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OPINIONS
Tom Miller: Manchin in hot water for interfering in court case appeal
West Virginia's state constitution is clear that the three branches of government "shall be separate and distinct," but periodically, there are instances where arguments arise that one branch is violating this separation of powers.
The latest instance is the claim by some critics that Gov. Joe Manchin, who heads up the state's executive branch of government, may be trying to apply some undue influence on a decision that will be made by the five justices of the state Supreme Court of Appeals, the ultimate authority in the state's judicial branch of government.
Big bucks are at stake here. The DuPont Co., a giant Delaware-based chemical firm, is fighting a $328 million damage verdict returned by a Harrison County jury nearly a year ago.
The governor, who is clearly a shoo-in to win a second four-year term in the statewide general election in November, claims he's neutral as to the outcome of this case. He says he's merely trying to make it clear he thinks the court needs to review this case even if the final outcome is to uphold the jury's decision.
The facts of the case are that residents of Spelter in Harrison County sued DuPont in 2004 for metal pollution at a former zinc smelter alleging that the company tried to cover up the problem. In October 2007, a jury found in favor of those residents, and DuPont was ordered to pay $130 million for medical monitoring of 8,000 people, $55 million to clean up the site and $196 million more in punitive damages.
There seems to be no dispute that within weeks Charles Holliday Jr., the CEO of DuPont, was on the telephone with Manchin. The company then gave the governor copies of their planned appeal in hopes he would use many of the same arguments in his "friend of the court" brief that was filed June 24, the same day DuPont attorneys filed the official appeal asking the Supreme Court to throw out the lower court damages award.
To his credit, the governor's attorney didn't ask the court to overturn the Harrison County jury's decision but merely to give the company the "due process" any such nine-figure punishment should receive, even if ultimately the Supreme Court decides to uphold that award.
But the New York Times and the Charleston Gazette have both suggested they don't believe Manchin is behaving as a neutral observer in this matter. The fact that one of his key aides, Peggy Ong, is a former DuPont employee who apparently worked on this problem at one time doesn't help boost his claims of neutrality. Neither does the fact that his attorney who filed the "friend of the court" brief comes from a law firm that was a DuPont consultant in this case.
Some critics even want the Supreme Court to decide if the governor has violated the constitutional rules on separation of powers when it makes its decision on this appeal. The plaintiffs' attorneys are more direct. They simply want the Supreme Court to ignore Manchin's interference.
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Meanwhile, it may be a holiday for the entire nation next Monday, but it is merely the beginning of a week-long sales tax holiday for West Virginia consumers who buy energy-efficient appliances. Thanks to a law passed at the regular 2008 legislative session, from Sept. 1 until Sept. 7, consumers can buy energy-efficient appliances and avoid the state's 6 percent consumer sales tax.
The purchase must be $2,500 or less and must be for home or other personal, noncommercial use. The state's Department of Revenue has estimated the revenue loss will be about $300,000, and that loss is expected to be overcome from successful lawsuits against two credit card companies by Attorney General Darrell V. McGraw Jr.
The new law actually calls for this "sales tax holiday" to be expanded in each of the next two years so that it will apply for the entire month of September in 2009 and again in 2010.
Among the more common items spelled out in the law as eligible for this tax cut are "dishwashers, freezers, refrigerators, clothes washers, furnaces and air conditioners" that meet energy efficient guidelines established by the federal EPA and the U. S. Department of Energy and carrying the Energy Star label.
Finally, even though state law requires public schools in West Virginia to provide 180 days of instructional time for students each school year, only four of the 55 counties were able to do that in the 2007-08 school year. Why? Because of other state laws that limit that schedule.
First of all, the school term cannot begin until Aug. 26 and it must end by June 8 because teachers are hired on a 200-day contract. Because bad weather forced several days of canceled classes for safety's sake during the past school term, only the cluster of four counties in and around Charleston -- Boone, Kanawha, Lincoln and Putnam counties -- met that requirement.
Tom Miller is a retired state government reporter for The Herald-Dispatch. He is a regular contributor to The Herald-Dispatch editorial page.
