# Petition for Writ of Certiorari — Wheeling College, Inc. v. City of Wheeling

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 527 U.S. 1037

## Text

Court,
FILED

Ne. 9 Sl7ZZ O APR 26 OY

OFFICE OF THE CLERK
In The

Supreme Court of the United States

October Term, 1998
e
THE MOST REVEREND BERNARD W. SCHMITT,

Bishop of the Roman Catholic Diocese
of Wheeling-Charleston,

Petitioner,

THE CITY OF HUNTINGTON, WEST VIRGINIA,
a municipal corporation,

Respondent.
7 a

On Petition For Writ Of Certiorari To The
Supreme Court Of Appeals Of West Virginia

*
PETITION FOR WRIT OF CERTIORARI
»
CuirrorD B. Levine, Esq. James C. GaARDILL
Counsel of Record Puiturs, GARDILL, KAISER
Stuart C. GAUuL, JR. & ALTMEYER
THorp, Reeo & 61 Fourteenth Street
ARMSTRONG, LLP Wheeling, WV 26003
One Riverfront Center (304) 232-6810

Pittsburgh, PA 15222

(412) 394-7711 G. Nicuotas Casey, Jr.

Wesster J. ARCENEAUx, III

Lewis, FRIEDBERG, GLASSER,
Casey & Rouuins, L.L.P.

Suite 700 —- One Valley
Square

P.O. Box 1746

Charleston, WV 25326-1746

(304) 345-2000

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

114°

Oe De mal

PTT

‘ee ese

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Supreme Court of Appeals of West
Virginia, as a state court of competent jurisdiction, erred
in not following the holding of this Court in Howlett v.
Rose, 496 U.S. 356 (1990) by not hearing and ‘etermining
issues presented to it that arose under the U.S. Constitu-
tion.

2. Whether the Supreme Court of Appeals of West
Virginia erred in not following the holding of the U.S.
Court of Appeals for the Fourth Circuit in Folio v. City of
Clarksburg, 134 F.3d 1211 (4th Cir. 1998) and United States
v. City of Huntington, 999 F.2d 71 (1993), cert. denied, 510
U.S. 1109 (1994) that, for purposes of federal law, the Fire
Services Fee imposed by the City of Huntington, West
Virginia on all owners of real property within the City is
a tax.

3. Whether the Supreme Court of Appeals of West
Virginia erred in disregarding this Court’s decision in
Allegheny Pittsburgh Coal Co. v. Webster County, West Vir-
ginia, 488 U.S. 336 (1989) in not holding that the City of
Huntington violated the Equal Protection Clause of the
Fourteenth Amendment by attempting to assess a prop-
erty tax against the Diocese where the federal govern-
ment was not obligated to pay the tax and the applicable
state statute, W. Va. Code Section 11-3-9, placed both the
Diocese and the federal government in the same class of
property owners wholly exempt from taxation on prop-
erty.

4. Whether the Supreme Court of Appeals of West
Virginia erred in disregarding this Court’s decision in

il

QUESTIONS PRESENTED FOR REVIEW - Continued

Allegheny Pittsburgh Coal Co. v. Webster County, West Vir-
ginia, 488 U.S. 336 (1989) in not holding that the City of
Huntington violated the Equal Protection Clause of the
Fourteenth Amendment by disregarding Article X, Sec-
tion 1 of the West Virginia Constitution and levying a tax
on property on bases other than assessed valuation.

LIST OF PARTIES BELOW

The following persons or entities were parties to the
actions reviewed by the Supreme Court of Appeals of
West Virginia in City of Clarksburg v. Grandeotto, Inc., ___
We. Vee eae. (1996):

Wheeling College, Inc., a West Virginia corporation

The Most Reverend Bernard W. Schmitt, Bishop of
the Roman Catholic Diocese of Wheeling-Charleston

Ohio County, West Virginia Board of Education

City of Wheeling, West Virginia, a municipal corpora-
tion

City of Huntington, West Virginia, a municipal cor-
poration

City of Clarksburg, West Virginia, a municipal corpo-
ration

Mid-City Land Company

Grandeotto, Inc.

Bernard J. and Kathy A. Folio

Bernard J. Folio d/b/a Highrise Associates

Kathryn Folio

Joseph Folio

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED FOR REVIEW ........... i
Rare CE SIRES. WREAOEN kinks sch desnnn vabeeenebans ili
TABLE OP CAPCT OG ic 5s si ecas cde deba ven eesees) iv
SAR Ce PAG ROMINE SEDs ind owe e eat nei ine ae awe vii
SPECIES MAAN cb dncoccrasciFend anckinns jiasvun 1
STATEMENT OF JURISDICTION. .........000ccceee. 1
CONSTITUTIONAL PROVISIONS, STATUTES AND
ORDINANCES INVOLVED 00005 ccassnetiiaeenes 2
SIATEMEIN: OF THE CARB... cece ccscncccsiccutnes 5
A. Factual DACKRIOUNG V. socss iickewiiand chines, 5
PE NRO ers Peer Pes een ey ree 5

