City of Benwood v. BD. OF EDUC.

• Decision Date: 01 November 2002
• Docket Number: No. 30627.,30627.
• Citation: 212 W.Va. 436,573 S.E.2d 347
• Court: West Virginia Supreme Court
• Parties: CITY OF BENWOOD, A Municipal Corporation, and Frank Longwell, Larry Ferrara, William Kern, Individually and on Behalf of Save Our School/Union Defense Fund, Plaintiffs Below, Appellants, v. The BOARD OF EDUCATION OF THE COUNTY OF MARSHALL, A Corporation, David L. Wood, in His Official Capacity as the Superintendent of the Board of Education of the County of Marshall, John H. Och, IV, Roger A. Lewicki, Mary Ellen Komorowski, Melanie A Hummel, and George M. Manning, Each in His or Her Official Capacity as a Member of the Board of Education of the County of Marshall, a Corporation, Defendants Below, Appellees.

573 S.E.2d 347

212 W.Va. 436

CITY OF BENWOOD, A Municipal Corporation, and Frank Longwell, Larry Ferrara, William Kern, Individually and on Behalf of Save Our School/Union Defense Fund, Plaintiffs Below, Appellants, v. The BOARD OF EDUCATION OF THE COUNTY OF MARSHALL, A Corporation, David L. Wood, in His Official Capacity as the Superintendent of the Board of Education of the County of Marshall, John H. Och, IV, Roger A. Lewicki, Mary Ellen Komorowski, Melanie A Hummel, and George M. Manning, Each in His or Her Official Capacity as a Member of the Board of Education of the County of Marshall, a Corporation, Defendants Below, Appellees.

No. 30627.

Supreme Court of Appeals of West Virginia.

Submitted September 4, 2002.

Decided November 1, 2002.

Daniel J. Guida, Esq., Guida Law Offices, Weirton, West Virginia, Attorney for Appellants.

Gregory W. Bailey, Esq., Kimberly S. Croyle, Esq., Bowles Rice McDavid Graff & Love, Charleston, West Virginia, Attorneys for Appellees.

Michael R. Crane, Esq., M.E. "Mike" Mowery, Esq., Mark W. McOwen, Esq., for Amici Curiae, Earl Ray Tomblin, President of the West Virginia Senate and Robert S. Kiss, Speaker of the West Virginia House of Delegates.

PER CURIAM:

This case is before this Court upon an appeal of a final order of the Circuit Court of Marshall County entered on May 8, 2002. In that order, the circuit court denied a petition for a writ of mandamus and a request for declaratory and injunctive relief filed by the appellants and plaintiffs below, the City of Benwood, a municipal corporation, and Frank Longwell, Larry Ferrara, and William Kern, individually and on behalf of Save Our School/Union Defense Fund, against the Board of Education of the County of Marshall (hereinafter "the Board") to prevent the closing of Union Junior High School. In this appeal, the appellants contend that the circuit court erred by ruling that the Board was not required to comply with the amendments to W.Va.Code § 18-5-13a adopted through House Bill 4149 during the 2002 regular session of the West Virginia Legislature. The appellants also assert several additional errors concerning the procedure followed by the Board to close Union Junior High School.

This Court has before it the petition for appeal, the entire record, and the briefs and argument of counsel.¹ As set forth below, we find that the circuit court erred by ruling that W.Va.Code § 18-5-13a (2002) did not become effective until April 3, 2002, and therefore, was not applicable to the Board's actions.² However, we affirm the circuit court's final order because we believe the Board complied with the statute's requirements.

I. FACTS

On January 15, 2002, the Board decided by a vote of 3-2 to proceed with public hearings regarding the closing of Limestone Elementary School and Union Junior High School. The Board's proposal indicated that the students of Union Junior High School would be sent to Sherrard Junior High School while the students from Limestone Elementary School would be divided among Glen Dale Elementary School, Sanford Elementary School, and Sherrard Elementary School. The Board also proposed that students in the ninth grade at Moundsville Junior High, Sherrard Junior High, and Union Junior High be sent to John Marshall High School. On February 4, 2002, at a special meeting, the Board established publication dates and notices mandated by W.Va.Code § 18-5-13a (1991). At its regular meeting on February 12, 2002, the Board scheduled a special meeting for March 25, 2002, for a final decision and vote on its proposals.

A public hearing was held on March 20, 2002, to discuss the proposed closing of Union Junior High School. Public hearings were also held on March 19, 2002, to discuss the reassignment of ninth graders to John Marshall High School, and on March 21, 2002, to discuss the closure of Limestone Elementary School. A few days later, on March 25, 2002, the Board voted 3-2 to close Union Junior High School at the end of the 2001-2002 school year.³ The Board also voted 3-2 to reassign ninth graders from Moundsville Junior High, Sherrard Junior High, and Union Junior High to John Marshall High School. The motion to close Limestone Elementary School failed.

