Neely, J. Dissenting - Opinion, Case No.21756 Rawl Sales & Processing Co. v. County Commission of Mongo County

No. 21756 -- Rawl Sales & Processing Co., a Corporation v. County Commission of Mingo County and Gilbert Imported Hardwoods, Inc., a Corporation v. County Commission of Mingo County and Hampden Coal Company, Inc., a Corporation v. County Commission of Mingo County

Neely, J. dissenting:

        Who is kidding whom? The majority's emphasis of form over substance is particularity ironic because the form emphasized, namely the procedure for appealing tax assessments, is probably the least competent of any similar procedure in the entire Code. The procedure was established over 30 years ago by this Court by reading in pari materia two code sections, W. Va. Code 11-3-25 [1967](appeal to the circuit court must occur "at any time up to thirty days after the adjournment of the county court") and W. Va. Code 58-3-4 [1923] (petition "shall be accompanied by the original record of the proceeding in lieu of a transcript thereof"). See In Re Stonestreet, 147 W. Va. 719, 726, 131 S.E.2d 52, 56 (1963)(the appeal provisions from the county commission to the circuit court are "mandatory and must be complied with and satisfied").See footnote 1 1 Together these appeal requirements substantially bar most appeals to the circuit court of tax assessments made by the county commission!

        It is hard enough to get a court reporter to attend and transcribe a first degree murder trial, but a tax hearing is almost impossible unless a person has enough foresight and enough money to summon a competent private reporting service.See footnote 2 The majority appears to be unaware of transcript preparation problems, even though in 1993 this Court issued 11 orders to court reporters requiring the production of the several months' overdue transcripts. The problem of transcript production is escalating; in 1988 and 1989 we issued only 1 order each year; in 1990, no orders; in 1991, 3 orders; and in 1992, 9 orders. Given the preparation time that elapses before this Court's involvement, these court reporter order statistics indicate a substantial problem. However, the majority ignores the practical problem of their transcript requirement. But the problem remains. How are you going to get a tax hearing reduced to transcript within 30 days? Even if a mandamus order for a transcript is sought, the majority's 30 day mandatory requirement for a transcript cannot be met.

        The bar of an appeal to the circuit court is particularly troublesome because the county commission lacks expertise in property evaluation but is extraordinarily knowledgeable about the government's need for money, an ingrained bias that is particularly harmful to non-voting entities. Although someone should review the assessor's property evaluation, assigning this important review to the county commission is perhaps not a scheme whose design would prompt nomination for the Nobel Prize in jurisprudence. Indeed, a hearing before a county commission on a tax appeal is probably best described by the old Jewish expression:

"...... .... ... .... .... ..."See footnote 3

The lack of a meaningful opportunity for a review of the county commission's decision invests it with extraordinary power-- a power, the majority's opinion leaves virtually unchecked.

        Before the county commission, the appellees argued that although the assessor had used 1992 assessed values for taxpayer's natural resources properties, 1962 assessed values were used for all the other property in Mingo County. The appellees argued that although everyone should be assessed on fair market value by 1994, the early implementation of the 1992 assessed values uniquely on their natural resources properties resulted in a disproportionate tax increase. For example, other Class 3 property taxes increased 18.23 percent but Class 3 natural resources property taxes increased between 200 and 400 percent because the assessor used 1992 assessments, rather than 1962 assessments.See footnote 4 In Syl. pt. 3, Matter of U. S. Steel Corp., 165 W. Va. 373, 268 S.E.2d 128 (1980), we held that a "taxpayer is entitled to have its taxes computed in the same manner and on the same basis as the favored taxpayers." In Allegheny Pittsburgh Coal Co. v. County Commission of Webster County, W. Va., 488 U.S. 336, 343 (1989), the Supreme Court said "the constitutional requirement is the seasonable attainment of a rough equality in tax treatment of similarly situated property owners. [Citations omitted.]" The majority uses form arguments to ignore the appellees' constitutional arguments. To echo Chief Justice Brotherton's dissent, in which I joined, in In re 1975 Tax Assessments Against Oneida Coal Co., 178 W. Va. 485, 490, 360 S.E.2d 560, 565 (1987)(Brotherton, J. dissenting), rev'd, Allegheny Pittsburgh, supra: "It appears to me that the tail is now wagging the dog in West Virginia property taxation."
        Today, as a direct result of the progressive transfer of private family responsibilities to government budgets at enormous net cost increases,See footnote 5 governments at all levels are facing near bankruptcy. County commissions, if left unsupervised, are tempted to inaugurate in fact the philosophy instantiated in the proposed revision to federal income tax form 1040 that, so far, is only discussed in theory. Under the proposed new, "simplified" form 1040 there is one question and one instruction, to-wit: (1) How much did you make? (2) Send it!
        Perhaps the tax assessment in this case was correct. I don't know. What I do know is that there is a literacy test for circuit judges, which makes them unique among all officials in the total county tax assessment process. To say that the procedures in this case were deficient is simply high irony: this case should be decided on the merits even if it requires us to get our hands dirty analyzing a few numbers and reading a little testimony, or remanding the case for further review.

Footnote: 1 1But see Talkington v. Barnhart, 164 W. Va. 488, 493, 264 S.E.2d 450, 453 (1980) ("Rules 1 and 61 make clear our intent to avoid placing form over substance in the procedures of our courts. . . . We will not sacrifice an appellant's substantial rights for rules that do not result in prejudice. [Footnotes omitted.]"
Footnote: 2 In this case, the appellees incorrectly sought relief through a writ of certiorari based on W. Va. Code 11-1A-18 [1983] and 11-1B-14 [1986]. By order dated March 27, 1992, the circuit court required the county commission "forthwith certify the evidence in the proceeding below and remove and return the record to" the circuit court. Apparently the hearing transcript was finally filed by the appellees on May 20, 1992 or 51 days after the statutory deadline of March 30, 1992.
Footnote: 3 "From your mouth to God's ear."
Footnote: 4 The appellees presented their disproportional taxation argument by claiming that the legal notice was insufficient because the advertised increase was 18.23 percent but the increase for natural resources properties was between 200 and 400 percent. The majority's discussion never recognizes the appellees' equal protection and due process arguments.
Footnote: 5 See R. Neely, Tragedies of our Own Making: How Private Choices have Created Public Bankruptcy, Illinois University Press (Champlain, Ill., 1994).