Burnell v. City of Morgantown

• Decision Date: 13 November 2001
• Docket Number: No. 28850.,28850.
• Citation: 210 W.Va. 506,558 S.E.2d 306
• Parties: Michael D. BURNELL, Charles L. Osborne, Jr., Donald D. Sargent, John H. Quinn and Robert R. Bucklew, Sr., Plaintiffs Below, Appellants, v. CITY OF MORGANTOWN, West Virginia, a Municipal Corporation, Defendant Below, Appellee.
• Court: West Virginia Supreme Court

558 S.E.2d 306

210 W.Va. 506

Michael D. BURNELL, Charles L. Osborne, Jr., Donald D. Sargent, John H. Quinn and Robert R. Bucklew, Sr., Plaintiffs Below, Appellants, v. CITY OF MORGANTOWN, West Virginia, a Municipal Corporation, Defendant Below, Appellee.

No. 28850.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2001.

Decided November 13, 2001.

J. Michael Benninger, Kelly R. Reed, Wilson, Frame, Benninger & Metheney, Morgantown, West Virginia, John F. Dascoli, The Segal Law Firm, Charleston, West Virginia, for appellants.

Rodney L. Bean, Steptoe & Johnson, Charleston, West Virginia, for appellees.

Dennis R. Vaughan, Jr., James V. Kelsh, Vaughan Law Firm, Charleston, West Virginia, for West Virginia Municipal League, Amicus Curiae.

Mark W. Matkovich, Beckley, West Virginia, for the City of Beckley, Amicus Curiae.

Gregory A. Morgan, Young, Morgan & Cann, Clarksburg, West Virginia, for the City of Clarksburg, Amicus Curiae.

McGRAW, Chief Justice.

Appellants, who are residents and qualified voters of appellee City of Morgantown, West Virginia (the "City") brought a declaratory judgment and mandamus action in the Circuit Court of Monongalia County to compel the City to place a proposed ordinance on the ballot requiring, inter alia, that the City engage in collective bargaining with representatives of its uniformed and civilian employees, alleging that the City had failed to discharge its mandatory duty under the voter initiative provisions of the municipal Charter. The circuit court granted judgment on the pleadings in favor of the City, concluding that the proposed ordinance ran afoul of various provisions of the City's Charter, and we now reverse.

I. BACKGROUND

The facts of this case are not disputed. Article VIII of the Morgantown City Charter provides for, among other means of direct citizen participation in the governance of the municipality, an initiative process whereby qualified voters comprising not less than ten percent of the City's electorate may submit a proposed ordinance to Morgantown's City Council, which, if not acted upon by that body without amendment, must be subjected to a vote by the municipal electorate.¹

Pursuant to this authority, appellants on October 1, 1999 filed an initiative petition with the city clerk entitled, "City of Morgantown Labor Management Cooperative Ordinance." The proposed ordinance contains a number of substantive provisions bearing upon the collective bargaining rights of City employees. (The full text of the measure is set forth in the Appendix to this opinion.) These provisions include section 5, which gives both uniformed and civilian employees the right to organize and bargain collectively without the threat of reprisal. The measure further requires, in section 6, that the City engage in collective bargaining with representatives of up to three "employee associations," for the purpose of "negotiating legally binding contracts concerning wages, conditions of employment, operations, safety, seniority, assignments, transfers, pensions, fringe benefits, grievances and grievance procedures, and other terms and conditions of employment." Section 6 also sets forth a detailed time frame for the commencement and conduct of such negotiations, and further provides that in the event the parties are unable to agree on contract terms after sixty days, either party may demand that the disputed matters be subject to binding interest arbitration.² Under this provision, municipal employees are strictly prohibited from striking or carrying out work slowdowns, and the City is correspondingly forbidden to engage in employee lockouts. Finally, section 7 of the initiative contains a standard severability clause.

The City Clerk subsequently certified the sufficiency of the initiative petition on November 17, 1999, and the City Council, at its December 7, 1999 regular meeting, voted unanimously in support of a motion "to reject th[e] initiative as it may be contrary to State Law and is contrary to the City charter."