On April 30, 2002, the circuit court held a hearing on the appellants' petition for writ of mandamus and request for declaratory and injunctive relief. On May 7, 2002, the court entered an order finding that the Board had complied with W.Va.Code § 18-5-13a (1991) and denying the appellants the relief they sought. Thereafter, the appellants discovered that W.Va.Code § 18-5-13a was amended during the 2002 session of the West Virginia Legislature. Consequently, on May 13, 2002, the appellants filed a motion with the circuit court requesting that the court make additional findings with regard to the applicability of the amendments to the Board's actions. The appellants also filed motions for a new trial, amendment of judgment and/or relief from judgment. By order dated May 24, 2002, the circuit court denied these motions. This appeal followed.

II. STANDARD OF REVIEW

As set forth above, this appeal concerns the circuit court's decision to deny the appellants a writ of mandamus based upon its finding that the Board complied with W.Va.Code § 18-5-13a. While school boards have the authority to close and/or consolidate schools, "a writ of mandamus is appropriate when a [school] board oversteps, or fails to meet, its clear legal duties." McComas v. Board of Educ. of Fayette County, 197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996). In Syllabus Point 1 of Pell v. Board of Educ. of Monroe County, 188 W.Va. 718, 426 S.E.2d 510 (1992), this Court held that:

"Mandamus will lie to control a board of education in the exercise of its discretion upon a showing of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of the law." Syl. pt. 4, Dillon v. Board of Education, 177 W.Va. 145, 351 S.E.2d 58 (1986).

In reviewing a circuit court's decision to grant or deny a writ of mandamus, this Court applies a de novo standard of review. McComas, 197 W.Va. at 193, 475 S.E.2d at 285. Of course, a clearly erroneous standard applies to the circuit court's underlying factual findings. Id.

We also note that one of the primary issues in this case involves interpretation of the West Virginia Constitution and relevant statutes. "Because interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review[.]" Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996). With these standards in mind, we now address the parties' arguments.

III. DISCUSSION

A. The Applicability of House Bill 4149

The appellants first contend that W.Va. Code § 18-5-13a as amended by House Bill 4149 during the 2002 Legislative session applied to the Board's actions with respect to the closing of Union Junior High School. The appellants contend that since House Bill 4149 contained language stating that it was "effective from passage," the amendments took effect on March 8, 2002, when the bill was passed by both houses of the Legislature. In support of their argument, the appellants point to Article VI, Section 30 of the West Virginia Constitution, which provides, in pertinent part: "[N]o act of the legislature... shall take effect until the expiration of ninety days after its passage, unless the legislature shall by a vote of two-thirds of the members elected to each house, taken by yeas and nays, otherwise direct." The appellants contend that the term "passage" in Article VI, Section 30 refers to the date when the bill has passed both houses of the Legislature. In other words, the appellants aver that when a bill is made "effective from passage," it is effective from the date the affirmative vote was taken by the Legislature and not from the date of the governor's signature.

The Board argues, however, that House Bill 4149 did not become effective until April 4, 2002, when it was signed by the Governor, or at least March 27, 2002, the date the bill was presented to the Governor for his signature. Thus, the Board maintains W.Va.Code § 18-5-13a as amended did not apply to the closing of Union Junior High School. The Board reasons that since the executive branch of our government is charged with enforcing the laws passed by the Legislature pursuant to Section 5 of Article VII of the West Virginia Constitution, a bill cannot become enforceable law until it is presented to the Governor. The Board claims that such a view is consistent with Article VII, Section 14 of the West Virginia Constitution which requires that "every bill passed by the legislature shall, before it becomes a law, be presented to the Governor."

The circuit court adopted the Board's reasoning and concluded that, "Had [the Board] complied with H.B. 4149, in doing so, it would have been improperly and precariously anticipating the action of the Governor of the State of West Virginia." In essence, the circuit court ruled that Article VII, Section 14 prevents the Legislature from making a bill effective on any date earlier than the date upon which the Governor signs the bill. While this may in fact be the rule in other jurisdictions, this Court has long since held that the effective date of legislation is established by the Legislature and not the Governor.

In State v. Mounts, 36 W.Va. 179, 185-86, 14 S.E. 407, 409 (1891), this Court observed that:

[T]he constitution of the United States creates in the president a function somewhat legislative in its character, in analogy to the constitution of England, under which the king was recognized, according to the elementary writers, as a constituent branch of the parliament itself. 1 Bl. Comm. 184n. Under the constitution of this state, however, the three departments—legislative, executive, and judicial—are required to be "separate and

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