Current Essay

Court Leaves Uncertainty in Business Property Taxation
by Michael E. Caryl

(Reprinted w/permission from Tax Notes State, “Inside West Virginia Taxes,” 8/5/19, Vol. 93, No. 6, pp, 501-508)

     In its highly anticipated ruling in the consolidated case of Steager v. Consol Energy Inc., a unanimous West Virginia Supreme Court of Appeals simply further exposed—without clearly resolving—the legal and policy challenges that remain in West Virginia for determining the “true and actual value” of natural gas property for tax purposes.[1] Those challenges are manifested both in the context of the mass appraisal approach, necessarily used for such purposes, and in the presumptions and rules of judicial construction applied when the resulting values are disputed. This article describes:

     ·          the unique background and context of this case;

     ·          the details of what the court did and did not decide;

     ·          possible outcomes on remand; and

     ·          the implications of the ruling both for the affected natural gas industry and, more broadly, for                  West Virginia’s business climate as affected by its system of ad valorem property tax valuation                  and adjudication of contested valuations.

     As recognized in last fall’s pre-ruling article on this same case, the natural gas production industry is a major and growing source of both state and local tax revenue in West Virginia.[2] That factor only adds to the economic and fiscal importance of the manner in which the myriad, and often conflicting, presumptions and rules of statutory construction are applied and reconciled in a case determining the means of taxing the property of such an industry.[3] Finally, although the institutional turmoil recently surrounding the supreme court itself was largely resolved before this ruling,[4] the troubling pattern of the court’s rulings in cases of this nature, which are consistently adverse to business taxpayers, can hardly be ignored when analyzing its holding in this case.[5] 

     The case under review involved the consolidated ruling of the West Virginia Business Court Division of the circuit courts of several gas-producing counties. There, it was held that the tax commissioner’s property tax valuation method, imposing a maximum fixed-dollar amount (cap) on allowable operating expense deductions, and his disallowance of many categories of operating expenses incurred to bring the produced gas to its first point of sale, each had the effect of significantly overvaluing the subject properties.[6] Moreover, the business court also found that because the commissioner’s use of those practices in each case was intentional and systematic, the resulting tax assessments violated both the equal and uniform taxation provision of the West Virginia Constitution and the equal protection clause of the U.S. Constitution.[7]

The Supreme Court’s Ruling

     In its ruling, the supreme court first affirmed the business court’s invalidation of the tax commissioner’s cap on deductible expenses, but then it reversed and overruled the lower court’s allowance of the deduction of the additional operating expenses.[8] Then, most significantly, the high court remanded the matter to the business court with an express direction that any expense deduction allowed could be based only on the industry average of the remaining allowed expenses stated as a fixed-dollar amount (another cap?).[9] The court rationalized its mixed-outcome ruling by selectively using some, but not all, long­standing but often inconsistently applied presumptions and rules of statutory construction.[10]

     First, in affirming the lower court’s decision that rejected the fixed dollar cap on the amount of deductible expenses (and to thus increase the resulting taxable value), the high court found that the cap violated the threshold requirement for any effort to interpret the terms of the Tax Department’s regulation. Under that valuation rule, the Tax Department was to conduct a periodic survey to determine average annual industry operating expenses to be deducted from gross receipts of gas production (to then be used in a “capitalized net receipts” method for valuation of operating gas wells).[11] Thus, finding no express reference in the language of the regulation to any “not to exceed” limitation on the dollar amount of the calculated average operating expense deduction, the court accordingly agreed with the business court that the Tax Department’s imposition of such a cap was “a clear violation” of the rule of construction precluding administrative construction of an unambiguous substantive rule.[12]

     In so holding, the court expressly rejected the Tax Department’s Chevron doctrine defense of its contrived use of the cap. The Chevron defense asserts that in the case of silent or ambiguous substantive rules, deference should be given to administrative agencies’ interpretation and discretion in the administration of the substantive regulatory schemes containing such rules.[13] Moreover, because the practical effect of the Tax Department’s use of the deduction cap was to overstate the taxable value of highly productive gas wells, and to understate the taxable value of lower producing wells, the court also agreed with the lower court that such practice inherently violated both the equal and uniform taxation clause of the West Virginia Constitution and even the equal protection clause of the U.S. Constitution.[14]

