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Home Rule Program could face constitutional challenge

February 11, 2019

In 1936, West Virginia adopted a constitutional Home Rule Amendment. Prior to this constitutional amendment, the Legislature, with minimal restriction, was empowered to exercise its absolute power over municipalities through special acts. Article 6, Section 39(a) of the West Virginia Constitution provides, in pertinent part, “Under such general laws, the electors of each municipal corporation, wherein the population exceeds two thousand, shall have power and authority to frame, adopt and amend the charter of such corporation, or to amend an existing charter thereof, and through its legally constituted authority, may pass all laws and ordinances relating to its municipal affairs: Provided, that any such charter or amendment thereto, and any such law or ordinance so adopted, shall be invalid and void if inconsistent or in conflict with this constitution or the general laws of the state then in effect, or thereafter from time to time enacted.”

The state Constitution establishes that state law controls if, and when, a municipal ordinance is inconsistent with state law or in direct conflict with state law. This is a fundamental principle of home rule. Home rule creates local autonomy and limits the degree of state interference in local affairs. Under the broad definition of home rule, a municipality can do anything that’s not explicitly denied by the state Constitution or the general laws promulgated by the Legislature.

In 1969, the Legislature adopted a set of laws to give effect to the Municipal Home Rule Amendment. West Virginia Code Chapter 8 establishes the Municipal Code of West Virginia, and it fleshes out the Home Rule Amendment and establishes uniformity with respect to certain subjects such as taxation, annexation and revenue bond financing.

Therefore, municipalities cannot nullify a general law that is specifically enacted by the Legislature with the intent to bind all municipalities according to the state Constitution. Furthermore, the Legislature cannot grant municipalities the power to nullify state law without an amendment to the state Constitution, and even then such an arrangement would make for a nearly unworkable division of power. Nevertheless, in 2007 the Legislature passed Senate Bill 747, which created the Municipal Home Rule Pilot Program to be administered by the Home Rule Board. The Legislature is currently considering making the Home Rule Pilot Program permanent.

Under the Pilot Program, those cities accepted into the Pilot Program by the Home Rule Board are allowed to implement changes in local governance without regard for state law or rules (subject to specifically enumerated prohibitions) as long as the changes do not violate federal law or the Constitution of the United States or the Constitution of the state of West Virginia. However, that subtle change to allow certain cities to pass ordinances without regard for state law is what may make the Pilot Program and any permanent extension of the Pilot Program unconstitutional.

The Pilot Program, in essence, has allowed a select few municipalities, including Huntington, to disregard Article 6, Chapter 39(a) of the state Constitution and act without regard to the Municipal Code of West Virginia. The Legislature cannot confer more power on a municipality than is granted by the state Constitution. The state Constitution provides that when a municipal ordinance is inconsistent or in conflict with state law, the state law controls. The Legislature, without an amendment to the State Constitution, cannot confer more authority on a select number of municipalities than what is provided by the state Constitution.

TheHomeRulePilotPro The Home Rule Pilot Program is how some cities are able to levy both a business and occupation tax as well as a municipal sales and use Tax, which is contrary to clearly established state law as outlined in the Municipal Code of West Virginia.

If the state wants to give municipalities flexibility to pass ordinances that reflect local affairs, then the best option would be for the Legislature to stop regulating those areas of the law where the Legislature wants to provide some local flexibility and leave it to the municipalities to regulate as they are constitutionally permitted to do under Article 6, Chapter 39(a) of the state Constitution. However, what is currently occurring is that the state is regulating certain subject matters that are uniform across the state but then granting select municipalities the option to abrogate clearly established law even though the state Constitution prohibits such a grant of authority. That is inequitable and unconstitutional.

The failure to amend the state Constitution to reflect the intent of the Home Rule Pilot Program in allowing municipalities to pass ordinances without regard for state law is leaving the door open to a constitutional challenge to the Home Rule Program if the Legislature makes it permanent.

Nigel E. Jeffries is an attorney from Charleston.

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