Do West Virginia municipal court technology and administrative fees, adopted by Home Rule cities, run afoul of the statutory rule that home-rule ordinances may not be 'contrary to' state criminal law?

Official title

Opinion of the Attorney General Concerning Home Rule Board

Plain-English summary

The West Virginia Municipal Home Rule Board administers the state program that lets cities try out ordinances that would otherwise be preempted by state law. Cabinet Secretary Hardy asked the AG whether five court-fee ordinances the Board had previously authorized (technology, court maintenance, and administrative fees ranging from $1 to $65 in cities like Morgantown, Shepherdstown, Elkins, and Nutter Fort) were nonetheless invalid because the Home Rule statute, W. Va. Code § 8-1-5a(i)(11), forbids home-rule ordinances "contrary to" state criminal law.

The AG concluded the fees are not contrary to state criminal law. The fees pay for the judicial system. They reimburse court operating costs rather than punish crimes. Even though they apply in criminal cases, they do not conflict with, contradict, or substitute for criminal penalties. The opinion walks through the legislative history of § 8-1-5a, which has flipped between "contrary to" (narrow) and "pertaining to" (broad) several times. The current version uses the narrow "contrary to" formulation, and reasonable court fees do not meet that test.

The opinion also addresses the Board's duty if it later concludes a previously authorized fee was outside its authority: under the catchall in § 8-1-5a(e)(5), the Board may have to notify the affected city of its updated position.

The opinion is careful to flag what it does NOT decide: whether large or punitive court fees might violate the Excessive Fines Clause of the U.S. or West Virginia Constitution, and whether court fees imposed in circumstances suggesting punitive intent could be "contrary to" state criminal law on different facts.

What this means for you

For Home Rule city attorneys drafting court-fee ordinances

Based on this opinion, modest court technology, maintenance, and administrative fees calibrated to actual operating costs are very likely safe under W. Va. Code § 8-1-5a(i)(11). The opinion treats $1 to $65 as the permissive range. Document on the record that the fees are tied to operating costs and not to penalty enhancement.

For city councils considering new municipal court fees

Tie fee amounts to demonstrable operating costs (technology contracts, court personnel time, administrative overhead). Avoid scaling fees by offense severity, which would look more like punishment than reimbursement.

For the Home Rule Board reviewing applications

The opinion gives the Board comfort that approving reasonable cost-recovery fees does not put it outside the statute. If the Board later determines a previously approved fee was actually outside the statute, it should consider notifying the affected city under the § 8-1-5a(e)(5) catchall power.

For defendants paying municipal court fees

The AG opinion does not say court fees are always unobjectionable. It only addresses whether they violate the home-rule statute. If a fee is unusually large or imposed in circumstances suggesting it functions as additional punishment, the opinion expressly leaves open the possibility that a Excessive Fines Clause challenge could succeed.

For state legislators monitoring home rule

The opinion confirms that home-rule cities can charge cost-recovery municipal court fees without running into the criminal-law preemption. If you wanted to limit that authority, the path would be amending § 8-1-5a(i)(11) to use a broader formulation like "pertaining to" (the 2013 language) instead of "contrary to" (the 2007, 2015, and 2019 language).

Common questions

Q: How much can a municipality charge in court fees before this gets risky?
The opinion approves fees up to $65. It does not state an upper limit beyond that, but it explicitly leaves open the possibility that "particularly large fees or fees imposed under circumstances that suggest they are intended to increase criminal penalties rather than pay for the municipal court system could be seen to undermine the Legislature's decisions concerning criminal penalties." Treat $65 as a known-safe ceiling, document the cost basis, and be cautious well above that.

Q: What's the difference between a fee and a fine?
The opinion adopts a useful citation to a 2019 ABA piece: "While fines are primarily punitive, fees and court costs are designed to reimburse the government." Fines punish; fees defray costs. The same dollar amount can be one or the other depending on its purpose.

Q: Does the opinion address whether the Home Rule program itself is constitutional?
No. It assumes the program's validity and addresses only the narrower preemption question.

Q: What about constitutional challenges to specific fees?
Expressly not addressed. The opinion notes that the Excessive Fines Clauses of the U.S. and West Virginia Constitutions could in theory apply to municipal court fees but does not analyze that here.

Q: Does the Board have to notify a city if it changes its mind about a previously approved ordinance?
The opinion's answer is "may have a duty to inform" under the catchall in § 8-1-5a(e)(5). The duty is conditional. If the previously approved fee is now found to be invalid, the Board "must assess whether informing the municipality of that determination is 'necessary to effectuate the provisions' of the Program."

