Smith v. West Virginia State Bd. of Educ.

• Citation: 295 S.E.2d 680,170 W.Va. 593
• Decision Date: 22 June 1982
• Docket Number: No. 15454,15454
• Court: Supreme Court of West Virginia
• Parties: , 6 Ed. Law Rep. 1138 George David SMITH, etc., et al. v. The W. VA. STATE BOARD OF EDUCATION, etc., et al., and the Roane County Board of Education, et al.

Page 680

295 S.E.2d 680

170 W.Va. 593, 6 Ed. Law Rep. 1138

George David SMITH, etc., et al. v. The W. VA. STATE BOARD OF EDUCATION, etc., et al., and the Roane County Board of Education, et al.

No. 15454.

Supreme Court of Appeals of West Virginia.

June 22, 1982.

Concurring and Dissenting Opinion

Sept. 8, 1982.

Syllabus by the Court

1. "A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

2. One of the axioms of statutory construction is that a statute will be read in context with the common law unless it clearly appears from the statute that the purpose of the statute was to change the common law.

3. The doctrine of in loco parentis as contained in W.Va.Code, 18A-5-1, in light of the present day standards and legislative enactments in the child abuse area cannot be interpreted as permitting corporal punishment of public school children by means of a paddle, whip, stick or other mechanical devices.

4. The in loco parentis doctrine contained in W.Va.Code, 18A-5-1, does not prohibit the spanking by hand, the physical seizure and removal of unruly students from the classroom nor the use of physical force to restrain students from fighting or engaging in destructive or illegal acts.

5. The following minimal due process procedures should be utilized before administering manual corporal punishment. First, the student should be given an opportunity to explain his version of the disruptive event as such an explanation may convince a fair minded person that corporal punishment is not warranted. Second, in the absence of some extraordinary factor the administration of corporal punishment should be done in the presence of another adult.

Daniel F. Hedges, Charleston, for petitioners.

Chauncey H. Browning, Jr., Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for State Bd. of Educ.

Frederick D. Fahrenz, Jeffrey K. Materly, Preiser & Wilson, Charleston, for Roane CBE.

Jacqueline A. Kinnaman, Charleston, for intervenor.

MILLER, Chief Justice:

In this original mandamus action the petitioner, George David Smith, through his parents as next friends, seeks to challenge the constitutionality of the in loco parentis ¹ doctrine generally embodied in W.Va.Code, 18A-5-1. ² He also contends that one of the respondents, the West Virginia State Board of Education, has failed under W.Va.Code, 18-2-5, ³ to promulgate regulations in regard to administering corporal punishment to school children.

The petitioner's constitutional claims are predicated on Section 5 of Article III of the West Virginia Constitution prohibiting cruel and unusual punishment and the substantive due process provision in Section 10 of Article III. ⁴

On September 15, 1981, Petitioner George David Smith, who was age 11 at the time and a student at Clover Elementary School, along with fellow student, James Greathouse, were "severely struck" with a wooden paddle by Respondent Jack Sharp, a teacher and the principal. As a result of the striking, Petitioner George David Smith's legs received large bruises which required medical treatment at a local hospital. Allegedly the petitioner subsequently developed a negative attitude toward school.

The respondents admit to the use of corporal punishment by Sharp who has stated that he "gave each boy three moderate licks with a wooden paddle on their buttocks." He further states that he told the boys that this punishment was for their disobeyance of school rules regarding fighting. The boys were caught fighting in the bathroom. Sharp further stated that another student, Mark Nichols, was also paddled.

I.

The respondents initially make the procedural point that a writ of mandamus is not an appropriate remedy in this case. They recite our traditional rule found in Syllabus Point 2 of State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969):

"A writ of mandamus will not issue unless three elements coexist--(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy."

See also State ex rel. Cabell County Deputy Sheriff's Association v. Dunfee, 163 W.Va. 539, 258 S.E.2d 117 (1979); McGrady v. Callighan, 163 W.Va. 539, 244 S.E.2d 793 (1978); State ex rel. Damron v. Ferrell, 149 W.Va. 773, 143 S.E.2d 469 (1965). Our rule regarding utilization of a writ of mandamus must be read against the back drop of Judge Haymond's statement in Carter v. City of Bluefield, 132 W.Va. 881, 897, 54 S.E.2d 747, 757 (1949):

"The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it, in order to afford the relief a party is entitled to when there is no other adequate and complete legal remedy."

