Gregory W. Bailey, Esq.
Michael R. Crane, Esq.
The Opinion of the Court was delivered PER CURIAM.
1. “The thirtieth section of article 6 of the constitution of this state
concludes in the following language: 'And no act of the legislature, except such as may be
passed at the first session under this constitution, shall take effect until the expiration of
ninety days after its passage, unless the legislature shall, by a vote of two-thirds of the
members elected to each house, taken by yeas and nays, otherwise direct.' . . . [T]he word
“passage” in [Section 30 of Article VI of the West Virginia Constitution] relates to the date
of the passage of the act by the two houses, and not to the date of its approval by the
governor[.]” Syllabus Point 2, State v. Mounts, 36 W.Va. 179, 14 S.E. 407 (1891).
Per Curiam:
This case is before this Court upon an appeal of a final order of the Circuit
Court of Marshall County entered on May 8, 2002. In that order, the circuit court denied
a petition for a writ of mandamus and a request for declaratory and injunctive relief filed
by the appellants and plaintiffs below, the City of Benwood, a municipal corporation, and
Frank Longwell, Larry Ferrara, and William Kern, individually and on behalf of Save Our
School/Union Defense Fund, against the Board of Education of the County of Marshall
(hereinafter “the Board”) to prevent the closing of Union Junior High School. In this
appeal, the appellants contend that the circuit court erred by ruling that the Board was not
required to comply with the amendments to W.Va. Code § 18-5-13a adopted through
House Bill 4149 during the 2002 regular session of the West Virginia Legislature. The
appellants also assert several additional errors concerning the procedure followed by the
Board to close Union Junior High School. This Court has before it the
petition for appeal, the entire record, and the briefs and argument of counsel.
(See footnote 1) As
set forth below, we find that the circuit court erred by ruling that W.Va. Code § 18-5-13a (2002) did not become effective
until April 3, 2002, and therefore, was not applicable to the Board's actions.
(See footnote 2) However,
we affirm the circuit court's final order because we believe the Board complied
with the statute's requirements. A public hearing was held
on March 20, 2002, to discuss the proposed closing of Union Junior High School.
On April 30, 2002, the circuit court held a hearing on the appellants' petition
for writ of mandamus and request for declaratory and injunctive relief. On May 7, 2002,
the court entered an order finding that the Board had complied with W.Va. Code § 18-5-
13a (1991) and denying the appellants the relief they sought. Thereafter, the appellants
discovered that W.Va. Code § 18-5-13a was amended during the 2002 session of the West
Virginia Legislature. Consequently, on May 13, 2002, the appellants filed a motion with
the circuit court requesting that the court make additional findings with regard to the
applicability of the amendments to the Board's actions. The appellants also filed motions
for a new trial, amendment of judgment and/or relief from judgment. By order dated May
24, 2002, the circuit court denied these motions. This appeal followed.
As set forth above, this appeal concerns the circuit court's decision to deny
the appellants a writ of mandamus based upon its finding that the Board complied with
W.Va. Code § 18-5-13a. While school boards have the authority to close and/or
consolidate schools, “a writ of mandamus is appropriate when a [school] board oversteps,
or fails to meet, its clear legal duties.” McComas v. Board of Educ. of Fayette County,
197 W.Va. 188, 193, 475 S.E.2d 280, 285 (1996). In Syllabus Point 1 of Pell v. Board
of Educ. of Monroe County, 188 W.Va. 718, 426 S.E.2d 510 (1992), this Court held that:
Of course, a clearly erroneous standard applies to the circuit court's underlying factual
findings. Id.
We also note that one of the primary issues in this case involves
interpretation of the West Virginia Constitution and relevant statutes. “Because
interpretations of the West Virginia Constitution, along with interpretations of statutes and
rules, are primarily questions of law, we apply a de novo review[.]” Phillip Leon M. v.
Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996). With
these standards in mind, we now address the parties' arguments.
The Board argues, however, that House Bill 4149 did not become effective
until April 4, 2002, when it was signed by the Governor, or at least March 27, 2002, the
date the bill was presented to the Governor for his signature. Thus, the Board maintains
W.Va. Code § 18-5-13a as amended did not apply to the closing of Union Junior High
School. The Board reasons that since the executive branch of our government is charged
with enforcing the laws passed by the Legislature pursuant to Section 5 of Article VII of
the West Virginia Constitution, a bill cannot become enforceable law until it is presented
to the Governor. The Board claims that such a view is consistent with Article VII, Section
14 of the West Virginia Constitution which requires that “every bill passed by the
legislature shall, before it becomes a law, be presented to the Governor.”
