Board of Educ., Lincoln County v. MacQueen

• Decision Date: 13 December 1984
• Docket Number: No. 16502,16502
• Citation: 325 S.E.2d 355,174 W.Va. 338
• Court: West Virginia Supreme Court
• Parties: , 22 Ed. Law Rep. 1010 The BOARD OF EDUCATION, LINCOLN COUNTY, Fred Curry, President, et al. v. The Honorable A. Andrew MacQUEEN, Judge, Circuit Court, Kanawha County.

Page 355

325 S.E.2d 355

174 W.Va. 338, 22 Ed. Law Rep. 1010

The BOARD OF EDUCATION, LINCOLN COUNTY, Fred Curry, President, et al. v. The Honorable A. Andrew MacQUEEN, Judge, Circuit Court Kanawha County.

No. 16502.

Supreme Court of Appeals of West Virginia.

Dec. 13, 1984.

Dissenting Opinion Jan. 8, 1985.

Concurring Opinion Jan. 11, 1985.

Syllabus by the Court

1. "A writ of certiorari will lie from an inferior tribunal, acting in a judicial or quasi-judicial capacity, where substantial rights are alleged to have been violated and where there is no other statutory right of review given. Upon the hearing of such writ of certiorari, the circuit court is authorized to take evidence, independent of that contained in the record of the lower tribunal, to determine if such violations have occurred." Syl. pt. 4, North v. Board of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977).

2. Under West Virginia Code § 53-3-1 (1981 Replacement Vol.), "Jurisdiction of writs of certiorari ... shall be in the circuit court of the county in which the record or proceeding is...." (Emphasis added).

3. "A writ of certiorari in the Circuit Court of Kanawha County is the proper means for obtaining judicial review of a decision made by a state agency not covered by the Administrative Procedures Act." Syl. pt. 2, State ex rel. Ginsberg v. Watt, 285 S.E.2d 367 (W.Va.1981).

4. Insofar as Syllabus Points 2 and 3 of Leef v. Via, 293 S.E.2d 442 (W.Va.1982) are inconsistent or in conflict with Syllabus Point 2 of State ex rel. Ginsberg v. Watt, 285 S.E.2d 367 (W.Va.1981), such syllabus points are overruled.

Lloyd G. Jackson, II, Hamlin, for petitioners.

Janet C. Williamson, Beckley, for respondent Betty Jones.

Judge MacQueen was not a party of interest and never participated in the case.

McGRAW, Justice:

The petitioners, members of the Lincoln County Board of Education and the Superintendent of Lincoln County Schools, seek a writ of prohibition to prevent the respondent, A. Andrew MacQueen, Chief Judge of the Circuit Court of Kanawha County, from proceeding in an action involving the 1981 demotion and transfer of Betty Jones ¹ from principal of Hamlin Elementary School to classroom teacher at McCorkle Grade School. Both Jones and the Lincoln County Board of Education initially petitioned for review of the State Superintendent's decision in the Jones case, which disapproved her demotion but permitted her lateral ² transfer as principal, by writ of certiorari in the Circuit Court of Kanawha County. Subsequently, however, the Lincoln County Board of Education moved to dismiss the certiorari proceeding in Kanawha County, contending that review of the Jones decision by the State Superintendent was appropriate in the Circuit Court of Lincoln County. On April 16, 1984, Judge A. Andrew MacQueen denied this motion to dismiss. The petitioners now seek review of that denial by way of prohibition, presenting the issue of whether certiorari review of the Jones decision by the State Superintendent lies in the Circuit Court of Kanawha County or in the Circuit Court of Lincoln County.

I

There are two avenues of initial review available to employees adversely affected by county board of education personnel actions: administrative review and judicial review. First, in the single Syllabus of Jones v. Board of Education, 294 S.E.2d 113 (W.Va.1982), this Court held that, "The State Superintendent of Schools may review a decision by a county board of education on appeal by an employee...." See also Syl. pt. 1, Bowers v. Bowyer, 310 S.E.2d 474 (W.Va.1983); Syl., State ex rel. Board of Education v. Truby, 301 S.E.2d 862 (W.Va.1983); Syl., State ex rel. Board of Education v. Truby, 300 S.E.2d 109 (W.Va.1983); Syl., State ex rel. Board of Education v. State Superintendent of Schools, 300 S.E.2d 108 (W.Va.1983); Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971). In addition to the right to seek administrative review of school board suspension or dismissal actions under West Virginia Code § 18A-2-8 (1984 Replacement Vol.), this Court recognized in Jones, 294 S.E.2d at 114-15, that West Virginia Constitution art. XII, § 2 and West Virginia Code §§ 18-3-3, -4, -6 & -10 (1984 Replacement Vol.) grant authority to the State Superintendent to review other types of county school board personnel actions. ³ Second, in addition to administrative review by the State Superintendent, school personnel may also seek review of school board actions by writ of certiorari in circuit court under West Virginia Code § 53-3-2 (1981 Replacement Vol.), which provides, in pertinent part, that certiorari lies "in every case, matter or proceeding before a[n] ... inferior tribunal ... after a judgment or final order therein...." This Court has held that boards of education are inferior tribunals subject to certiorari under this statute. See Beverlin v. Board of Education, 158 W.Va. 1067, 1071, 216 S.E.2d 554, 556 (1975); State ex rel. Board of Education v. Martin, 112 W.Va. 174, 178-79, 163 S.E. 850, 852 (1932). Additionally, we note that, under the expanded role accorded certiorari by West Virginia Code § 53-3-3 (1981 Replacement Vol.), the circuit court, in effect, takes the matter de novo. See Snodgrass v. Board of Education, 114 W.Va. 305, 171 S.E. 742 (1933). In Syllabus Point 4 of North v. Board of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977), we summarized the scope of a writ of certiorari as follows:

