Longwell v. BOE OF COUNTY OF MARSHALL

• Decision Date: 06 May 2003
• Docket Number: No. 30987.,30987.
• Court: West Virginia Supreme Court
• Parties: Frank LONGWELL, Larry Ferrara, and William Kern, in Their Capacity as Citizens, Voters, Residents and Taxpayers of Marshall County, West Virginia, Plaintiffs Below, Appellants, v. The BOARD OF EDUCATION OF the COUNTY OF MARSHALL, a Corporation, Defendant Below, Appellee.

583 S.E.2d 109

213 W.Va. 486

Frank LONGWELL, Larry Ferrara, and William Kern, in Their Capacity as Citizens, Voters, Residents and Taxpayers of Marshall County, West Virginia, Plaintiffs Below, Appellants, v. The BOARD OF EDUCATION OF the COUNTY OF MARSHALL, a Corporation, Defendant Below, Appellee.

No. 30987.

Supreme Court of Appeals of West Virginia.

Submitted March 25, 2003.

Decided May 6, 2003.

Dissenting Opinion of Justice McGraw July 3, 2003.

Concurring Opinion of Chief Justice Starcher July 9, 2003.

Daniel J. Guida, Weirton, for the Appellants.

Thomas B. Miller, Schrader, Byrd & Companion, PLLC, Wheeling, for the Appellee. DAVIS, Justice.

Several Marshall County Citizen Taxpayers appeal an order dismissing their legal action seeking a declaratory judgment and writ of mandamus. In dismissing the case, the Circuit Court of Marshall County concluded that county boards of education have the authority to hire legal counsel under W. Va.Code § 18-5-13(l). The Marshall County Citizen Taxpayers argue on appeal that, because W. Va.Code § 7-4-1 imposes upon prosecuting attorneys a duty to represent boards of education, a board of education is compelled to rely upon prosecuting attorneys for legal representation and may hire legal counsel only when the prosecuting attorney fails to or cannot represent it. We agree with the circuit court's conclusion that county boards of education do have the authority to hire legal counsel without first establishing the necessity of such hiring. Consequently, the circuit court's order dismissing the action underlying this appeal is affirmed.

I.

FACTUAL AND PROCEDURAL HISTORY

On February 18, 2002, Frank Longwell, Larry Ferrara, and William Kern (hereinafter collectively referred to as "Marshall County Citizen Taxpayers") filed a complaint against the Marshall County Board of Education (hereinafter "the BOE") seeking a declaratory judgment and writ of mandamus. In their request for a declaratory judgment, the Marshall County Citizen Taxpayers asked the circuit court to decide, inter alia, whether the "Marshall County Board of Education[] violated West Virginia Code §§ 7-4-1 and/or 18-5-13(12), and any other applicable law, when it voted for, consented to or approved the expenditure of taxpayer or public funds for private counsel...." The Marshall County Citizen Taxpayers sought a writ of mandamus to require the Marshall County Board of Education "to rescind or void their vote for, consent to, or approval of, the expenditure of taxpayer or public monies for private counsel...."¹

Thereafter, the BOE filed a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure claiming that the Marshall County Citizen Taxpayers had failed to state a claim upon which relief could be granted. A hearing on the motion to dismiss was had on March 25, 2002. Following the hearing, on April 17, 2002, the circuit court granted the BOE's motion to dismiss. In granting the motion, the circuit court concluded, as a matter of law, that the BOE had "not violated West Virginia Code 7-4-1, West Virginia Code 18-5-13(12), or any other applicable law, in its hiring of outside counsel in the instant case and on prior occasions." In reaching this conclusion, the circuit court expressly stated:

Clearly, by both case law and statute, boards of education in West Virginia are allowed to employ "outside" legal counsel, and for the past thirty-plus years, this practice has been followed in most, if not all, of the counties in this state. This practice is necessary, in large part, due to the ever increasing and enormous complexity of the educational law found in Chapters 18 and 18A of the West Virginia Code, along with the increasing burdens placed upon county prosecuting attorneys.

It is from the April 17, 2002, order of the Circuit Court of Marshall County that the Marshall County Citizen Taxpayers now appeal.

II.

STANDARD OF REVIEW

This case is before this Court on appeal from an order of the circuit court granting the BOE's motion to dismiss under W. Va. R. Civ. P. 12(b)(6). "Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). In conducting our de novo review, we are mindful that

"`"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl., Flowers v. City of Morgantown, 166 W.Va. 92, 272 S.E.2d 663 (1980).' Syl. pt. 2, Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981)." Syllabus, Fass v. Nowsco Well Service, Ltd., 177 W.Va. 50, 350 S.E.2d 562 (1986).