The circuit court adopted the Board's reasoning and concluded that, “Had
[the Board] complied with H.B. 4149, in doing so, it would have been improperly and
precariously anticipating the action of the Governor of the State of West Virginia.” In
essence, the circuit court ruled that Article VII, Section 14 prevents the Legislature from
making a bill effective on any date earlier than the date upon which the Governor signs the
bill. While this may in fact be the rule in other jurisdictions, this Court has long since held
that the effective date of legislation is established by the Legislature and not the Governor.
In State v. Mounts, 36 W.Va. 179, 185-86, 14 S.E. 407, 409 (1891), this
Court observed that:
Recognizing that “county boards of education have the authority to close or
consolidate county schools, and a decision in that regard is a matter within the sound
discretion of the [county] board of education,” State ex rel. Jones v. Board of Educ of
Ritchie County, 178 W.Va. 378, 380, 359 S.E.2d 606, 608 (1987), the appellants argue
that once a decision to close a school has been made, the board of education must strictly
comply with provisions of W.Va. Code § 18-5-13a. In other words, the appellants contend
that the Board lacks discretion with respect to following the mandates of that statute.
We agree with the appellants in that the provisions set forth in W.Va. Code
§ 18-5-13a (2002) are mandatory. W.Va. Code § 18-5-13a specifically provides that
In McComas, the circuit court granted a writ of mandamus to citizens of
Fayette County when they challenged their county board of education's decision to close
one of the county's high schools. The citizens claimed, inter alia, that the board of
education failed to post notices of the Board's proposal pursuant to W.Va. Code § 18-5-
13a at the high school that would be receiving the students from the closed school. Under
W.Va. Code § 18-5-13a (1991), a school board is required to post a copy of the same
notice published in the newspaper in conspicuous places in the “affected schools” for the
benefit of the employees. The citizens argued that the high school that would be receiving
the students from the closed school was an “affected school” under the statute. Ultimately, this Court determined
that “all schools that are the objects of consolidation whether 'giving'
or 'receiving' schools can qualify as affected schools within the meaning
of W.Va. Code, 18-5-13a.” McComas, 197 W.Va. at 206, 475 S.E.2d
at 298 (footnote omitted). Thus, this Court affirmed the circuit court's decision
to grant a writ of mandamus to the citizens of Fayette County because the
board of education had not complied with the requirements of W.Va. Code §
18-5-13a.
(See footnote 5) Our decision in McComas illustrates
that strict compliance is the standard for determining whether a board of
education has fulfilled the requirements of W.Va. Code § 18-5-13a.
Upon reviewing the record, we believe the Board complied with the statutory
requirements, both before and after the 2002 amendments. We note that except for the
public hearing, all actions taken by the Board with respect to the school closure procedure
were taken prior to the effective date of House Bill 4149. Those actions included the
newspaper publication, posting of the notice of the public hearing, and the preparation of
the reasons and supporting data document. The record shows that pursuant to W.Va. Code
§ 18-5-13a (1991), the reasons and supporting data were made available for public
inspection in the office of the Superintendent for the specified time period. In addition,
three separate notices were posted in each school in the county and were published in the
newspaper. Those notices clearly outlined the Board's proposal for closing and
consolidating the schools. While the public hearing was held after the amendments to
W.Va. Code § 18-5-13a became effective, the record shows that the Board complied with
the statute's new requirements. Based upon a review of the
entire record, we conclude that the public was provided with a full and fair
opportunity to participate in the procedure utilized by the Board pursuant
to W.Va. Code § 18-5-13a to close Union Junior High School. Pursuant
to the statutory requirements, the requisite information was made available
for public inspection during the designated time periods, adequate notices
were published, and public hearings were conducted. Therefore, we find that
the Board complied with W.Va. Code § 18-5-13a, and that the circuit court
did not err in denying the appellants' request for a writ of mandamus and/or
injunctive relief.
(See footnote 6)
Syllabus Point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965). Accord State v. Lockhart, 208 W.Va. 622, 636 n.15, 542 S.E.2d 443, 457 n.15 (2000); Easterling
v. American Optical Corp., 207 W.Va. 123, 133-34, 529 S.E.2d 588, 598-599 (2000).
Daniel J. Guida, Esq.
Guida Law Offices
Weirton, West Virginia
Attorney for Appellants
Kimberly S. Croyle, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Attorneys for Appellees
M. E. “Mike” Mowery, Esq.
Mark W. McOwen, Esq.
