Kanawha Co. Public Library Bd. v. Board of Education of the County of Kanawha

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term FILED
February 22, 2013

released at 3:00 p.m.

RORY L. PERRY II, CLERK

Nos. 11-1224 and 11-1486 SUPREME COURT OF APPEALS
OF WEST VIRGINIA

KANAWHA COUNTY PUBLIC LIBRARY BOARD,

a public corporation; WEST VIRGINIA BOARD OF EDUCATION,

a public corporation; and DR. JOREA MARPLE,

in her official capacity as Superintendent of Schools of the State of West Virginia,

Intervenor/Defendants Below, Petitioners

v.

THE BOARD OF EDUCATION OF THE COUNTY OF KANAWHA,
Plaintiff Below, Respondent

Appeal from the Circuit Court of Kanawha County

The Honorable Paul Zakaib, Jr., Judge

Civil Action No. 08-C-2020

AFFIRMED

Submitted: January 16, 2013
Filed: February 22, 2013

Christopher J. Winton, Esq. Albert F. Sebok, Esq.
Ray, Winton & Kelley, PLLC Jonathan L. Anderson, Esq.
Charleston, West Virginia Jackson Kelly PLLC
and Charleston, West Virginia
Larry L. Rowe, Esq. Attorneys for Respondent
Charleston, West Virginia
Attorneys for Kanawha County Public Library Board
Patrick Morrisey, Esq.
Attorney General
Kelli Talbott, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for West Virginia Board of Education and
Dr. Jorea Marple

Benjamin L. Bailey, Esq.
Bailey & Glasser, LLP
Charleston, West Virginia
Attorney for Amicus Curiae West Virginia Library
Association

Anthony I. Werner, Esq.
Bachmann, Hess, Bachmann & Garden, PLLC
Wheeling, West Virginia
and
Jeffrey A. Holmstrand, Esq.
David S. Givens
Flaherty Sensabaugh Bonasso, PLLC
Wheeling, West Virginia
Attorneys for Amici Curiae The Ohio County Public Library
and other interested West Virginia Public Libraries

JUSTICE WORKMAN delivered the Opinion of the Court.

CHIEF JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.
 SYLLABUS BY THE COURT

1. “The standard of review applicable to an appeal from a motion to

alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same

standard that would apply to the underlying judgment upon which the motion is based

and from which the appeal to this Court is filed.” Syl. Pt. 1, Wickland v. American

Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).

2. “A circuit court’s entry of summary judgment is reviewed de novo.”

Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

3. “Where the issue on an appeal from the circuit court is clearly a

question of law . . . we apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal

R. M. v. Charlie A. L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

4. “Equal protection of the law is implicated when a classification

treats similarly situated persons in a disadvantageous manner. The claimed discrimination

must be a product of state action as distinguished from a purely private activity.” Syl. Pt.

2, Israel v. West Virginia Secondary Sch. Activities Comm’n, 182 W. Va. 454, 388 S.E.2d

480 (1989).

5. To establish jus tertii standing to vindicate the constitutional rights

of a third party, a litigant must (1) have suffered an injury in fact; (2) have a close

i
relation to the third party; and (3) demonstrate some hindrance to the third party’s ability

to protect his or her own interests.

6. “At a minimum, the party making an informal Rule 56(f) motion

must satisfy four requirements. It should (1) articulate some plausible basis for the

party’s belief that specified “discoverable” material facts likely exist which have not yet

become accessible to the party; (2) demonstrate some realistic prospect that the material

facts can be obtained within a reasonable additional time period; (3) demonstrate that the

material facts will, if obtained, suffice to engender an issue both genuine and material;

and (4) demonstrate good cause for failure to have conducted the discovery earlier.” Syl.

Pt. 1, in part, Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W. Va.

692, 474 S.E.2d 872 (1996).

7. “’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. . . .’ Syllabus Point 1,

Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).” Syl. Pt. 2,

in part, Hartley Hill Hunt Club v. County Commission of Ritchie County, 220 W. Va.

382, 647 S.E.2d 818 (2007).

ii
 8. “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).

9. “Because education is a fundamental, constitutional right in this

State, under our Equal Protection Clause any discriminatory classification found in the

State’s educational financing system cannot stand unless the State can demonstrate some

compelling State interest to justify the unequal classification.” Syl. Pt. 4, Pauley v. Kelly,

162 W. Va. 672, 255 S.E.2d 859 (1979).

10. “A statute that creates a lack of uniformity in the State’s educational

financing system is subject to strict scrutiny, and this discrimination will be upheld only

if necessary to further a compelling state interest.” Syl. Pt. 4, Bd. of Educ. of the Cnty. of

Kanawha v. West Virginia Bd. Of Educ., 219 W. Va. 801, 639 S.E.2d 893 (2006).

11. “W. Va. Code § 18-9A-12 (1993), to the extent that it fails to

provide that a county school board's allocated state aid share shall be adjusted to account

for the fact that a portion of the county school board's local share is required by law to be

used to support a non-school purpose, violates equal protection principles because it

operates to treat county school boards required by law to provide financial support to

non-school purposes less favorably than county school boards with no such requirement.”

iii
Syl. Pt. 6, Bd. Of Educ. of the Cnty. of Kanawha v. West Virginia Bd. of Educ., 219 W.

Va. 801, 639 S.E.2d 893 (2006).

12. W. Va. Code § 18-9A-11 (2008), as amended, to the extent that it

creates a lack of uniformity in the educational financing system by requiring counties set

forth in W. Va. Code § 18-9A-11(g)(1) through (9) to pay their respective “Special Act”

mandatory library funding obligations from their discretionary retainage or transfer the

obligation to their excess levies, violates equal protection and is therefore,

unconstitutional and unenforceable.

13. Chapter 178 of the Acts of the Legislature, Regular Session, 1957

(also known as the “Kanawha Special Act”), insofar only as pertains to the obligation of

the Kanawha County Board of Education to divert a portion of its regular or excess levy

receipts to the Kanawha County Public Library Board, is unconstitutional and

unenforceable.

iv
WORKMAN, Justice:

This is an appeal of the Circuit Court of Kanawha County’s September 27,

2011, order refusing to set aside its July 28, 2011, orders denying the motion to dismiss

of the petitioner/intervenor below, Kanawha County Public Library Board (hereinafter

“the Library”), and granting summary judgment and injunctive relief in favor of

respondent/plaintiff below, The Board of Education of the County of Kanawha

(hereinafter the “Kanawha County BOE”). The July 28, 2011, orders 1) found that the

Kanawha County BOE had standing to bring the underlying equal protection challenge

and 2) invalidated as unconstitutional W. Va. Code § 18-9A-11 (2008) and Chapter 178

of the Acts of the Legislature, Regular Session, 1957 (hereinafter the “Kanawha Special

Act”) to the extent that they require the Kanawha County BOE to divert a portion of its

regular levy receipts in support of the Library or transfer the funding obligation to its

excess levy. The order further enjoined both the Library and petitioners/defendants

below, the West Virginia Board of Education and Dr. Jorea Marple (hereinafter the

“West Virginia BOE,” collectively) from enforcing or attempting to enforce the

requirements of W. Va. Code § 18-9A-11 and the Kanawha Special Act as same pertain

to the Kanawha County BOE’s library funding obligation. Upon consideration of the

1

briefs1 and oral argument, the record submitted, and pertinent authorities, we affirm the

ruling of the circuit court.

I. FACTS AND PROCEDURAL HISTORY

This case arises out of the West Virginia Legislature’s response to this

Court’s 2006 opinion in Board of Education of the County of Kanawha v. West Virginia

Board of Education, 219 W. Va. 801, 639 S.E.2d 893 (2006) (hereinafter “Board I”),

which held that W. Va. Code § 18-9A-12 (1993) was unconstitutional. The underlying

litigation involves, in general, the Legislature’s enactment of “Special Acts” for nine

county boards of education requiring them to divert a portion of their regular levy

receipts in support of their local public libraries (hereinafter “Special Act Libraries” or

“Special Act Counties”).2 The Kanawha Special Act was passed in 1957. Chapter 178 of

the Acts of the Legislature, Regular Session, 1957. The Kanawha Special Act requires

the City of Charleston, Kanawha County Commission, and Kanawha County BOE to

contribute to the funding of the Kanawha County Public Library.3 Id.