     Explaining its conclusion about such unconstitutionally disparate treatment of different taxpayers, the court discussed the jurisprudential predicate to legitimate legislative or administrative creation of tax classifications. The court cited the “rational relationship” test that must be applied to legally justify such classifications.[15] In doing so, the court appears to have actively attempted to identify a rational relationship between the classifications effectively resulting from the cap (based solely on production volumes) and the hallowed government policy principle requiring that similarly situated persons be treated equally, but could not “discern one.”[16]

     However, in the court’s discussion of that issue there was only a cursory reference to the substantive law standard to which any such classification must have a rational relationship: That, for property tax purposes, all property shall be valued at its:

     true and actual value [being] the price for which the property would sell if voluntarily offered for             sale by the owner thereof, upon the terms [that such] property . . . is usually sold, and not the price         which might be realized if . . . sold at a forced sale.[17]

     At least the court recognized that by using the ordinary and familiar meaning of the express statutory language mandating that legal standard, the willing seller/willing buyer standard of fair market value must control.[18]

     As the court also appeared to recognize, reasonably accurate measures of the FMV of income-producing property such as that involved here, and applied in the administratively necessary mass appraisal context of taxation, are what must be determined for such purposes.[19] To be certain, when properly applied, the Tax Department’s general use of its yield capitalization of net receipts measure is fully consistent with that mandate.[20] However, because the rationales applied in the other aspects of the court’s ruling reflect an absence of regard both for that governing substantive standard and for principled and consistent application of the rules of construction, they, thus, have led here to a legally dubious and practically confusing outcome.[21]

     Indeed, in then overruling and replacing with a fixed-dollar amount the business court’s use of a fixed percentage of gross revenue as the appropriate measure of average deductible operating expenses, the court not only ignored the governing substantive legal standard, but it appears to have directly contradicted the applicable rules of construction it applied earlier in its opinion overruling the Tax Department’s fixed-dollar-amount cap. The basis for that unfortunate conclusion is shown in the following more detailed discussion of both the specifics and the context of the court’s stated rationales for its mixed rulings.

Concerns and Contradictions

     First, in overruling the business court’s holding that (due to the department’s intentional omission of significant post-production, but presale, operating expenses) would have also struck down the fixed-dollar amount of the Tax Department’s cap on deductible expenses, the court applied the same Chevron deference to sustain that omission that it rejected in affirming the lower court’s invalidation of the Tax Department’s cap.[22] On this question, the court acknowledged, but gave no effect to, either the express language or the clear implication in the governing legislative rule calling for a measurement of taxable value of the taxpayers’ wells based on the revenue at the point of sale of the gas they produced during the measurement period.[23]

     In the case of gas produced in horizontally configured wells, significant processing expenditures are necessary to yield a marketable product.[24] However, to ultimately apply the capitalized net receipts measure to the valuation of such wells, the court expressly rejected including an industry average percentage of such post-extraction/premarket expenses in the computation of average net receipts.[25] By doing so, the court effectively created the same unequal and invalid classifications for taxation that it had earlier found lacked any rational relationship to the express standard of equal and uniform taxation based on measures of true and actual value.

     In justifying its conclusion on the questions of both the specific form and the scope of the measure to be used for the operating expense deduction, the high court referred to the fact that the business court, in directing a recalculation of the taxable values, simply would have required use of the percentage determined by the Tax Department without those omitted post-extraction/premarket operating expenses.[26] Admittedly, that approach by the business court is logically inconsistent with (and effectively renders moot) its ruling on the question of such omitted expenses. However, that hardly justifies the high court’s mandate of a fixed-dollar average that both omits those highly relevant expenses and results in the same illegitimately discriminatory classifications it overruled earlier in its opinion on the Tax Department’s own incomplete fixed-dollar cap.

     Thus, in explaining its rejection of the Tax Department’s imposition of a cap on deduction of an otherwise accurately measured average percentage of gross receipts representing some operating expenses, the court held that it was “less of an issue of law than logic.”[27] The court rejected that particular fixed-dollar cap because “it is not variable and therefore does not maintain a pro rata relationship to gross receipts as the percentage does.”[28] The logic inherent in the court’s thus stated view is that in applying the ready seller/buyer market standard to the valuation of all similar properties based on a capitalized income/net receipts approach, a reasonable approximation of the inherently pro rata economic relationship between the average gross receipts and the average operating expenses, is what makes sense.[29]

     Indeed, before applying its legally invalid fixed-dollar limit on deductible operating expenses, that is exactly what the Tax Department had done originally in determining the taxable values of the natural gas wells in question. Simple logic dictates that use of a fixed-dollar amount of average operating expenses is fundamentally irrelevant to the determination of the value of wells producing widely varied volumes of natural gas inherently yielding disparate dollar amounts of gross receipts.

