Friday, March 25, 2011

Double Secret Probation Couldn't Stop Animal House Or Meth

“There was panic in the parlours and howling in the halls,
There was crying in the cow-sheds and shrieking in the stalls”
From Mr. Toad’s song in “Toad of Toad Hall”

The above passage by A. A. Milne reminds me of our state government whenever the subject of controlling meth labs comes up.  In 2005, the meth lab panic caused our legislature to put Sudafed behind the druggist’s counter.  This bold move was going to deny meth lab chemists their magic ingredient.

Well, if one stupid law doesn’t do the trick, then it’s time to invoke “double secret probation.”

In the just-completed 2011 session, the legislature went all out.  HB2946 made Sudafed (and several related over-the-counter medicines) a Schedule III drug which can only be prescribed by a physician.  The bill passed the House with a large majority.  The Senate deadlocked in a tie.  Double secret probation failed.

Let’s pause for a moment and consider some common sense.  Doctors are busy.  Doctors don’t have the time to prescribe FDA-approved, over-the-counter medicines to everyone who gets the sniffles.  But if they did have the time, they would charge for an office visit and examination. 

Those who argued in favor of HB2946 would have you believe that doctors would call in a prescription for Sudafed whenever asked.  The logic of this defense fails because the doctor is no longer writing a prescription for over-the-counter Sudafed.  Under HB2946, the doctor would be prescribing a Schedule III drug, and it is terribly na├»ve to expect a doctor to “call it in.”

Politicians favoring HB2946 were quick to blame Big Pharma for lobbying against the bill.  Big Pharma was accused of wanting to sell drugs above all else.  While Big Pharma’s motives are just that, I still believe that Big Pharma was on the right side in this debate. 

When the legislature first voted to control the sale of Sudafed in 2005, the noble body was treating all Sudafed buyers as if they were meth lab operators or suppliers.   Think about it.  All Sudafed consumers were restricted to buying 3 packs of pills per month; the only reason being is that such a limit would deny meth labs of a needed chemical.

You want Sudafed?  Then, you’re guilty of something.  And the beauty (in the state’s eyes) is that the state doesn’t even have to make a case against you.  The state restricted Sudafed because the state said it will end up in a meth lab and that’s that.


Airline passengers are now presumed to be smugglers or underwear bombers.  Hence, everyone boarding a plane has to submit to an unreasonable, and humiliating, search.

Schoolchildren are presumed to have contraband or weapons on their person or in their lockers.  Hence, schools are locked down, police sometimes patrol the hallways, and pity the poor child that has medicated cough drops without permission of the US Surgeon General.

Did you know that the Combat Methamphetamine Epidemic Act of 2005 is Title VII of the anti-terrorism USA PATRIOT Act?  Of course you don’t.  Who has time to read the USA PATRIOT Act, a law that strips away our constitutional rights when it comes to illegal searches, illegal wiretaps, and any other form of illegal police snooping.

During the debate on HB2946, did you ever hear the Combat Methamphetamine Epidemic Act of 2005 mentioned?  Of course you didn’t.  Who wants to be reminded of another law that failed to win a single battle in the War on Drugs?  If we keep being reminded of failed drug laws, then we might lose faith in our government.

So let me see if I understand this.  The state wants to control meth labs.  The 2005 West Virginia law failed to do that.  The federal USA PATRIOT Act failed to do that.  The federal Combat Methamphetamine Epidemic Act of 2005 failed as well.  But this time is different; if only doctors can prescribe Sudafed in West Virginia, then the problems of meth labs will go away.

Yes, that all sounds logical to me. 

Consider this:  The US Army occupies Afghanistan but is ordered to ignore the poppy fields and heroin crop.  In February, three people in Harrison County died from heroin overdoses.  And our state legislature is focused on Sudafed?

The road to Hell is paved with good intentions.  And along the way, the billboards all bear the same message:  “There Ought To Be a Law.”

Monday, March 7, 2011

Court Deserves Praise for Annexation Ruling

The Supreme Court of Appeals of West Virginia recently issued a ruling regarding the procedures that a city is required to follow when annexing property without an election, or what is more commonly known as a shoestring annexation. In the past, this process has ignored the rights of property owners abutting the highways used to extend city limits.

In Doering, et al v. City of Ronceverte, the court reversed the annexation of Stoney Glen subdivision into the city of Ronceverte. The city chose to follow the right-of-ways of three state highways (the shoestring) and then lasso the subdivision.

Writing for the court, Justice Menis Ketchum does an admirable job in explaining that property owners abutting certain state roads own the land under the roadway, and that the roadway is built on an easement. This is particularly true with the county road system that the state took over from the counties in 1933. Referring to the testimony of a Division of Highways right-of-way manager, Justice Ketchum wrote:

“… in the absence of documentation to the contrary, the holdings so acquired by the state were in the form of easements and right-of-ways, with titles to the underlying fee remaining with owners whose property abutted the roads.”

The Supreme Court ruled that certain property owners abutting roads leading to Stoney Glen were “… voters and freeholders of the annexed territory but were unlawfully excluded from the annexation process …” The court has made the correct ruling in this case, and the justices should be applauded.

But you won’t hear any hand clapping in city halls or county courthouses. You can rest assured that no county commission has ever considered property rights as set forth in Doering in past shoestring annexations.

I won’t say that the Supreme Court has opened a can of worms, but it has opened a can of Vienna sausages, a food that a late farmer friend of mine derisively called “lips and noses.”

The Greenbrier County Circuit Court previously ruled the land owners abutting the road lacked standing to file their lawsuit, and further, that these land owners “… failed to demonstrate any significant ownership of the property being annexed …”  Doering corrects these errors.

The county tax assessor does not discriminate the easement from the underlying land. Thus, the landowner is taxed for land he cannot use for his purposes. In the aggregate, this amounts to a hefty property tax bill. Typically, a county road easement is 30 feet wide. For every 1,000 miles of county roads, there are 3,636 acres of land covered by a road easement.

Indirectly, Doering may have opened the question as to whether land taken by an effectively perpetual, county road easement, the use of which is controlled by the state, is taxable by the state.

The determination of who owns the land under our roadways is often confusing. As mentioned above, most of the county roads follow easements over private lands. There are exceptions, however. For example, sections of the Staunton-Parkersburg Turnpike in Randolph County (built in the 1840s) reverted to county roads when U.S. 250 replaced part of the turnpike using a different route.

Modern roads such as interstates and Appalachian Corridor highways are built on land condemned by and purchased by the state. Again, there are exceptions. Appalachian Corridor D follows, but not always, U.S. 50 from Clarksburg to Parkersburg. U.S. 50 follows, but not always, the Northwest Turnpike from the 1830s.

You can hire the best lawyer in the state to examine the title to your land, and that lawyer won’t be able to find all the property records regarding highway ownership. Some records are located in the local courthouse. The Division of Highways exclusively maintains some other records. Some records are located in Virginia courthouses or the state capitol at Richmond. And some records are lost to time because the courthouse in West Virginia or Virginia burned to the ground.

The state, then, should use Doering as an impetus to reconcile its highway land records and make those records available to the public at the appropriate courthouse record room. This reconciliation is needed.

As of this writing, the city of Clarksburg and the Division of Highways are at loggerheads as to who owns portions of Chestnut Street in that city. In 1863, the mayor of Clarksburg knew whether Chestnut Street was a city street, an easement or a Virginia turnpike. Why is this now a mystery?

Property rights are an integral part of democracy and capitalism.

In reversing Doering, the Supreme Court deserves praise, especially since this ruling recognizes the standing of property owners in an annexation without election.