The Board of Education of the County of Cabell v. The Cabell County Public Library and the Greater Huntington Park and Recreation District

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

Spring 2024 Term FILED
March 15, 2024
_____________________
released at 3:00 p.m.
C. CASEY FORBES, CLERK
No. 23-691 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_____________________

THE BOARD OF EDUCATION OF THE COUNTY OF CABELL,
Respondent Below, Petitioner,

v.

THE CABELL COUNTY PUBLIC LIBRARY and THE GREATER HUNTINGTON
PARK AND RECREATION DISTRICT,
Petitioners Below, Respondents.

______________________________________________________________

Appeal from the Circuit Court of Cabell County
The Honorable Gregory L. Howard, Judge
Case No. 23-C-339

REVERSED AND REMANDED WITH INSTRUCTIONS
______________________________________________________________

Submitted: February 20, 2023
Filed: March 15, 2024

Kenneth E. Webb, Jr., Esq. Marc E. Williams, Esq.
Joshua A. Cottle, Esq. Randall L. Saunders, Esq.
William M. Lorensen, Esq. Thomas M. Hanock, Esq.
BOWLES RICE LLP Alexander C. Frampton, Esq.
Charleston, West Virginia NELSON MULLINS RILEY &
Counsel for the Petitioner SCARBOROUGH LLP
Huntington, West Virginia
 D. Martin Warf, Esq.
NELSON MULLINS RILEY &
SCARBOUGH LLP
Raleigh, North Carolina

Dennis C. Taylor, Esq.
Debra C. Price, Esq.
TAYLOR CONWAY PRICE PLLC
Huntington, West Virginia
Counsel for the Respondents

JUSTICE WOOTON delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “‘The constitutionality of a statute is a question of law which this Court

reviews de novo.’ Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672 S.E.2d 137 (2008).”

Syl. Pt. 2, State v. Connor, 244 W. Va. 594, 855 S.E.2d 902 (2021).

2. “‘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).

3. “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).

i
 4. To the extent that Chapter 207 of the Acts of the Legislature, Regular

Session, 1967, and Chapter 187 of the Acts of the Legislature, Regular Session, 2011,

require the Board of Education of the County of Cabell, West Virginia, to include funding

for the Cabell County Public Library and the Greater Huntington Park and Recreation

District, respectively, on its excess levy proposals, while the boards of fifty-three other

counties are free to seek voter approval of excess levy funding without such restriction, the

Acts violate the equal protection guarantees of the West Virginia Constitution, article III,

section 10, and are thus unenforceable.

ii
WOOTON, Justice:

The petitioner, The Board of Education of the County of Cabell (“the

Board”), appeals from the December 1, 2023, order of the Circuit Court of Cabell County,

West Virginia, granting The Cabell County Public Library’s (“the Library”) and The

Greater Huntington Park and Recreation District’s (“the Park District”) (collectively “the

respondents”), petition for a writ of mandamus and motion for judgment on the pleadings.

The circuit court’s rulings were based upon its conclusion that Chapter 207 of the Acts of

the Legislature, Regular Session, 1967 (“the Public Library Special Act”) and Chapter 187

of the Acts of the Legislature, Regular Session, 2011 (“the Park District Special Act”)

(collectively “the Special Acts”), 1 which respectively require the Board to provide funding

for the respondents through special and excess levies, are constitutional because they “do

not infringe upon the fundamental right of the children of Cabell County to an education.” 2

Upon careful review of the parties’ briefs and oral arguments, the appendix

record, and the relevant law, we reverse the judgment of the circuit court and remand for

that court to enter an order dismissing the respondents’ Verified Petition for a Writ of

Mandamus, Declaratory Relief, and Injunctive Relief.

