State ex rel. Bd. of Ed., Kanawha County v. Rockefeller

• Decision Date: 29 July 1981
• Docket Number: 15241,Nos. 15227,s. 15227
• Citation: 167 W.Va. 72,281 S.E.2d 131
• Parties: STATE ex rel. The BOARD OF EDUCATION, COUNTY OF KANAWHA v. Hon. John D. ROCKEFELLER, IV, Governor, etc., et al. STATE ex rel. The W. VA. BOARD OF EDUCATION, a corporation v. Hon. John D. ROCKEFELLER, IV, Governor, etc., et al.
• Court: West Virginia Supreme Court

Page 131

281 S.E.2d 131

167 W.Va. 72

STATE ex rel. The BOARD OF EDUCATION, COUNTY OF KANAWHA v. Hon. John D. ROCKEFELLER, IV, Governor, etc., et al.

STATE ex rel. The W. VA. BOARD OF EDUCATION, a corporation v. Hon. John D. ROCKEFELLER, IV, Governor, etc., et al.

Nos. 15227, 15241.

Supreme Court of Appeals of West Virginia.

Submitted May 26, 1981.

Decided May 28, 1981.

Majority Opinion June 30, 1981.

Concurring Opinion July 29, 1981.

Syllabus by the Court

1. The provisions of Article XII, Section 1 et seq., as well as Article X, Section 5 of the West Virginia Constitution, when construed in the light of our prior cases, gives a constitutionally preferred status to public education in this State.

2. Because of public education's constitutionally preferred status in this State, expenditures for public education cannot be reduced under W.Va. Code, 5A-2-23, in the absence of a compelling factual record to demonstrate the necessity therefor.

George S. Sharp and Michael T. Chaney, Charleston, for Kanawha and W. Va. Boards of Ed.

Chauncey Browning, Atty. Gen., Charleston, for respondents.

John O. Kizer, Love, Wise, Robinson & Woodroe, Charleston, for W. Va. Ass'n of School Administrators, amicus curiae.

Richard L. Douglas, Rice, Hannis & Douglas, Martinsburg, for Berkeley County Bd. of Ed., amicus curiae.

William H. Courtney, Director, for W. Va. School Service Personnel Ass'n, amicus curiae.

Tod J. Kaufman, Kaufman & Ratliff, Charleston, for West Virginia Ed. Ass'n, amicus curiae.

MILLER, Justice:

In this original mandamus, the relators ¹ seek to compel the Governor ² to restore a 2% cut in the expenditures authorized by the Legislature for public education in the 1981 fiscal year. The expenditure cut was ordered by the Governor on April 2, 1981, in a memorandum addressed to all State government agencies. The memorandum made a general reference to the adverse effect on the General Revenue Fund resulting from the 1981 coal strike. ³ The memorandum required a 2% reduction in the overall expenditures, which was stated to require an approximate 10% reduction in fourth quarter expenditures. ⁴

The Governor in ordering the expenditure cutback relied upon W.Va. Code, 5A-2-23, which states:

"If the governor determines that the amounts, or parts thereof, appropriated from the general revenue cannot be expended without creating an overdraft or deficit in the general fund, he may instruct the commissioner to reduce equally and pro rata all appropriations out of general revenue in such a degree as may be necessary to prevent an overdraft or a deficit in the general fund."

Relators take the position that because our Constitution and case law interpreting it give public education a preferred position, the Governor cannot reduce expenditures authorized by the Legislature for public education. As a secondary position, the relators argue that if a deficit is threatened the Governor should have utilized the classification provision of W.Va. Code, 5A-2-25, ⁵ instead of the pro rata provisions of W.Va. Code, 5A-2-23.

The Attorney General, answering for the respondents in a thorough and excellent brief, contends that this case is controlled by our earlier case of Board of Education of Wyoming County v. Board of Public Works, 144 W.Va. 593, 109 S.E.2d 552 (1959). We do not agree since it is clear that the Wyoming County case dealt primarily with whether the delegation to the executive branch of the power to cut expenditures violated the separation of powers clause found in Article V, Section 1 of the West Virginia Constitution. ⁶ This Court concluded that the delegation did not violate the separation of powers provision. The Court, however, did not consider the issue of whether public education enjoyed a priority standing which would in effect constrain the Governor's ability to require public education agencies to accept a pro rata reduction in expenditures along with other executive agencies. This is the issue that we have in the present case.

In light of our recent opinion in Pauley v. Kelly, W.Va., 255 S.E.2d 859 (1979), where we discussed in detail the "thorough and efficient" school system clause of our State Constitution, ⁷ there is no need for a prolonged discussion of the constitutionally favored status of public education in this State.