2. West Virginia’s Statutory Exemption From
PE Or eee re ree ye sry Pet yee Terre 5

3. The City of Huntington’s Assessment for Fire
WON CUING ahs ce'vc hr eee hae ASY wee ROS CaaS 6

DB. PROCRGUIAL TEMIOND ... nec cc dakedoaeteiceerees 7

1. Proceedings in the Circuit Court of Cabell
COMED, TURN VINMIIES 5 ois 5 Uoiwy eveseeetaens 7

2. Petition for Appeal to the Supreme Court of
Appensts of West Virgius. . oo. .5.scsewscais: 8

3. The Decision of the Supreme Court of
FONE oo sine cs kens bby eae cnesgdbelaeensehs 9

4. Motion for Reconsideration................. 11

ee

TABLE OF CONTENTS — Continued

REASONS FOR GRANTING THE WRIT ...........

A.

B.

In Not Addressing and Resolving the Bishop’s
Assignment of Error Arising Under the U.S. Con-
stitution, the Supreme Court of Appeals Over-
looked the Clear Teachings of this Court ......

To the Extent, if Any, that the Supreme Court of
Appeals Addressed the Constitutional Issues
Raised by the Bishop, It Created a Conflict with
the Decisions of the U.S. Court of Appeals for the
Fourth Circuit by Deciding that the Service Fee is
a User Fee, Rather than a Tax, for Purposes of
Se eC eee NR Pere rer ror Try er

1. Under the Supremacy Clause, the Question of
Whether the Service Fee is a “Tax” for Pur-
poses of the Equal Protection Clause is to be
Determined by Reference to Federal Law...

2. The U.S. Court of Appeals for the Fourth
Circuit Has Held that a “Municipal Service
Fee” Levied Against All Owners of Real
Property is a Tax and not a “User Fee” for
Purposes of Federal Law...................

The Supreme Court of Appeals Acted Contrary
to the Teachings of this Court when it Failed to
Hold that the City’s Application of the Service
Fee to Real Property Owned by the Diocese Vio-
lated the Diocese’s Rights Under the Equal Pro-
tection Clause of the U.S. Constitution.........

1. The Law of West Virginia Does Not Distin-
guish Between the Property Owned by the
Diocese and Property Owned by Entities of
the Federal Government in Any Manner That
Would Allow the City to Assess the Service
Fee Against One But Not the Other........

13

20

21

22

24

vi

TABLE OF CONTENTS —- Continued
Page

2. The City’s Levying of the Service Fee on a
Basis Other than Assessed Value Violates the
Equal Protection Clause in the Same Manner
as the Purchase Value System Challenged in
Allegheny Pittsburgh Coal .........6000eeeee: 28

CONCTAIIION ic; os cy ee Bdsv esc cancer 30
ADPROIER 6 55:5 oanssa sc ccrietes sear ie App. 1

vii

TABLE OF AUTHORITIES

Page
Cases
Allegheny Pittsburgh Coal Co. v. County Commission-

ers of Webster County, West Virginia, 488 U.S. 336

CR Wi cba boc veer e hob cet dkbptstincdass iieue passim
Arbogast v. Arbogast, 174 W. Va. 498, 327 S.E.2d 675

SE «ode dv cbee Ves deh bN rs eter ea wasteawieee 13
Burris v. City of Little Rock, 941 F.2d 717 (8th Cir.

og: | RIE A Pn 5 SP ee ew OPER y re pee en Sea Ger roe 23
Capitol Cablevision Corp. v. Hardesty, 168 W. Va.

Gaky Oe Ge WEE CAPE bic sc cnconncevcebescaces 15
Carpenter v. Shaw, 280 U.S. 363 (1930)............... 21
Central Realty Co. v. Martin, 126 W. Va. 915, 30

UE ho fnke 564-45 0 ahd ss cede ciceeas sees 15
City of Clarksburg v. Grandeotto, Inc., __. W. Va. __,

5's Tn 2 ts ee ws en oS aay cise a chub esdeewn 1,9
City of Fairmont v. Pitrolo Pontiac-Cadillac Co., 172

W. Va. 505, 308 S.E.2d 527 (1983), cert. denied,

gk Be gy | Se ere rears 28
City of Huntington v. Bacon, 196 W. Va. 457, 473

S.E.2d 743 (W. Va. 1996).......... 6, 7, 10, 14, 16, 23
Clafin v. Houseman, 93 U.S. 130 (1876)..............- 17
Collins Holding Corp. v. Jasper County, South Caro-

am; BES Beek Fer Ce Ce F088) vc oa vegciaess vie 23
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ..... 13