Q: What was the 2013 version that used "pertaining to"?
W. Va. Code § 8-1-5a(k)(3) (2013) said municipalities did not have authority to pass ordinances "pertaining to ... [c]hapters [60A, 61, and 62] of [the West Virginia Code] or state crimes and punishment." That is broader than "contrary to." A court fee that did not contradict criminal law might still be "pertaining to" it because it is collected in connection with criminal cases. The Legislature reverted to "contrary to" in 2015 and stuck with it through 2019, signaling that the narrower test was the intended one.

Background and statutory framework

The Municipal Home Rule Pilot Program began in 2007 under W. Va. Code § 8-1-5a. The 2019 amendment made the program permanent and opened it to all West Virginia municipalities. Cities apply by submitting plans to the Home Rule Board, which is the program's administering body.

The statute lets participating cities pass ordinances that would otherwise be preempted by state law, except for an enumerated list of carve-outs. The most important carve-out for this question is § 8-1-5a(i)(11), which prohibits home-rule ordinances "contrary to ... Chapters 60A, 61, and 62 of this code or any other provisions of this code governing state crimes and punishment."

The "contrary to" language has bounced. The 2007 statute used "not contrary to." 2013 broadened to "pertaining to." 2015 went back to "not contrary to." The current 2019 version uses "contrary to." Under State v. General Daniel Morgan Post No. 548, courts presume the Legislature meant to make the change each time it changed the language. The AG's reading: the current "contrary to" is the narrow test, and the Legislature deliberately chose it.

The dictionary definitions matter. "Contrary" means "in conflict with" or "diametrically different." Williams v. Taylor used the same definitions in interpreting the federal habeas statute. A municipal court fee tied to court operating costs does not conflict with criminal punishment statutes; it operates in a different lane.

The Board's authority to act on previously approved ordinances comes from § 8-1-5a(e)(5), the catchall power to "[p]erform any other powers or duties necessary to effectuate the provisions of this section." The AG reads that as covering after-the-fact notice when the Board's view of an ordinance changes.

Citations

• W. Va. Code § 5-3-1
• W. Va. Code § 8-1-5a (Municipal Home Rule Pilot Program / permanent program)
• W. Va. Code § 8-1-5a(i)(11) (preemption carve-out for state criminal law)
• W. Va. Code § 8-1-5a(e)(5) (Board's catchall powers)
• S.B. 747, 78th Leg., Reg. Sess. (W. Va. 2007), effective July 1, 2007
• S.B. 435, 81st Leg., Reg. Sess. (W. Va. 2013), effective July 1, 2013
• S.B. 323, 82nd Leg., Reg. Sess. (W. Va. 2015), effective June 12, 2015
• S.B. 4, 84th Leg., Reg. Sess. (W. Va. 2019), effective June 7, 2019
• Williams v. Taylor, 529 U.S. 362, 388, 405 (2000)
• State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959)
• State v. Ward, 245 W. Va. 157, 858 S.E.2d 207 (2021)

Source

• Landing page: https://ago.wv.gov/media/17591/download?inline
• Original PDF: https://ago.wv.gov/media/17591/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
1900 Kanawha Blvd E
Building 1, Room 26-E
Charleston, WV 25305-0220
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140
May 9, 2022

The Honorable Dave Hardy
Cabinet Secretary
West Virginia Municipal Home Rule Board
1900 Kanawha Blvd. E.
Charleston, WV 25305

Dear Secretary Hardy:

You have asked for an Opinion of the Attorney General concerning certain ordinances enacted by municipalities participating in the Municipal Home Rule Program. This Opinion is being issued under West Virginia Code § 5-3-1, which provides that the Attorney General "shall give written opinions and advice upon questions of law ... whenever required to do so, in writing, by ... any … state officer [or] board." To the extent this Opinion relies on facts, it is based solely on the factual assertions in your correspondence with the Office of the Attorney General.

In 2007, the West Virginia Legislature created the Municipal Home Rule Pilot Program to help municipalities better "carry out their duties and responsibilities in a cost-effective, efficient, and timely manner." W. Va. Code § 8-1-5a(a). Three years ago the Legislature "made the pilot program a permanent program" and opened it up for "all West Virginia municipalities" to apply for admission. Municipal Home Rule Program Guidelines, West Virginia Department of Revenue, https://revenue.wv.gov/HomeRule/Documents/HomeRule.Guidelines.pdf.

Municipalities apply to the Program by submitting a plan to the West Virginia Home Rule Board, the Program's administering body. W. Va. Code § 8-1-5a(f). The Board reviews the plan, provides feedback, and ultimately decides whether to approve the plan and admit the municipality into the Program. Id. § 8-1-5a(e)(1)-(2). The Board has other duties, too: It reviews proposed amendments to existing plans, consults with agencies affected by new or amended plans, and "[p]erform[s] any other powers or duties necessary to effectuate the provisions" of the Program. Id. § 8-1-5a(e)(3)-(5).