1
The Court wishes to acknowledge and express its appreciation for the
contributions of the amici curiae. Separate briefs were submitted on behalf of The West
Virginia Library Association and collectively on behalf of The Ohio County Public
Library and other interested West Virginia Public Libraries.
2
Other counties with Special Act Libraries are: Berkeley, Hardy, Harrison, Ohio,
Raleigh, Tyler, Upshur, and Wood.
3
The Kanawha Special Act provides, in pertinent part:
(continued . . .)
2

 In 2003, the Kanawha County BOE sought declaratory and injunctive relief

from the Circuit Court of Kanawha County on the basis that the requirement that it divert

a portion of its regular levy receipts to the Library violated equal protection. Board I,

219 W. Va. at 805, 639 S.E.2d at 897. In particular, the Kanawha County BOE argued

that, unlike non-Special Act Counties, it was being denied a portion of its “basic

foundation program.” Id. The “basic foundation program” is comprised of seven

In order to provide for the support, maintenance and
operation of the public library hereby created, and any and all
branches thereof, the supporting governing authorities shall,
upon written request by its board of directors, levy annually
as follows within the respective taxing districts of the
governing authorities, on each one hundred dollars of
assessed valuation of the property taxable in the area served
by it according to the last assessment for state and county
purposes, amounts not exceeding the following amounts for
the fiscal year beginning July first, one thousand nine
hundred fifty-seven, and for each succeeding fiscal year, as
follows: by the board of education of the county of Kanawha,
class one, one cent; class two, two cents; class three, four
cents; class four, four cents; by the county court of Kanawha
County, class one, one cent; class two, two cents; class three,
four cents; class four, four cents; and by the city of
Charleston, class one, one cent; class two, two cents; class
four, four cents. . . . In addition to the aforesaid amounts
which, upon written request by the board, the governing
authorities shall levy, each governing authority may support
the public library with any other general or special revenues
or excess levies. All income realized by the operation of the
public library from any sources other than the above levies
shall be used by the board of directors for the support and
maintenance of the public library.

Chapter 178, Acts of the Legislature, Regular Session, 1957.

3

categories of expenses delineated in W. Va. Code § 18-9A-3, the sum of which makes up

a county’s minimum educational expense needs, such as salaries for educators, service

professionals, transportation, administrative costs, and the like. The basic foundation

program is funded by a “local share”—paid from the estimated tax revenue produced by

levies, at specified rates, on all real property situate in the county as set forth in W. Va.

Code § 18-9A-11—and a “State share.” After the basic foundation program sum is

determined, the county’s local share is calculated and deducted from the basic foundation

program total, leaving the amount due from the State for its share pursuant to W. Va.

Code § 18-9A-12. Inasmuch as the Kanawha BOE was being required to divert a portion

of its local share to the Library, it alleged in the 2003 litigation that it was being treated

disparately, creating an inequality in school funding in Kanawha County. Board I, 219

W. Va. at 805, 639 S.E.2d at 897. The circuit court found that because the Kanawha

County BOE was at that time operating at a surplus, its basic foundation program funds

were not being impacted and therefore, there was no constitutional infringement. Id. at

805-06, 639 S.E.2d at 897-98.

In 2006, this Court reversed, finding that W. Va. Code § 18-9A-12 did in

fact violate equal protection. Id. at 808, 639 S.E.2d at 900. The Court held that to the

extent that the state share of the basic education program was not increased to

accommodate the Kanawha County BOE’s required diversion of the local share, it was

being treated unequally. Id. The Court found no compelling state interest which justified

4

the unequal treatment and therefore held that W. Va. Code § 18-9A-12 was

unconstitutional. In particular, the Court stated:

When we apply the strict scrutiny test to the present facts, we
can find no compelling reason that justifies treating those
school boards differently that are charged by law with
applying a portion of their local share to support a non-school
purpose such as a public library. . . . Simply put, the more
than 2.2 million dollars directed each year to the support of
the library is money taken from the support of school children
in the classrooms of Kanawha County schools. This, in turn,
potentially impinges on a school board’s ability to provide a
thorough and efficient education to its students.

Board I, 219 W. Va. at 807-08, 639 S.E.2d at 899-900. The Court then issued the

following syllabus point:

W. Va. Code § 18-9A-12 (1993), to the extent that it fails to
provide that a county school board’s allocated state aid share
shall be adjusted to account for the fact that a portion of the
county school board’s local share is required by law to be
used to support a non-school purpose, violates equal
protection principles because it operates to treat county
school boards required by law to provide financial support to
non-school purposes less favorably than county school boards
with no such requirement.

Syl. Pt. 6, Board I. The Court stayed the effect of this ruling to permit the Legislature to

amend the “applicable statutes.” Id. at 808, 639 S.E.2d at 900.

However, rather than amending W. Va. Code § 18-9A-12, which sets forth

the calculation of the State share, to require the state to increase its share to account for

5

the Kanawha County BOE’s library funding obligation,4 the Legislature amended W. Va.

Code § 18-9A-11 which governs calculation of a county’s local share. The Legislature

seized upon the “non-school purpose” language in the opinion and specifically

incorporated reference to the Special Act Libraries and Counties into the Code section,

setting forth specific findings that libraries serve a “legitimate school purpose.”5

Critically, in an apparent effort to equalize the effect on the basic

foundation program funds, the statute was further amended to provide that the library

funding obligation created by a Special Act would now be placed upon only the

4
See note 22, infra.
5
W. Va. Code § 18-9A-11(f) was amended to include the following, in pertinent
part:

The Legislature finds that public school systems throughout
the State provide support in varying degrees to public
libraries through a variety of means including budgeted
allocations, excess levy funds and portions of their regular
school board levies as may be provided by special act. A
number of public libraries are situated on the campuses of
public schools and several are within public school buildings
serving both the students and public patrons. To the extent
that public schools recognize and choose to avail the
resources of public libraries toward developing within their
students such legally recognized elements of a thorough and
efficient education as literacy, interests in literature,
knowledge of government and the world around them and
preparation for advanced academic training, work and
citizenship, public libraries serve a legitimate school purpose
and may do so economically.

6

“discretionary retainage” resulting from the regular levy receipts.6 The statute defines

“discretionary retainage” as “the amount by which the regular school board levies

exceeds [sic] the local share as determined hereunder,” thereby leaving the local share of

the basic foundation program intact.7 W. Va. Code § 18-9A-11(f). The statute further

provides that if the discretionary retainage is less than the funding obligation, the library

funding obligation is reduced to the amount of the discretionary retainage; likewise if the

retainage is more than the funding obligation, the school board may retain any excess and

use it as it sees fit.8 Significantly, the statute also provides that a Special Act County may

transfer its funding obligation to its excess levy, provided that it includes a specific line

6
W. Va. Code § 18-9A-11(f) provides, in pertinent part, that “[f]or the purposes of
any computation made in accordance with the provisions of this section, the library
funding obligation on the regular school board levies which is created by a special act
and is due and payable from the levy revenues to a library shall be paid from the county
school board’s discretionary retainage[.]”
7
The actual regular levy receipts may be greater than the estimated receipts, likely
occasioned by an automatic statutory 5% deduction for “usual losses in collections due to
discounts, exonerations, delinquencies, and the like.” W. Va. Code § 18-9A-11(a)(2).
8
W. Va. Code § 18-9A-11(f) provides, in pertinent part:

If the library funding obligation which is created by a special
act and is due and payable to a library is greater than the
county school board’s discretionary retainage, the library
funding obligation created by the special act is amended and
is reduced to the amount of the discretionary retainage,
notwithstanding any provisions of the special act to the
contrary. Any excess of the discretionary retainage over the
library funding obligation shall be available for expenditure
by the county board in its discretion for its properly budgeted
purposes.

7

item in the levy for the library funding obligation. If the levy fails, the funding obligation

is voided, but the county must continue to include the funding obligation in any

subsequent excess levies.9

9
W. Va. Code § 18-9A-11(h) provides, in pertinent part:

Notwithstanding any provision of any special act set forth in
subsection (g) of this section to the contrary, the county board
of any county with a special act creating a library obligation
out of the county's regular school levy revenues may transfer
that library obligation so that it becomes a continuing
obligation of its excess levy revenues instead of an obligation
of its regular school levy revenues, subject to the following:

(1) If a county board chooses to transfer the library
obligation pursuant to this subsection, the library
funding obligation shall remain an obligation of the
regular school levy revenues until the fiscal year in
which the excess levy is effective or would have been
effective if it had been passed by the voters;

(2) If a county board chooses to transfer the library
obligation pursuant to this subsection, the county
board shall include the funding of the public library
obligation in the same amount as its library funding
obligation which exists or had existed on its regular
levy revenues as one of the purposes for the excess
levy to be voted on as a specifically described line
item of the excess levy: Provided, That if the county
board has transferred the library obligation to the
excess levy and the excess levy fails to be passed by
the voters or the excess levy passes and thereafter
expires upon the time limit for continuation as set forth
in section sixteen, [§ 11-8-16], article eight, chapter
eleven of this code, then in any subsequent excess levy
which the county board thereafter submits to the voters
the library funding obligation again shall be included
(continued . . .)
8

 After the amendments to the statute, in October, 2008, the Kanawha County

BOE filed the instant action against the West Virginia BOE and Dr. Steven Payne,

Superintendent (restyled at the time of the appeal to reflect Dr. Jorea Marple as

Superintendent); subsequent to the filing, the Library moved to intervene. The complaint

requested that the circuit court declare unconstitutional “W. Va. Code § 18-9A-11 and

related provisions of the West Virginia Code, as interpreted and applied by the

defendants, in combination with the Special Act” and enter an order enjoining the

defendants from requiring the Kanawha County BOE to fund its library obligation. The

Kanawha County BOE moved for summary judgment a little over a year after the

complaint was filed in November, 2009. Shortly after the motion for summary judgment

was filed, the Library Board moved to dismiss, arguing that the Kanawha County BOE

lacked standing inasmuch as it was not a “person” entitled to assert an equal protection

claim.

as one of the purposes of the subsequent excess levy as
a specifically described line item of the excess levy;

(3) If a county board chooses to transfer the library
obligation pursuant to this subsection, regardless of
whether or not the excess levy passes, effective the
fiscal year in which the excess levy is effective or
would have been effective if it had been passed by the
voters, a county's library obligation on its regular levy
revenues is void notwithstanding any provision of the
special acts set forth in subsection (g) of this section to
the contrary[.]

