Board of Educ. of Monongalia County v. Starcher

• Decision Date: 02 April 1986
• Docket Number: No. 17013,17013
• Citation: 176 W.Va. 388,343 S.E.2d 673
• Court: West Virginia Supreme Court
• Parties: , 32 Ed. Law Rep. 803 The BD. OF ED. OF COUNTY OF MONONGALIA, etc., et al. v. The Hon. Larry V. STARCHER, Judge, etc., et al.

Page 673

343 S.E.2d 673

176 W.Va. 388, 32 Ed. Law Rep. 803

The BD. OF ED. OF COUNTY OF MONONGALIA, etc., et al. v. The Hon. Larry V. STARCHER, Judge, etc., et al.

No. 17013.

Supreme Court of Appeals of West Virginia.

April 2, 1986.

Dissenting Opinion May 14, 1986.

Syllabus by the Court

1. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the overall economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1980).

2. "The law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy." Syllabus Point 1, Sanders v. Roselawn Memorial Garden, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968).

Herbert G. Underwood, Irene M. Keeley, Gordon H. Copland, Steptoe & Johnson, Clarksburg, for petitioners.

David L. Solomon, Michael L. Solomon, Solomon & Solomon, Morgantown, for all respondents but Judge Starcher.

Regina Charon, Morgantown, for Patricia Longfellow, et al.

Judge Starcher, pro se.

NEELY, Justice:

In 1973 and 1978 the voters of Monongalia County passed a special levy to support the public schools. In January, 1983 three school service workers employed by the Monongalia County Board of Education filed a class action against the board in the circuit court alleging that the board had failed to pay the special levy monies to school service workers in accordance with the terms of the levies. In this regard, the class action plaintiffs relied upon our holding in Thomas v. Board of Education, 164 W.Va. 84, 261 S.E.2d 66 (1979). In September, 1983, the circuit court dismissed the class action on the grounds that the plaintiffs had not exhausted their administrative remedies.

On 6 December 1983 the same service personnel filed a class grievance pursuant to the rules and regulations of the board seeking back pay for approximately 950 active and former employees. During December, 1983, and throughout all of 1984 the board and the grievants conferred frequently over settlement terms. Mr. Kenneth Legg, the Executive Director of the West Virginia School Service Personnel Association (SSPA), represented the grievants in these negotiations.

In October, 1984, several members of the Monongalia County Chapter of the West Virginia Education Association--Educational Support Personnel (WVEA) filed a second and separate grievance seeking back pay from the special levies. The board enlarged the scope of its settlement negotiations to include the second group of grievants and included both Mr. Steve Benson, the area representative for the WVEA, and Ms. Regina Charon, the WVEA group's attorney, in the settlement negotiations. The lead plaintiff in the initial grievance was Ms. Barbara McClain, who is employed as a secretary by the board and is President of the Monongalia County School Service Personnel Association. Patricia Longfellow, a secretary employed by the board and President of the Monongalia County Chapter of the West Virginia Education Association--Educational Support Personnel, filed the second grievance. Hereafter we shall refer to these two class grievances as the McClain-Longfellow grievance.

After extensive settlement negotiations, on 19 July 1985 the board publicly offered to pay affected employees a total settlement of $950,000 at a per diem, flat rate. By 21 August 1985, 774 of the 950 affected past and present service personnel had agreed in writing to accept the board's offer to settle their claims.

Because the proposed settlement of the McClain-Longfellow grievance involved the expenditure of nearly a million dollars of public money, and because the authority of the board to compromise and settle such a claim was not clearly set forth in statutes or case law, the board filed a declaratory judgment styled Board of Education v. McClain, et al., in the Circuit Court of Monongalia County for a court order declaring that (1) a disputed claim existed between the parties; (2) the board had the power to settle the claim; and, (3) the terms of the proposed settlement were fair and reasonable.