     Moreover, such an approach is sharply at odds with other express aspects of the Tax Department’s rules for valuation of natural gas properties—whether of the working (producing/leasehold) interests at issue here or of royalty (lessor) interests—both of which clearly rely on the same logical pro rata approach. As the court acknowledged, so-called decline rates are used to measure the inherent reduction of the rates of production (stated as percentages) of the remaining finite gas reserves because they are being extracted through active production, and are another important component of the Tax Department’s valuation formula.[30] Likewise, for property tax valuation purposes, royalty interests are appraised on the basis of evolving average royalty amounts paid per unit of production.[31]

     How then did the high court move from such clarity on the logically necessary use of average percentage of operating expenses to its other holdings: (1) that some types of operating expenses necessary to produce gross gas production sales receipts should not be included in the expressly mandated deduction for average gas production operating expenses; and (2) that, to be deducted, a fixed-average-dollar amount of includible operating expenses should be used to deduct from receipts, instead of an average percentage of those expenses compared with gross production receipts? The answer lies, in part, in the high court’s misapplication of some of the most fundamental rules of statutory construction.

     Regarding the first of those holdings, the court pointed to the governing valuation rule’s silence on the question of what the term “operating expenses” included.[32] In doing so, it ignored both the evidence of the practical operating nature of the omitted expenses and the language cited by the taxpayers from the governing rule, which broadly but unequivocally defined “operating expenses” as “those ordinary expenses which are directly related to the maintenance and production of natural gas.”[33] The only such expenses expressly not included in that measure are “extraordinary expenses, depreciation, ad valorem taxes, capital expenditures or expenditures relating to vehicles or other tangible personal property not permanently used in the production of natural gas.”[34] The expenses for “gathering, compressing, processing and transporting” extracted but premarket natural gas, which the Business Court would have required to be included in the average operating expenses deduction, were shown by the unrefuted evidence in the record to be those within the express terms of the definition of included operating expenses and not in the terms of those items expressly excluded.

     Such purported “silence” about a key definitional point, to justify deference to an administrative revision of that substantive definition, cannot be conjured up when the evidence in the record of the nature of the excluded expenses is so fully encompassed by the express words, and unmistakable purpose, of the governing rule. The contrast between the clarity of the rule’s definition of operating expenses and the rule’s absolute silence on the invalidated fixed-dollar-amount cap could not be starker.

     Moreover, even if one could conjure up the slightest degree of ambiguity in the definition of operating expenses as it relates to the omitted expenses, can there be the slightest doubt, from the context and logic of the rule’s overall purpose (the measurement of the value of operating gas wells based on a capitalized income measurement of industry average net receipts resulting from typical/average production operating expenses and gross receipts), that they are to be included? In holding otherwise, the court completely ignored another primary rule of construction, which mandates a consideration of all aspects of a given statutory/regulatory scheme (including one imposing taxes on the natural gas industry) in determining both its overall object and how each part thereof is to be read in harmony with that overall scheme.[35]

     Indeed, in the face of such clear authority, the arbitrariness of the Tax Department’s refusal to allow a deduction that included such expenses is no less blatant than its having conjured up, from complete silence, its patently invalid fixed-dollar-amount cap on such deductions.

     When I previewed this case last fall, it was recognized that there were myriad, often inconsistently applied, rules of statutory construction available to justify whatever judicial outcome the reviewing court decided to reach.[36] Thus, in the supreme court’s holding here, we are presented with a vivid example of how that inconsistency can be manifested as to separate aspects of a single legal controversy. Accordingly, here, in the same judicial opinion, we concurrently have:

     ·   firm application of the threshold rule of construction, providing that when the language

         of a substantive rule is clear and unambiguous, no interpretation is permitted nor is there

         any need or legal authority to resort to the other rules otherwise allowing deference to an

         administrative agency’s interpretation of an unclear or ambiguous substantive rule (for

         example, Chevron);

     ·   a decision to ignore the rule of construction requiring reference to the overall context and clear               import of all the words of a substantive rule, which, in turn, enabled the court to override that                 rule of construction with Chevron deference to agency interpretations; and

    ●   affirmative, substantive rulemaking by judicial interpretation despite the court’s firm recognition,           earlier in the same opinion, that the rules of construction expressly prohibit such an approach                 when it addressed the same clear, unambiguous substantive rule.