1
The Park District Special Act reenacted an earlier version found at Chapter 194 of
the Acts of the Legislature, Regular Session, 1983.
2
See Syl. Pt. 3, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979) (discussed
infra in detail).
1
 I. Facts and Procedural Background

On March 9, 1967, the West Virginia Legislature passed the Public Library

Special Act for the stated purpose, inter alia, of “provid[ing] a stable method of financing

the operation of [the Cabell County Public Library].” 1967 W. Va. Leg. Acts, ch. 207,

Reg. Sess. To effectuate this purpose, the Public Library Special Act requires the Board

to “provide funds available to the board through special and excess levies,” such funds

levied at specific rates for specific classes of property during specific five-year periods in

which a levy is in effect. 3 Id. On April 5, 2011, the Legislature reenacted and passed the

Park District Special Act, which requires five different governing authorities to provide for

maintenance and operation of the Park District: the Cabell County Commission, the Wayne

County Commission, the Board, the City of Huntington, and the Town of Milton. 2011 W.

Va. Leg. Acts, ch. 187, Reg. Sess. With specific reference to the Board, the Park District

Special Act requires that it “shall provide funds available to the board through special and

excess levies for the first year of the act and annually thereafter[,]” again at specific rates

for specific classes of property during specific five-year periods. 4 Id.

3
It is important to note that this mechanism for funding the Library is not exclusive
under the Act, as it permits the Cabell County Commission to “support the public library
with any other general or special revenues or excess levies.” See 1967 W. Va. Leg. Acts,
ch. 207, Reg. Sess.
4
As is the case in the Library Special Act, the Park District Special Act permits the
Cabell County Commission, the Wayne County Commission, the City of Huntington, and
the Town of Milton, to “support the Park District with any other general or special revenues
or excess levies.” See 2011 W. Va. Leg. Acts, ch. 187, Reg. Sess.
2
 On May 18, 2018, Cabell County voters approved the Board’s excess levy

proposal for fiscal years beginning July 1, 2020, to July 1, 2025. The proposal included

$1,471,869.00 annually for the Library and $455,229.00 annually for the Park District,

figures which were based on estimated revenue from the relevant tax rates specified by the

Special Acts. The ballot presented to the voters provided, in relevant part, that this was an

[e]lection to authorize additional levies for the fiscal years
beginning July 1, 2020, July 1, 2021, July 1, 2022, July 1, 2023
and July 1, 2024, in the total amount of $24,128,149.00
annually for the purpose of paying the current expenses of The
Board of Education of the County of Cabell, for the following
purposes:

....

Cabell County Public Library – The operation of
the Cabell County Public Library as required by
Section 5, Chaptr 207, of the 1967 Acts of the
West Virginia Legislature - $1,471, 869.00

Greater Huntington Park and Recreation District
– The operation of the Greater Huntington Park
and Recreation District as required by Section 7,
Chapter 194, of the 1983 Acts of the West
Virginia Legislature - $455,229.00

....

In the event The Board of Education of the County of Cabell shall
obtain additional money by grant or otherwise from the state or
federal government, or from any agency of either, or from any
other sources, for the purposes aforesaid, levy monies specified
for these purposes may be used for the general operation of the
school system. The additional levies shall be on Class I property
22.95¢; on Class II property, 45.90¢; on Class III property 91.80¢;
on Class IV property, 91.80¢, for each tax year that property tax
revenues are not projected.

3
 The excess levy was passed by the citizens of Cabell County. Thereafter, for

the first three of the subject fiscal years the Board paid the respondents the amounts

specifically approved by the voters, plus an “equalization” payment representing the

difference between the amounts the relevant tax rates had been estimated to generate for

the respondents, i.e., the amounts shown on the ballot, and the amounts actually assessed

and collected over the course of each fiscal year. However, the Board did not make any

equalization payments for fiscal year 2024 and informed officials from the Library and the

Park District that it would not make such payments for fiscal year 2025. Additionally,

because the Board had determined that its funding needs for the upcoming five fiscal year

periods, fiscal years 2026-2030, would exceed its maximum levying capacity under the

legislatively determined rates, 5 it informed the respondents of its intent to reduce the

funding sought for the Library to $195,089.00 annually and to eliminate funding for the

Park District altogether in the excess levy proposal that was to be placed on the ballot and

voted upon during the 2024 primary election.