The clear legal right to the relief sought is generally a question of standing. Thus, where the individual has a special interest in the sense that he is part of the class that is being affected by the action then he ordinarily is found to have a clear legal right. Walls v. Miller, 162 W.Va. 563, 251 S.E.2d 491 (1978). Moreover, where the right sought to be enforced is a public one in the sense that it is based upon a general statute or affects the public at large the mandamus proceeding can be brought by any citizen, taxpayer, or voter. State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976); State ex rel. West Virginia Lodge, Fraternal Order of Police v. City of Charleston, 133 W.Va. 420, 56 S.E.2d 763 (1949); Prichard v. DeVan, 114 W.Va. 509, 172 S.E. 711 (1934); State ex rel. Matheny v. County Court of Wyoming County, 47 W.Va. 672, 35 S.E. 959 (1900).

Here the petitioner is a member of the class directly affected by corporal punishment. The clear legal right of the petitioner to bring a writ of mandamus besides involving a standing issue is also entwined in the legal duty which the respondent is required to perform. This is the second element of our traditional test for the appropriateness of a writ of mandamus. There is a certain amount of legal sophistry in this area because if there were such a clear legal right on behalf of the petitioner to the relief sought and the countervailing legal duty on the respondent, the matter would be resolved without court intervention. In the usual case the matter at issue may be somewhat opaque until the court pronounces the clear legal right and duty. Typical of this category of mandamus cases is where the respondent refuses to act because he relies on an ordinance which the petitioner claims is invalid or unconstitutional. E.g., Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979); State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329, 233 S.E.2d 419 (1977); State ex rel. Sheldon v. City of Wheeling, 1466 W.Va. 691, 122 S.E.2d 427 (1961); Carter v. City of Bluefield, supra. Cf. State ex rel. McCamic v. McCoy, 166 W.Va. 572, 276 S.E.2d 534 (1981). Much the same utilization of the writ of mandamus has been made in regard to the validity of statutes. E.g., State ex rel. Kanawha County Building Commission v. Paterno, 160 W.Va. 195, 233 S.E.2d 332 (1977); State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969); State ex rel. Smith v. Kelly, 149 W.Va. 381, 141 S.E.2d 142 (1965); State ex rel. Wheeling Downs Racing Commission v. Perry, 148 W.Va. 68, 132 S.E.2d 922 (1963).

The petitioner in this case seeks to challenge the constitutionality of W.Va.Code, 18A-5-1, insofar as it permits through the in loco parentis doctrine corporal punishment of school children. In addition he seeks to have the respondent, the State Board of Education, promulgate proper regulations in regard to corporal punishment under its rule making authority contained in W.Va.Code, 18-2-5. We have in the past permitted the writ of mandamus to be brought against public officials who have some positive duty to act and who fail to do so. In State ex rel. Brotherton v. Moore, supra, we required the governor to fill a vacancy in a public office. We have permitted writs of mandamus to be brought against the Workmen's Compensation Commissioner for failure to properly classify an employer's account and to correct an overcharge. State ex rel. Red Jacket Coal Corp. v. Stokes, 142 W.Va. 126, 94 S.E.2d 634 (1956); Puritan Coal Corporation v. Davis, 130 W.Va. 20, 42 S.E.2d 807 (1947). More recently we have sanctioned a mandamus against the Workmen's Compensation Commissioner to enter some award for permanent partial disability. Wilson v. Lewis, 166 W.Va. 273, 273 S.E.2d 96 (1980). These decisions are predicated on the finding that the respondent had a statutory duty to act and had failed to do so or had acted improperly. Similarly in our recent case of United Mine Workers of America v. Miller, 170 W.Va. 177, 291 S.E.2d 673 (1982), we found that the respondent had a statutory duty to prescribe enforcement procedures and had failed to act and as a consequence a writ of mandamus would lie to compel him to act.

Finally, as to the third element, the lack of another adequate remedy, we have stated in Syllabus Point 2 of Stowers v. Blackburn, 141 W.Va. 328, 90 S.E.2d 277 (1955):

"Mandamus will not be denied because there is another remedy, unless such other remedy is equally beneficial, convenient and effective."

In State ex rel. Board of Education of the County of Kanawha v. Dyer, 154 W.Va. 840, 179 S.E.2d 577 (1971), which involved a mandamus proceeding by the Board to compel the issuance of a license to operate a school of beauty culture, we held that an administrative appeal to the circuit court and to this...