Felder v. Casey, 487 U.S. 131 (1988)............... 12, 14

Vill

TABLE OF AUTHORITIES — Continued

Page
Folio v. City of Clarksburg, 134 F.3d 1211 (4th Cir.
POS se cnneeent sed aa ewes 03 04a Giawe 12; 3D, bee. 22
Garrett v. Moore-McCormack, Co., 317 U.S. 239
CREE Vedi weds cei ias beau Wars eRe oO ce e Arse We 14
Hare v. City of Wheeling, 171 W. Va. 298, 284 S.E.2d
Bet CE as 65 eos dee eas his hocks ee 28
Hillsborough v. Cromwell, 326 U.S. 620 (1946)......... 24
Howlett v. Rose, 496 U.S. 356 (1990)
ineven Peds ees mae ase ieee eae 12, 14, 15, 16, 17, 18, 20
In re 1975 Tax Assessment Against Oneida Coal, 178
W. Va. 485, 360 S.E.2d 560 (1987), rev'd sub nom.
Allegheny Pittsburgh Coal Co. v. County Commis-
sioners of Webster County, West Virginia, 488 U.S.
9% CHO... ks kc Se eee 19
Indiana Waste Sys., Inc. v. County of Porter, 787
rome. Ga UNA. GG. S50 ar. the City does not collect the service
fee from the federal government. Nor does the City bill
itself for the service fee.

The City attempted to collect unpaid fees from the
Bishop or Diocese for the two schools located in the City
by filing an action in circuit court in 1997. Both parties
moved for summary judgment. On July 21, 1997, the
court granted the Bishop partial summary judgment, stat-
ing that the April 1992 through June 1994 fee actually
constituted a tax which could not be levied against the
Bishop. The same order granted partial summary judg-
ment to the City, stating that “the municipal service fee
for the period of July 1, 1994 through April 24, 1997
constitutes a fee, not a tax, and can be levied against the
Defendant.” By order entered June 4, 1998, the court

3 United States v. City of Huntington, W.Va., 999 F.2d 71 (4th
Cir. 1993), cert. denied, 510 U.S. 1109, 114 S.Ct. 1048, 127 L.Ed.2d
371 (1994), holds that the City is barred by the Supremacy
Clause of the U.S. Constitution from collecting the service fee
from the federal government.

App. 11

found the Diocese was liable to the City for payment of
the service fee. The exact amount owed was determined
by order of court entered on June 12, 1998. It is from this
order the Diocese appeals.

lil.

The third appeal involves two cases which were con-
solidated by the circuit court. Pursuant to W.Va. Code
§ 8-13-13 (1971), the City of Wheeling enacted Ordinance
§ 793.03, the purpose of which is to defray the costs of
providing fire protection services to the City of Wheeling.
Owners of residential unit structures are assessed a flat
annual fee; owners of nonresidential unit structures are
assessed a rate based on the square footage of the build-
ing; tenants of nonresidential and residential unit struc-
tures are assessed a flat fee; owners or lessees of vehicles
are assessed a flat fee per vehicle. The ordinance exempts
no one from paying the fire service fee; however, the City
does not issue bills to itself for buildings and vehicles
titled in the name of the City.

The University and Diocese filed an action against
the City seeking a declaration that the fire service fee is
actually a tax from which they are exempt pursuant to
W.Va. Code § 11-3-9 (1998).4 The City instituted a

4 W.Va. Code § 11-3-9 (1998) states in pertinent part:

(a) All property, real and personal, described in this
subsection, and to the extent herein limited, is exempt from
taxation:

(1) Property belonging to the United States, other than
property permitted by the United States to be taxed under state
law;

App. 12

collection action against the Board. The Board posited
essentially the same defenses to the fire service fee that
the University and Diocese raised in their action. The
court, therefore, consolidated the two actions. Following
discovery, the parties filed cross-motions for summary
judgment. The circuit court entered an order on August
19, 1998 finding that “the Defendants are authorized to
pay the fire service fee imposed by the City of Wheel-
ing|.]” Having reserved certain issues for later consider-
ation, the court entered an order on August 28, 1998,
finding that the prior order of the court “constitutes a
final, appealable Order.” It is from this order the Univer-
sity, Diocese, and Board appeal.

IV.

On appeal, the various appellants offer various
assignments of error. The Grundeottos argue the
Clarksburg fee is a tax which violates the Tax Limitation
Amendment,> due process, and equal protection. The
Diocese, University, and the Board argue they do not
have to pay because the federal government is immune
pursuant to United States v. City of Huntington, W.Va.,
supra, and W.Va. Code § 11-3-9 (1998) exempts them
from taxation along with the federal government. All

(5) Property used exclusively for divine worship;

(9) Property belonging to, or held in trust for, colleges,
seminaries, academies and free schools, if used for educational,
literary or scientific purposes, including books, apparatus,
annuities and furniture[.]

5 W.Va. Const. art. X, § 1.

© See supra note 4.

App. 13

parties request that we revisit our prior decision, City of
Huntington v. Bacon, 196 W.Va. 457, 473 S.E.2d 743 (1996).
The question we must answer is whether the circuit
courts erred in determining the appellants must pay the
municipal and fire service fees which were assessed
against them.

