Blair v. Brunett

248 W.Va. 495

889 S.E.2d 68

Craig BLAIR, President of the West Virginia Senate, Roger Hanshaw, Speaker of the West Virginia House of Delegates, and James C. Justice, II, Governor of the State of West Virginia, Petitioners v. Sam BRUNETT, and Robert McCloud, Respondents.

No. 22-0070

Supreme Court of Appeals of West Virginia.

Submitted: May 9, 2023

Filed: June 8, 2023

Joshua E. Weishart, Esq., Morgantown, West Virginia, Bren J. Pomponio, Esq., Mountain State Justice, Inc., Charleston, West Virginia, Lydia C. Milnes, Esq., Mountain State Justice, Inc., Morgantown, West Virginia, Jeffrey G. Blaydes, Esq., Blaydes Law, PLLC, Charleston, West Virginia, Counsel for Respondents

Patrick Morrisey, Esq., Attorney General, Lindsay S. See, Esq., Solicitor General, Michael R. Williams, Esq., Senior Deputy Solicitor General, Sean M. Whelan, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Petitioners

Gordon L. Mowen, II, Esq., Zachary A. Viglianco, Esq., Ryan A. Nash, Esq., Orndorff Mowen PLLC, Scott Depot, West Virginia, Counsel for Amicus Curiae, National Coalition for Public School Options

J. Zak Ritchie, Esq., Andrew C. Robey, Esq., Hissam Forman Donovan Ritchie PLLC, Charleston, West Virginia, Counsel for Amicus Curiae, Mountain State Learning Solutions, Inc.

ARMSTEAD, Justice:

In 2021, the Legislature passed House Bill 2012 ("HB 2012") which created the West Virginia Professional Charter School Board ("PCSB"). The PCSB is tasked with authorizing and approving public charter schools. ¹ Respondents Sam Brunett and Robert McCloud ("Respondents") filed a lawsuit in the Circuit Court of Kanawha County seeking a writ of mandamus and declaratory relief, or, alternatively, injunctive relief seeking to prevent the creation of public charter schools without a majority vote of the citizens of the county or counties in which the charter schools would be located. Respondents did not sue the PCSB. Instead, they named three defendants: Governor James C. Justice, II ("Governor Justice"), House Speaker Roger Hanshaw, and Senate President Craig Blair (collectively referred to as "Petitioners").

Respondents filed a motion for a preliminary injunction in the circuit court seeking to enjoin Petitioners from creating "any PCSB-authorized charter schools absent a vote of county residents." Petitioners filed a motion opposing the preliminary injunction and a motion to dismiss. By order entered on January 20, 2022, the circuit court granted Respondents’ motion for a preliminary injunction and denied Petitioners’ motion to dismiss. The preliminary injunction enjoined Governor Justice and his executive officers, agents, employees, and any person acting in concert or participation with them from "further enforcement of [HB] 2012 in the creation of PCSB-authorized charter schools." ² Petitioners then filed the instant appeal.

Upon thorough review, ³ we conclude that Respondents lack standing to seek the preliminary injunction at issue against Governor Justice because (1) he does not have the ability to authorize public charter schools, and (2) granting injunctive relief against him does not prevent the PCSB, a nonparty in this case, from authorizing public charter schools. Therefore, we reverse the circuit court's order, dissolve the preliminary injunction, and remand for further proceedings. ⁴

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2019, the Legislature provided for the establishment of public charter schools in West Virginia. See W. Va. Code § 18-5G-1, et seq. Per the 2019 statute, a county's board of education was designated as the primary "authorizer" of charter schools. ⁵ An "authorizer" is "the entity empowered ... to review applications, decide whether to approve or reject applications, enter into charter contracts with applicants, oversee public charter schools, and decide whether to renew or not renew charter contracts." Id. § 18-5G-2(2).

In 2021, the Legislature again addressed public charter schools with the passage of HB 2012, which was signed into law by Governor Justice. Through the passage of HB 2012, the PCSB was created and empowered as an additional "authorizer" of charter schools. The creation and duties of the PCSB are set forth in West Virginia Code § 18-5G-15(a) (2021):

There is hereby created the West Virginia Professional Charter School Board which shall report directly to and be responsible to the state board, separate from the Department of Education, for carrying out its duties in accordance with this article. The mission of the board is to authorize high-quality public charter schools throughout the state that provide more options for students to attain a thorough and efficient education, particularly through schools designed to expand the opportunities for at-risk students. The Professional Charter School Board and public charter schools authorized in accordance with this article are subject to the general supervision of the state board solely for the purposes of accountability for meeting the standards for student performance required of other public school students under § 18-2E-5 of this code.