Attorneys for Amici Curiae,
Earl Ray Tomblin, President of the West Virginia Senate
and
Robert S. Kiss, Speaker of the West Virginia House of Delegates
2. “County boards of education do not have unlimited power to make the
final decisions with respect to school closings and consolidations. The plain language of
W.Va.Code, 18-5-13 (1990) and W.Va.Code, 18-5-13a reflects that such decisions may
be rejected where they fail to comply with statutory provisions or West Virginia Board of
Education regulations.” Syllabus Point 1, Board of Educ. of the County of Kanawha v.
West Virginia Bd. of Educ., 184 W.Va. 1, 399 S.E.2d 31 (1990).
On January 15, 2002, the Board decided by a vote of 3-2 to proceed with
public hearings regarding the closing of Limestone Elementary School and Union Junior
High School. The Board's proposal indicated that the students of Union Junior High
School would be sent to Sherrard Junior High School while the students from Limestone
Elementary School would be divided among Glen Dale Elementary School, Sanford
Elementary School, and Sherrard Elementary School. The Board also proposed that
students in the ninth grade at Moundsville Junior High, Sherrard Junior High, and Union
Junior High be sent to John Marshall High School. On February 4, 2002, at a special
meeting, the Board established publication dates and notices mandated by W.Va. Code §
18-5-13a (1991). At its regular meeting on February 12, 2002, the Board scheduled a
special meeting for March 25, 2002, for a final decision and vote on its proposals.
“Mandamus will lie to control a board of education in the
exercise of its discretion upon a showing of caprice, passion,
partiality, fraud, arbitrary conduct, some ulterior motive, or
misapprehension of the law.” Syl. pt. 4, Dillon v. Board of
Education, 177 W.Va. 145, 351 S.E.2d 58 (1986).
In reviewing a circuit court's decision to grant or deny a writ of mandamus, this Court
applies a de novo standard of review. McComas, 197 W.Va. at 193, 475 S.E.2d at 285.
The appellants first contend that W.Va. Code § 18-5-13a as amended by
House Bill 4149 during the 2002 Legislative session applied to the Board's actions with
respect to the closing of Union Junior High School. The appellants contend that since
House Bill 4149 contained language stating that it was “effective from passage,” the
amendments took effect on March 8, 2002, when the bill was passed by both houses of the
Legislature. In support of their argument, the appellants point to Article VI, Section 30
of the West Virginia Constitution, which provides, in pertinent part: “[N]o act of the
legislature . . . shall take effect until the expiration of ninety days after its passage, unless
the legislature shall by a vote of two-thirds of the members elected to each house, taken
by yeas and nays, otherwise direct.” The appellants contend that the term “passage” in
Article VI, Section 30 refers to the date when the bill has passed both houses of the
Legislature. In other words, the appellants aver that when a bill is made “effective from
passage,” it is effective from the date the affirmative vote was taken by the Legislature and
not from the date of the governor's signature.
[T]he constitution of the United States creates in the president
a function somewhat legislative in its character, in analogy to
the constitution of England, under which the king was
recognized, according to the elementary writers, as a
constituent branch of the parliament itself. 1 Bl. Comm. 184n.
Under the constitution of this state, however, the three
departments--legislative, executive, and judicial--are required
to be “separate and distinct, so that neither shall exercise the
powers properly belonging to either of the others.” See
article 5, § 1. The governor has no legislative functions to
perform. His approval of the law passed by the legislature
does, it is true, give it vitality as a law; but, should he decline
to approve, a bare majority in each of the two houses may pass
the law over his veto, thus showing that it was not intended
that he should have any legislative power, not even the casting
vote. His veto amounts to an appeal for “reconsideration” by
the legislative branch, and not to a defeasance of the passage
of the bill. Our constitution carefully distinguishes in its
phraseology between the “passage” of a law and its
“approval” by the governor. It nowhere confounds these
terms.
This Court further explained in Mounts that the functions of the Governor
with respect to legislation as set forth in Article VII of the West Virginia Constitution are
deliberative, but not legislative; and where the constitution
expressly declares that, unless otherwise provided by the
legislature in the act itself, every act shall go into effect at the
expiration of 90 days from its passage, the approval of the
governor relates back to the passage of the act, and the period
of 90 days is computed from that time.
36 W.Va. at 187, 14 S.E. at 409. In other words,
the signature of the governor was not intended by the
constitution to be legislative in its character, and that in
general, where an act takes effect at the expiration of 90 days
after its passage, as prescribed in section 30, art. 6, of the
constitution, the approval on the part of the governor by
relation takes effect from the conclusion of the proceeding
which was legislative.