5
It is important to note that the Board does not have the option of increasing the
total amount it seeks through passage of an excess levy in order to cover funding for the
Library and Park District, because the West Virginia Constitution, article X, section 10,
limits the amount sought in an excess levy to one hundred percent of the “maximum rates
authorized and allocated by law for tax levies on the several classes of property[.]” Id. See
infra discussion.

4
 On September 14, 2023, the respondents filed a petition for a writ of

mandamus, as well as declaratory and injunctive relief, in the Circuit Court of Cabell

County, seeking restoration of the equalization payments withheld and to be withheld, and

requiring the Board to put library and parks funding on the upcoming excess levy proposal.

In opposition, the Board contended that the Special Acts are unconstitutional pursuant to

this Court’s resolution of a closely analogous issue in Kanawha County Public Library

Board v. Board of Education of County of Kanawha (“Board II”), 231 W. Va. 386, 745

S.E.2d 424 (2013). Following briefing and argument, the circuit court granted the

respondents’ request for mandamus relief and their motion for judgment on the pleadings.

The court found that the decision in Board II, which invalidated Special Acts requiring

county school boards in Berkeley, Hardy, Harrison, Kanawha, Ohio, Raleigh, Tyler,

Upshur, and Wood Counties to fund public libraries, does not apply to this case because

here, the Board is not faced with what we deemed to be the Hobson’s choice given to the

Board II counties of “pay[ing] their respective ‘Special Act’ mandatory library funding

obligations from their discretionary retainage 6 or transfer[ring] the obligation to their

excess levies[.]” Board II, 231 W. Va. at 389, 745 S.E.2d at 428, Syl. Pt. 12, in part

(emphasis added). In the instant case, the circuit court reasoned, because funding for the

respondents comes solely from the Board’s excess levy funds pursuant to the Special Acts,

“[n]either [Act] affects the funding that satisfies the requirement that the children of Cabell

6
“Discretionary retainage” was defined as “the amount by which the regular school
board levies exceeds [sic] the local share.” Board II, 231 W. Va. at 392, 745 S.E.2d at 430.
See infra note 14.
5
County receive a constitutionally adequate education.” Further, the court found that “pure

excess levies like those funding [the respondents]” were not subject to an equal protection

challenge in any event, citing State ex rel. Boards of Education of the Counties of Upshur

v. Chafin, 180 W. Va. 219, 376 S.E.2d 113 (1988).

The Board appealed, and this Court set an expedited schedule for briefing,

argument, and decision. On February 21, 2024, we issued an order reversing the December

1, 2023, order of the circuit court. 7

II. Standard of Review

It is well established that “‘[t]he constitutionality of a statute is a question of

law which this Court reviews de novo.’ Syl. Pt. 1, State v. Rutherford, 223 W. Va. 1, 672

S.E.2d 137 (2008).” Syl. Pt. 2, State v. Connor, 244 W. Va. 594, 855 S.E.2d 902 (2021).

In our review, we are guided by the principle that

“[i]n 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).”

7
Given the time constraints surrounding the Court’s decision, the order reversing
indicated that this detailed opinion would follow in due course.
6
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).

III. Discussion

The Board contends that the Special Acts, insofar as they require that funding

for the Library and the Park District be a part of the Board’s excess levy proposal, violate

the equal protection clause of West Virginia Constitution, article III, section 10. See State

ex rel. Harris v. Calendine, 160 W. Va. 172, 179 n.3, 23 S.E.2d 318, 324 n.3 (1977) (“In

the continuously evolving tradition of Anglo-American common law there can be no fixed

definition of due process of law, which is an inherently elusive concept; nevertheless, it is

apparent that due process of law under the West Virginia Constitution contains an equal

protection component the scope and application of which are coextensive or broader than

the equal protection clause of the Fourteenth Amendment to the United States

Constitution.”). 8 Because the respondents contend, and the circuit court so held, that

Special Acts of the Legislature pertaining to educational funding are not subject to equal

protection analysis pursuant to this Court’s decision in Chafin, we address this question as

a threshold issue. 180 W. Va. at 220, 376 S.E.2d at 114, Syl. Pt. 3.

