State ex rel. Boards of Educ. of the Counties of Upshur, et al. v. Chafin

• Decision Date: 23 November 1988
• Docket Number: Nos. 18522,18523,s. 18522
• Citation: 376 S.E.2d 113,180 W.Va. 219
• Parties: , 51 Ed. Law Rep. 637 STATE of West Virginia ex rel. the BOARDS OF EDUCATION OF THE COUNTIES OF UPSHUR, ET AL., Petitioners, v. Honorable Robert G. CHAFIN, Special Judge, Respondent. Michael E. CARYL, West Virginia State Tax Commissioner; Glen B. Gainer, West Virginia State Auditor; and Tom McNeel, State Superintendent of Schools, Petitioners, v. Honorable Robert G. CHAFIN, Special Judge, Respondent.
• Court: West Virginia Supreme Court

Page 113

376 S.E.2d 113

180 W.Va. 219, 51 Ed. Law Rep. 637

STATE of West Virginia ex rel. the BOARDS OF EDUCATION OF

THE COUNTIES OF UPSHUR, ET AL., Petitioners, v. Honorable Robert G. CHAFIN, Special Judge, Respondent.

Michael E. CARYL, West Virginia State Tax Commissioner;

Glen B. Gainer, West Virginia State Auditor; and

Tom McNeel, State Superintendent of

Schools, Petitioners, v. Honorable Robert G. CHAFIN, Special Judge, Respondent.

Nos. 18522, 18523.

Supreme Court of Appeals of West Virginia.

Nov. 23, 1988.

Syllabus by the Court

1. "General and indefinite terms of one provision of a constitution, literally embracing numerous subjects, are impliedly limited and restrained by definite and specific terms of another, necessarily and inexorably withdrawing from the operation of such general terms, a subject which, but for such implied withdrawal, would be embraced and governed by them." Syllabus Point 5, Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E. 786 (1917).

2. "A constitutional amendment, as the last word from the people on a subject under consideration, should be given controlling effect where there is irreconcilable conflict between it and other constitutional provisions, but no such effect should be given where it and other provisions of the Constitution may be read together and harmonized without destroying the effect and purpose of any of them." Syllabus Point 3, Berry v. Fox, 114 W.Va. 513, 172 S.E. 896 (1934).

3. The authority of the residents of a county to vote for and approve an excess levy for the support of public schools in the county, pursuant to W.Va. Const. art. X, § 10, is not subject to equal protection principles.

4. " 'A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers.' Syllabus Point 1, State ex rel. UMWA International Union v. Maynard, 176 W.Va. 131, 342 S.E.2d 96 (1985)." Syllabus, Williams v. Narick, 177 W.Va. 11, 350 S.E.2d 11 (1986).

Norman T. Farley, Coleman & Wallace, Buckhannon, for petitioners.

Silas B. Taylor, Charleston, for defendant St. Auditor and St. Tax Comm. Below.

Brentz Thompson, W.Va. Dept. of Ed., Charleston, for St. Ed. defendant Below.

Daniel F. Hedges, Charleston, for plaintiffs below.

Boyce Griffith, Hamlin, for Lincoln Co. Ed. defendant below.

Edward Rebrook III, Charleston, for plaintiff St. Treasurer Below.

MILLER, Justice:

These cases, consolidated for decision, stem from a constitutional challenge to the excess levy provisions found in W.Va. Const. art. X, § 10, which are designed to help finance the State's public schools. ¹ On May 11, 1982, the Kanawha County Circuit Court declared the excess levy provisions to be violative of equal protection principles. The court determined that dependence on county funds, particularly excess levies, promoted unequal treatment of students in poor and wealthy counties.

The tax commissioner, the auditor, and some thirty-three county boards of education ask to prohibit implementation of the court's remedial order dated June 29, 1987. That order would withhold a proportion of State school funding from counties with excess levies, and distribute the sums withheld equitably to other counties. It is contended that the constitutional authorization of excess levies forecloses them from being declared unconstitutional. We agree.

I.

To better understand the issues presented, it is necessary to generally outline West Virginia's school financing system. W.Va.Code, 18-9A-1, et seq., sets out the State's public school support plan, popularly known as the school financing formula. The formula contemplates a shared responsibility of education costs to be borne by the State and individual counties.

