Morgantown attorney briefs business community on proposed state constitutional amendments

Oct. 15—BRIDGEPORT — While the Harrison County Chamber of Commerce hasn't taken a public stance on any ballot measure, it hopes the public will at least be informed for the Nov. 8 general election.

The largest items on the ballot are four amendments to the West Virginia state constitution. Friday morning, the Harrison Chamber invited its members to a breakfast where attorney Josh Jarrell from the Morgantown-based firm Spilman, Thomas & Battle broke down each amendment and entertained questions from the group.

Chamber President Kathy Wagner hopes the session cleared up any confusion about the amendments any chamber members may have had.

"We wanted our members and their families to understand all four [of the amendments] and to be educated when they go to the polls, not just skip over them," Wagner said. "We had a great discussion this morning and I even learned some things I didn't know about."

Amendment 1

The first amendment on the ballot is a measure to "clarify the judiciary's role in impeachment proceedings."

This amendment is a direct response to the West Virginia Supreme Court scandal in 2018, where the entire court was impeached by the legislature. After the impeachment, one of the justices sued, arguing that the legislature didn't adequately include the judicial branch in the impeachment process, despite the section of the constitution dealing with state impeachments does not specify if the judiciary should be included.

The justice who sued won the case, due to the vague language in the constitution. This amendment is a direct response to that suit. The legislature wants to change the section of the constitution on impeachment to outright exclude the judicial branch from the process.

The amendment's proponents argue that this amendment simply clarifies what the constitution already implied. Opponents say it's a power grab by the legislature, giving them full say over the impeachment process.

Jarrell said this is an interesting proposal from a legal point of view and that he can't find another state with an impeachment process that excludes the judicial branch outright.

"This is a hard one and it's an interesting constitutional change — it's a substantive change to the process in my opinion," Jarrell said. "In the legislature's opinion, it's just a clarification."

A fear held by opponents of Amendment 1 is that with a supermajority in the legislature like West Virginia has now, the two-thirds vote required to impeach is too easy to reach and could be abused without intervention from the judicial branch.

Amendment 2

Amendment 2 has been talked to death with every organization or representative taking a stance for or against the change. Amendment 2 has been called the Property Tax Modernization Act and looks to change the language in the constitution that cements property taxes.

If passed, the amendment would allow the legislature to pass legislation that would exempt business property taxes on inventory and machinery as well as the personal motor vehicle tax.

Supporters of the amendment tout the potential economic boosts that could be gained from incentivizing businesses to move to the state.

Opponents of the measure point to the things funded by these taxes, such as schools, fire services, and a large chunk of county budgets. While the legislature has said they'll backfill the funding from other sources, research by the West Virginia Center on Budget & Policy shows that once the COVID-19 relief dollars dry up, the state won't have the money to backfill those budgets.

The majority of the taxes that would be affected are paid by out-of-state companies. The motor vehicle tax makes up a small portion of the income.

Amendment 3

Out of the four amendments that will be on the ballot, Amendment 3 is the least talked about, likely because it's the least controversial.

The Incorporation of Religious Denominations and Churches Measure is a change to an archaic section of the state constitution that forbids religious organizations from incorporating.

West Virginia is the only state in the country that explicitly forbids this. In 2002, Virginia had a similar law, and it was declared unconstitutional by a federal district court. Had it been sent to the U.S. Supreme Court, West Virginia's statute would have been overturned as well.

This will allow churches to enjoy the same protections offered to corporations with liability and other benefits given to incorporated nonprofits.

Amendment 4

The fourth proposed amendment, the Education Accountability Amendment, would change the constitution to treat the state board of education the same as the other executive departments.

Currently, the state BOE is buffered from the legislative branch and makes its policy decisions at an arm's length. This amendment would require all policy and rules to be approved by the legislature.

Opponents of this measure call this a power grab by the legislature, saying that this would allow them to micromanage the public schools and siphon away local control from county boards of education.

Supporters say that this is necessary to keep the state board in check since the same protocols are given to the other executive departments.

In attendance Friday was Del. Laura Kimble, R-Harrison, who is one of the main sponsors of Amendment 4 and she believes this is necessary to reel the state board of education into check.

"There have been members [of the state board of education] quoted saying 'We are the fourth branch of government,'" Kimble said. "That means they aren't held accountable to the people."

A member of the chamber, Jason Young, spoke up and disagreed, saying that real accountability would be to change the constitution to have the people vote to elect the state board members.

Kimble agreed and said she already plans to push for that change as well, even if this amendment fails.

Reach David Kirk at 304-367-2522 or by email at dkirk@timeswv.com.