A participating municipality "may not pass an ordinance, act, resolution, rule, or regulation, under the provisions of [the statute], that is contrary to" that municipality's written plan, the Program's authorizing statute, or certain other state and federal laws, regulations, and standards. W. Va. Code § 8-1-5a(i). Among those laws are "Chapters 60A [the Uniform Controlled Substance Act], 61 [Crimes and Their Punishment], 62 [Criminal Procedure] ... or any other provisions of [the West Virginia Code] governing state crimes and punishment." Id. § 8-1-5a(i)(11).

Your letter asks whether municipal ordinances imposing court fees violate this Section 8-1-5a(i)(11) prohibition. As examples, you cite five recent ordinances imposing a "Technology and Court Maintenance" fee or a "Municipal Court Administration" fee for which various municipalities requested and (for four of the five) received Board authorization:

Your letter raises the following legal questions:

Do court-fee ordinances run "contrary to" statutory provisions "governing state crimes and punishment" under West Virginia Code § 8-1-5a(i)(11)? And if so, does the Board have a statutory duty to notify a municipality that the Board now considers an ordinance it previously approved to be in violation of Section 8-1-5a(i)(11)?

We conclude that while certain court-fee ordinances might violate Section 8-5-1a(i)(11), none of the example ordinances you describe appear to fall into that category. That said, if the Board were to determine that a court-fee ordinance it previously authorized violates Section 8-5-1a(i)(11), the Board might have a responsibility to notify the enacting municipality as part of its "other powers or duties necessary to effectuate the provisions of this section." Id. § 8-5-1a(e)(5).

Discussion

The example ordinances you describe impose anywhere from $1 to $65 in fees that cover "technology," "court maintenance," or "administrative" costs incurred by participating municipalities. There is nothing in your description of these ordinances that suggests they run "contrary" to any "provisions of [the West Virginia Code] governing state crimes and punishment." W. Va. Code § 8-1-5a(i)(11).

"Contrary" means "in conflict with." MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/contrary (last visited May 6, 2022). This is "[t]he simplest ... definition" of the term. Williams v. Taylor, 529 U.S. 362, 388 (2000) (quoting Webster's Ninth New Collegiate Dictionary 285 (1983)). The phrase "contrary to" is also "commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Id. at 405 (quoting Webster's Third New International Dictionary 495 (1976)). This "plain meaning" of the language in Section 8-1-5a(i)(11) controls; it "is to be accepted and applied without resort to interpretation." State v. Ward, 245 W. Va. 157, 858 S.E.2d 207, 211 (2021) (quoting syl. pt. 2, Crockett v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970)).

What's more, the string of amendments to (what is now) Section 8-1-5a(i)(11) underscores that the Legislature's choice to use "contrary to" was intentional. When "a subsequent statute dealing with the same subject [] uses different language concerning that subject," courts "presume[]" the Legislature intended to make that "change in the law." State v. General Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 144, 107 S.E.2d 353, 358 (1959). The statute's history shows that is what happened here:

In 2007, the Legislature wrote an affirmative grant of authority to pass ordinances "not contrary to" certain provisions of the Code. W. Va. Code § 8-1-5a(c), (j)(1), S.B. 747, 78th Leg., Reg. Sess. (W. Va. 2007), effective July 1, 2007.

In 2013, however, the Legislature exchanged this language for a broader ban on certain municipal acts "pertaining to" those and other provisions. W. Va. Code § 8-1-5a(k)(3), S.B. 435, 81st Leg., Reg. Sess. (W. Va. 2013), effective July 1, 2013 (municipalities ... do not have the authority to pass an ordinance, act, resolution, rule or regulation ... pertaining to ... [c]hapters [60A, 61, and 62] of [the West Virginia Code] or state crimes and punishment" (emphasis added)).

Then, in 2015, the Legislature reverted to granting municipalities "authority to" pass acts "not contrary to ... [c]hapters [60A, 61, and 62] of [the West Virginia Code] or state crimes and punishment." W. Va. Code § 8-1-5a(i)(11), S.B. 323, 82nd Leg., Reg. Sess. (W. Va. 2015), effective June 12, 2015 (emphasis added).

Finally, the current version of the statute uses the same "contrary to" phrasing: "The municipalities ... may not pass an ordinance, act, resolution, rule, or regulation ... that is contrary to ... Chapters 60A, 61, and 62 of this code or any other provisions of this code governing state crimes and punishment." W. Va. Code § 8-1-5a(i)(11), S.B. 4, 84th Leg., Reg. Sess. (W. Va. 2019), effective June 7, 2019 (emphasis added).