8
This Court subsequently elevated the concept set forth in Harris into a syllabus
point. See Syl. Pt. 3, Robertson v. Goldman, 179 W. Va. 453, 369 S.E.2d 888 (1988) (“The
concept of equal protection of the laws is inherent in article three, section ten of the West
Virginia Constitution, and the scope and application of this protection is coextensive or
broader than that of the fourteenth amendment to the United States Constitution.”).

7
 The Chafin case was a successor to this Court’s seminal decision in Pauley

v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979), wherein we held in syllabus point three

that “[t]he 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,” and in syllabus point four that “[b]ecause

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.” 162 W. Va. at 672, 255 S.E.2d at 861, Syl. Pts. 3 & 4. In Chafin,

we were faced with the issue of whether such a “discriminatory classification” existed

between counties having excess levies and those without such levies, and if so, what if any

remedy was available to the latter. The circuit court found that there was indeed such a

discriminatory classification, and that the excess levy provisions of the West Virginia

Constitution, article X, section 10 9 were violative of equal protection principles in that

9
West Virginia Constitution, article X, section 10 provides:

Notwithstanding any other provision of the Constitution to the
contrary, the maximum rates authorized and allocated by law
for tax levies on the several classes of property for the support
of public schools may be increased in any school district for a
period not to exceed five years, and in an amount not to exceed
one hundred percent of such maximum rates, if such increase
is approved, in the manner provided by law, by at least a
majority of the votes cast for and against the same.

8
“dependence on county funds, particularly excess levies, promoted unequal treatment of

students in poor and wealthy counties.” Chafin, 180 W. Va. at 221, 376 S.E.2d at 115. The

court did not immediately adopt a plan for implementing its decision, in order to facilitate

what a special master had proposed as a legislative remedy: adoption of a constitutional

amendment to authorize a statewide excess levy. Id. at 223, 376 S.E.2d at 117. Ultimately,

the Legislature adopted such an amendment, which was submitted to the voters in a special

election held on March 5, 1988. The statewide excess levy failed. Id. Thereafter, the court

issued a supplemental order imposing its own remedy:

a sum equal to 20 percent of each county’s excess levy
revenues would be withheld from State school funding in fiscal
year 1988-89. The sums withheld were to be increased by an
additional 20 percent in each of the next four fiscal years.
These sums were to be distributed to other counties “on an
equitable basis prescribed by the court.”

Id. The State Tax Commissioner and the State Auditor appealed, and this Court reversed,

determining that

W. Va. Const. art. X, § 10, in plain words, authorizes the
residents of any county to approve by a majority vote the
imposition of higher taxes on property in the county for the
support of the county’s public schools. This authority may be
exercised “[n]otwithstanding any other provision of the
constitution to the contrary [.]” To the extent that the equal
protection mandates of our Constitution would dictate
otherwise, they must be deemed to be superseded by W.Va.
Const. art. X, § 10, as the last word from the people.

180 W. Va. at 226, 376 S.E.2d at 120.

(Emphasis added).
9
 Further, and of specific relevance to the issue raised by the respondents, we

concluded in Chafin that under Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E.

786 (1917), “the excess levy provision does not violate equal protection principles since

W.Va. Const. art. X, § 10 expressly authorizes these very levies. Excess levies are

withdrawn from the operation and scope of equal protection principles.” Id. at 225, 376

S.E.2d at 119 (emphasis added). Based on the cited language, the respondents claim that

any issues involving excess levies are insulated from equal protection review as a matter

of law. We disagree. First, we note that this broad proposition was implicitly rejected in

State ex rel. Board of Education for County of Grant v. Manchin, 179 W. Va. 235, 366

S.E.2d 743 (1988), where we held in syllabus point three that

W. Va. Code, 18A-4-5 [1985], to the extent that it fixes
a county’s entitlement to state equity funding based upon
whether an excess levy was in effect in that particular county
on January 1, 1984, and continues to limit that county’s
funding to the specific amount awarded on January 1, 1984,
despite the fact that the county’s voters subsequently rejected
continuation of the levy at the polls, violates equal protection
principles because such a financing system operates to treat
counties which never passed excess levies more favorably than
those which had excess levies in effect on January 1, 1984, but
failed to renew them. W.Va. Const. art. III, §§ 10 and 17.