     How or why the court chose such an uncertain “mandate” is far from clear. It is possible that, like the practices of the nation’s highest court, which, even in the few cases for which it has granted plenary review, frequently “punts” a particular legal or policy question back to lower federal courts or even to state courts and policymakers,[37] this case may represent a rare example of West Virginia’s high court having done the same thing.

Challenges and Prospects on Remand

     Clearly, in the face of such judicial uncertainty, the business court, to which these cases were remanded, faces quite a challenge to follow the high court’s directive to conduct “further proceedings consistent with this opinion.”[38] Indeed, given the uncertainty of the implications of the court’s opinion, it may be that the best the lower court can do would be to conduct further proceedings that are, at least, fully consistent with the aspects of the court’s opinion that are on the firmest grounds in terms of the governing law and logic.

     On remand, the business court could direct the Tax Department to conduct an updated and objective survey to determine the average operating expenses (as expressly defined and limited in its governing regulations) that are incurred by members of the natural gas producing industry to the “field line point of sale” where the gross receipts for each well are to be measured under those same regulations. To be faithful to the language of the definition of that term, and its meaning inherently and logically flowing from the overall context of the regulation in which it is found, those deductible, presale operating expenses would include the “gathering, compressing, processing and transporting” gas produced via horizontal drilling to the “field line point of sale.”

     Clearly, “field line point of sale” is a term certain of meaning when used in the governing regulations’ provisions for the measurement of the gross receipts used in the capitalized net receipts valuation method. By contrast, the Tax Department’s earlier point of measurement of deductible operating expenses, for use in the same method, effectively is at the wellhead.

     Yet, as the court acknowledged here, by citing its recent holding in a case involving measurement of deductions for oil and gas royalty payments, the Legislature’s express use of that latter term in the language of the separate statute governing such matters, also leaves no room for interpretation of its meaning.[39] Just as importantly, the same Legislature, in the same chapter of the West Virginia Code providing for property taxes, is fully cognizant of the precise meaning of the term “wellhead” when it comes to measuring natural gas production for purposes of the severance tax.[40]

     Thus, the rule governing the property taxation of natural gas wells uses the term “field line point of sale” as the point to measure gross receipts in its capitalized net receipts valuation method, and the alternative term “wellhead,” though clearly and expressly recognized and understood by the Legislature and the court to not mean the field line point of sale, is, obviously, not found in the governing regulation. As a result, there is no basis in the rules of construction or logic for the court to defer to the Tax Department’s effective insertion of “wellhead” in the provision of its governing rule used to determine, and thus limit, the scope of expressly deductible operating expenses.

     This approach would also objectively address the business court’s earlier effective omission, as noted by the high court, of such clearly includable expenses when it pragmatically adopted the Tax Department’s 20 percent measure for deductible operating expenses (again, presumably due to the absence of evidence of the same from the record). Thus, it would avoid the logically rather awkward use of the Tax Department’s average expense percentage as an incomplete surrogate for a more complete and accurate measure.[41] In fact, in its ruling, the court noted one of the taxpayer’s statements that the incomplete measure of deductible operating expenses, reflected by the business court’s use of the Tax Department’s lower 20 percent, still “eliminates some Constitutional infirmities, and is a reasonable approximation of ‘true and actual’ value” (that is, pending the very more complete measurement this author urges above).[42]

     The Tax Department should be further directed to deduct, from the average gross receipts of each well, the industry average percentage that all such operating expenses bear to gross receipts. This would yield an average net receipts yield of each producing well, stated in dollars. This approach would be in full accord with the portion of the court’s holding that overruled the Tax Department’s use of an average fixed-dollar-amount cap to limit operating expense deductions—which, inherently, ignored the volume of production on which the taxable value of a producing well was to be determined.

     Next, a yield capitalized industry average of net receipts for each well would be computed and applied to each producing well to establish its “true and actual value.” This would yield a far more complete measure that is also more fully in accord with both the express terms and the unmistakable purpose of the governing valuation rule.

     Finally, the assessed (taxable) value of each of those wells would be calculated by applying the constitutionally mandated 60 percent assessment ratio to that thus-determined “true and actual value.”[43] Clearly, such an approach on remand would be logical and entirely consistent with both the express and unambiguous requirements of the governing rules and the unambiguous aspects of the high court’s opinion.

Broad Implications

     Given the stakes involved, and regardless of the way they are conducted, the remand proceedings before the business court are virtually certain to be followed by another appeal to the supreme court by the parties on the less favored side of its later ruling.