9

 A hearing on the motions was held almost another year later in August,

2010. At no time was any discovery conducted, nor was a Scheduling Order entered. A

Scheduling Conference was set on two occasions, but did not occur for reasons which are

not entirely clear from the record. In response to the motion for summary judgment, no

party submitted an affidavit pursuant to West Virginia Rule of Civil Procedure 56

averring that additional discovery was needed, although the suggestion was briefly

included in the Library’s brief in response.

On July 28, 2011, the circuit court denied the Library’s motion to dismiss

for lack of standing, ruling that the Kanawha County BOE had standing in its own right

and, alternatively, had standing to pursue the equal protection claim “on behalf of

adversely affected students of Kanawha County schools.” Citing this Court’s “inherent

power and duty” to examine jurisdictional issues sua sponte, the circuit court cited three

other cases decided by this Court wherein a county board of education had advanced

equal protection claims, and, inferring that standing must have been determined to exist

in those cases, found that the Kanawha County BOE had standing. In addition, with little

analysis, the circuit court cited to two federal cases which had determined that local

boards of education could advance equal protection claims on behalf of their students and

10

determined that the Kanawha County BOE could likewise advance such a claim on

behalf of its students.10

Having established standing, also on July 28, 2011, the circuit court entered

an order granting summary judgment to the Kanawha County BOE, finding that,

irrespective of the Legislature’s amendments to W. Va. Code § 18-9A-11, an

unconstitutional, discriminatory classification still existed with regard to the library

funding obligation. In particular, the circuit court found that the fact that the library

funding obligation had been statutorily transferred to the discretionary retainage or, at the

county’s option, to the excess levy, was of no moment. The circuit court likened the

Legislature’s attempt to move the obligation to the discretionary retainage to the faulty

reasoning utilized by the lower court in Board I (i.e. that the county was operating at a

surplus, therefore the basic foundation monies were unencumbered), which this Court

rejected. Similarly, the circuit court found that moving the obligation to the excess levy

was likewise unequal treatment since no other counties must do so and “are free to

maximize their excess levy revenues for school purposes” and therefore, “are not subject

to the risk of voters rejecting their excess levies due to the including of a multi-million

dollar library funding obligation.”

10
School Bd. of the City of Richmond, Virginia v. Baliles, 829 F.2d 1308 (4th Cir.
1987); Akron Bd. of Educ. v. State Bd. of Educ. of Ohio, 490 F.2d 1285 (6th Cir. 1974).

11

 Having determined that a discriminatory classification still existed that

infringed on a fundamental constitutional right, the circuit court then determined that no

compelling State interest presently existed to justify such unequal treatment, observing

that this Court held that there was no such justification present in 2006: “[W]e can find

no compelling reason that justifies treating those school boards differently[.]” Board I,

219 W. Va. at 807, 639 S.E.2d at 899. The circuit court rejected the petitioners’ attempt

to utilize the Legislature’s finding that libraries serve a legitimate school purpose to

justify the discriminatory classification; the circuit court ruled that such findings fail to

demonstrate how the discriminatory classification is necessary to further the compelling

state interest. The circuit court dispensed with the petitioners’ contention that summary

judgment was premature due to lack of discovery by noting that it could have conducted

discovery at any time during the case’s three-year pendency and noted its failure to

provide an affidavit pursuant to W.V.R.C.P. 56.

Finally, the circuit court found that W. Va. Code § 18-9A-11, as amended,

also violated the special legislation prohibitions of Article X, § 1b and Article XII, § 5 of

the West Virginia Constitution. In short, the circuit court found that since the

Constitution empowers the Legislature, under Article X, §1b, to enact only statewide

excess school levies and delegates to local school districts, under Article X, §10, the

ability to seek local excess levies, the attempt to encumber Kanawha County’s local

excess levy with the library obligation improperly “infringe[s] upon the initiative of the

voters of Kanawha County.” The circuit court reasoned that “[i]n order to exercise their

12

‘local initiative’ and tax themselves for additional educational funds in their county,

Kanawha County voters are forced to also tax themselves for the support of a non-school

purpose, which is the support of a public library.”

Upon finding these constitutional violations, the circuit court ordered that

both W. Va. Code § 18-9A-11 and the Kanawha Special Act were null and void, as

pertains to the Kanawha County BOE’s funding obligation.11 The West Virginia BOE

appealed immediately; the Library moved for reconsideration pursuant to W.V.R.C.P. 59

and, upon denial, appealed the court’s orders. The circuit court granted a stay of its

ruling pending these appeals, which were administratively consolidated before this Court.

II. STANDARD OF REVIEW

This Court has held that:

11
In particular, the circuit court’s order states:

It is ORDERED that the Kanawha Special Act and Section
18-9A-11 of the Code, to the extent they require the Kanawha
Board to divert a portion of its regular levy receipts for the
support of the Kanawha Library, or to transfer the Kanawha
Board’s library funding obligation to its excess levy revenues,
by and hereby are null and void and of no force and effect. It
is ORDERED that the State and the Library Board be and
hereby are enjoined from enforcing, or seeking to enforce, the
requirements of Kanawha Special Act and Section 18-9A-11
of the Code as they pertain to the Kanawha Board’s library
funding obligation to the Kanawha Library.

13

 The standard of review applicable to an appeal from a motion
to alter or amend a judgment, made pursuant to W. Va. R.
Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and
from which the appeal to this Court is filed.

Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d

657 (1998). As such, “[a] circuit court’s entry of summary judgment is reviewed de

novo.” Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Moreover,

“[w]here the issue on an appeal from the circuit court is clearly a question of law . . . we

apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal R. M. v. Charlie A. L.,

194 W. Va. 138, 459 S.E.2d 415 (1995). As such, we find that all matters at issue in this

appeal require a de novo standard of review.

III. DISCUSSION

The Library and West Virginia BOE make three similar assignments of

error. They both allege that the circuit court erred by: 1) finding that W. Va. Code § 18­

9A-11 violates equal protection; 2) finding that W. Va. Code § 18-9A-11 violates Article

XII, § 5 and Article X, §1b of the West Virginia Constitution; and 3) prematurely

granting summary judgment. The Library makes two additional assignments of error: 1)

that the circuit court erred by finding that the Kanawha County BOE has standing to

14

advance an equal protection claim; and 2) that the circuit court’s order was overbroad in

its determination that the Kanawha Special Act was “null and void.”12

A.

Standing

We begin our analysis with the threshold issue of standing, a necessary

prerequisite before reaching the merits of this appeal. The Library argues that a county

board of education is simply not a “person” for purposes of equal protection and that a

“legislatively-created, subordinate subdivision of government” cannot advance an equal

protection argument against the Legislature, “its creator.” The Kanawha County BOE

argues that standing clearly exists because, if it did not, this Court would have so held in

the prior cases filed by county boards of education which advanced equal protection

challenges.13 Respondent relies on Syllabus Point 2 of James M. B. v. Carolyn M., 193

W. Va. 289, 456 S.E.2d 16 (1999) to contend that this Court necessarily considered and

found standing in the prior cases despite an absence of discussion of the issue. Syllabus

12
Although the West Virginia BOE expressly adopted and incorporated by
reference the arguments made by the Library, we will attribute to the appropriate
petitioner the different arguments advanced by each to the extent they differ in character
and content.
13
See State ex rel. Bd. of Educ. for the Cnty. of Grant v. Manchin, 179 W. Va.
235, 366 S.E.2d 743 (1988) (holding that State school funding formula failing to account
for failure of excess levies violated equal protection); State ex rel. Bd. of Educ. for the
Cnty. of Randolph v. Bailey, 192 W. Va. 534, 453 S.E.2d 368 (1994) (holding that State
school funding formula as pertained to teacher and service personnel salaries violated
equal protection); Board I, 219 W. Va. 801, 639 S.E.2d 893 (holding that library funding
obligation violated equal protection).

15

Point 2 states, in pertinent part: “[T]his Court has the inherent power and duty to

determine unilaterally its authority to hear a particular case.” Id. In addition to having

standing in its own right, the Kanawha County BOE further argues that it has standing to

advance such claims on behalf of the students of Kanawha County.

Initially, we engage in a brief examination of the source of the

constitutional claim at issue, as its language forms the basis of the Library’s primary

challenge to standing. The right of equal protection is expressly stated in the United

States Constitution; the Fourteenth Amendment to the United States Constitution states

that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of

the laws.” (emphasis added). Although the right of equal protection is not expressly

stated in the West Virginia Constitution, this Court has found that equal protection

likewise exists on a state level and derives from Article III, § 10 of the West Virginia

Constitution:

Equal protection of the law is guaranteed by Article III,
Section 10 of our state constitution, which provides: “No
person shall be deprived of life, liberty, or property, without
due process of law, and the judgment of his peers.” See
Syllabus Point 4, Israel v. West Virginia Secondary Sch.
Activities Comm'n, 182 W.Va. 454, 388 S.E.2d 480 (1989).

