Author: Dave Mistich

While any 60-day legislative session focuses on the hundreds of bills introduced and considered, Republican supermajorities this year helped push three proposed constitutional amendments to the ballot for voters to ponder.

Come November 2022, West Virginians will have the opportunity to decide whether to amend the state constitution on three different issues — preventing the state Supreme Court from intervening in impeachment proceedings, giving the Legislature the ability to exempt more types of property taxes and allowing religious denominations to incorporate.

House Judiciary Chair Moore Capito, R- Kanawha, said lawmakers in the Republican supermajority tried to be thoughtful in offering changes to the foundation of state law.

“I personally think that we have to always proceed with caution when we’re talking about modifying something that is as large and as important as our Constitution,” Capito said.

These proposals — considered by the Legislature as joint resolutions — require a two-thirds majority of both the House and Senate before heading to the voting public for ratification.

Late into the session, lawmakers had considered putting them on the ballot in a special election as soon as July but ultimately backed off from that date.

House Judiciary Minority Chair Chad Lovejoy, D-Cabell, said he’s glad they gave voters more time to study the issues at hand. He also said costs of a special election would have been in the millions.

“That’s a pretty monumental undertaking to statewide elections in a matter of weeks, coming off of the 2020 election — which was unusual, to say the least, in terms of COVID and the different things,” Lovejoy said. “So, I don’t think it was prudent from a cost perspective and a functional perspective to try to do it.”

Voters will now wait until Nov. 2022 to decide these three issues.

2018 Supreme Court Impeachments Inspire Proposed Constitutional Amendment

Like all pieces of legislation, each of these proposed changes to West Virginia’s foundational law come with context — and arguments both in support and in opposition. That’s especially true for House Joint Resolution 2.

In 2018, as impeachment trials were underway for justices of the West Virginia Supreme Court of Appeals, then-Chief Justice Margaret Workman filed a lawsuit challenging her own impeachment.

“This lawsuit was started and no one thought that stood a chance — because it was just counter to everything that people knew to be true in the Constitution,” said former Senate President Mitch Carmichael, who was named as a defendant in the suit.

In offering a ruling on Workman v. Carmichael, an an-hoc bench of the state Supreme Court ruled that the House failed to follow its own rules in the impeachment process and had overstepped its authority in adopting some of the articles of impeachment.

“So we were shut down, we adhered and abided by the judicial rule — even though we thought it was wrong,” Carmichael said.

State lawmakers appealed to the U.S. Supreme Court, which ultimately decided not to hear the case. Since then, legislators have tried to find a way to keep courts from intervening in future impeachments and further clarify the separation of powers.

Carmichael said, while he never thought he’d be part of something that inspired a potential constitutional amendment, it’s simply necessary in his mind.

“It’s the appropriate right thing to do,” he said. “Whether it’s my name or someone else’s name — that ruling just went counter to everything all of us believed to be the right thing to do.”

But it’s probably no surprise — given the fact that there was a lawsuit involved — that not everyone agrees. Huntington-based attorney Marc Williams represented Justice Workman in the case.

While Williams acknowledges that impeachment is inherently political, he argues the proceedings in 2018 proved the courts need to have the opportunity to play a role when things go awry.

“It shouldn’t come as any surprise that there would be a review of the impeachment proceedings that was so flawed, that would ultimately find that it was done [improperly],” Williams said. “But ultimately, I think it’s an extraordinarily rare set of circumstances where a court would get involved and only when really blatant mistakes are made.”

Williams argues that adding this change to the West Virginia Constitution could have disastrous effects if another impeachment took place but was not properly handled by the Legislature.

“If I had all the money in the world, and could actually go out and try to educate the voters on this, I would point out that this is an extraordinarily dangerous initiative,” he said. “Because, essentially, what you’re doing is you’re giving the Legislature the ability to impeach almost for any purpose with no appellate review — with no opportunity for anybody to review it.”

Potential Job Growth Vs. Funding For Counties: Legislature Could Exempt Property Taxes If Amendment Is Ratified

Another proposed constitutional amendment also has recent history behind it.

Since taking control of the Legislature following the 2014 election, Republicans have rallied behind exempting manufacturing equipment and inventory taxes — but had failed to attain a two-thirds majority from both chambers to send the issue to voters.

But, during the 2021 legislative session, lawmakers in both the House and Senate adopted House Joint Resolution 3, which reads differently than past proposals. If ratified, the Legislature would be able to exempt virtually all types of personal property — from manufacturing equipment and inventory to personal vehicles.

West Virginia Manufacturer’s Association President Rebecca McPhail said the goal of exempting taxes related to her sector is job growth.

“The challenge that we have right now, because of the way these taxes are applied to our industry, specifically places us in the top 10 worst states for taxation on manufacturing,” McPhail said. “And that’s very challenging. That’s challenging from an economic development perspective — just just to get a first look.”

McPhail said the amendment would untie the hands of lawmakers to exempt taxes as they see fit.

“This is not just limited to manufacturing,” McPhail said. “This is a broader constitutional amendment that would allow the Legislature at some future date to address a number of types of personal property tax, including the taxation that affects our members — but also small business inventory as well as personal vehicles.”

In total, the Legislature would have the ability to exempt part or all of roughly $300 million in tax revenue, according to the West Virginia Center on Budget and Policy.

But Jonathan Adler of the West Virginia Association of Counties said there’s currently no way to recoup revenue that funds county and municipal governments and, most notably, school systems.

“I think counties do certainly support jobs [and] job creation,” Adler said. “But if there’s no mechanism to replace the lost revenues for counties, then we’re kind of scratching our heads wondering exactly what that revenue replacement is going to be.”

While Adler said county and local governments are open to the idea of exempting various types of personal property taxes, he said there are a lot of unknowns — especially given the way the state funds local governments and schools.

“We’ve always said, there’s not a plan yet,” Adler said. “We need a plan to try and support something like this. We need to see what your plan is when you get the authority.”

Incorporation Of Churches Will Also Be On The November 2022 Ballot

While the other two proposed amendments saw at least some opposition, Senate Joint Resolution 4 made its way through the statehouse with overwhelming backing.

The proposal would allow churches to incorporate — offering them the ability to manage assets more like other businesses and nonprofits. Capito said it was about modernizing West Virginia law to match most of the rest of the country.

“What we have now is the opportunity for churches and houses of worship to incorporate, which is pretty standard procedure across the country, quite frankly,” Capito said. “So I think we’re just synching up there.”

While constitutional amendments are oftentimes divisive, Lovejoy said the proposal to allow churches to incorporate is rather innocuous.

“It, frankly, is a little easier to operate under a traditional corporate sense than it is under this kind of antiquated Board of Trustees management,” Lovejoy said. “So I don’t think it has anything to do with taxes. It has nothing to do with politics, frankly. I think that it does make things a little easier to manage religious institutions.”

Votes for ratification may be a long way away, but the issues are bound to stir public discussion and influence from special interest groups. No doubt, there will be mailers, advertisements and campaigns in support and against some of the more controversial proposals.

And with another legislative session slated ahead November 2022 — and with supermajorities intact in the meantime — it’s possible even more proposed amendments will wind up on the ballot.