State ex rel. W. Va. Secondary Sch. Activities Comm'n v. Cuomo

• Decision Date: 01 November 2022
• Docket Number: 22-0261,No. 22-0261
• Citation: 880 S.E.2d 46
• Parties: STATE of West Virginia EX REL. WEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION, Petitioner, v. The Honorable Jason A. CUOMO, Judge of the Circuit Court of Ohio County, and Heather B., Legal Guardian of A.B., Respondents.
• Court: West Virginia Supreme Court

880 S.E.2d 46

STATE of West Virginia EX REL. WEST VIRGINIA SECONDARY SCHOOL ACTIVITIES COMMISSION, Petitioner,

v.The Honorable Jason A. CUOMO, Judge of the Circuit Court of Ohio County, and Heather B., Legal Guardian of A.B., Respondents.

No. 22-0261

Supreme Court of Appeals of West Virginia.

Submitted: September 28, 2022

Filed: November 1, 2022

Stephen F. Gandee, Esq., Robinson & McElwee PLLC, Clarksburg, West Virginia, Counsel for Petitioner

David L. Delk, Jr., Esq., Grove, Holmstrand & Delk PLLC, Wheeling, West Virginia, Counsel for Respondent Heather B.

HUTCHISON, Chief Justice:

On March 4, 2022, the Circuit Court of Ohio County entered a preliminary injunction against the West Virginia Secondary School Activities Commission ("the WVSSAC") in favor of Heather B. as legal guardian of A.B.¹ The circuit court concluded the WVSSAC applied the WVSSAC's Waiver Rule, W. Va. C.S.R. § 127-2-2 (2021), in an arbitrary and capricious manner. It further concluded the WVSSAC's Residence-Transfer Rule, W. Va. C.S.R. § 127-2-7.2.a (2021), was facially unconstitutional.

The WVSSAC now seeks a writ of prohibition prohibiting enforcement of the preliminary injunction. We grant the writ for two reasons. First, we conclude that the circuit court completely lacked jurisdiction to review A.B.’s as-applied challenge to the WVSSAC's Waiver Rule. Second, we conclude that while the circuit court had jurisdiction to determine whether the Residence-Transfer Rule is facially unconstitutional, the circuit court clearly erred in finding the Residence-Transfer Rule to be facially unconstitutional. For these reasons, we grant the WVSSAC a writ of prohibition and dissolve the circuit court's March 4, 2022, preliminary injunction.

I. Facts and Procedural Background

A.B. attended John Marshall High School as a tenth grader for school year 2020-2021. Before the next school year, she decided to transfer to Wheeling Central Catholic High School, located in Ohio County and a ten-minute drive from her home in Benwood, Marshall County. According to Heather, A.B. transferred to Wheeling Central Catholic because A.B. was seeking smaller class sizes, a more personal environment, and wanted to attend a school that offered religion classes and which would foster A.B.’s moral code and religious beliefs. She enrolled at Wheeling Central Catholic on August 25, 2021.

A.B., who had previously played softball and basketball on recreation and travel teams, wanted to try out for sports at Wheeling Central Catholic, specifically softball and basketball. Heather claimed A.B.’s participation in sports provided an outlet for A.B.’s introversion and anxiety. A.B. learned she might not be eligible to play sports at Wheeling Central Catholic because of the WVSSAC's Residence-Transfer Rule, which provides, in pertinent part:

If a student transfers during the academic year from one secondary school to another secondary school, the student shall be ineligible for 365 days from date of enrollment, absent a bona fide change of residence. Students who are ineligible under this rule may practice during the period of ineligibility, given they meet all other factors of eligibility outlined in Policy 2436.10, § 3. Eligibility.

W. Va. C.S.R. § 127-2-7.2.a (2021).² The WVSSAC Rules empower the WVSSAC Board of Directors to waive a WVSSAC rule when "it determines the rule fails to accomplish the purpose for which it is intended or when the rule causes extreme and undue hardship upon the student." Id. § 127-2-2.1 (2021).

Heather e-mailed WVSSAC Executive Director Bernard Dolan seeking a waiver of the Residence-Transfer Rule for A.B. Mr. Dolan responded that the Residence-Transfer Rule precluded A.B. from playing sports at Wheeling Central Catholic for one year without a waiver.³ Heather then asked the WVSSAC Board of Directors for a waiver, which the Board of Directors denied because A.B. "had not demonstrated that an extreme and undue hardship was present and there was no allegation that the rule fail[ed] to accomplish the purpose for which it is intended." Heather appealed to the WVSSAC Review Board, which, by a 4-2 vote, affirmed the Board of Directors’ denial. The Review Board found that A.B. felt she would thrive in a smaller school and this had occurred since A.B.’s grades at Wheeling Central Catholic were generally excellent. The Board of Review explained that A.B. had shown no hardship. It finally found that "the purpose of the 365 day ineligibility is to assist the student in ‘settling in’ to a new academic environment and experience and to help establish solid academic performance. That is precisely what the student and her family sought in a transfer to a smaller school."