O'Dell v. Town of Gauley Bridge, 188 W.Va. 596, 601, 425 S.E.2d 551, 556 (1992). As

to instances giving rise to equal protection scrutiny, in Syllabus Point 2 of Israel v. West

Virginia Secondary Sch. Activities Comm’n, 182 W. Va. 454, 388 S.E.2d 480 (1989), this

Court held that:

16

 Equal protection of the law is implicated when a classification
treats similarly situated persons in a disadvantageous manner.
The claimed discrimination must be a product of state action
as distinguished from a purely private activity.

We dispense quickly with the argument that, having previously decided

cases involving equal protection claims advanced by county boards of education, this

Court has sub silentio determined that standing broadly exists for such claims. While this

Court has noted its authority to sua sponte determine jurisdictional issues, including

standing, it does not follow that an issue neither asserted by the parties nor addressed in

this Court’s opinions is binding upon it. This Court, like many others including the

United States Supreme Court, adheres to the well-settled premise that “the exercise of

jurisdiction in a case is not precedent for the existence of jurisdiction.” Indian Oasis-

Baboquivari Unified Sch. Dist. No. 40 of Pima County, Arizona v. Kirk, 91 F.3d 1240,

1243 (9th Cir. 1996); see also Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996) (“[W]e have

repeatedly held that the existence of unaddressed jurisdictional defects has no

precedential effect.”); Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974) (“[W]hen

questions of jurisdiction have been passed on in prior decisions sub silentio, this Court

has never considered itself bound when a subsequent case finally brings the jurisdictional

issue before us.”); Grant v. Shalala, 989 F.2d 1332, 1341 (3d Cir. 1993) (rejecting

implicit holding of United States Supreme Court case where power of district court to

make findings was not challenged); Cousins v. Sec’y of the U.S. Dept. of Transp., 880

F.2d 603, 608 (1st Cir. 1989)(en banc) (noting nonbinding nature of questions “which

merely lurk in the record” (quoting Webster v. Fall, 266 U.S. 507, 511 (1925)).

17

 However, we find that the bulk of the Library’s arguments against

standing—that a county school board is not entitled in its own right to equal protection

because it is not a “person” and is wholly subordinate to the Legislature—are germane

only to the issue of whether the Kanawha County BOE has first-party standing.

Although the Kanawha County BOE asserts and the circuit court found the existence of

first-party standing, it is fairly apparent to this Court that the gravamen of the

respondent’s equal protection claim is that the statute and Special Act at issue, as

implemented, infringe upon the “thorough and efficient” education constitutionally

guaranteed to the students of Kanawha County. As such, it is clear that the Kanawha

County BOE is seeking to vindicate the constitutional rights of a third party—the

students of Kanawha County—necessitating a more thorough analysis of whether it has

properly established third-party or “jus tertii” standing. Despite the parties’ and the

circuit court’s cursory treatment of this issue as a mere analog to first-party standing, we

find that this concept is squarely implicated in this and other similar, historical equal

protection challenges to legislation.

To that end, this Court recently adopted a test for “representative”

standing—a form of third-party standing—however, we noted that other types of third-

party standing existed to which the test formulated would not necessarily conform: “We

note that there are other concepts of standing, e.g., public interest standing, taxpayer

standing, constitutional jus tertii standing . . . [h]owever, we need not discuss them in this

Opinion because they are not applicable to the factual scenario at issue in this appeal.”

18

The Affiliated Construction Trades Found. v. West Virginia Dept. of Transp., 227 W. Va.

653, 657, n.8, 713 S.E.2d 809, 813 n.8 (2011)(emphasis added). We find that

“representative” or “associational” standing is inapposite to the type of standing urged by

the respondent in the case sub judice inasmuch as the Kanawha County BOE does not

serve as an “association” of which the students of the county are organizational

“members.” Rather, the concept of so-called jus tertii standing, commonly used to

describe situations in which one asserts the constitutional rights of a third party, is clearly

more applicable.14

This Court has not previously set forth a test for determining the existence

of jus tertii standing; however, in her concurring opinion in State ex rel. Abraham Linc

Corp. v. Bedell, 216 W. Va. 99, 602 S.E.2d 542 (2004), Justice Davis endorsed and

applied a test adopted by the United States Supreme Court and other state and Federal

jurisdictions.15 In Powers v. Ohio, 499 U.S. 400 (1991), the United States Supreme Court

articulated a three-pronged test to determine whether a litigant may assert the rights of a

third-party: “The litigant must have suffered an injury in fact . . . ; the litigant must have

14
We note that this concept only first appeared in the Library’s brief on appeal;
although mention of standing “on behalf of” the students of Kanawha County made
superficial appearance in the record below, none of the parties properly characterized or
briefed this critical issue for analysis by the circuit court.
15
See id. at 113-14, 602 S.E.2d at 556-57 (Davis, J. concurring) for a collection of
extra-jurisdictional cases utilizing the Powers test.

19

a close relation to the third party; and there must exist some hindrance to the third party’s

ability to protect his or her own interests.” Id. at 411 (citations omitted).

Not only has jus tertii standing been utilized generally to determine the

ability of a litigant to advance the rights of others, but has been utilized in specific regard

to a governmental entity’s assertion of the constitutional rights of members of a class

with whom it has a close relationship. In City of East Liverpool v. Columbiana Co.

Budget Comm’n, 870 N.E.2d 705, 712 (Ohio 2007), the Supreme Court of Ohio utilized

the Powers test to find that the City of East Liverpool had standing to assert an equal

protection claim on behalf of its citizens, challenging a statute governing apportionment

of state tax revenues. The court therein found that, as a result of the allegedly unequal

apportionment of the funds, the city suffered a “direct injury to its own treasury”

satisfying the first prong of the Powers test. Id. Moreover, the court found a close

relation between the city and its citizens by noting that both had “an interdependent

interest” in the city’s treasury. Id. Finally, the court recognized that prior individual suits

challenging the same legislation had been dismissed for lack of standing and, as a result,

found a sufficient hindrance to the third party’s ability to bring suit. Id.

Moreover, the underlying principles of jus tertii standing have been

specifically applied to permit the assertion of the constitutional rights of students within a

school district’s jurisdiction. See Baliles, 829 F.2d at 1310-11 (holding that school board

had standing to sue on behalf of students); Akron Bd. Of Educ., 490 F.2d at 1290 (holding

20

that “in terms of loss of . . . tax dollars and in terms of identity of interest with the

asserted rights of the pupils and their parents” school board had standing); Cincinnati

City Sch. Dist. v. State Bd. Of Ed., 680 N.E.2d 1061 (Ohio App. 1996) (permitting school

district to make equal protection challenge on behalf of its students).

We are mindful of and herein reiterate our long-recognized admonition that

[t]raditionally, courts have been reluctant to allow persons to
claim standing to vindicate the rights of a third party on the
grounds that third parties are generally the most effective
advocates of their own rights and that such litigation will
result in an unnecessary adjudication of rights which the
holder either does not wish to assert or will be able to enjoy
regardless of the outcome of the case.

Snyder v. Callaghan, 168 W. Va. 265, 279, 284 S.E.2d 241, 250 (1981) (citation

omitted). Nevertheless, we find it appropriate and necessary to establish a test to evaluate

the propriety of a litigant’s assertion of the constitutional rights of third parties. As such,

we hold that to establish jus tertii standing to vindicate the constitutional rights of a third

party, a litigant must (1) have suffered an injury in fact; (2) have a close relation to the

third party; and (3) demonstrate some hindrance to the third party’s ability to protect his

or her own interests.

Based upon these factors, we find that the Kanawha County BOE clearly

has jus tertii standing to advance an equal protection challenge to the school funding

statutes on behalf of the students of Kanawha County. First, there can be no question that

the Kanawha County BOE has suffered an injury-in-fact by virtue of the mandated

21

library funding obligation established in the Kanawha Special Act and as administered by

W. Va. Code § 18-9A-11, which results in a direct and immediate diversion of an annual

sum certain from its coffers. Injury in fact is easily established when a litigant

demonstrates “a direct, pocketbook injury.” Barrows v. Jackson, 346 U.S. 249, 256

(1953); see also Bd. of Natural Resources v. Brown, 992 F.2d 937, 945 (9th Cir. 1993)

(finding “substantial loss of revenues” sufficient to show injury); City of East Liverpool,

870 N.E.2d at 712 (finding that “direct injury to [the City’s] own treasury” established

injury in fact). Secondly, there can be little argument that the Kanawha County BOE has

a “close relation” to its students; the entire purpose for which the board exists is to

administer and furnish a thorough and efficient education for the benefit of its students.