The PCSB is made up of five members who are appointed by the Governor, with the advice and consent of the Senate. Id. § 18-5G-15(b). The Governor may remove a PCSB member "for official misconduct, incompetence, neglect of duty, or gross immorality." Id. § 18-5G-15(g).

In September of 2021, Respondents, two public school teachers in West Virginia, filed a complaint in the Circuit Court of Kanawha County alleging that several entities had applied to the PCSB to operate charter schools. Respondents stated that any charter schools the PCSB authorized would be "independent free public school organizations." They argued that allowing such schools without the consent of the county voters would violate article XII, section 10 of the West Virginia Constitution. ⁶ Respondents requested three forms of relief: (1) a writ of mandamus ordering Petitioners to permit county residents the opportunity to vote on the creation of any PCSB-authorized charter school; or, alternatively, (2) an injunction preventing the creation of any PCSB-authorized charter school absent a vote of county residents; and (3) a declaration that West Virginia Code § 18-5G-1 et seq. is unconstitutional. In response, Petitioners filed a motion in opposition to the preliminary injunction and a motion to dismiss pursuant to Rule 12(b)(1) and (6) of the West Virginia Rules of Civil Procedure.

The circuit court held a hearing on these motions. During the hearing, counsel for Respondents stated that "[a]t this point[,] the only requested relief is a preliminary injunction to prevent irreparable harm and protect the Constitutional right of county voters to vote on charter schools." Counsel for Petitioners argued that Respondents lacked standing, stating that

[t]he preliminary injunction is designed to restrain [Petitioners] from taking future actions that are likely to cause irreparable harm, but the Plaintiffs even in their argument today have failed to identify any future actions that the Senate President, Speaker of the House, or the Governor -- that they wish to stop.

They are objecting to the authorization of charter schools, but none of the [Petitioners] are capable of authorizing charter schools.

State law makes clear [that] the [PCSB is] responsible for this, and as it stands, the Court cannot restrain the [PCSB] from authorizing charter schools because the Plaintiffs failed to sue them.

By order entered on January 20, 2022, the circuit court granted the preliminary injunction and denied Petitioners’ motion to dismiss. In granting the preliminary injunction, the circuit court rejected Petitioners’ argument that Respondents’ lacked standing. The circuit court determined that Governor Justice was a proper party for standing purposes because he signed HB 2012 into law, appointed the PCSB's members, and is responsible for seeing that the State's laws are "faithfully executed." Further, the circuit court found that the PCSB's participation as a named party was unnecessary. ⁷ While the circuit court could not directly bind the PCSB, it ordered Governor Justice to "direct [the] PCSB, under threat of removal, if necessary, to temporarily suspend the creation of PCSB-authorized charter schools to comply with the preliminary injunction." It also found that the preliminary injunction extended to the PCSB under Rule 65 of the West Virginia Rules of Civil Procedure, explaining that

the West Virginia Rules of Civil Procedure extend the scope of the preliminary injunction to "parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them." W. Va. R. Civ. P. 65. The scope of preliminary injunction would therefore extend to [the] PCSB as a state agency within the executive charge of the Governor.

After concluding that Governor Justice was a proper party for standing purposes, the circuit court found that the four preliminary injunction factors weighed in Respondents’ favor. ⁸ Therefore, it granted the preliminary injunction "to ENJOIN the further enforcement of [HB] 2012 in the creation of PCSB-authorized charter schools by the Governor, the Governor's executive officers, agents, or employees, and any persons acting in concert or participation with them." ⁹

After entry of the circuit court's order granting the preliminary injunction, Petitioners filed the instant appeal. This Court subsequently granted Petitioners’ motion to stay the circuit court's order pending the resolution of this appeal.

II. STANDARD OF REVIEW

Our standard of review when addressing a circuit court's ruling on injunctive relief is as follows:

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,

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