The Register-Herald, Beckley, West Virginia

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May 7, 2013

Tomblin signs home rule, but is it constitutional?

Even after Gov. Earl Ray Tomblin affixed his signature to it, the home rule legislation expanding a pilot project remains steeped in controversy.

Hardly had the ink dried in Tomblin’s signature on SB435 than a Cabell County legislator began wondering if it could pass constitutional muster.

And to answer that, Delegate Kelli Sobonya, R-Cabell, one of only two House of Delegates members who voted against it, has called on Attorney General Patrick Morrisey to issue an opinion on its constitutionality.

Sobonya questions whether the Legislature can assign special powers to some cities but deny others the same privileges.

“I’d like to see our attorney general consider rendering his opinion,” Sobonya said Tuesday.

Moreover, Sobonya said a legal challenge to home rule has been pending for more than a year in Kanawha County Circuit Court.

“I’d like to see a court decision in Kanawha County rendered,” she said. “I think this question needs to be answered. Put this baby to bed.”

As written, the law limits the number of cities that can participate in home rule to 14. Only four municipalities were in the original five-year pilot — Charleston, Huntington, Bridgeport and Wheeling. Under the new law, cities in all four classes, based on population, may apply.

The bill touched off a fast and furious controversy late in the session when Delegate Patrick Lane, R-Kanawha, managed to tweak it so that no city seeking home rule distinction may restrict “in any way” the right of anyone to buy, own, transfer, carry, transport, sell or store any firearm or ammunition.

Originally, this provision was in a stand-alone measure, HB2760, strongly endorsed by the National Rifle Association in one of many gun rights proposals taken up in the recent legislative session.

Once passed by the House, the bill hit a snag in the Senate when Government Organization Chairman Herb Snyder revealed to The Register-Herald and The Dominion Post that his life had been threatened anonymously because the bill hadn’t been take up by his committee.

That led Senate President Jeffrey Kessler, D-Marshall, to declare the bill dead for all practical purposes, until Lane inserted the language into SB435 in the final days of the session. Kessler told reporters that proponents of any legislation simply cannot have their way at the Capitol by intimidating lawmakers.

Charleston Mayor Danny Jones strenuously opposed the original HB2760, since his city imposes firearms restrictions.

“The governor signed the legislation because he believes the importance of the home rule legislation for our municipalities and communities outweigh any extraneous provision included in the enrolled bill,” Tomblin’s communications director, Amy Shuler Goodwin, said.

“In a near unanimous vote, senators and delegates representing all 55 counties decided overwhelmingly that the home rule pilot program should be extended and subject to new requirements.”

The final version extends the pilot program until July 1, 2019.

Sobonya and Delegate Stephen Skinner, D-Jefferson, opposed it in the House, while in the Senate, only Sens. Brooks McCabe, D-Kanawha, and Clark Barnes, R-Randolph, voted against the amended version.

“When it was changed in conference committee, I voted against the final version for the reason that it allows an unelected board to cherry pick cities to have certain powers and leave other municipalities behind,” Sobonya said.

“I think we should have given that opportunity to everyone. I just don’t think it’s fair that an unelected board can play God and say, ‘You, municipality, are worthy of additional power, but you over here have to wither on the vine.”

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