State v. Beaver

• Decision Date: 17 November 2022
• Docket Number: 22-616
• Parties: STATE OF WEST VIRGINIA, KATIE SWITZER and JENNIFER COMPTON, Petitioners v. TRAVIS BEAVER, WENDY PETERS, DAVID L. ROACH, State Superintendent of Schools and L. PAUL HARDESTY, President of the West Virginia Board of Education, Respondents.
• Court: West Virginia Supreme Court

STATE OF WEST VIRGINIA, KATIE SWITZER and JENNIFER COMPTON, Petitioners
v.
TRAVIS BEAVER, WENDY PETERS, DAVID L. ROACH, State Superintendent of Schools and L. PAUL HARDESTY, President of the West Virginia Board of Education, Respondents.

No. 22-616

Supreme Court of Appeals of West Virginia

November 17, 2022

Submitted: October 4, 2022

Appeal from the Circuit Court of Kanawha County The Honorable Joanna I. Tabit, Judge Civil Action Nos. 22-P-24 and 22-P-26 Intermediate Court of Appeals of West Virginia Nos. 22-ICA-1 and 22-ICA-3

Michael A. Kawash, Esq. Jonathon C. Stanley, Esq. Robinson & McElwee PLLC Charleston, West Virginia Joshua A. House, Esq., Pro Hac Vice Joseph Gay, Esq., Pro Hac Vice Jeff Rowes, Esq., Pro Hac Vice Institute for Justice Arlington, Virginia Counsel for Petitioners, Katie Switzer and Jennifer Compton

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Kelly C. Morgan, Esq. Michael W. Taylor, Esq. Harrison M. Cyrus, Esq. Bailey & Wyant, PLLC Charleston, West Virginia Counsel for Respondents, David L. Roach and L. Paul Hardesty

Patrick Morrisey, Esq. Attorney General Lindsay S. See, Esq. Solicitor General Michael R. Williams, Esq. Senior Deputy Solicitor General Caleb A. Seckman, Esq. Assistant Solicitor General Charleston, West Virginia Counsel for Petitioner, State of West Virginia

John H. Tinney, Jr., Esq. Hendrickson & Long, PLLC Charleston, West Virginia Jessica Levin, Esq., Pro Hac Vice Wendy Lecker, Esq., Pro Hac Vice Education Law Center Newark, New Jersey Tamerlin J. Godley, Esq., Pro Hac Vice Timothy D. Reynolds, Esq., Pro Hac Vice Philip M. Hwang, Esq., Pro Hac Vice Kiaura Clark, Esq., Pro Hac Vice Paul Hastings LLP Los Angeles, California Zoe Lo, Esq., Pro Hac Vice Benjamin S. Gilberg, Esq., Pro Hac Vice Paul Hastings LLP New York, New York Counsel for Respondents, Travis Beaver and Wendy Peters

Joshua E. Weishart, Esq. Morgantown, West Virginia Counsel for Amici Curiae, Constitution and Education Law Scholars

Mark A. Sadd, Esq. Lewis Glasser PLLC Charleston, West Virginia Timothy Sandefur, Esq., Pro Hac Vice Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute Phoenix, Arizona Counsel for Amicus Curiae, Goldwater Institute

Mark A. Sadd, Esq. Lewis Glasser PLLC Charleston, West Virginia Counsel for Amici Curiae, Cardinal Institute for West Virginia Policy, Inc., and Catholic Education Partners Foundation

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Zachary A. Viglianco, Esq. Gordon L. Mowen, II, Esq. Ryan A. Nash, Esq. Orndorff Mowen PLLC Scott Depot, West Virginia Alison M. Kilmartin, Esq. Alliance Defending Freedom Landsowne, Virginia Counsel for Amicus Curiae, West Virginia Christian Education Association

Michael J. Folio, Esq. Disability Rights of West Virginia Charleston, West Virginia Selene Almazan-Altobelli, Esq., Pro Hac Vice Council of Parent Attorneys and Advocates, Inc., Towson, Maryland Counsel for Amici Curiae, Council of Parent Attorneys and Advocates, Disability Rights of West Virginia, and National Disability Rights Network

Leslie Davis Hiner, Esq., Pro Hac Vice EdChoice Indianapolis, Indiana David Powers, Esq., Pro Hac Vice Powers Compliance, PLLC Washington, D.C. Danielle Waltz, Esq. Jackson Kelly PLLC Charleston, West Virginia Counsel for Amici Curiae, Edchoice, and Foundation for Excellence in Education