Manchin, 179 W. Va. at 235-36, 366 S.E.2d at 743-44, Syl. Pt. 3. Second, the language in

Chafin upon which the respondents rely is inextricably tied to the particular facts and the

specific issue presented in that case: whether West Virginia Constitution, article III, section

10 effectively trumps West Virginia Constitution, article X, section 10. In this regard, the

only relevant syllabus point in Chafin states simply that “[t]he authority of the residents of

10
a county to vote for and approve an excess levy for the support of public schools in the

county, pursuant to W.Va. Const. art. X, § 10, is not subject to equal protection principles.”

180 W. Va. at 220, 376 S.E.2d at 114. In contrast, the instant case poses no challenge to

the validity of West Virginia Constitution, article X, section 10, and has nothing

whatsoever to do with the rights of citizens to vote for or against an excess levy. Rather,

the Board has challenged the constitutionality of the Special Acts, which impose specific

funding requirements in the excess levy proposals of two counties’ boards of education

while the remaining fifty-three boards are subject to no such requirements. Unlike Chafin,

which exempted the excess levies in that case from equal protection principles insofar as

they related to the disparity between counties that had no excess levies and those that did,

here the disparity relates to all counties and how they are permitted to spend excess levy

funds. Thus, the respondents cannot rely on Chafin to totally forestall an equal protection

challenge to the Special Acts at issue herein.

In the instant case, the circuit court agreed with the respondents that the

Special Acts are not subject to an equal protection challenge, but on a slightly different

ground: that “pursuant to Chafin, while excess levies may result in a disparity of funding

between counties, such excess levies are not entitled to equal protection attack because of

an ‘absence of State action, which foreclose[s] the funding disparities from an equal

protection challenge.’” 10 While we agree with the circuit court’s formulation of one of the

10
See Board II, 231 W. Va. at 404, 745 S.E.2d at 442.
11
legal principles underpinning the decision in Chafin, we disagree that Chafin applies in this

case because the two Special Acts at issue here – Special Acts that impose mandatory

funding requirements on the Board’s excess levy proposals in Cabell County, leaving the

boards of fifty-three other counties free to seek voter approval of excess levy funding for

whatever purposes they deem proper and necessary – clearly constitute “State action.” See

generally Crawford v. W. Va. Dep’t of Corr.-Work Release, 239 W. Va. 374, 381, 801

S.E.2d 252, 259 (2017) (quoting Syl. Pt. 2, Israel by Israel v. W. Va. Secondary Sch.

Activities Comm’n, 182 W.Va. 454, 388 S.E.2d 480 (1989) (“[e]qual 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.”). Thus, the instant case is not governed by Chafin, but presents

an entirely separate issue: may the Legislature impose specific funding requirements which

must be included in the excess levy proposals of some but not all county boards of

education?

To answer that question, we begin with a brief history of this Court’s prior

decisions involving Special Acts of the Legislature requiring county school boards to

provide funding for public libraries and, in the case of Cabell County, for the Park District

as well. There are eleven counties whose boards were governed by Special Acts: 11 the nine

11
We noted in Board II that

[t]his Court can discern no rationale as to why the nine
Special Act counties [at issue in that case] were subjected to
12
counties whose Acts were at issue in Board II, which were initially required to fund their

respective counties’ public libraries from their regular annual levies, and Cabell and

Lincoln Counties, whose Special Acts require them to provide such funding from their

excess levies, assuming such levies are approved by the voters.