After the City failed to take steps to place the initiative on the ballot, appellants on March 3, 2000 commenced the present action in the Circuit Court of Monongalia County, seeking declaratory judgment and mandamus relief based upon their allegation that the City was required to submit the proposed ordinance to the voters. The City later moved for judgment on the pleadings pursuant to W.Va.R.Civ.P. 12(c), arguing that the proposed ordinance violated various provisions of the City's Charter. The circuit court subsequently entered judgment in favor of the City, ruling that the proposed ordinance conflicted with two provisions of the City Charter. First, the lower court found that the initiated ordinance was precluded by language contained in section 8.01(a) of the Charter, which provides, in relevant part, that voter initiatives "shall not extend to the budget or capital program or any ordinances relating to appropriation of money, levy of taxes or salaries of City officers or employees." (Emphasis added.) The court further determined that the initiative conflicted with section 4.05 of the Charter, which requires that the City Manager or his designee implement a "sound personnel program for the City," and further mandates that such officer recommend "personnel rules"³ to a three-person Personnel Board, which in turn is charged with presenting its recommendations to the City Council.⁴

In granting judgment on the pleading to the City, the circuit court summarized its stance by stating in its final order that

the charter is drafted in a manner which does not permit employees of the city or any group of citizens to force the city to recognize employee bargaining groups or to engage in collective bargaining with employees. Of course, council is free to enter into collective bargaining agreements with its employees. Apparently, this particular council chose not to do so. The remedy for the [plaintiffs] would appear to be political, not judicial. It would be an appeal to the current council to adopt collective bargaining, or an appeal to the citizens of the City of Morgantown to elect a council, the majority of which favors entering into collective bargaining agreements with public employees. A more difficult remedy would be to embark on an effort to amend the charter itself to remove the restrictions now contained in Sections 8.01 and 4.05.

It is this May 16, 2000 final order that appellants now challenge.

II. STANDARD OF REVIEW

This Court previously indicated that "[a]ppellate review of a circuit court's order granting a motion for judgment on the pleadings is de novo." Syl. pt. 1, Copley v. Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995); accord Conrad v. Charles Town Races, Inc., 206 W.Va. 45, 47, 521 S.E.2d 537, 539 (1998)

. Such plenary review is appropriate because "[a] motion for judgment on the pleadings presents a challenge to the legal effect of given facts rather than on proof of the facts themselves." Syl. pt. 2, in part, Copley. Thus,

[a] circuit court, viewing all the facts in a light most favorable to the nonmoving party, may grant a motion for judgment on the pleadings only if it appears beyond doubt that the nonmoving party can prove no set of facts in support of his or her claim or defense.

Syl. pt. 3, Copley. See also Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 474, 498 S.E.2d 41, 46 (1997)

.

III. DISCUSSION

The parties to this litigation would have the Court undertake straightforward consideration of whether the circuit court was correct in its determination concerning the validity of the proposed ordinance; however, this case requires the Court to more generally delimit the proper scope of pre-election judicial review of initiatives and referendums.

A. Pre-Election Judicial Review

This Court has consistently sanctioned pre-election adjudication of disputes concerning whether the technical or procedural requirements for placing a measure on the ballot have been complied with, such as whether there are an inadequate number of qualifying signatures on the voter petition. See, e.g., Cowan v. County Comm'n of Logan County, 161 W.Va. 106, 240 S.E.2d 675 (1977)

(granting mandamus relief requiring vote on petition seeking incorporation of city, where petition signatures and map found in substantial conformity with statute); State ex rel. Horne v. Adams, 154 W.Va. 269, 275, 175 S.E.2d 193, 197 (1970) (refusing to order election on bond ordinance because petition failed to specify amount of proposed bonds as required by statute); State ex rel. Riffle v. City of Clarksburg, 152 W.Va. 317, 162 S.E.2d 181 (1968) (refusing to order popular election on issue of fire service fee where petition failed to include requisite number of voter signatures); syl. pt. 3, State ex rel. Bess v. Black, 149 W.Va. 124, 139 S.E.2d 166 (1964) ("A writ of mandamus will issue to compel the holding of a local option election pursuant to the provisions of Code, 61-10-28, as amended, where it appears from the record that a sufficient number of signatories to a petition calling for such election remain unchecked and are therefore unchallenged."); State ex rel. Noyes v. Lane, 89 W.Va. 744, 110 S.E. 180 (1921) (ordering certification of recall petition after holding that city clerk had erroneously failed to include valid signatures).

The Court's responses to substantive challenges involving the content of voter initiatives and referendums have, however, at least on the surface, lacked such analytical coherence. In one early case, State ex rel. Wells v. City of Charleston, 92 W.Va. 61, 114 S.E. 382 (1922), the petitioner sought a writ of mandamus to compel the city to conduct an election on a proposed ordinance governing the granting of permits for private bus lines. In defense of their action in refusing to place the initiative on the ballot, the city argued that the proposed ordinance was in conflict with a general statute...