Very broadly, the operation of the formula may be described as follows. First, a county's estimated level of need, or "basic foundation program," is determined. The basic foundation program is the total sum required for each of seven categories of need, viz., professional educators, service personnel, fixed costs, transportation costs, administrative costs, other current expenses and substitute employees, and improvement of instructional programs. W.Va.Code, 18-9A-12. ²

Second, the county's "local share" must be computed. W.Va.Code, 18-9A-11(a). Local share is the amount of tax revenue which will be produced by levies, at specified rates, on all real property situate in the county. Local share thus represents the county's contribution to education costs on the basis of the value of its real property. State funding is provided to the county in an amount equal to the difference between the basic foundation program and the local share. W.Va.Code, 18-9A-12.

Other local funds may also be raised. W.Va. Const. art. X, § 10 authorizes any county to increase, by as much as 100 percent, the maximum levy rates allowable for public schools. These increases, or "excess levies," must be approved by a majority vote and are valid for up to five years. ³ Revenues derived from excess levies are used for a wide variety of purposes, including salary supplements for school personnel, free textbooks for students, and other current operating expenses. It is represented by the parties that forty-three West Virginia counties presently have excess levies. The anticipated revenues from these levies for the fiscal year 1987-88 is over $121,000,000.

II.

The present cases are traceable to a 1975 civil suit filed in the Kanawha County Circuit Court by the parents of Lincoln County public school students. The complaint in that suit prayed for a declaration that features of the State's system for financing public schools denied equal educational opportunities. The circuit court noted that certain inequities were present in the system, but dismissed the suit.

On appeal, we held that the guarantee of a "thorough and efficient" system of public schools contained in W.Va.Const. art. XII, § 1, made education a fundamental right. For this reason, we held in Syllabus Points 3 and 4 of Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979), that our school financing system was subject to strict scrutiny for equal protection purposes: ⁴

"3. The mandatory requirements of 'a thorough and efficient system of free schools' found in Article XII, Section 1 of the West Virginia Constitution, make education a fundamental, constitutional right in this State.

"4. Because education is a fundamental, constitutional right in this State, under our Equal Protection Clause any discriminatory classification found in the State's educational financing system cannot stand unless the State can demonstrate some compelling State interest to justify the unequal classification."

We, therefore, reversed the judgment and delineated the issues to be developed on remand. Those issues included whether, and to what extent, the system's dependence on county excess levies promoted unequal educational opportunities. ⁵

Upon remand, the circuit court, in a detailed opinion and order dated May 11, 1982, declared some features of the school financing system to be constitutionally infirm and noted that the inequities were attributed to undue reliance on excess levies, which favored property-rich counties. ⁶ The court appointed a committee to develop a master plan to bring the system into constitutional compliance. As submitted to the court, the master plan recommended the enactment of a statewide excess levy to supplant the various county excess levies. The plan was approved, as revised, by order of March 4, 1983. The court declined to adopt a timetable for implementation of the plan, but rather called on the Governor and Legislature to promptly fulfill their constitutional duties.

On January 8, 1985, after almost two years of inactivity, the plaintiffs below moved the court to address the excess levy problem. A December 5, 1985 order of the circuit court stated that if the Legislature did not, by July 1, 1987, replace or equalize excess levy revenues by one of the methods enumerated therein, ⁷ the court would direct a more equitable distribution. The Legislature promptly adopted a constitutional amendment to authorize a statewide excess levy. This proposed amendment was to be submitted to the voters in a special election to be held on March 5, 1988. ⁸

The court entered a supplemental order on June 29, 1987. This order provided that if the statewide excess levy was not approved, a sum equal to 20 percent of each county's excess levy revenues would be withheld from State school funding in fiscal year 1988-89. The sums withheld were to be increased by an additional 20 percent in each of the next four fiscal years. These sums were to be distributed to other counties "on an equitable basis prescribed by the court." The statewide excess levy amendment was defeated at the special election held on March 5, 1988, and the supplemental order thereby became operative.

On April 8, 1988, the tax commissioner and auditor petitioned this Court for a writ of prohibition to bar enforcement of the supplemental order. A separate petition by thirty-three county boards of education was filed on the same day. We issued rules to show cause in each of the cases on June 22, 1988, made returnable on September 13, 1988. ⁹ It is contended that the order was constitutionally invalid and, therefore, exceeded the court's jurisdiction.

III.

A.

A number of states without a "thorough and efficient" education clause in their constitutions have followed the equal protection analysis used in San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). There, the United States Supreme Court concluded that education was not a fundamental right. Consequently, where an equal protection challenge is made to a state education statute, the state need only show that there is a rational basis for ...