Finally, we find that sufficient hindrance to the individual students’ ability

to vindicate their constitutional rights in this instance exists such as to satisfy the

requirements of jus tertii standing. First, although we acknowledge the ability of an

individual student to bring an action challenging the constitutionality of the school

funding formula, we likewise recognize the practical obstacles to an individual student or

parent’s ability to identify inequalities which may be present in the byzantine school

funding statutes at issue. The Sixth Circuit discussed similar practical inabilities of

individual students or parents to recognize inequalities which create a “minimal present

impact” but nevertheless warrant constitutional scrutiny:

[I]t should be noted that the [allegedly unconstitutional State
action] would be much less likely to come to the attention of
said parents or arouse their concern than it would to come to

22
 the attention of and arouse the concern of the School Board,
which is the immediate object of the [action] alleged to be
unconstitutional. Thus if jurisdiction is refused in a
precedent-setting case because the potential litigants, alert to
the possible constitutional abuse, are denied standing, quite a
bit of the unconstitutional camel may be in the tent before the
tent’s less alert occupants are awakened.

Akron Bd. of Education, 490 F.2d at 1289-90.

Moreover, we envision equal difficulty of an individual student or parent in

demonstrating injury in fact in support of his or her own standing were an individual

attack on the statute at issue launched. In fact, this precise stumbling block came to

fruition in City of East Liverpool, as discussed hereinabove. The Supreme Court of Ohio

found that a hindrance to East Liverpool’s citizens existed, noting that an individual

citizen taxpayer filed an equal protection lawsuit, only to have it dismissed for lack of

standing. Id., 870 N.E.2d at 712. In particular, the court noted that the Seventh District

Court of Appeals had dismissed an individual taxpayer suit because it “‘merely allege[d]

injuries that harm the public generally and have failed to adduce personal injuries caused

by the statute.’” Id. (emphasis added).

As the Library makes repeated note in its brief, although the annual

diversion of funds to the Library is frequently in excess of $2 million, this amount makes

up but approximately one percent of the Kanawha County BOE’s budget. Were an

individual student required to demonstrate a direct, personal injury-in-fact as the result of

this diversion of funds, it would certainly prove difficult, if not impossible. However, we

23

are quick to note that the difficulty in one individual student demonstrating the

detrimental effect on his or her own individual educational opportunities for purposes of

establishing standing does not in any degree speak to the validity of the equal protection

challenge being made. Rather, it reflects only the practical inefficacy of requiring an

individual to vindicate the rights of an entire student populous. As such, we believe that

a sufficient hindrance exists to the ability of the Kanawha County student body

population to assert the equal protection challenge made on its behalf by the Kanawha

County BOE such as to warrant finding of jus tertii standing.

Accordingly, we find that the circuit court committed no reversible error in

its determination that the Kanawha County BOE has standing to advance the claims set

forth in the case sub judice.16

B.

Prematurity of Summary Judgment

We turn next to the issue of whether the circuit court erred in granting

summary judgment prematurely. Both the Library and West Virginia BOE contend that

additional discovery was needed to establish the compelling state interest which would

warrant any unequal classification in the statute and that therefore, entry of summary

16
Having properly determined the existence of jus tertii standing, we find it
unnecessary to address the issue of whether the Kanawha County BOE has first-party
standing.

24

judgment was premature. No affidavit pursuant to W.V.R.C.P. 56(f) was filed; the

Library merely indicated that discovery was needed in its response to the motion for

summary judgment. The West Virginia BOE requested no additional discovery.

In Syllabus Point 1 of Powderidge Unit Owners Ass’n v. Highland

Properties, Ltd., 196 W. Va. 692, 474 S.E.2d 872 (1996) this Court held, in pertinent

part, that if a party does not file an affidavit under W.V.R.C.P. 56(f) demonstrating the

need for additional discovery before summary judgment is considered, the party must

provide a written request for additional discovery which:

[a]t a minimum . . . satisf[ies] four requirements. It should (1)
articulate some plausible basis for the party’s belief that
specified “discoverable” material facts likely exist which
have not yet become accessible to the party; (2) demonstrate
some realistic prospect that the material facts can be obtained
within a reasonable additional time period; (3) demonstrate
that the material facts will, if obtained, suffice to engender an
issue both genuine and material; and (4) demonstrate good
cause for failure to have conducted the discovery earlier.

This case was pending for three years and no party conducted any

discovery in this high-profile litigation. In fact, the case was pending for approximately a

year and a half after the Library indicated in its brief in opposition to summary judgment

that additional discovery was needed and yet still no discovery was conducted. With

regard to the above-factors, the Library merely stated in its brief that it “intends to engage

in proper discovery to garner specific evidence of the compelling state interest served by

libraries.” However, the case was pending for nearly nine months after the Kanawha

25

County BOE filed its motion for summary judgment, ostensibly revealing the issues upon

which the Library contends “proper discovery” was necessary, yet no discovery was

conducted. Moreover, the Library’s broad statement that it intends to conduct “proper

discovery to garner specific evidence” is wholly insufficient. The Library offered no

specifics about what type of evidence it hoped to uncover that was not otherwise

available to it, the prospective time period in which it anticipated the discovery to be

obtained or, critically, any justification for why it had not already occurred.

Although this Court alleviated the formalistic requirement of the filing of

an affidavit pursuant to W.V.R.C.P. 56 in Powderidge, we made clear that “[a] party may

not simply assert in its brief that discovery was necessary and thereby overturn summary

judgment[.]” 196 W. Va. at 702, 474 S.E.2d at 882 (quoting Nguyen v. CNA Corp., 44

F.3d 234, 242 (4th Cir. 1995)). Certainly the requirements set forth in Powderidge for a

written request for additional discovery were not even dignified by the Library, much less

satisfied. In this regard, this Court has found that “‘the [circuit court] does not abuse its

discretion by denying further discovery if the movant has failed diligently to pursue

discovery in the past.’” Id. (quoting California Union Ins. Co. v. American Diversified

Sav. Bank, 914 F.2d 1271, 1278 (9th Cir. 1990)).

The West Virginia BOE, while noting that it did not request additional time

for discovery below, posits a companion argument to this assignment of error.

Specifically, it argues that entry of summary judgment in absence of a Scheduling Order

26

setting forth a timeframe for conducting discovery was erroneous, citing Syllabus Point 2

of Caruso v. Pearce, 223 W.Va. 544, 678 S.E.2d 50 (2009):

Rule 16(b) of the West Virginia Rules of Civil Procedure
[1998] requires active judicial management of a case, and
mandates that a trial court “shall . . . enter a scheduling order”
establishing time frames for the joinder of parties, the
amendment of pleadings, the completion of discovery, the
filing of dispositive motions, and generally guiding the parties
toward a prompt, fair and cost-effective resolution of the case.

We find that this argument implicates the same lack of diligence discussed above.

First, we note the West Virginia BOE does not identify specific

discoverable and relevant material that a Scheduling Order would have provided a

timeframe for obtaining, nor does it indicate how the absence of a Scheduling Order

precluded discovery of this allegedly “critical information.” 17 Secondly, and more

importantly, we find that Caruso does not stand for the proposition that entry of summary

judgment is per se erroneous prior to entry of a Scheduling Order. In fact, we noted, “[a]

failure by a judge to issue a scheduling order as required by Rule 16 generally is not

deemed by appellate courts sufficient grounds, by itself, for any significant relief.” 223

W. Va. at 549, n.3, 678 S.E.2d 55, n.3 (quoting James Wm. Moore, 3 Moore’s Federal

17
The West Virginia BOE points to the volume of information contained in the
amicus briefs regarding the “role of public libraries in educating both students and their
parents” as illustrative of the type of information that was “undeveloped.” However,
clearly this type of information was peculiarly within the control of the Library itself,
which offered no such information by way of affidavit in opposition to summary
judgment. More importantly, however, as discussed infra, the importance and value of
the services and educational information provided by libraries is neither disputed nor
dispositive of the equal protection analysis.

27

Practice, 3d Edition § 16.10[2] (2007)). Moreover, to construe Caruso as affording relief

to a party who, in the face of a summary judgment motion, blatantly neglects to do any

discovery and then relies on the absence of a scheduling order to survive summary

judgment would serve to wholly invalidate the requirements of Rule 56 and Powderidge

regarding a party’s obligations when asserting the need for additional discovery in

opposing summary judgment. Our holding in Caruso that entry of a Scheduling Order is

mandated by the Rules of Civil Procedure was, as plainly set forth in the opinion,

intended to facilitate the “‘swift, inexpensive and just resolution of litigation’”; it was not

intended to be used as a weapon by dilatory parties to create a barrier to resolution of

cases on their merits. Caruso, 223 W. Va. at 548, 678 S.E.2d at 54. Unlike Caruso, the

parties in this case engaged in a focused and expedient narrowing of the legal issues

presented and actively moved the case forward toward resolution. Petitioners fully

engaged in that progression with the filing of motions and briefs, but issued not a single

discovery request nor conducted a single deposition. In a half-hearted attempt to delay

disposition by summary judgment, the Library tersely mentioned that it “intended” to

conduct discovery; the West Virginia BOE did not so much as even hint at the need for

discovery. Accordingly, we do not find the circuit court’s entry of summary judgment to

have been premature under the facts and circumstances presented.

28

 C.