In Bacon, the City of Huntington filed suit against the
Bacons, who were owners of buildings located in the City.
The Bacons refused to pay the municipal service fee. They
maintained the fee was a tax which violated the Tax
Limitation Amendment. The circuit court disagreed and
concluded the fee was a user fee which was properly
imposed pursuant to W.Va. Code § 8-13-13. This Court
affirmed the circuit court.

The City also brought a declaratory judgment action
against the Cabell County Board of Education, seeking to
determine whether the fee could be recovered from the
Board in light of United States v. City of Huntington, W.Va.,
supra. The question was certified to this Court, where it
was determined that county boards of education are
authorized to pay municipal service fees.

We note that the federal case, United States v. City of
Huntington, W.Va., supra, was written prior to this Court’s
Bacon decision. The Bacon Court determined that munici-
pal service fees are indeed fees and not taxes. The Bacons
and the Board of Education were found to be subject to
the fee even though the federal government was not
obligated to pay pursuant to the Supremacy Clause, Arti-
cle VI, Clause 2 of the U.S. Constitution. By way of
explanation, this Court stated:

App. 14

[Where a federal entity is involved, the federal
courts may determine whether a particular
funding mechanism employed by a state or its
political subdivision is, in fact, a tax[.]

It follows, therefore, that a state is not
bound by a federal court’s characterization of a
state tax or fee when a federal right is not
involved. After all, as we have previously
stated, states are free to determine their own
fiscal policy as long as the fiscal policy does not
violate the Constitution of the United States
(citation omitted).

Bacon at 464-65, 473 S.E.2d at 750-51. The Fourth Circuit’s
holding did not apply to the Bacons or the Board of
Education. The same is true for the appellants in the case
sub judice.

We reiterate this Court’s previous holding which
states:

An ordinance which imposes a municipal
service fee pursuant to W.Va. Code, 8-13-13
[1971] upon the owners of buildings at an
annual rate plus a percentage based upon the
square footage of space contained in each struc-
ture on the lot for the sole purpose of defraying
the cost of fire and flood protection services is a
user fee rather than a tax and therefore, is not in
violation of the Tax Limitation Amendment
found in W. Va. Const. Art. X, § 1.

Syllabus Point 6, Bacon, supra.

We also reiterate that:

Pursuant to W.Va. Code, 18-5-9 [1933], a
county board of education is authorized to pay a
municipal service fee imposed by a municipality

Sen? Eee a BOA ee ee ie Le

Re I OAS

i A heh

App. 15

for fire and flood protection services pursuant to
W.Va. Code, 8-13-13 [1971] in order to protect the
health of its pupils and in order to keep its
school grounds and buildings in good order.

Syllabus Point 8, Bacon, supra.

The circuit courts did not err in granting summary
judgment in favor of the Cities of Clarksburg, Hunt-
ington, and Wheeling. Accordingly, we affirm the respec-
tive judgments of the Circuit Court of Harrison County,
the Circuit Court of Cabell County, and the Circuit Court
of Ohio County.

Affirmed.

No. 25143 - City of Clarksburg, a municipal corporation v.
Grandeotto, Inc., a corporation; Bernard J. and
Kathy A. Folio; Mid-City Land Co.; Bernard J.
Folio dba Highrise Associates; Kathryn Folio;
Joseph Folio.

No. 25401 - The City of Huntington, a West Virginia
municipal corporation v. Most Reverend Ber-
nard W. Schmitt, Bishop of the Roman Catho-
lic Diocese of Wheeling-Charleston.

No. 25402 - Wheeling College, Inc., a West Virginia corpo-
ration, and the Most Reverend Bernard W.
Schmitt, Bishop of the Diocese of Wheeling-
Charleston v. The City of Wheeling, a munici-
pal corporaton AND The City of Wheeling, a
municipal corporation v. The Ohio County
Board of Education.

App. 16

MAYNARD, Justice, dissenting:

I dissent because I believe the Catholic Church, as
well as all churches, and all public and other schools are
exempt under W.Va. Code § 11-3-9 (1998) from paying
this wolfish tax which is cloaked in the garb of a sheepish
fee.!

First, I note the great importance of the municipal
taxes at issue here. Government performs no more impor-
tant service than providing its citizens with fire protec-
tion. This is a very basic and historical government
service, and one that private citizens are unable to under-
take for themselves. In order to provide this service, local
governments must staff fire departments with trained
personnel and provide these personnel with modern fire-
fighting equipment. This requires a lot of money. This
money is generated through the levying of taxes on those
who reap the benefits of effective fire protection. This is
at [sic] it should be.