Syl. pt. 2, West Virginia Canine College, Inc. v. Rexroad, 191 W.Va. 209, 444 S.E.2d 566 (1994).

III.

DISCUSSION

In this case we are asked to determine whether county boards of education are required to rely upon prosecuting attorneys to provide their legal services, reserving the right to hire their own legal counsel to only those circumstances when such a hiring is made necessary by virtue of the prosecuting attorney's inability or refusal to act on a board's behalf, or whether the boards may hire their own legal counsel even in the absence of such necessity.

The Marshall County Citizen Taxpayers argue that W. Va.Code § 7-4-1 (1971) (Repl. Vol.2000)² appoints the county prosecutor as statutory counsel for the county board of education. Therefore, the Marshall County Citizen Taxpayers reason, W. Va.Code § 18-5-13(l) (2002) (Supp.2002),³ authorizes a county board of education to employ private legal counsel only when "necessary." W. Va.Code § 18-5-13(l) states simply that "[t]he boards, subject to the provisions of this chapter and the rules of the state board, have authority: ... (l) To employ legal counsel." The Marshall County Citizen Taxpayers contend that this provision does not contemplate employment of private legal counsel by the BOE on a regular or continuing basis, unless necessity requires the same for each and every service provided. The Marshall County BOE responds by noting that even prior to the enactment of W. Va. Code § 18-5-13(l), county boards of education had the implied authority to hire legal counsel.

To decide whether a county board of education is authorized to hire its own lawyer, or whether it is bound to use its county's prosecutor, we begin by considering the prosecutors' duty in this regard. Unquestionably, county prosecutors in West Virginia have a duty to represent the various boards of education. See Syl. pt. 1, Mollohan v. Cavender, 75 W.Va. 36, 83 S.E. 78 (1914) ("It is the duty of the prosecuting attorney, imposed by section 49, chapter 39, Code [W. Va.Code ch 39, § 49, at 676 (1913) (Hogg 1914) (sec. 1602)], to serve independent district boards of education as well as other district boards, as thereby prescribed."). W. Va.Code § 7-4-1 outlines the duties of prosecuting attorneys and states, in relevant part, that "[i]t shall also be the duty of the prosecuting attorney to ... advise, attend to, bring, prosecute or defend, as the case may be, all matters, actions, suits and proceedings in which ... any county board of education is interested." This duty has a long history. Since at least 1895, the West Virginia Code has contained a provision requiring prosecuting attorneys to represent boards of education. See Acts of the Legislature, Reg. Sess., ch. 30, § 49, at 50 (1895) ("And it shall be the duty of the prosecuting attorney to attend to, bring, or prosecute, or defend, as the case may be, all actions, suits and proceedings in which his county or any district board of education therein is interested, without additional compensation."). See also W. Va.Code ch. 39, § 49, at 317 (1899) (same). The question, then, is whether this duty of prosecuting attorneys imposes a correlative obligation on the part of the various boards of education to utilize the prosecuting attorney to serve its legal needs. This question was answered long ago.

As early as 1914, this Court concluded that the duty imposed on prosecutors to represent boards of education did not deprive independent district boards of education of the inherent right to hire counsel under certain circumstances. See Mollohan v. Cavender, 75 W.Va. 36, 83 S.E. 78. In Mollohan, a writ of mandamus was sought to compel the county superintendent to authorize payment to a lawyer who had been hired by an independent district board of education. The Court observed that the only statute on the subject was one requiring the prosecuting attorney to represent the district boards of education. See W. Va.Code ch 39, § 49, at 676 (1913) (Hogg 1914) (sec. 1602). After surveying how other courts had decided the issue, the Mollohan Court held, in Syllabus point two,

But said section [(W. Va.Code ch. 39, § 49, at 676 (1913) (Hogg 1914) (sec. 1602))] does not deprive such independent district boards of the implied power, to employ other counsel, or additional counsel to assist the prosecuting attorney, where, in their judgment and reasonable discretion the character of the business, or on account of the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act, there is necessity therefor.

Because the prosecuting attorney had consistently declined to represent the independent district board of education,⁴ the Court concluded that the board was within its authority to hire counsel and granted the requested writ. Thus, under Mollohan, a board's authority to hire counsel was limited to circumstances where private counsel was required due to "the absence of the prosecuting attorney, or his incapacity, sickness, or other disability, or his refusal to act." Syl. pt. 2, in part, Mollohan. It is noteworthy, however, that the Court found that the boards...