Equal Protection

We begin our review of the constitutionality of W. Va. Code § 18-9A-11 by

reiterating the fundamental principles which guide our analysis:

“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. . . .” Syllabus Point 1,
Appalachian Power Co. v. Gainer, 149 W. Va. 740 143
S.E.2d 351 (1965).

Syl. Pt. 2, in part, Hartley Hill Hunt Club v. Cnty. Comm’n. of Ritchie Cnty., 220 W. Va.

382, 647 S.E.2d 818 (2007).

As this holding connotes, this Court clearly has the “authority and

responsibility to review legislative and administrative attempts to alter what are alleged

as constitutional mandates.” Randolph Co. Bd. of Educ. v. Adams, 196 W. Va. 9, 24, 467

S.E.2d 150, 165 (1995). That the statute at issue is subject to equal protection analysis is

fairly self-evident by virtue of the precedessor litigation and our holding in Board I.

Nonetheless, the Library makes many broad pronouncements about the plenary power of

the Legislature and the implications to sovereignty created by a constitutional challenge

to legislation by a subordinate, legislatively-created, “mere subdivision” of government.

Petitioners’ arguments suggest that this “back-and-forth” between this Court and the

29

Legislature is merely a battle of wills in which the principles of sovereignty dictate the

Legislature the victor.18 However, this is not the first occasion this Court has entertained

such sabre-rattling.

Nearly thirty-five years ago, this Court was faced with similar arguments in

Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979), and extensively discussed, with

approval, “jurisdictions [which] have not hesitated to examine legislative performance of

the [thorough and efficient education] mandate, and we think properly so, even as they

recite that courts are not concerned with the wisdom or policy of the legislation.” Id. at

691, 255 S.E.2d at 870. We found it proper that these jurisdictions had “intervened when

an act by a legislature or a proceeding by a local school board, as agent of the legislature,

is offensive to judicial notions about what a thorough and efficient education system is.”

Id. at 693, 255 S.E.2d at 871. Years later, this Court again squarely addressed the

purported “tension” between the judicial and legislative branches when we were called

upon to assess the constitutionality of certain enactments which were alleged to infringe

upon constitutional rights. In Adams, 196 W. Va. at 24, 467 S.E.2d at 165, this Court

stated:

18
Petitioners ominously declare that if this Court accepts the arguments of
respondent, then it will have “destroyed the Legislature’s constitutional power and
responsibility over education” and “assum[ed] a new constitutional function.” In that
event, petitioners accuse this Court of enabling Chief Justice Burger’s concern that
“modern governmental programs have self-perpetuating and self-expanding
propensities.” Lemon v. Kurtzman, 403 U.S. 602, 624 (1971).

30

 It cannot be denied that of the various structural elements in
the Constitution, judicial review allows the judiciary to play a
role in maintaining the design contemplated by the framers. . .
. [J]udicial review has been established beyond question, and
although we may differ in applying its principles, its
legitimacy is undoubted.

Finally, we observe that similar arguments regarding legislative plenary

power over education were advanced and rejected by the United States Supreme Court in

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982). The appellants in Seattle

School District argued in defense of the constitutionality of a desegregation statute,

contending, like the petitioners herein, that “the State necessarily retains plenary

authority over Washington’s system of education, and therefore [the offending

legislation] amounts to nothing more than an unexceptional example of a State’s

intervention in its own school system.” Id. at 475-76. While acknowledging that “States

traditionally have been accorded the widest latitude in ordering their internal

governmental processes,” the Supreme Court stated that “‘insisting that a State may

distribute legislative power as it desires . . . furnish[es] no justification for a legislative

structure which otherwise would violate [equal protection].’” Id. at 476 (quoting Hunter

v. Erickson, 393 U.S. 385, 392 (1969)). The Court astutely noted that “[t]he issue here,

after all, is not whether Washington has the authority to intervene in the affairs of local

school boards; it is, rather, whether the State has exercised that authority in a manner

consistent with the Equal Protection Clause.” Id.

31

 This Court has unquestionably found that education is a fundamental right:

“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. Consistent with its

responsibility and authority to ensure that the fundamental right of education is protected,

this Court has expressly recognized that the Legislature’s power in the realm of

educational funding is necessarily constrained by equal protection principles and must

withstand strict scrutiny:

Because education is a fundamental, constitutional right in
this State, under our Equal Protection Clause any
discriminatory classification found in the State’s educational
financing system cannot stand unless the State can
demonstrate some compelling State interest to justify the
unequal classification.

Syl. Pt. 4, Pauley. We reiterated in this case’s predecessor litigation that “[a] statute that

creates a lack of uniformity in the State’s educational financing system is subject to strict

scrutiny, and this discrimination will be upheld only if necessary to further a compelling

state interest.” Syl. Pt. 4, Board I. It is, obviously, this precise holding that is once again

implicated by virtue of the underlying challenge to the amendment to W. Va. Code § 18­

9A-11.

Accordingly, it is evident that the legislative response to Board I, by way of

amendment to W. Va. Code § 18-9A-11, is not impervious to constitutional scrutiny any

32

more so than the pre-amendment statutory scheme addressed in Board I.19 Moreover,

this Court’s authority and responsibility to exercise its proper constitutional powers of

judicial review is evident.

1. Unequal Treatment

Having determined that the educational financing statute at issue, as

amended, is unquestionably subject to equal protection scrutiny, we proceed to the crux

of the parties’ arguments. The Library contends that the mandated diversion of funds

from the Kanawha County BOE’s regular levy receipts does not constitute an inequality

in the school financing system. 20 Specifically, the Library adamantly argues that by

virtue of the Legislature’s amendment to W. Va. Code § 18-9A-11 to include the finding

that libraries serve a “legitimate school purpose,” the equal protection violation found in

Board I was cured. In addition, the Library contends that the mandatory library funds are

not being diverted away from education; rather, education is simply being “doled out”

through both the school system and the library, which merely creates a “spending”

19
In fact, this is not the first occasion this Court has had to engage in a review of
amendments to a school financing statute which we had previously found
unconstitutional. See Bailey, 192 W. Va. 534, 539, 453 S.E.2d 368, 373 (1994) (holding
that amendments to W. Va. Code § 18A-4-5 merely resulted in a “continuation of the
inequities” identified in original statute struck down in predecessor litigation).
20
It should be noted, however, that counsel for the Library ultimately conceded in
oral argument before this Court that an inequality did, in fact, exist and that the sole issue
presented is simply whether such inequality was necessary to further a compelling state
interest. Regardless, the Court finds it proper to give full treatment to all facets of the
equal protection issue.

33

inequality and not a “funding” inequality. The respondent counters that, quite simply, the

Kanawha County BOE is being treated differently than forty-six non-Special Act county

boards of education which are free to utilize their discretionary retainage as they see fit

and/or whose excess levies are unencumbered by a library obligation.

We first address the petitioners’ misapprehension of our holding in Board I.

Petitioners posit that this Court concluded that W. Va. Code § 18-9A-12 violated equal

protection “only because” a portion of the county board’s local share was used to support

a “non-school purpose” and that, given the Legislature’s findings of fact that libraries

serve a legitimate school purpose, “there can be no equal protection or other

constitutional violation.” Initially, we note that this argument accords the separation of

powers set forth in Section 1, Article V of the West Virginia Constitution very little

veneration. Were constitutional infirmity so easily rectified with simple legislative

“sleight of hand,” there would be little point in this Court undertaking the exercise of

judicial review. And although we believe that clearly the Legislature found the “non­

school purpose” language in Board I worthy of attention, we do not believe even the

Legislature thought the equal protection violation so easily negated; otherwise, it

certainly would not have undertaken the more significant alterations to the statute to shift

the funding obligation to receipts which were not implicated in the local share.

Our decision in Board I was not predicated on the fact that the library

funding obligation was a non-school purpose, notwithstanding the references thereto in

34

the opinion. Rather, both the standard applied in Board I and our holding make plain that

it was the lack of uniformity that created the equal protection violation: “A statute that

creates a lack of uniformity in the State’s educational financing system is subject to strict

scrutiny[.]” Syl. Pt. 4, in part, Board I. It was the mere fact of the disparate treatment of

Kanawha County which was the essence of the equal protection violation found—not the

nature, quality or type of the disparate treatment.21 After finding no justification for the

unequal treatment, we concluded that “W. Va. Code § 18-9A-12 (1993) . . . violates equal

protection principles because it operates to treat county school boards required by law to

provide financial support to non-school purposes less favorably than county school

boards with no such requirement.” Syl. Pt. 6, in part, Board I (emphasis added).22

21
At the time of Board I (prior to the legislative findings of fact that libraries serve
legitimate school purposes), the fact that public libraries were characterized by this Court
as a “non-school purpose” clearly did serve to highlight the lack of uniformity found
therein. This characterization did not, however, establish the outer boundaries of the lack
of uniformity.
22
In that regard, not only does Syllabus Point 6 of Board I set forth the basis of
the equal protection violation occasioned by W. Va. Code §18-9A-12, but in its language,
fairly read, appears to suggest a statutory “fix” to the equal protection violation. The
syllabus point states the statute violates equal protection “to the extent that it fails to
provide that a county school board’s allocated state aid share shall be adjusted to account
for the fact that a portion of the county school board’s local share is required by law to be
used to support a non-school purpose . . .” Id. An increase in the county’s State share
equivalent to the funding obligation was apparently the Kanawha County BOE’s
suggested remedy to the disparate treatment. Id. at 805, 639 S.E.2d at 897.