     Pending the business court ruling on remand, members of the natural gas industry understandably will feel threatened by reports of Tax Department plans to further reduce, by administrative action, the measure of deductible operating expenses. The industry’s anxiety is predictable, considering the well-established and judicially acknowledged county official bias toward maximizing business property tax revenues[44] and the judiciary’s troubling pattern of rulings in such cases.[45]

     Beyond that particular industry, however, the court’s rather confusing and arbitrary application of the rules of statutory construction, and deference to administrative agency discretion, in any matters pitting private economic interests against all other applicable regulatory actions, must also have adverse implications for the broader business community. Indeed, the ever-present concern for interstate competitiveness in terms of the so-called business climate is also strongly implicated here. This inherently includes attracting investment in storage and value-added processing/manufacturing of downstream natural gas products, which represent some of the state’s best prospects for long-term economic growth.

     At the same time, on both the state and local government side of the taxation equation, there is a mixture of potentially competing interests in the outcome of this case. Immediately and directly, local governments, being heavily dependent, under the current structure, on such property tax revenues, are naturally aspiring for the outcome that yields the highest possible collections.

     On the other hand, although the Tax Department clearly functions as the local governments’ legally designated policy advocate in overseeing application of the rules for setting property tax values, that agency also administers various state-level business taxes. These include not only the general corporate and personal income taxes and sales taxes, but also the severance tax on natural resource production. Interestingly, during the just completed fiscal year, West Virginia experienced significant surpluses in many of those taxes, with a major portion being attributed to growth in the severance tax on gas and coal and to both increased highway and natural gas pipeline construction activity.[46] Thus, there are competing interests within the government side between maximizing local gas industry property tax revenues (also, inherently displacing the same amount of state-level taxes otherwise expended for public schools) and the virtually certain effect that doing so will slow growth and discourage investment in the state’s economically critical natural gas industry.

     Thus, because of the continuing uncertainty emerging from the court’s latest ruling, and the significant economic and fiscal stakes dependent on this judicial saga’s final outcome, we must await at least two more chapters before its ultimate conclusion and consequences will be known.  Ultimately, given the stakes involved and the difficulties of fashioning a mutually beneficial solution in the context of today’s uncertain system for resolving those differences, a legislative intervention may well be necessary.

 

[1] Dale W. Steager, Tax Commissioner v. Consol Energy Inc., Dkt. Nos. 18-0121, 18-0122, 18-0123, 18-0124, 18-0125, 18-0126, 18-0127, and 18-0128 (W. Va. June 5, 2019).

[2] Michael E. Caryl, “Roiled State Supreme Court to Review Taxation of Major Industry,” State Tax Notes, Nov. 19, 2018, p. 691.  See notes 4 and 45.

[3] Id. at 695-697.

[4] As expected, former U.S. Rep. Evan Jenkins and former West Virginia House Speaker Tim Armstead, both appointed by Gov. Jim Justice (R) to fill the vacancies on the five-justice court created by the abrupt retirements of Justices Robin Davis and Menis Ketchum, won their Nov. 6, 2018, special elections for their seats.  Chief Justice Alan Loughry was permanently removed from the court in the aftermath of his conviction and imprisonment on 10 federal felony charges.  His seat is filled by veteran trial court judge John Hutchison, who was also appointed by the governor to serve until a special election, this one in May 2020.  Now Chief Justice Elizabeth Walker, though censured in lieu of removal after her impeachment trial in the Senate, returned to the court.  Finally, despite pending appeals by each house of the Legislature to the U.S. Supreme Court, challenging the effect of the state supreme court proceeding that blocked her trial, impeached but not tried veteran Justice Margaret Workman remains on the court and was the author of the opinion in the case here.

[5] Caryl, supra note 2, at 696-697.  Note: Even without including the subject case, the record of favorable outcomes for business taxpayers in property tax cases involving substantive valuation methods and presumptions (versus largely procedural issues), and decided by the court over the last 65 years, is 0 for 21.

[6] Id. at 691-692.

[7] Id.

[8] Steager at 21 and 26.

[9] Id. at 30.

[10] Supra note 3.

[11] W. Va. Code R. section 110-1J-4.3.

[12] Steager at 15-16.

[13] Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984).

[14] Steager at 18-21.

[15] Id. at 20.

[16] Id.

[17] W. Va. Code section 11-3-1.

[18] Steager, Syl. Pt. 11, “Generally the words of a statute are to be given their ordinary and familiar significance and meaning, and regard is to be had for their general purpose and use,” citing Syl. Pt. 4, State v. Gen. Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959) (emphasis added).

[19] Id. at note 13.

