West Virginia Bd. of Educ. v. Hechler, No. 18708

• Court: Supreme Court of West Virginia
• Writing for the Court: Charles G. Brown, Atty. Gen.; McHUGH
• Citation: 180 W.Va. 451,376 S.E.2d 839
• Parties: , 52 Ed. Law Rep. 369 The WEST VIRGINIA BOARD OF EDUCATION, a Statutory Corporation and Tom McNeel, State Superintendent of Schools v. Ken HECHLER, Secretary of State.
• Docket Number: No. 18708
• Decision Date: 21 December 1988

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376 S.E.2d 839 180 W.Va. 451, 52 Ed. Law Rep. 369 The WEST VIRGINIA BOARD OF EDUCATION, a Statutory
Corporation and Tom McNeel, State Superintendent of Schools
v.
Ken HECHLER, Secretary of State. No. 18708.
Supreme Court of Appeals
of West Virginia. Dec. 21, 1988.

[180 W.Va. 452] Syllabus by the Court

1. "The provisions of Article XII, Section 1, et seq., as well as Article X, Section 5 of the West Virginia Constitution, when construed in light of our prior cases, gives a constitutionally preferred status to public education in this State." Syl. pt. 1, State ex rel. Board of Education v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131 (1981).

2. Rule-making by the State Board of Education is within the meaning of "general supervision" of state schools pursuant to art. XII, § 2 of the West Virginia Constitution, and any statutory provision that interferes with such rule-making is unconstitutional. Consequently, W.Va.Code, 29A-3A-12 and -13 [1988] are hereby declared to be unconstitutional.

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3. A rule adopted by the State Board of Education, setting forth minimum requirements for the design and equipment of school buses, is within the meaning of "general supervision" of state schools pursuant to art. XII, § 2 of the West Virginia Constitution. W.Va.Code, 29A-3A-12 and -13 [1988] interfere with such "general supervision," and, therefore, are unconstitutional.

4. "[M]andamus may be used to attack the constitutionality or validity of a statute or ordinance." West Virginia Citizens Action Group, Inc. v. Daley, --- W.Va. ----, ----, 324 S.E.2d 713, 717 (1984).

Charles G. Brown, Atty. Gen., J. Bradley Russell, Sr. Asst. Atty. Gen., Beth Hunter, Asst. Atty. Gen., for Tom McNeel.

William B. McGinley, Charleston, for West Virginia Bd. of Educ.

Stephen Herndon, Charleston, for Ken Hechler.

McHUGH, Chief Justice:

In this original proceeding, the petitioners, the West Virginia Board of Education (hereinafter the "Board") and Tom McNeel, State Superintendent of Schools, seek a writ of mandamus directing the respondent, Ken Hechler, Secretary of State, to file rules approved by the Board. This Court has reviewed the petition, the response, and all arguments and exhibits attached thereto. ¹ We are of the opinion that the relief requested by the petitioners should be granted.

I

In June, 1988, the West Virginia legislature amended the State Administrative Procedures Act, W.Va.Code, 29A-1-1 to 29A-7-4, as amended, by adding to it a new article, namely, article 3A. The new article, inter alia, establishes a "legislative oversight commission on education accountability." The oversight commission is to be comprised of eight members: three from the House of Delegates; three from the Senate; and the Speaker of the House and Senate President as ex officio, nonvoting members.

Pursuant to the provisions of this new article, the Board must submit its approved [180 W.Va. 453] legislative rules to the oversight commission for review. After review of a rule approved by the Board, the oversight commission is required to recommend that the legislature either promulgate the rule in whole or in part, or recommend that the rule be withdrawn. If the legislature fails to act on a rule submitted to it by the oversight commission, then the Board is prohibited from taking any action on the rule "unless and until otherwise authorized to do so." W.Va.Code, 29A-3A-13(b) [1988].

In August, 1988, the Board adopted a rule entitled "West Virginia Minimum Requirements for Design and Equipment of School Buses," to be effective October 22, 1988. The rule was filed with the respondent Secretary of State in order to be placed in the West Virginia State Register. The respondent, however, refused to file the rule, basing his refusal on the Board's failure to comply with the newly enacted provisions of the Administrative Procedures Act.

The petitioners seek a writ of mandamus compelling the respondent, the Secretary of State, to file rules approved by the Board in the state register. The petitioners also

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request that this Court declare portions of the newly enacted Administrative Procedures Act unconstitutional, namely, W.Va.Code, 29A-3A-12 and -13 [1988]. ² This Court issued a rule, directed against the respondent, to show cause why a writ of mandamus should not be awarded against him in this proceeding. II

We begin by discussing the constitutionally preferred status of public education in West Virginia. "The provisions of Article XII, Section 1, et seq., as well as Article X, Section 5 of the West Virginia Constitution, when construed in light of our prior cases, gives a constitutionally preferred status to public education in this State." Syl. pt. 1, State ex rel. Board of Education v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131 (1981).

Article XII, § 1 of the West Virginia Constitution states: "The legislature shall provide, by general law, for a thorough and efficient system of free schools." Article XII, § 2 of the State Constitution, however, provides in pertinent part: "The general supervision of the free schools of the State shall be vested in the West Virginia board of education which shall perform such duties as may be prescribed by law." The petitioners contend that this general supervisory provision implies rule-making power, and by enacting W.Va.Code, 29A-3A-12 and -13 [1988], the legislature has effectively diminished article XII, § 2 of the State Constitution. ³ The Board's rule-making power is viewed by the respondent [180 W.Va. 454] as being derived primarily from W.Va.Code, 18-2-5 [1983], which states in part:

Subject to and in conformity with the constitution and laws of this State, the state board of education shall determine the educational policies of the State and shall make rules for carrying into effect the laws and policies of the State relating to education, including rules relating to the physical welfare of pupils, the education of feeble-minded and physically disabled or crippled children of school age, school attendance, evening and continuation or part-time day schools, school extension work, the classification of schools, the issuing of certificates upon credentials, the distribution and care of free textbooks by the county boards of education, the general powers and duties of county boards of education, and of teachers, principals, supervisors and superintendents, and such other matters pertaining to the public schools of the State as may seem to the state board to be necessary and expedient.

See Pauley v. Bailey, --- W.Va. ----, ----, 324 S.E.2d 128, 133-34 (1984); Detch v. Board of Education, 145 W.Va. 722, 724, 117 S.E.2d 138, 140 (1960); State ex rel. Board of Governors v. Sims, 133

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W.Va. 239, 250, 55 S.E.2d 505, 511 (1949). Referring to this statutory provision, this Court has stated that "[a]lthough this grant of rule-making authority is tempered by a requirement that it be exercised in conformance with other statutory provisions, it is indicative of the broad power of the State Board of Education over county boards of education, particularly in the area of state educational policy." Bailey v. Truby, --- W.Va. ----, ----, 321 S.E.2d 302,...