The "thorough and efficient" clause and its related financing provision in Article XII, Section 5 of our Constitution ⁸ have, from our earliest cases, been held to require adequate funding of our public school system. In Kuhn v. Board of Education, 4 W.Va. 499, 509 (1871), this point was made:

"From this clause it is plain, the people intended that the 'thoroughness' and 'efficiency' of the system of free schools, adopted by the legislature, should in no wise be prejudiced by the want of ample means. They make it obligatory upon the legislature to provide for the support of such schools, not only 'by appropriating thereto the interest of the invested school fund,' & c., but also by 'general taxation on persons and property or otherwise,' thus placing in the hands of the legislature, for that purpose, plenary, if not absolute, power."

Certainly, Kuhn's statements have been followed and expanded in a number of our later cases to confer a constitutionally preferred status on public education, as revealed by their syllabus points. E. g., Pauley v. Kelly, W.Va., 255 S.E.2d 859 (1979); ⁹ State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973); ¹⁰ State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953). ¹¹

The Attorney General argues that other of our constitutional provisions suggest that there is some diminished constitutional primacy for public education. In particular, he points to the voters' repeal of the State Capitation Tax in November of 1970 which abolished the one dollar capitation tax on all male inhabitants over the age of twenty-one years. This tax was formerly in Article XII, Section 5, and was payable to the school fund. We do not ascribe the repeal of this tax to an intent to diminish the constitutionally preferred status of public education but rather it was aimed at avoiding the collection of a cumbersome nuisance tax. A reading of former W.Va. Code, 11-7-1 (1931) demonstrates the collection complexity of the tax.

The Attorney General also points out that at the time Article VI, Section 51 of our Constitution was revised in 1968 under what was known as the Modern Budget Amendment, Chapter 15, 1968 Acts of the Legislature, it omitted the provisions of Subsection B(2), relating to an itemized appropriation "for the aid of public schools in conformity with the laws of the State, ..." ¹² He argues that this omission reflects an intention to diminish the preferred status of public education. Because of the generality of the ballot form of the 1968 Modern Budget Amendment and the fact that there was no reference to any change in aid to public education, we refuse to impute an intent on the part of the voters to diminish the constitutionally preferred status of public education. ¹³

Finally, the Attorney General points out that while Article X, Section 5 of our Constitution relating to the power of taxation specifically mentions the support of free schools, ¹⁴ there is no counterpart reference to public schools in Article X, Section 4 relating to the State debt. ¹⁵ The answer to this is that Article X, Section 4 does not mention any of the categories set out in Section 5 of Article X. The two provisions are designed to serve two different purposes. Section 4 is basically a constitutional prohibition against State debt, while Section 5 sets out generally the State's power of taxation. We do not read Article X, Section 4 as indicating a countervailing constitutional view against the constitutional importance of public education.

In the final analysis, we conclude that the provisions of Article XII, Section 1 et seq., as well as Article X, Section 5 of our Constitution, when construed in the light of our prior cases, gives a constitutionally preferred status to public education in this State.

The constitutional preference for public education in the context of this case simply means that in order for the pro rata provisions of W.Va. Code, 5A-2-23, to operate against public education, the State must develop a factual basis to show that there will be a deficit in the general revenue fund substantial enough to necessitate the reduction in expenditures for public education. This factual justification must be done in advance of the order cutting expenditures for public education for it is this record that will justify the issuance of the order. This requirement of a factual showing is analogous to the United States Supreme Court's rule in desegregation cases where once the constitutional status is found to have been impaired, the burden shifts to the state to factually demonstrate that the apparent constitutional breach arose from independent nonconstitutional factors. It in effect places an affirmative duty on public officials to demonstrate they have eliminated segregation. Columbus Board of Education v. Penick, 443 U.S. 449, 99 S.Ct. 2941, 61 L.Ed.2d 666, reh. den., 444 U.S. 887, 100 S.Ct. 186, 62 L.Ed.2d 121 (1979); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554, reh. den., 403 U.S. 912, 91 S.Ct. 2200, 2201, 29 L.Ed.2d 689 (1971); see also Regents of the University of California v. Bakke, 438 U.S. 265, 320, 98 S.Ct. 2733, 2764, 57 L.Ed.2d 750, 790 (1978). In this sense, we place an affirmative burden on the State to factually demonstrate the financial necessity of cutting back on the expenditures for public education which has been accorded a constitutional preference.

We also make the analogy to the familiar equal protection principles that hold that once a given activity or right is found to be protected by a constitutional or fundamental principle, the State may not impinge on...