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No. 32612 - Thornton
Cooper v. City of Charleston, a municipal corporation
Starcher, J., concurring:
I concur in the result reached by the majority of this Court, I write separately
to express my concern that the fee in this case is unfair as applied. I recognize
the importance of the purposes for which the fee was enacted and I have no
personal objection to paying the fee.
fee, however, is not assessed against some segments of the population that receive
the same services paid for by the fee, while the fee overly burdens others. For
these reasons I believe the City should seek a more equitable assessment mechanism.
example, wealthy retired residents who live within the Charleston city limits
simply avoid the fee because they are not on the payroll of government or private
business. Physicians and other professionals who live in the City's wealthiest
neighborhoods and work outside the borders of the City likewise are not required
to pay. Tourists and other persons who shop and otherwise participate in the
City's commerce similarly escape the fee. All of these folks receive the same
benefits from the City as do those who are required to pay the fee.
the other side of the coin, there are others who are economically less fortunate
on whom the fee is more burdensome. These folks might even be required to pay
double or more in some instances. For example, a single mother who must work
at two jobs within the City to supply food and shelter to her family may have
to pay the fee at both places of employment, since she would be on two separate
payrolls. Likewise, low-income families in which both parents work are required
to pay twice. Counsel for the City confessed before this Court in oral argument
that there was no practical mechanism in place to avoid this.
concerns may appear de minimis
at first glance, which arguably is true
at the current fee assessment level. However, now that the fee has been approved
by this Court, future increases are likely to occur _ as recently happened
in Huntington. The majority's assurance that fee increases might be struck
down based on the provisions of W.Va. Code
, 8-13-13 (1971), should the
fee be determined unreasonable or excessive, offers no certainty and is little
comfort to the economically less advantaged.