[20] W. Va. Code R. section 110-1J-4.1.

[21] Kate Mishkin, “Companies, County Officials Wait to See Fallout From Natural Gas Tax Decision,” The Charleston Gazette Mail, July 1, 2019.

[22] Steager at 22-26.

[23] W. Va. Code R. section 110-1J-3.8.

[24] Caryl, supra note 2, at 693.

[25] Steager at 26.

[26] Id. at 26-27.  Note: Such an approach by the business court was likely due to the absence of sufficient evidence in the case’s record of an annual average percentage of all operating expenses as a result of the items omitted by the Tax Department’s practices.

[27] Id. at 16-17.

[28] Id. at 17.

[29] See Caryl, supra note 2, at 694, referring to the variable/ratable relationship between production amounts and production costs, and the possible distortion, due to wide price fluctuations, of the magnitude of that relationship by reliance on gross receipts.

[30] Steager at 3 (referring, without express citation, to W. Va. Code R. section 110-1J-4.4).

[31] W. Va. Code R. section 110-1J-4.1.

[32] Steager at 23.

[33] Id. (citing but giving no effect to the provisions of W. Va. Code R. section 110-1J-3.16).

[34] Id. (emphasis added).

[35] E.g., Consolidated Natural Gas Co. v. Palmer, 213 W. Va. 388, 582 S.E.2d 835 (2003).

[36] Supra notes 3 and 10.  Despite its holding, that some aspects of the substantive valuation rules governing the outcome of this case were ambiguous, among the rules of construction on which the court did not rely in reaching its mixed decision was the one it last cited in 1979, to wit: that ambiguities in laws imposing taxes “are strictly construed against the taxing power and liberally in favor of the taxpayer.”  Baton Coal Co. v. Battle, 151 W. Va. 519, 153 S.E.2d 522 (1967).  See also Consolidation Coal Co. v. Krupica, 163 W. Va. 74, 254 S.E.2d 813 (1979); and Estate of Glessner v. Carman, 146 W. Va. 282, 118 S.E.2d (1961).

[37] E.g., Rucho v. Common Cause, 2019 WL 2619470 (SCOTUS June 2019), declining to intervene in certain state election districting decisions, even in the face of claims of partisan gerrymandering.

[38] Steager at 31.

[39] Steager at note 20, citing Leggett v. EQT Production Co., 239 W. Va. 264, 800 S.E.2d 850, cert. denied, 138 S. Ct. 472, 199 L.Ed.2d 358 (2017). 

[40] W. Va. Code R. section 11-13A-29c)(6)(G). 

[41] Steager at note 20.

[42] Id. at note 21.  (Emphasis inserted by the court.)

[43] W. Va. Const., Art. X, section 1B (A).

[44] E.g., it “would bespeak an untutored knowledge of human nature to discount entirely the possibility of local bias against large landowners” in property tax matters, Chief Justice Richard Neely wrote for the court in Bookman v. Hampshire County Commission, 193 W. Va. 255, 455 S.E.2d 814 (1995).  Indeed, given the troubling 60-year pattern of the court’s rulings in cases of this nature, such bias may also be described as “judicially enabled.”  Supra note 5.

[45] Supra note 5.  Indeed, there actually appears to be a widely held expectation of such bias.  Witness the filing of a pleading in one of the cases consolidated in Steager by the county attorney of Wetzel County (an adjacent gas-producing county), which was not a party to the case, but still strongly objecting to the initial referral of the case to the business court because, the attorney argued, the case should have been heard by the elected judges from the counties that were parties.  See Amicus Curiae Brief of the County Commission of Wetzel County, West Virginia, Supporting the Petitioner’s Appeal and the Reversal of the Decision of the Business Court Division, in County Commission of Doddridge County, Sitting as the Board of Assessment Appeals and Board of Equalization and Review v. Antero Resources Corp., No. 18-0228, filed July 16, 2018, by Timothy E. Haught, Wetzel County prosecuting attorney.  Such an argument vividly illustrates the reasons the tax bar supported the inclusion of tax cases in the jurisdiction of the business court.  See Caryl supra note 2, at 697.

[46] E.g., Erin Beck, “Governor Promises Raises for State Employees, $100 Million for PEIA,” Register-Herald (Beckley, W. Va.), Oct. 2, 2018; and Phil Kabler, “Proposed WV Budget Exceeds $5 Billion,” Herald-Dispatch (Huntington, W. Va.), Jan. 10, 2019, both citing comments by West Virginia Deputy Secretary of Revenue Mark Muchow. 

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