This aspect of Syllabus Point 6 of Board I raises concern. Although it is well
within the province of this Court to make a judicial determination that a statute is
unconstitutional, as discussed supra, it is not for this Court to suggest a particular
(continued . . .)
35

 As such, to assert that the legislative finding that libraries serve a

“legitimate school purpose” in and of itself cures the constitutional infirmity

demonstrates an overly simplistic reading of Board I. We find that whether the diversion

of funds is for a school purpose is not dispositive of the issue as to whether there is

unequal treatment; as such, the legislative findings do little to advance the analysis. The

issue is whether the amendments to W. Va. Code § 18-9A-11 continue to create a lack of

uniformity in the educational financing system.

To that end, this Court finds that the fact that the Kanawha County BOE is

being treated differently than forty-six other counties by virtue of its mandatory library

funding obligation is fairly manifest, notwithstanding the Legislative amendments. The

non-Special Act counties may utilize their discretionary retainage for any purpose which

they see fit and proper; Kanawha County’s discretionary retainage is encumbered to the

extent of the funding obligation. Moreover, the option of transferring the obligation to

legislative remedy. Such an act would be in the nature of an impermissible advisory
opinion inasmuch as it suggests, in advance of an actual justiciable controversy, the
constitutionality of a legislative act: “Courts are not constituted for the purpose of
making advisory decrees or resolving academic disputes.” Syl. Pt. 2, in part, Harshbarger
v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (1991). Although a small minority of states,
either by statute or constitutional provision, require or permit their courts to render
advisory opinions on pending legislation, our State does not. See Jonathan D. Persky,
“Ghosts That Slay”: A Contemporary Look at State Advisory Opinions, 37 Conn. L.
Rev. 1155 (2005). We note further the West Virginia BOE’s contention, that even if the
Legislature had undertaken such an amendment, the amendment would necessarily
violate equal protection principles as well, because only the nine Special Act counties
would have both a levy-funded library and an increased State share.

36

the excess levy does nothing to alleviate the disparate treatment. The non-Special Act

counties are not set with the Hobson’s choice of choosing to deplete their discretionary

retainage to satisfy the library funding obligation or risking the failure of their excess

levy and the educational “extras” it affords by placing a large library funding line item on

the ballot.23

Furthermore, we find no merit in the petitioners’ attempt to recast the

library funding obligation as a “spending” inequality as opposed to a “funding”

inequality. The Library suggests that so long as “total funding actually received” for

“education” by Kanawha County (whether through the school system or the library) is

“constitutionally sufficient,” the Legislature may direct spending. However, the Library

provides no support for the notion that a mere “spending” disparity occasioned by a

statute within the educational financing system would not and does not create an equal

protection problem. It scarcely matters if counties are uniformly funded if the State can

then discriminate against local boards’ spending in a manner that is not demonstrated to

be necessary to further a compelling state interest. Certainly nothing in our precedents

would suggest that such an act of the Legislature would somehow be immune from equal

23
The West Virginia BOE contends that the concern that the excess levy will fail
because of the inclusion of the library funding merely creates a “political problem” rather
than an “equal protection” problem. Although a clever spin on the inescapable political
implications of the issues presented, we find that making critical excess levy funds the
potential “sacrificial lamb” only further illustrates the disparate treatment between
Kanawha and non-Special Act counties.

37

protection scrutiny, to the extent such an act creates the critical “lack of uniformity” in

the educational financing system.

Moreover, the Library asserts that this Court has previously determined that

mere funding disparities do not implicate equal protection concerns. Citing our decision

in State ex rel. Bd. of Educ. v. Chafin, 180 W. Va. 219, 376 S.E.2d 113 (1988), the

Library contends that insofar as students are not being deprived of a “thorough and

efficient” education, inequalities that result in a county’s budget are not subject to equal

protection scrutiny. This interpretation of Chafin is squarely at odds with both Pauley

and Board I wherein we held that any lack of uniformity in the school financing scheme

must withstand the strict scrutiny analysis implicated by the potential equal protection

violation. Moreover, our decision in Chafin was premised not on a lack of constitutional

concern regarding funding disparities, but by the absence of State action, which

foreclosed the funding disparities from an equal protection challenge. The funding

disparity at issue was occasioned by excess levies, which we found exempt from equal

protection scrutiny because they were “expressly countenanced by W. Va. Const. art. X,

§ 10 [and] represent the initiative of individual counties whose residents are willing to tax

themselves to improve the level of local education.” Id. at 227, 376 S.E.2d at 121.24

24
See also Pauley, 162 W. Va. at 712, 255 S.E.2d at 880 (citations omitted) (“The
violation of the equal protection standard usually arises from state action; that is, the act
of a legislative body in setting, by some statute or ordinance, an arbitrary classification.
Here, these excess levies are determined by the vote of the people.”)

38

 Moreover, the narrow view that the only constitutional issue implicated in

the school financing scheme is whether students are being denied a “thorough and

efficient” education was previously rejected in Manchin, 179 W. Va. 235, 366 S.E.2d 74.

In Manchin, this Court found that W. Va. Code § 18A-4-5 (1985) violated equal

protection because it treated counties which had never passed excess levies more

favorably than those which had excess levies which were not continued, with respect to

salary equity funds. We contrasted equal protection challenges which implicated the

“thorough and efficient” clause with those which were more concerned with invidious

classifications which may be created by the school funding statutes:

In Pauley, the Court primarily concentrated on equal
protection violations with respect to the “thorough and
efficient” clause of the state constitution. . . . In the case now
before us, we look to this constitutional mandate as well;
however, our focus also involves a more traditional equal
protection analysis: a case of disparate treatment. . . . This
challenge is before this Court because the legislature has
created, by enacting W. Va. Code, 18A-4-5 [1985], an
arbitrary classification which we recognized in Pauley as
actionable under equal protection principles.

Id. at 240, n.8, 366 S.E.2d at 748, n.8.

Accordingly, we find that the amendments to W. Va. Code § 18-9A-11

continue to treat the Kanawha County BOE less favorably with respect to its

discretionary retainage and/or excess levy funds than other non-Special Act counties and,

therefore, continue to create a lack of uniformity in the State’s educational financing

39

system which is subject to strict scrutiny review and may stand only upon demonstration

that such lack of uniformity is necessary to further a compelling state interest.

2. Justification of the Unequal Treatment

Having determined that a lack of uniformity continues to exist

notwithstanding the amendments to W. Va. Code § 18-9A-11, the sole issue remaining is

whether petitioner can “demonstrate some compelling State interest to justify the unequal

classification.” Syl. Pt. 4, in part, Pauley. Although petitioners argue the importance of

libraries as education and the Legislative findings that libraries serve a “legitimate school

purpose,” at no time do they articulate how the unequal treatment occasioned by W. Va.

Code § 18-9A-11 is “necessary to further” a compelling state interest. Syl. Pt. 4, in part,

Board I (emphasis added). It is particularly unedifying to simply assert that libraries

serve important state interests and that obviously, the funding of libraries furthers this

interest. The question, more pointedly, asks why it is necessary that the Kanawha

County BOE be treated differently than other county boards of education--which counties

have libraries of their own but their boards of education are not required to contribute to

their funding--in order to further the compelling state interest of “libraries as education.”

It is incumbent upon petitioners, in defense of the statute, to provide some justification

for the unequal treatment of Kanawha County and they have failed to do so.

Consequently, this failure is fatal to their defense of W. Va. Code § 18-9A-11.25 See

25
The West Virginia BOE posits that, rather, it was the Kanawha County BOE
which failed in its burden before the circuit court. In particular, the West Virginia BOE
(continued . . .)
40

Manchin, 179 W. Va. at 241, 366 S.E.2d at 749 (finding that failure to “articulate any

specific facts that would justify [] disparate treatment” fatal to claim).

In fact, petitioners’ insistence on beating the drum of “libraries are

education” and attempts to illustrate that libraries are integral to our system of education

merely begs the question as to why, if so, are forty-six other counties not required to

divert funds in support of their libraries? Petitioners offer no rationale as to why in only

nine specified counties is it necessary to divert school board monies for furtherance of

this compelling state interest.26 As previously observed by Justice Davis in Board I, this

Court does not dispute in any measure the value of the public library system and its role

as an augment to education; it is, once again, quite simply not the issue: “The viability of

public libraries, however, is neither the issue presented for resolution in this case nor the

contends that the Legislature created a “factual test” for determining whether a particular
library serves a “legitimate school purpose” by virtue of the following language: “To the
extent that public schools recognize and choose to avail the resources of public libraries
toward developing within their students such legally recognized elements of a thorough
and efficient education . . . public libraries serve a legitimate school purpose[.]” W. Va.
Code § 18-9A-11(f). The West Virginia BOE argues that before an equal protection
challenge may be asserted, a Special Act library must prove that it does not avail itself of
the resources of the public library and that the Kanawha County BOE failed to do so.
However, we find that this argument is merely a thinly-veiled attempt to improperly shift
the burden of proof to the Kanawha County BOE to disprove what the petitioners contend
is the justification of the discriminatory classification.
26
This Court can discern no rationale as to why the nine Special Act counties were
subjected to the Special Acts, nor any particular similarities between them as pertains to
their public libraries or schools. Nor, however, is it proper for this Court to speculate
about any theoretical common thread in an effort to uncover the justification for the
unequal classification.