However, Article X, § 1 of the Constitution of West
Virginia provides, in part, that “property used for educa-
tional, literary, scientific, religious or charitable pur-
poses .. . may by law be exempted from taxation.” This
constitutional authorization is codified by the Legislature
in W.Va. Code § 11-3-9 (1998). Specifically, W.Va. Code
§ 11-3-9 provides, in pertinent part:

1 I dissent specifically to this Court’s decisions in case
numbers 25401 and 25402 involving the Roman Catholic
Diocese, schools and boards of education. I believe there is no
reason the appellants in case number 25143 should not pay the
“fee” at issue since, unlike churches and schools, they are not
exempted under W.Va. Code § 11-3-9.

Slee

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FTN ONL RT a a te Rae bie

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App. 17

(a) All property, real and personal,
described in this subsection, and to the extent
herein limited, is exempt from taxation:

(1) Property belonging to the United States,
other than property permitted by the United
States to be taxed under state law;

(5) Property used exclusively for divine
worship;

(9) Property belonging to, or held in trust
for, colleges, seminaries, academies and free
schools, if used for educational, literary or sci-
entific purposes, including books, apparatus,
annuities and furniture[.]

This code section derives, at least in part, from the recog-
nition that those enumerated institutions which are sup-
ported by the public, either through taxation or private
gifts, and that exist for the educational, literary, scientific,
religious, or charitable enrichment of society should ful-
fill their missions absent the burden of taxation. This is
altogether fitting and proper. The majority, however,
resorts to semantic sophistry in order to avoid the unam-
biguous language of W.Va. Code § 11-3-9. In short, the
majority holds that a tax is not a tax when it is called a
fee.

In holding that if a tax is called a “fee” it can be
levied against those institutions lawfully exempt from
taxation, the Court opens wide the door for unlimited
government collection of so-called fees. Government's
penchant for taxation depends on its ability to devise
increasingly creative and expensive schemes to justify the
need for the levying of additional taxes. It will not be

App. 18

long now before legitimate “fees” for fire and flood pro-
tection are joined by more questionable “fees” such as
recreation fees, clean air fees, pollution fees, beautifica-
tion fees, road paving fees, garbage fees, cultural event
fees, parking fees, sporting event fees, and regatta fees.
Anyone doubting that such a proliferation of government
“fees” could and will occur need only look at the history
of taxation in the United States in the twentieth century
to be convinced. Also, while the above-mentioned “fees”
may be collected to pay for desirable things, these “fees”
should be labeled what they really are: taxes.

“The power to tax involves the power to destroy,”
noted Chief Justice John Marshall in McCulloch v. Mary-
land, 17 U.S. (4 Wheat) 316, 431, 4 L.Ed. 579 (1819). This is
also true of the power to collect “fees.” No matter what
you call it, the money taken from the Catholic Diocese
and the schools involved in this case means that there is
less money in the operating budgets of these institutions.
This is money that would otherwise be spent on teachers’
salaries, new textbooks, equipment, or building improve-
ments. In his oral argument before this Court, the lawyer
for the Ohio County Board of Education and Wheeling
Jesuit University contended that the board of education
will be forced to pay almost one million dollars a year out
of the school budget as a result of this “fee.” This “fee,”
therefore, is really a tax paid by the school children in
Ohio County to the detriment of their education. Regard-
less of whether the collection of the money is called a tax

or a fee, it has the same effect on the appellants’ finances.
Shakespeare wrote, “That which we call a rose by any

App. 19

other name would smell as sweet.” The Bard’s words are
equally true regarding the noxious odor of taxes. That
which we call a tax by any other name smells just as bad.

In sum, I agree with the United States Court of
Appeals, Fourth Circuit in United States v. City of Hunt-
ington, West Virginia in its assessment that the Huntington
user fee “is a thinly disguised tax.” 999 F.2d 71, 74. I
believe this is true of all the fees involved here. Further,
the Court of Appeals held that the federal government is
immune from paying these exact same fees. Therefore, I
would hold that if the federal government is immune
from paying a “fee,” the other entities listed in W.Va.
Code § 11-3-9 are also. To say otherwise is a clear denial
of equal protection to the churches and schools. Sadly,
their recourse now must be to the federal courts to set
things right. Accordingly, I would find that W.Va. Code
§ 11-3-9 exempts the Diocese and the schools from paying
the “fees” at issue. This is clearly one instance in which
the Diocese should not be bound to render unto Caesar.
By holding to the contrary, the majority opinion opens the
door to additional taxes and an increasing burden on
those institutions that are, under our Constitution and by
law, exempt from such taxation.

I am authorized to state that Justice McCuskey joins
in this dissent.

2 Romeo and Juliet. Act II, Sc. 2, Line 43.

App. 20

IN THE CIRCUIT COURT OF CABELL COUNTY,
WEST VIRGINIA

THE CITY OF HUNTINGTON,
a West Virginia Municipal
Corporation,

Plaintiff,

v. CIVIL ACTION NO. 97-C-320
(Judge David Pancake)

MOST REVERENT BERNARD W. SCHMITT,
BISHOP OF THE ROMAN CATHOLIC
DIOCESE OF WHEELING-CHARLESTON,

Defendant.