While "contrary" means "in conflict with," "pertain" has a broader meaning: "To relate directly to; to concern or have to do with." Pertain, Black's Law Dictionary (11th ed. 2019); see also pertain, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/pertain (last visited May 6, 2022) ("to have reference"). The Legislature's decision to amend the statute to read "pertaining to" in 2013, followed by its return to "contrary to" in 2015 and 2019, confirms that this "change in the law", specifically, restoring a narrower limit on municipal authority, "was intended." General Daniel Morgan, 144 W. Va. at 144.

It is against this backdrop that we consider your example ordinances. Based on the information you provided, the ordinances do not appear to be inconsistent with state criminal law and, indeed, are fully consistent with the Program's broader purposes.

First, the ordinances you describe do not undermine or contradict laws "governing state crimes and punishment." W. Va. Code § 8-1-5a(i)(11). On their face, the cited "technology," "court maintenance," and "administrative" fees are about reimbursing or otherwise covering the costs of operating the judicial system, not about specific punishments for any crimes. On this logic, it is not clear whether they would "pertain[] to" the operative statutes were the 2013 version of the Code still in force. In any event, it is even more the case that a reviewing court would almost certainly find that they do not run "contrary to" those provisions. Though these fees may apply generally in criminal contexts, they lack a clear connection to the specific "crimes and punishment" those provisions govern. And because these general fees are tied to court operation costs, they do not appear to impose criminal penalties, much less ones that purport to supplant, supplement, or frustrate the aims of any punitive fines those provisions set forth. See, e.g., Jeff Yungman, The Criminalization of Poverty, American Bar Association 34, 39 (Jan./Feb. 2019) ("While fines are primarily punitive, fees and court costs are designed to reimburse the government."). With no barrier to imposing the municipal fees and any state-law criminal fine, it is difficult to see how the ordinances are "in conflict with," "diametrically different," the "opposite in character or nature," or "mutually opposed" to the relevant criminal laws. Williams, 529 U.S. at 388, 405. Declining to interpret the example ordinances as "contrary to" certain "provisions ... governing state crimes and punishment" therefore honors the statute's plain language and the Legislature's decision in 2015 to broaden municipalities' scope of authority under the Program.

Second, the example ordinances appear to honor the Legislature's express intent that the Program will allow municipalities to better address "challenges [associated with] delivering services" and "carry[ing] out their duties and responsibilities in a cost-effective, efficient, and timely manner." W. Va. Code § 8-1-5a(4)-(5). Municipalities by their very nature seek to improve public services as "demanded by their constituents." Id. § 8-1-5a(4). Municipal courts do this by improving the quality and efficiency of their court and case-docket operations, among other things. To that end, "technology," "court maintenance," and "administrative" costs are part of doing business. From the information you provided there is no reason to doubt that the example fees are, in fact, being used to cover those costs. Instead of standing in opposition to state criminal laws, they thus appear to advance the Program's goals.

We do note, however, that this Opinion analyzes only whether the Board-authorized municipal court-fee ordinances you describe are contrary to Section 8-1-5a(i)(11). It is beyond the scope of your request whether these or any other potential court-fee ordinances run "contrary to" any of the other categories listed in Section 8-1-5a(i), including "[t]he Constitution of the United States or the Constitution of the State of West Virginia." W. Va. Code § 8-1-5a(i)(9). Though unlikely to be a concern on these facts, this Opinion does not analyze potential Excessive Fine Clause implications, for instance. The Opinion also does not conclude that municipal court fees could never be "contrary to" state criminal laws. For example, particularly large fees or fees imposed under circumstances that suggest they are intended to increase criminal penalties rather than pay for the municipal court system could be seen to undermine the Legislature's decisions concerning criminal penalties.

Finally, in the event the Board encounters a court-fee ordinance it authorized in the past but now determines to violate Section 8-1-5a(i)(11), the Board may have a duty to inform the municipality of its updated position. The Board has a mandatory duty, "shall", to "[p]erform any other powers or duties necessary to effectuate the provisions of this section." W. Va. Code § 8-1-5a(e)(5). It is difficult to advise what type of hypothetical, previously approved fee might be egregious enough to make correction "necessary" as the statute describes, but if the Board determines an ordinance it previously approved falls into that category, then notifying the municipality would fall within the statutory catchall of "other powers or duties." Id.

In short, we conclude that although a municipal court-fee ordinance could, in theory, run "contrary to ... provisions of [the West Virginia Code] governing state crimes and punishment," W. Va. Code § 8-1-5a(i)(11), none of the examples you describe appear to do so. If, however, the Board determines that a court-fee ordinance it previously authorized in fact violates Section 8-5-1a(i)(11), the Board must assess whether informing the municipality of that determination is "necessary to effectuate the provisions" of the Program. Id. § 8-5-1a(e)(5).

Sincerely,

Patrick Morrisey
Attorney General

Lindsay See
Solicitor General