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No. 32612 Thornton Cooper
v. City of Charleston
Benjamin, Justice, concurring:
I concur in the ultimate result reached by the majority of this Court, I write
separately to note that I would not have ordered an election to be held without
first giving the qualified voters of the City of Charleston the opportunity
to fulfill the statutory election trigger. As noted by the majority, W. Va.
Code § 8-13-13 (1971), provides that an election may be held to ratify
or reject a duly published and enacted ordinance if
thirty percent of
the municipality's qualified voters sign a petition protesting the enactment
of such ordinance within fifteen days after the last publication date of such
ordinance as a Class II legal advertisement. (See
By simply ordering an election to be held, this Court
has ignored this statutory election trigger and required the City to incur
the expense of holding a special election to ratify or reject the subject ordinance
absent the petition of thirty percent of the City's qualified voters. Instead
of simply ordering an election to be held, I would have given the qualified
voters of the City of Charleston up to thirty days (See
from receipt of this Court's
decision to fulfill this statutory requirement. If they were able to gather
the requisite signatures, the City of Charleston would be required to hold
an election to ratify or reject the ordinance. Otherwise, the City and its
citizens should be spared the expense of a special election.
Mr. Cooper is not a citizen
of the City of Charleston and, therefore, cannot be a qualified voter of the
City of Charleston. W. Va. Code § 8-13-13 speaks only to the ability
of qualified voters of the municipality to challenge an ordinance
and require an election. Therefore, he likely does not have standing to submit
a petition with the requisite thirty percent of qualified voters signatures
and cannot sign such a petition.
Pursuant to W. Va.
Code §59-3-2 (a) (2002) a Class II legal advertisement is required to
be published once a week for two consecutive weeks. As W. Va. Code § 8-13-13
provides for 15 days from the last publication date for the filing of the petition
requisite signatures, a thirty day window for the gathering of signatures and
filing of the petition is actually more than required by statute.