Heather, on A.B.’s behalf, sought an injunction, claiming WVSSAC's decision to deny A.B. a waiver was arbitrary and capricious and denied A.B. equal protection of the law. The injunction request also alleged the Residence-Transfer Rule was itself arbitrary and capricious and violated equal protection.

At a preliminary injunction hearing before the circuit court, Mr. Dolan testified the rationale behind the Residence-Transfer Rule was to allow a student to settle into a new school. He testified the Residence-Transfer Rule addresses the pressures that inure on a new student in sports competition. Mr. Dolan also testified that the pressures of playing in a game are much higher than the pressures of practice. He further testified that this explains why the Residence-Transfer Rule prohibits a transfer student from playing in a game, but permits a student to do everything else associated with playing a sport.

The circuit court applied the preliminary injunction test set forth in Jefferson County Board of Education v. Jefferson County Education Association , 183 W. Va. 15, 24, 393 S.E.2d 653, 662 (1990). It concluded A.B. demonstrated the likelihood of irreparable harm if she was not permitted to play sports at Wheeling Central Catholic, and that, conversely, the WVSSAC would not suffer any harm if A.B. was permitted to play. The circuit court also concluded the public interest favored the preliminary injunction. Most importantly, it found that A.B. was likely to succeed on her substantive claims, which the circuit court characterized as: (1) "Was [the Residence-Transfer Rule] written in an arbitrary and capricious fashion or was it written in such a way as to be rationally related to a legitimate purpose?" and, (2) "Was [the Waiver Rule] applied in this case in an arbitrary and capricious manner?" The circuit court specifically concluded it "ha[d] the authority to determine whether the WVSSAC rule in question was written, promulgated or applied in an arbitrary or capricious manner and whether it was rationally related to a legitimate purpose." The court found A.B. was likely to be successful in her challenges "in as much as [sic] [the Residence-Transfer Rule] appears to be written in an arbitrary fashion and not rationally related to a legitimate purpose, while [the Waiver Rule] appears to have been applied by the WVSSAC in an arbitrary and capricious manner."

The circuit court specifically discounted the "settling in" rationale for the Residence-Transfer Rule as "it appears arbitrary to this Court that a ‘settling in’ process would permit a student to do everything with her new team except play in games." The circuit court found it

difficult to understand the rationale of the WVSSAC as to how sitting on a bench during games to avoid the "pressure of competition" is less damaging than allowing the transferring student to experience the benefits of actually playing with your team in a game and to experience the comradery that goes with the glory of victory and the agony of defeat.

The circuit court found that the Residence-Transfer Rule treated similarly situated students differently. It observed that a student whose residence was only a ten-minute drive from the new school must "settle in," but a student transferring from California to that same school may play in games immediately. Similarly, a student transferring from a non-member WVSSAC school to a WVSSAC member school did not fall within the Residence-Transfer Rule. The circuit court concluded that the Residence-Transfer Rule "just appears to be written in an arbitrary and capricious manner and offends the equal protection guarantees of the West Virginia Constitution."

The circuit court also concluded the WVSSAC applied the Waiver Rule in an arbitrary and capricious manner because at each level of the WVSSAC proceedings, A.B. presented uncontradicted evidence that playing sports was a mental health issue to her. Thus, the circuit court found application of the Residence-Transfer Rule caused A.B. extreme and undue hardship under the Waiver Rule.

The WVSSAC now seeks a writ of prohibition from this Court preventing enforcement of the preliminary injunction.

II. Standard of Review and Standard for Issuance of the Writ

We may review a circuit court's issuance of a preliminary injunction either by way of our appellate jurisdiction over civil cases in equity or by way of our original jurisdiction sounding in prohibition. State ex rel. McGraw v. Telecheck Servs., Inc. , 213 W. Va. 438, 445-46, 582 S.E.2d 885, 892-93 (2003). The WVSSAC invokes our original jurisdiction in prohibition to challenge the preliminary injunction. "[W]e have held in numerous cases that a writ of prohibition will lie to control the actions of a court which exceeds, abuses, or acts without jurisdiction." State v. Lewis , 188 W. Va. 85, 91, 422 S.E.2d 807, 813 (1992), superseded by statute on other grounds as recognized in State v. Butler , 239 W. Va. 168, 179 n.27, 799 S.E.2d 718, 729 n.27 (2017).

A party seeking a writ of prohibition carries a heavy burden. State ex rel. Webb v. McCarty , 208 W. Va. 549, 552, 542 S.E.2d 63, 66 (2000). "Prohibition ... is an extraordinary remedy, the issuance of which is usually ‘reserved for really extraordinary causes.’ " State ex rel. Davidson v. Hoke , 207 W. Va....