Lonnie C. Simmons, Esq. DiPiero Simmons McGinley & Bastress, PLLC Charleston, West Virginia Counsel for Amici Curiae, Pastors for Children, National Education Association, West Virginia Education Association, American Federation of Teachers, AFT-West Virginia, Network for Public Education, Southern Education Foundation, National Center for Youth Law, and Intercultural Development Research Association

Elbert Lin, Esq. Hunton Andrews Kurth LLP Richmond, Virginia Erica N. Peterson, Esq. Hunton Andrews Kurth LLP Washington, D.C. Counsel for Amici Curiae, yes. every kid. Foundation, and Americans for Prosperity Foundation

JUSTICE WOOTON concurs and reserves the right to file a concurring Opinion.

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CHIEF JUSTICE HUTCHISON dissents and reserves the right to file a dissenting Opinion.

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SYLLABUS

1. "The Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby." Syl. Pt. 1, Foster v. Cooper, 155 W.Va. 619, 186 S.E.2d 837 (1972).

2. "This Court does not sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation. It is the duty of this Court to enforce legislation unless it runs afoul of the State or Federal Constitutions." Syl. Pt. 2, Huffman v. Goals Coal Co., 223 W.Va. 724, 679 S.E.2d 323 (2009).

3. "Unless an absolute right to injunctive relief is conferred by statute, the power to grant or refuse or to modify, continue, or dissolve a temporary [preliminary] or a permanent injunction, whether preventive or mandatory in character, ordinarily rests in the sound discretion of the trial court, according to the facts and the circumstances of the particular case; and its action in the exercise of its discretion will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion." Syl. Pt. 1, Baisden v. W.Va. Secondary Schools Activities Comm'n., 211 W.Va. 725, 568 S.E.2d 32 (2002) (internal citation omitted).

4. "This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact

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under a clearly erroneous standard; conclusions of law are reviewed de novo." Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

5. "In considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt." Syl. Pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965).

6. "There is a presumption of constitutionality with regard to legislation." Syl. Pt. 6, in part, Gibson v. W.Va. Dep't of Hwys., 185 W.Va. 214, 406 S.E.2d 440 (1991).

7. A facial challenge to the constitutionality of a legislative enactment is the most difficult challenge to mount successfully. The challenger must establish that no set of circumstances exists under which the legislation would be valid; the fact that the legislation might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.

8. "Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed."

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Syl. Pt. 1, Jarrett Printing Co. v. Riley, 188 W.Va. 393, 424 S.E.2d 738 (1992) (internal citation omitted).

9. "Courts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution." Syl. Pt. 2, Jarrett Printing Co. v. Riley, 188 W.Va. 393, 424 S.E.2d 738 (1992) (internal citation omitted).

10. "The Thorough and Efficient Clause contained in Article XII, Section 1 of the West Virginia Constitution requires the Legislature to develop a high quality Statewide education system." Syl. Pt. 5, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).

11. "Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the federal Constitution, the Legislature may enact any measure not interdicted by that organic law or the Constitution of the United States." Sy. Pt. 1, State ex rel. Metz v. Bailey, 152 W.Va. 53, 159 S.E.2d 673 (1968).

12. The Hope Scholarship Act, West Virginia Code § 18-31-1 to -13 (2021), does not facially violate the "free schools" clause contained in article XII, section 1 of the West Virginia Constitution.

13. "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." Syl. Pt. 3, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979).

14. "If the State takes some action which denies or infringes upon a person's fundamental right to an education, then strict scrutiny will apply and the State

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must prove that its action is necessary to serve some compelling State interest. Furthermore, any denial or infringement of the fundamental right to an education for a compelling State interest must be narrowly tailored." Syl. Pt. 2, Cathe A. v. Doddridge Cnty. Bd. of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997) (internal citation omitted).

15. "Because of public education's constitutionally preferred status in this State, expenditures for public education cannot be reduced . . . in the absence of a compelling factual record to demonstrate the necessity therefor." Syl. Pt. 2, in part, State ex rel. Bd. of Educ. of Kanawha Cnty. v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131 (1981).

16. "In due recognition of fundamental principles relating to the separation of powers among the legislative, executive and judicial branches of government, courts recognize the power of the legislature to make...