ORDER

CAME ON A PREVIOUS DAY, to-wit: Tuesday, May
19, 1998, the City of Huntington, by its counsel, Jendon-
nae L. Houdyschell, City Attorney, and the Defendant,
Most Reverent Bernard W. Schmitt, Bishop of the Roman
Catholic Diocese of Wheeling-Charleston, by counsel,
Sandra K. Henson and Michael A. Woelfel.

The Court, after review of the Memoranda filed by
the parties and after hearing the arguments of counsel,
does hereby find as follows:

Collateral Estoppel

1. Four conditions must be met in order for
collateral estoppel to bar a claim. (1) The
issue previously decided is identical to the
one presented in the action in question; (2)
there is a final adjudication on the merits of
the prior action; (3) the party against whom
the doctrine is invoked was a party or in

App. 21

privity with a party to a prior action; and (4)
the party against whom the doctrine is
raised had a full and fair opportunity to
litigate the issue in the prior action. State v.
Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).

Upon reviewing the memoranda and arguments of
counsel the Court finds that applying the above criteria
collateral estoppel does not apply in this case. First of all,
the same issues are not before this Court as were in the
case styled The City of Huntington v. SGM, Inc., et al., Civil
Action No. 91-C-567. The SGM case concerned the City of
Huntington’s fire and flood fees, whereas the case at bar
concerns the City of Huntington’s Municipal Service Fee.
Secondly, the parties to this action are not the same. This
action is against the Most Reverent Bernard W. Schmitt,
Bishop of the Roman Catholic Diocese of Wheeling-Char-
leston. The previous action was against the St. Joseph
Catholic Church and was handled by Reverend Moore.
Therefore the Court finds that the parties are not the
same. Based upon the foregoing, the Court holds that the
City of Huntington may not assert collateral estoppel in
the case before this Court.

Equal Protection

2. “[T]he constitutional requirement [for equal
protection] is the seasonable attainment of a
rough equality in . . . treatment [of] similarly
situated property owners.” Alleghey-Pit-
tsburgh Coal Co. v. Commission of Webster
County, 488 U.S. 336, 109 S.Ct. 633 (1989).
Further, a statute classifying economic rights
will withstand equal protection rational
basis scrutiny where the classification bears

App. 22

a reasonable relationship to a proper gov-
ernmental purpose and all persons with the
class are treated the same. Gibson v. West
Virginia Department of Highways, 185 W.Va.
214, 406 S.E.2d 440, 445.

The West Virginia Supreme Court in the case of The
City of Huntington v. Bacon, et al., 473 S.E.2d 743 (W.Va.
1996) has already determined that the City of Hunt-
ington’s Municipal Service Fee reasonably serves the pur-
pose for which it was enacted. Id.

The Municipal Service Fee is assessed on all owners
of property within the City of Huntington save that
owned by the federal government or by the City of Hunt-
ington. Specifically, Section 773.03 of the Codified Ordi-
nances of the City of Huntington provides:

“On or after July 1, 1991, there is hereby
imposed upon all users of municipal services a
municipal service fee for each lot or parcel of
land containing any building or structure
owned by each user. The fee shall be imposed at
an annual rate of eighty ($80.00) dollars per lot
plus $0.0575 per square foot of each building or
structure existing on each such lot.”

Further a “user” is defined in Section 773.02 of the
Codified Ordinances of the City of Huntington as fol-
lows:

“For the purposes of this article, “user of munic-
ipal services” and “user” refers to any person,
firm, corporation or governmental entity of any
kind owning any building or structure, whether
residential, commercial, governmental or other-
wise, within the limits of the City which benefits

App. 23

from fire and/or flood protection services pro-
vided by the City.”

The Defendant cites two examples of entities which
do not pay a Municipal Service Fee to the City and,
therefore, contend that they should not be required to
pay the same.

The first entity the defendant refers to is the United
States Federal Government. In the case of United States of
America v. City of Huntington, 999 F.2d 71 (4th Cir. 1993),
cert. denied, __ U.S. ___, 114S. Ct. 1048, 127 L.Ed. 2d 371
(1994), the United States Court of Appeals for the Fourth
Circuit held, “[t}he service fee is a thinly disguised tax,
and, as such, the USPS and GSA are immune from lia-
bility for it.” The reason that the Court held that the
federal government was immune from liability was based
upon the Supremacy Clause of the United States constitu-
tion. The Defendant herein is not entitled to the protec-
tions afforded by the Supremacy Clause nor has the
Defendant's equal protection rights been violated by con-
tinuing to be charged for the same. The City of Hunt-
ington cannot legally collect this fee from a federal entity
based upon this decision. This was not an exemption put
in place by the City to give special treatment to the
federal government, but was placed there by the Fourth
Circuit Court of Appeals.

