Judge denies lawsuit against levy election

You are here

By Tricia Lynn Strader -, 

BERKELEY SPRINGS - A Jefferson County circuit court judge has dismissed a challenge to a special school levy election set for May 13 in Morgan County.

In January, attorney Michael L. Scales filed a lawsuit on behalf of residents Dorothea Jeannie Ford, Frieda Ickes and Kent "Brooks" McCumbee. The complaint said according West Virginia Code 18-9-1, the school board can only present a previously defeated levy vote again at a general election, not a primary.

After Judge Michael Lorensen recused himself, the case transferred to Jefferson County Circuit Judge David H. Sanders. A hearing was held Feb. 4.

Scales cited several points related to West Virginia Code 18-9-1, challenging validity in presenting the levy call in the May primary. According to the lawsuit, the code stipulated to have a special election prior to the next general election, the Board of Education (BOE) needed to have 40 percent of valid registered voters on a petition first. The BOE had not collected any petitions but conducted a public survey and public hearings since May 2013.

The excess levy has been in effect for 50-plus years, and the last renewal was 2008. Voters defeated a renewal 1,674 to 1,329 on May 11, 2013. It would've generated $29.3 million over five years and gone into effect July 1. Another "regular" school levy generates $4,808,659 annually.

School officials said last fall the excess levy pays salaries for 12 teachers over the state's allotment of staff as being adequate. They also said it pays for textbooks, field trips, athletics, arts and music. Those against the levy said the state pays for new buildings, salaries, maintenance and textbooks, and the superintendent and treasurer have a higher salary than other counties.

After the survey, the BOE modified the levy proposal for 2014 to a little more than $20 million for five years, and lowered the tax rate from the maximum 100 percent to 70 percent. Charles S. Trump IV represented the BOE, and argued it fell under W.Va. Code 11-8-16 and Article X, 10 of the West Virginia Constitution. He said Code 18-9-1 did not apply and said even if it did, the series of events which trigger the requirement of a petition before election may be held earlier than November had not occurred.

Sanders gave his verdict Feb. 7 allowing for the May election. Sanders ruled W.Va. code 18-9-1 had been superseded by amendments to the W.Va. Constitution and by statutory enactments, so that 18-9-1 does not preclude the new excess levy election from being held during the primary. In his decision, he noted the kinds of levies and the history of the state educational system. Then, he upheld the defendants' assertion that the levy was described in W.Va. Code 11-8-16, which says a "local levying body shall submit to the voters within their political subdivision the question of the additional levy at either a primary, general or special election."

Sanders further said school board officials made budget cuts and sought public opinion in hearings, the new levy order proposes a "substantially reduced excess levy," and reduces the rate and revenue by 30 percent from the levy approved in 2008 and by 30 percent from the rejected 2013 proposal.

"I am very pleased with the decision of Judge Sanders," Trump said. "He followed the law, which expressly allows the board of education's new, reduced levy proposal to be considered and voted upon at the primary election this year. In the final analysis, however, the court case was not about the arguments for or against the levy. It was about the right of the people to decide that issue. Judge Sanders ruled in accordance with the Constitution and the law of West Virginia, which provide clearly that the question of whether the board's new levy will be approved is to be decided by all of the people in the election on May 13."

Scales is considering an appeal.

"We have 30 days from the judge's decision to file a Notice of Intent to Appeal," he said. "Assuming we do that, we have four months to file a Petition to Appeal with the state Supreme Court."

Even if the appeal is filed, Scales said, it will not stop the May 13 election from taking place.