36 W.Va. at 187-88, 14 S.E. at 409. Accordingly, this Court held in Syllabus Point 2,
in part, of Mounts:
The thirtieth section of article 6 of the constitution of this state
concludes in the following language: “And no act of the
legislature, except such as may be passed at the first session
under this constitution, shall take effect until the expiration of
ninety days after its passage, unless the legislature shall, by a
vote of two-thirds of the members elected to each house, taken
by yeas and nays, otherwise direct.” . . . [T]he word
“passage” in [Section 30 of Article VI of the West Virginia
Constitution] relates to the date of the passage of the act by the
two houses, and not to the date of its approval by the
governor[.]
In summary, the jurisprudence of this State with respect to the functions of
the legislative and executive branches of government relating to the establishment of the
effective dates of acts of the Legislature is well-settled. Simply put, for more than a
hundred years this Court has held that the effective dates of legislation are determined by
the Legislature and not the Governor. In examining the facts and issues presented by this
case, we have found no compelling reason to hold otherwise. Therefore, we find that the
circuit court erred to the extent that it ruled that a bill made “effective from passage” does
not take effect until the date it is signed by the Governor. Clearly, W.Va. Code § 18-5-
13a (2002) became effective on March 8, 2002, the date House Bill 4149 was passed by
both houses of the Legislature.
Having established that W.Va. Code § 18-5-13a (2002) became effective on
March 8, 2002, we now consider whether the Board complied with the statute's
requirements. In doing so, we also address the appellants' remaining assignments of error.
Although the appellants have enumerated several assignments of error, apart from the issue
discussed above, they basically assert that the Board did not comply with the statute's
requirements. In making that assertion, the appellants contend that the standard for
determining whether the Board fulfilled the requirements of W.Va. Code § 18-5-13a is
“strict compliance.”
(a) In addition to the provisions of section thirteen [§
18-5-13] of this article, prior to any final decision of a county
board on any proposal to close or consolidate any school,
except in cases in which a construction bond issue was passed
by the voters and which bond issue included the schools to be
closed or consolidated, the county board shall:
(1) Prepare and reduce to writings its reasons and
supporting data regarding the school closing or consolidation.
The written reasons shall:
. . . .
(2) Provide notice for a public hearing. The notice
shall be advertised . . . .
(3) Conduct a public hearing which meets the following
criteria:
. . . .
(4) Receive findings and recommendations from any
local school improvement council . . . .
(Emphasis added). Clearly, “[c]ounty boards of education do not have unlimited
power to make the final decisions with respect to school closings and consolidations.
The plain language of W.Va.Code, 18-5-13 (1990)
(See footnote 4) and W.Va.Code, 18-5-13a reflects that such
decisions may be rejected where they fail to comply with statutory provisions
or West Virginia Board of Education regulations.” Syllabus Point 1, Board
of Educ. of the County of Kanawha v. West Virginia Bd. of Educ., 184 W.Va.
1, 399 S.E.2d 31 (1990) (footnote added). For example, in McComas, supra,
the Fayette County Board of Education's decision to close one of its high schools
was rejected because proper notice was not given pursuant to the provisions
of W.Va. Code § 18-5-13a.
The case at bar, however, presents a unique situation, in that while the Board
was taking the necessary steps to close Union Junior High School, W.Va. Code § 18-5-13a
was amended. Recognizing the possibility that certain boards of education might be in the
process of closing or consolidating schools, the Legislature included the following
provision in W.Va. Code § 18-5-13a (2002):
(e) Any document prepared, notice given, hearing
conducted or action taken prior to the effective date of the
amendments made to this section during the two thousand two
regular session of the Legislature, is considered sufficient if
the county board complied with the terms of this section
effective at the time and the county board violates no other
provision of law which would invalidate the document, notice,
hearing or actions.
Accordingly, in this instance, the Board was required to comply with the provisions of
W.Va. Code § 18-5-13(a) (1991) prior to March 8, 2002, and the provisions of W.Va.
Code § 18-5-13(a) (2002) after that date.
In conclusion, we note that our focus in this case was not on the merits of
consolidation or our beliefs as to whether or not consolidation is advisable for the schools
of Marshall County. Rather, we have confined our review of this case to whether or not
the circuit court erred in denying the appellants the relief they sought. Accordingly, for
the reasons set forth above, the final order of the Circuit Court of Marshall County entered
on May 8, 2002, is affirmed.
Affirmed.
Footnote: 1
Footnote: 2
Footnote: 3
Footnote: 4
The [school] boards, subject to the provisions of this
chapter and the rules of the state board, have authority:
. . . .
(3) To close any school which is unnecessary and to
assign the pupils of the school to other schools . . .
(4) To consolidate schools[.]
Footnote: 5
Footnote: 6