The second entity the defendant cites to is the City of
Huntington. There is no dispute that the City of Hunt-
ington does not send itself separate and individual bills
for each and every property it owns within the City of
Huntington. On the other hand, the City contributes
additional funds from the City’s general revenue account

App. 24

to cover the cost of providing these services which is not
fully covered by the Municipal Service Fee. For example,
in fiscal year 1996-1997, the City paid an additional
$2,609,308.25 to cover the costs of providing fire and
flood protection to the City of Huntington.

This Court finds that the City does not need to
administratively bill itself for the properties it owns. The
Court finds that the City, in billing itself would unneces-
sarily add to the City’s administrative costs in collecting
the same.

Further, the Court finds that the case of Allegheny
Pittsburgh Coal v. County Commission of Webster County,
109 S.Ct. 633, 638 is not applicable regarding the issues in
the case at bar.

Based upon the foregoing, the Court finds that there
has been no violation of the equal protection clause or of
the Defendant's other constitutional rights. Therefore, in
accordance with Judge O’Hanlon’s order entered July 21,
1997 and other cases that have been presented before this
Court, the Court does hereby find that the Defendant in
this action is liable to the City of Huntington for payment
of its municipal service fees. Further, the Court does
withhold judgment as to the monetary damages of
municipal service fees until some point in the future,
allowing parties time to calculate the same and present
that evidence to the Court.

Penalties

3. On the issue of penalties, the Court does
hereby find that the fact that the City of
Huntington imposes penalty upon penalty

a

te Bee,

App. 25

has a chilling effect upon the litigation of
these issues. Therefore, the Court finds for
purposes of the case now before it that the
penalties shall be computed only upon the
outstanding principal amount of municipal
service fees and not on any penalty that has
previously accrued. It must be noted that the
Court is not ordering that the City of Hunt-
ington’s ordinance be changed by its find-
ings in this case, nor the City’s method of
computing its penalty upon other entities be
modified in accordance therewith.

WHEREFORE, based upon the foregoing, it is hereby
ORDERED, ADJUDGED and DECREED that judgment on
this issue of liability be GRANTED to the City of Hunt-
ington and that the Defendant’s Motion for Summary
Judgment is hereby DENIED.

ENTER THIS 4 DAY OF JUNE, 1998.

/s/ DAVID M. PANCAKE
Honorable David M. Pancake,
Judge

PREPARED FOR ENTRY BY:

/s/ Jendonnae L. Houdyschell
Jendonnae L. Houdyschell, Esquire
City Attorney
The City of Huntington
Post Office Box 1659
Huntington, West Virginia 25717-1659

App. 26

APPROVED FOR ENTRY BY:

/s/ Sandra K. Henson
Sandra K. Henson, Esquire
Lewis, Friedberg, Glasser,
Casey & Rollins, LLP
Post Office Box 1746
Charleston, West Virginia 25326-1746

/s/ Michael A. Woelfel
Michael A. Woelfel, Esquire
Attorney at Law
909 Fifth Avenue
Huntington, West Virginia 25701

———

App. 27

IN THE CIRCUIT COURT OF
CABELL COUNTY, WEST VIRGINIA

THE CITY OF HUNTINGTON,
a West Virginia Municipal
Corporation,

Plaintiff,

v. CIVIL ACTION NO. 97-C-320
(Judge David Pancake)

MOST REVERENT BERNARD W. SCHMITT,
BISHOP OF THE ROMAN CATHOLIC
DIOCESE OF WHEELING-CHARLESTON,

Defendant.

ORDER

CAME ON A PREVIOUS DAY, to-wit: Tuesday, May
19, 1998, the City of Huntington, by its counsel, Jendon-
nae L. Houdyschell, City Attorney, and the Defendant,
Most Reverent Bernard W. Schmitt, Bishop of the Roman
Catholic Diocese of Wheeling-Charleston, by counsel,
Sandra K. Henson and Michael A. Woelfel.

The Court, after review of the Memoranda filed by
the parties and after hearing the arguments of counsel,
does hereby find as follows:

1. With regard to Count I of the Complaint, the
Court does hereby find that the Defendant is
indebted to the City of Huntington in the
amount of Eight Thousand Twenty-Three
Dollars and 35/100 ($8,023.35); prejudgment
interest from April 24, 1997 to the date of the
entry of this Order on the amount of Six
Thousand One Hundred Ninety-Nine Dol-
lars and 87/100 ($6,199.87); post judgment

App. 28

interest on the amount of Eight Thousand
Twenty-Three Dollars and 35/100 ($8,023.35)
in addition to all prejudgment interest
awarded hereon.

2. With regard to Count II of the Complaint,
the Court does hereby find that the Defen-
dant is indebted to the City of Huntington in
the amount of Ten Thousand Seven Hun-
dred Twenty-Eight Dollars and 65/100
($10,728.65); prejudgment interest from
April 24, 1997 to the date of the entry of this
Order on the amount of Eight Thousand
Two Hundred Ninety Dollars and 32/100
($8,290.32) post judgment interest on
the amount of Ten Thousand Seven Hun-
dred Twenty-Eight Dollars and 65/100
($10,728.65) in addition to all prejudgment
interest awarded hereon.

