs,
VS.
CIVIL ACTION NO. 05-C-1910
The HONORABLE ROBERT KISS, Speaker of the
West Virginia House of Delegates, and the
HONORABLE EARL RAY TOMBLIN, President
of the West Virginia Senate,
Defendants.
FINDINGS OF FACTS,
CONCLUSIONS OF LAW, AND
FINAL ORDER GRANTING DECLARATORY JUDGMENT
FINDINGS OF FACTS
1. The Committee to Reform Hampshire County Government
("the Committee") is an association of citizens who support
better government in Hampshire County and has sought to use
the procedure in Article IX, § 13 of the West Virginia
Constitution to alter and reform the government of
Hampshire County.
2. Plaintiffs Michael Hasty, Vera Anderson, Robert Shilling,
Frank Whitacre, Kay Davis, Robert Walker, Shirley Carnahan,
and Marvin Hott are citizens and residents of Hampshire
County, are affiliated with the Committee, and support
the Committee's goals.
3. In 2003, plaintiffs and others circulated a petition,
pursuant to Article IX, § 13, to alter and reform the
Hampshire County government; a copy of the petition is
attached to the complaint in this action as Exhibit 1.
4. The petition proposed the creation of a county
tribunal "made up of one member from each Hampshire county
voting district" with each member elected by "only the
registered voters" in his or her respective district;
members were to serve staggered six-year terms, receive
no salary other than $250 for each tribunal meeting
attended, and appoint a county administrator "to carry
out the day-to-day business of the county."
5. Plaintiffs succeeded in gathering signed
endorsements of the proposal from more than ten percent
of Hampshire County's registered voters .
6. On March 21, 2003, plaintiffs presented their
petition and signatures to the Hampshire County Commission,
who thereupon requested the Legislature to enact enabling
legislation to permit the citizens of Hampshire County
to vote on the proposal and, if it is approved by a
majority of those voting, to implement the change.
7. During the 2004 legislative session, the Senate
passed an enabling bill, S.B. 727, that, if enacted,
would have put the question of reforming Hampshire
County government to the citizens of that county.
The bill accompanied the complaint as Exhibit 2.
8. S.B. 727 and a corresponding House Bill,
H.B. 4396, were introduced in the House of Delegates
during the 2004 session, but the House did not pass
either bill. H.B. 4396 is attached to the
complaint as Exhibit 3.
9. During the 2005 legislative session,
H.B. 3291 was submitted to implement the request
of the Hampshire County Commission but was not
enacted by the Legislature; the bill is attached
to the complaint as Exhibit 4.
10. The Legislature did not enact the enabling
legislation during the 2006 legislative session.
11. The legislative failure to enact a law was
the result, at least in part, of a concern
about the constitutionality of electing tribunal
members by only the vote of a member's district
rather than by county-wide election.
12. If the enabling legislation is passed,
as required by Article IX, § 13, public funds will
need to be invested in conducting a referendum of
Hampshire County voters on the proposed reform.
13. If a referendum is conducted, if the
Hampshire County voters approve the proposed
reform, and if the reform's method of electing
tribunal members is thereafter declared to be
unconstitutional, public funds will have been
spent for naught.
CONCLUSIONS OF LAW
1. Article IX, § 13 of the West Virginia
Constitution provides that "[w]henever a county
commission shall receive a petition signed by ten
percent of the registered voters of such county
requesting the reformation, alteration or modification
of such county commission, it shall be the mandatory
duty of such county commission to request the
Legislature, at its next regular session thereafter,
to enact an act reforming, altering or modifying such
county commission and establishing in lieu there of
another tribunal for the transaction of the business
required to be performed by such county commission,
such act to take effect upon the assent of the voters
of such county[.] "
2. The Legislature has a mandatory duty to enact
the enabling legislation that will permit Hampshire
County citizens to vote on the proposed alternative
form of government. West Virginia Constitution,
Article VI, §§ 39 and 39a and Article IX, § 13;
Taylor County Commission v. Spencer, 169 W.Va. 37,
285 S.E.2d 656 (1981).
3. A county may alter its county commission by
creating a tribunal whose members are elected only
by the voters within each member's district.
West Virginia Constitution, Article VI, § 39a and
Article IX, § 13; Taylor County Commission v. Spencer,
169 W.Va. 37, 285 S.E.2d 656 (1981).
4. The Legislature's duty under article ix, § 13
to honor a county's request for a referendum on county
government reform does not expire with the end of the
legislative term. West Virginia Constitution,
Article IX, § 13; Crain v. Bordenkircher, 193 W. Va. 362,
456 S.E.2d 206 (1995); Taylor County Commission v. Spencer,
169 W.Va. 37, 285 S.E.2d 656 (1981); Pauley v. Kelly,
162 W.Va. 672, 718, 255 S.E.2d 859, 883 (1979).
5. Article III, § 3 and Article IX, § 13 of the
West Virginia Constitution guarantee to the citizens
of each county the right to alter and reform their
mode of county governance into any
democratically-elected form.
FINAL ORDER GRANTING DECLARATORY JUDGMENT
Based on the foregoing findings and conclusions,
the Court hereby ORDERS that the plaintiffs are entitled
to a declaratory judgment stating:
A. The defendants have a constitutional duty
to process enabling legislation permitting Hampshire
County voters to vote on the proposed reform of the
government of Hampshire County;
B. The proposed reform of the government of
Hampshire County, including the creation of a tribunal
of members elected from and by each of the County's
election districts, would be constitutionally valid
if and when it is approved by the voters of Hampshire County.
________________________________
Honorable Paul Zakaib, Jr.
Judge, Kanawha Circuit Court
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