A writ of certiorari will lie from an inferior tribunal, acting in a judicial or quasi-judicial capacity, where substantial rights are alleged to have been violated and where there is no other statutory right of review given. Upon the hearing of such writ of certiorari, the circuit court is authorized to take evidence, independent of that contained in the record of the lower tribunal, to determine if such violations have occurred.

Therefore, whether exposed to possible transfer, demotion, suspension, dismissal or nonrenewal of probationary contract, a school employee who is dissatisfied with the local board's final decision, may either seek administrative review by the State Superintendent, and if necessary, proceed upon writ of certiorari in circuit court, or may generally proceed directly from the county board decision into circuit court by certiorari, see Syl. pt. 2, State ex rel. Board of Education v. Martin, supra; see also North v. Board of Regents, 160 W.Va. at 260 n. 10, 233 S.E.2d at 418 n. 10. If an employee does appeal to the State Superintendent, the county board of education has the right to seek review by certiorari of any decision adverse to its position. Syl., Mason County Board of Education v. State Superintendent of Schools, 160 W.Va. 348, 234 S.E.2d 321 (1977). In the context of the instant proceeding, these procedures for review of county board of education personnel decisions present the question of which circuit court is the proper place for certiorari review.

II

To support its assertion that venue is proper in Lincoln County, the petitioners rely on Syllabus Point 2 of Leef v. Via, 293 S.E.2d 442 (W.Va.1982), which provides, in pertinent part, that "following a decision by the State Superintendent, either the teacher or the county board may seek judicial review in the circuit court of the county in which the teacher was employed." The sole issue presented in Leef, however, was not one of venue, but concerned the timely application for a writ of certiorari following a final administrative order by the State Superintendent. Leef waited over two years to petition this Court for a writ of certiorari following the State Superintendent's decision which ordered her reemployment, but failed to award backpay. In Syllabus Point 3 of State ex rel. Gibson v. Pizzino, 266 S.E.2d 122 (W.Va.1980), this Court had held that: "Ordinarily, in the absence of some showing of good cause, an application for a writ of certiorari must be filed within four months from the date of the final administrative order of the State Superintendent of Schools." Therefore, we held in Leef, 293 S.E.2d at 444, that: "Since the appellant has made no showing of good cause, we find that her right to relief has been foreclosed by her own inaction."

Although affirmance of the State Superintendent's decision in Leef due to the appellant's failure to apply for a writ of certiorari in a timely fashion disposed of the sole issue presented, ⁴ the Court went on to note that:

During the course of the past five years certain machinery for review of personnel matters has evolved piecemeal through the decisions of this Court, but we have not yet attempted to map that procedure definitively and comprehensively. Consequently, today we shall attempt to establish the exact procedure by which personnel matters may be reviewed, both administratively and in the courts, in an effort to clear up any lingering ambiguity with regard to venue, time periods for seeking judicial relief, and the correct procedure for seeking judicial relief.

293 S.E.2d at 444. Unfortunately, upon careful scrutiny, our "attempt" to define the procedure for the judicial review of decisions by the State Superintendent, at least as regards the issue of venue, fell short of the mark, and directly conflicts with both the applicable statutes and our prior interpretations of those statutes.

The only justification given in Leef for the determination that venue is proper in the county in which the teacher was employed was that "that is where substantially all of the record will have been made." 293 S.E.2d at 445 n. 1. The statutory criterion for a writ of certiorari, however, is not "where substantially all of the record will have been made," but rather, under West Virginia Code § 53-3-1 (1981 Replacement Vol.), "Jurisdiction of writs of certiorari ... shall be in the circuit court of the county in which the record or proceeding is...." (Emphasis added). Upon appeal to the State Superintendent, the "record" goes to Kanawha County, ⁵...