3. The Court further finds that the Defendant
shall bear all costs associated with the filing
of this action.

WHEREFORE, it is hereby ORDERED, ADJUDGED
and DECREED that with regard to Count I of the Com-
plaint, the Court does hereby GRANT judgment in favor
of the City of Huntington and against the Defendant and
does hereby ORDER the Defendant to pay to the City of
Huntington the amount of Eight Thousand Twenty-Three
Dollars and 35/100 ($8,023.35); prejudgment interest from
April 24, 1997 to the date of the entry of this Order on the
amount of Six Thousand One Hundred Ninety-Nine Dol-
lars and 87/100 ($6,199.87), post judgment interest on the
amount of Eight Thousand Twenty-Three Dollars and
35/100 ($8,023.35) in addition to all prejudgment interest
awarded hereon.

App. 29

It is further ORDERED, ADJUDGED and DECREED
that with regard to Count II of the Complaint, the Court
does hereby GRANT judgment in favor of the City of
Huntington and against the Defendant and does hereby
ORDER the Defendant to pay to the City of Huntington
the amount of Ten Thousand Seven Hundred Twenty-
Eight Dollars and 65/100 ($10,728.65); prejudgment inter-
est from April 24, 1997 to the date of the entry of this
Order on the amount of Eight Thousand Two Hundred
Ninety Dollars and 32/100 ($8,290.32); post judgment
interest on the amount of Ten Thousand Seven Hundred
Twenty-Eight Dollars and 65/100 ($10,728.65) in addition
to all prejudgment interest awarded hereon.

It is further ORDERED, ADJUDGED and DECREED
that the Defendant shall bear all costs associated with the
filing of this action.

To all of which the Defendant does hereby object and
except.

ENTER THIS 12 day of MA¥ June, 1998.
/S/ DAVID M. PANCAKE

Honorable
David M. Pancake, Judge

PREPARED FOR ENTRY BY:

/s/ Jendonnae L. Houdyschell
Jendonnae L. Houdyschell, Esquire
City Attorney
The City of Huntington
Post Office Box 1659
Huntington, West Virginia 25717-1659

App. 30

APPROVED FOR ENTRY BY:
/s/ Sandra K. Henson

/s/

Sandra K. Henson, Esquire
Lewis, Friedberg, Glasser,
Casey & Rollins, LLP
Post Office Box 1746
Charleston, West Virginia 25326-1746

Michael A. Woelfel

Michael A. Woelfel, Esquire
Attorney at Law

909 Fifth Avenue

Huntington, West Virginia 25701

App. 31

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals
continued and held at Charleston, Kanawha County, on
the 28th day of January, 1999, the following order was
made and entered:

City of Clarksburg, a municipal
corporation, Plaintiff Below,
Appellee

vs.) No. 25143

Grandeotto, Inc., a corporation;
Bernard J. and Kathy A. Folio;
Mid-City Land Co.; Bernard J. Folio,
d/b/a Highrise Associates; Kathryn
Folio; Joseph Folio, Defendants
Below, Appellants

AND

The City of Huntington, a West Virginia
municipal corporation, Plaintiff Below,
Appellee

vs.) No. 25401

Most Reverend Bernard W. Schmitt, Bishop
of the Roman Catholic Diocese of Wheeling-
Charleston, Defendant Below, Appellant

AND

Wheeling College, Inc., West Virginia
corporation, and the Most Reverend
Bernard W. Schmitt, Bishop of the
Diocese of Wheeling-Charleston, Plaintiffs
Below, Appellants

App. 32

vs.) No. 25402

The City of Wheeling, a municipal
corporation, Defendant Below, Appellee

AND

The City of Wheeling, a municipal
corporation, Plaintiff Below, Appellee

VS.
The Ohio County Board of Education,
Defendant Below, Appellant

The Court, having maturely considered the petition
for rehearing and reargument filed by the appellants,
Wheeling College, Inc., a West Virginia corporation, the
Most Reverend Bernard W. Schmitt, Bishop of the Diocese
of Wheeling-Charleston, and the Ohio County Board of
Education, and the written response filed in opposition
thereto, and the petition for rehearing and reargument
filed by the appellants, Grandeotto, Inc., a corporation,
Bernard J. and Kathy A. Folio, Mid-City Land Co., Ber-
nard J. Folio, d/b/a Highrise Associates, Kathryn Folio,
and Joseph Folio, in the above-captioned cases is of opin-
ion to, and doth hereby, deny the petitions for rehearing.
Justices Maynard and McGraw would grant.

A True Copy

Attest: /s/ Illegible
Clerk, Supreme Court of Appeals

oes.
prre

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0722%3A1. Public record. Not legal advice.