During the pendency of the McClain-Longfellow grievance settlement negotiations, Junior Joseph Bane brought a separate class action in circuit court against the board on behalf of himself and 33 other claimants who chose not to accept the proposed McClain-Longfellow settlement. In the declaratory judgment proceeding between the board and the McClain-Longfellow grievants, the circuit court certified the class, but thereafter held no further hearings in the McClain-Longfellow matter. In the 3 October 1985 order certifying the McClain-Longfellow class, the court found that the Bane claimants had "opted out" of the McClain-Longfellow class and would not be bound by any adjudication involving that class. We shall refer to Mr. Bane's this separate class action as the Bane case.

The circuit court took testimony in the Bane case, during which the judge examined a variety of salary documents and considered substantial evidence that he thought relevant both to Bane and McClain-Longfellow. Part of that evidence involved the testimony of Mr. Kenneth Legg of the SSPA who explained the history of the special levy problem in Monongalia County, the reason for a proposed settlement at a flat per diem rate, and other matters relevant to the proposed settlement. Based upon information gleaned in the Bane hearings, on 26 November 1985 the circuit court entered an order approving the proposed McClain-Longfellow settlement as "fair and equitable" and ordered the board to begin making payments to "the vast majority of the service personnel employees ... [who] choose to compromise any claim they may have against their employer" by 18 December 1985.

At the same time that the circuit court entered the judgment order in the McClain-Longfellow case, he also entered an order in the Bane case giving the Bane claimants substantially more money than the McClain-Longfellow claimants were to receive under the settlement.

Subsequently, the board indicated that it would ask the circuit court to set aside the judgment in the Bane case. On 3 December 1985, the attorneys for the board received a message from the circuit judge stating that he intended to set aside the McClain-Longfellow order if the board moved to set aside the order entered in the Bane case. On 6 December 1985 the board moved to set aside the judgment order in Bane and the circuit court then set aside the judgment orders in both Bane and McClain-Longfellow.

On 15 January 1986, the board and Barbara McClain, on her own behalf and as representative of the original McClain grievants petitioned this Court for a writ of prohibition to bar the circuit court from setting aside its original order in the McClain-Longfellow declaratory judgment proceeding. Because the WVEA Longfellow grievants chose to be represented by their own counsel, Patricia Longfellow, both individually and as a representative of her class, was named as a party defendant. We granted the rule to show cause in prohibition under the criteria of Syl.Pt. 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979). During the full hearing on the prohibition in this Court it became apparent that the interests of Ms. Longfellow and her grievants were almost entirely congruent with Ms. McClain and her grievants. The one exception was that Ms. Longfellow urged the Court to mould its writ to require that the board immediately pay the $500,000 initial payment, with statutory interest from August, 1985 until the date of payment, to which the board agreed in the McClain-Longfellow settlement. ¹

The petitioners in the Bane class action appeared as the real parties in interest on behalf of the circuit court and urged us to sustain the trial court's ruling. In a nutshell, their argument is that Barbara McClain does not adequately represent the interests of her class and that the board has deviated from its original settlement agreement. Either of these grounds for sustaining the trial court's order would be meritorious were it raised by Ms. McClain, Ms. Longfellow, or any member of the classes they represent. But when raised by the members of the Bane class as to the McClain-Longfellow class, any failure on the part of the representative plaintiffs to represent members of their own classes is frivolous under the ancient rule of res inter alios judicatae nullum aliis faciunt. ² Having opted out of the McClain-Longfellow class, the Bane litigants cannot now contest the McClain-Longfellow settlement. We have held that a trial court will protect the absent members of a class if the entire merits of a controversy are placed in issue. Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675 (1964). But a group that deliberately opts out of a class is not absent in this sense. By opting out of the McClain-Longfellow class, the Bane litigants lost their standing to challenge the McClain-Longfellow settlement.

Furthermore, because the trial court held in its 24 September 1985 order that the Bane class "rights and interests would be unaffected by the adjudication" of the McClain-Longfellow litigation, the members of the Bane class cannot claim that they have been prejudiced. ³ The members of the Bane class could have...