41

reason for or result of the decision reached by the majority of the Court.” Board I, 219

W. Va. at 811, 639 S.E.2d at 903 (Davis, J., concurring). Petitioners’ insistence that the

respondent’s argument disregards the Legislature’s findings regarding the value of

libraries in our educational system reflects petitioners’ failure to identify the critical

inquiry in defense of the equal protection challenge. Petitioners have, once again, failed

in their burden before the circuit court and this Court to provide a justification for the

disparate treatment of the Special Act counties; no such justification was provided in

2006 when Board I was decided and seven years later, this Court is still awaiting an

articulable justification as to why these particular nine counties are being treated

differently and why such disparate treatment is necessary to further a compelling state

interest.

Furthermore, to the same extent that the vitality of public libraries and their

role in education are non-dispositive of the equal protection analysis, the amount of the

diversion of school board funds is similarly immaterial. Both petitioners and, in

particular, the amici, focus heavily on the fact that mandated spending on the Kanawha

County Public Library is approximately one percent of the Kanawha County BOE’s total

budget; they note that in other Special Act counties, the spending is less than one percent.

They argue, in contrast, that the Kanawha County BOE’s funding of the Library is forty

percent of the total library budget and that loss of such funding would deal a “striking

blow to the state due to the sheer size of the population this library directly serves.” The

Court is not unsympathetic to the potential financial hardship occasioned by the finding

42

that the statute is unconstitutional. However, “[s]trangling constitutional mandates in

favor of budgetary constraints accords neither with the spirit nor the letter of the West

Virginia Constitution.” Adams, 196 W. Va. at 21, 467 S.E.2d at 162. As Justice

Cleckley wisely observed,

Section 1 [of Article XII] necessarily exerts pressure on our
Legislature and boards of education to make hard—and
sometimes undesirable—decisions while staying within
constitutional limitations. Thus, we are compelled to
underscore that financial hardship is an insufficient basis for
ignoring the West Virginia Constitution. The imposition of
these difficult choices is an inevitable and unavoidable
attribute that emanates from our Constitution.

Id. at 23, 467 S.E.2d at 164.27

Accordingly, we hold that W. Va. Code § 18-9A-11 (2008), as amended, to

the extent that it creates a lack of uniformity in the educational financing system by

requiring counties set forth in W. Va. Code § 18-9A-11(g)(1) through (9) to pay their

respective “Special Act” mandatory library funding obligations from their discretionary

retainage or transfer the obligation to their excess levies, violates equal protection and is

therefore, unconstitutional and unenforceable.28

27
See Bailey, 192 W. Va. at 539, 453 S.E.2d at 373 (stating that “the fact that the
[] amendments limit the inequity to one year does not eliminate our equal protection
concerns”).
28
Having determined that W. Va. Code § 18-9A-11 is unconstitutional under
equal protection principles, we find it unnecessary to further address whether it violates
Article XII, § 5 and Article X, § 1b of the West Virginia Constitution. See Perdue v.
(continued . . .)
43

 D.

Validity of the Kanawha Special Act

Finally, the Library argues that the circuit court exceeded the relief

requested in the complaint by declaring that not only was W. Va. Code § 18-9A-11

unconstitutional, but also the Kanawha Special Act itself. The circuit court’s order states,

in pertinent part, that

the Kanawha Special Act and Section 18-9A-11 of the Code,
to the extent they require the Kanawha Board to divert a
portion of its regular levy receipts for the support of the
Kanawha Library, or to transfer the Kanawha Board’s library
funding obligation to its excess levy revenues, by and hereby
are null and void and of no force and effect.”

(Emphasis added). The complaint requests a declaration “that W. Va. Code § 18-9A-11

and related provisions of the West Virginia Code, as interpreted and applied by the

defendants, in combination with the Special Act” is unconstitutional. (emphasis added).

The Library argues that the Kanawha Special Act has been previously upheld as

constitutional by this Court in Kanawha County Public Library v. The County Court of

Kanawha County, 143 W. Va. 385, 102 S.E.2d 712 (1958), and was not at issue in the

instant litigation; otherwise, it would have been made an original party to the action

rather than finding it necessary to intervene. Respondent argues generally that West

Wise, 216 W.Va. 318, 323, n.19, 607 S.E.2d 424, 429, n.19 (2004) (finding it
unnecessary to address additional assignments of error after determining
unconstitutionality of “Pension Liability Redemption Act”); State ex rel. Daily Mail Pub.
Co. v. Smith, 161 W.Va. 684, 690-91, n.3, 248 S.E.2d 269, 272, n.3 (1978) (finding it
unnecessary to address additional constitutional challenges after finding statute
unconstitutional on First Amendment grounds).

44

Virginia is a “notice pleading” state and that the parties had fair notice that the Kanawha

Special Act was implicated in the declaratory judgment action. Respondent argues

further that the Kanawha Special Act and W. Va. Code § 18-9A-11 work in conjunction

with one another by virtue of reference to the Special Acts in the amendment to W. Va.

Code § 18-9A-11. Neither party addresses the central issue of what the net effect is of

the circuit court’s inclusion of the Kanawha Special Act into the order.

We find that this assignment of error lacks substantial merit. First, it is

clear from the circuit court’s language that the Kanawha Special Act has only been

invalidated to the extent of the Kanawha County BOE’s library funding obligation; the

Kanawha County Commission and City of Charleston obligations remain intact.

Moreover, it is clear that the Special Act, which is the Act which triggers the funding

obligation in the first instance, was always in contention in the underlying declaratory

judgment action. The complaint, fairly read, seeks a declaration regarding Section 11 as

interpreted and applied “in combination with” the Kanawha Special Act. The circuit

court’s order effectuates precisely that--rendering unconstitutional and unenforceable the

interdependent portions of the Kanawha Special Act and W. Va. Code § 18-9A-11 “to the

extent” of the Kanawha County BOE’s library funding obligation. Finally, we find that

inasmuch as the Kanawha County BOE was not a party to Kanawha County Public

Library and, as a result, the Court did not address the constitutionality of the Kanawha

Special Act under the principles applied below and as analyzed herein, the circuit court’s

45

ruling as pertains to the Kanawha County BOE’s funding obligation under the Kanawha

Special Act was not constrained by Kanawha County Public Library.29

Therefore, we find no error in the language of the order of the circuit court

and likewise hold that Chapter 178 of the Acts of the Legislature, Regular Session, 1957

(also known as the “Kanawha Special Act”), insofar only as pertains to the obligation of

the Kanawha County Board of Education to divert a portion of its regular or excess levy

29
In Kanawha County Public Library, the Library sought a writ of mandamus to
require the Kanawha County Court (now known as the Kanawha County Commission) to
turn over to the Kanawha County BOE sums collected pursuant to the levy for the
support of the Library such that the Kanawha County BOE could fulfill their funding
obligation to the Library. 143 W. Va. at 386, 102 S.E.2d at 713. The Kanawha County
Commission made multiple challenges to the Kanawha Special Act, although its main
argument was that the Special Act violated Article VI, Section 39 which prohibits special
legislation: “[I]n no case shall a special act be passed, where a general law would be
proper, and can be made applicable to the case[.]” Id. at 388, 102 S.E.2d at 714. Citing a
litany of cases which turned on whether the special legislation interfered with the “fiscal
affairs” of government or whether a general law was unfeasible or impracticable, the
Court found that the Kanawha Special Act did not “deprive the County of Kanawha of
funds necessary to meet the expenses of [the] mandatory functions of government” and
therefore did not violate Article VI, Section 39. Id. at 399, 102 S.E.2d at 720. The Court
further noted that a general law would be impractical because “[i]n many of the counties,
there is no public library.” Id. at 391, 102 S.E.2d at 716.

The challenger to the Special Act in Kanawha County Public Library was the
Kanawha County Commission; the funding obligation as pertained to both the City of
Charleston and Kanawha County BOE was not squarely at issue, as acknowledged by the
Court: “The other two units of local government affected by the act are not parties to this
litigation.” Id. at 393, 102 S.E.2d at 717. Similarly, the constitutionality of the Kanawha
Special Act as pertains to the two remaining governing authorities—the City of
Charleston and Kanawha County Commission—is not presently before this Court and
therefore continues to be governed by Kanawha County Public Library.

46

receipts to the Kanawha County Public Library Board, is unconstitutional and

unenforceable.

IV. CONCLUSION

Therefore, for the reasons set forth hereinabove, the Court affirms the July

28, 2011 and September 27, 2011, orders of the Circuit Court of Kanawha County, West

Virginia.

Affirmed.

47