In Board of Education of the County of Kanawha v. West Virginia Board of

Education (Board I), 219 W. Va. 801, 639 S.E.2d 893 (2006), this Court addressed a

constitutional challenge brought by the Kanawha County Board of Education (“the

Kanawha County Board”) to West Virginia Code sections 18-11A-11 to -12 (2022) 12 on

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.

231 W. Va. at 406 n.26, 745 S.E.2d at 444 n.26. The same observation may be made in the
instant case which involves Cabell County, one of the remaining two Special Act counties.
12
West Virginia Code sections 18-9A-11 to -12 are contained in the comprehensive
Public School Support Plan, W. Va. Code §§ 18-9A-1 to -26 (2022) (“the school funding
formula”), which the Legislature designed to ensure that all county school boards are
financially equipped to provide the “thorough and efficient system of free schools”
guaranteed by the West Virginia Constitution, article XII, section 1. We explained the
operation of sections 11 and 12 as follows:

Very broadly, the operation of the formula may be
described as follows. First, a county’s estimated level of need,
or “basic foundation program,” is determined. The basic
foundation program is the total sum required for each of seven
categories of need. viz., professional educators, service
personnel, fixed costs, transportation costs, administrative
costs, other current expenses and substitute employees, and
13
the ground that “[these provisions] operate[d] 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.” 219 W. Va. at 808, 639 S.E.2d at 900. Because the

statutes provided no downward adjustment of Kanawha County’s local share, see supra

note 12, to reflect the monies which were required by Special Act to be diverted from its

regular tax levy to the library, the county suffered a diminution of its state funding which

is based on “the difference between the basic foundation program and the local share.” Id.

at 804, 639 S.E.2d at 896; see also W. Va. Code § 18-9A-12.

The circuit court found “that in fiscal year 2002–2003, $2,209,600.00 of

Kanawha County’s regular tax levy funds were remitted under the Special Act to the

Kanawha County Public Library, and that in fiscal year 2003-2004, the diverted amount

was $2,228,070.00.” 219 W. Va. at 805, 639 S.E.2d at 897. Further,

improvement of instructional programs. W. Va. Code, 18-9A-
12.

Second, the county’s “local share” must be computed.
W. Va. Code, 18-9A-11(a). Local share is the amount of tax
revenue which will be produced by levies, at specified rates,
on all real property situate in the county. Local share thus
represents the county’s contribution to education costs on the
basis of the value of its real property. State funding is provided
to the county in an amount equal to the difference between the
basic foundation program and the local share. W. Va. Code,
18-9A-12.

Board I, 219 W. Va. at 804, 639 S.E.2d at 896.
14
 when the State school board calculate[d] the County school
board’s local share under W. Va. Code § 18-9A-11, for each
fiscal year, it include[d] in the local share the portion of the
regular tax levy remitted to the library pursuant to the Special
Act. The County school board explain[ed] in its brief to this
Court that “the effect of this fictitious inflation of the Kanawha
Board’s Local Share was a pro tanto diminution in these
amounts in such fiscal years of the Kanawha Board’s [state
share].”

219 W. Va. at 805, 639 S.E.2d at 897. However, notwithstanding these findings, which

made it incontrovertibly clear that the operation of the Kanawha County Special Act

significantly diminished the amount of funding the county’s board of education would

otherwise have received pursuant to West Virginia’s school funding formula, the circuit

court denied relief on the ground that “the [Kanawha County Board of Education] is

providing a thorough and efficient education to Kanawha County’s students. In doing so,

the [Board] is able to provide salary supplements to the teachers and to carry over surplus

every fiscal year ranging from $6,000,000.00 to $13,000,000.00.” Id.

On appeal this Court reversed, holding that

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.

219 W. Va. at 802, 639 S.E.2d at 894, Syl. Pt. 6.

15
 In the wake of Board I the Legislature attempted to remedy the constitutional

infirmity identified by this Court, not by amending West Virginia Code section 18-9A-12

but rather by amending section 18-9A-11, in two relevant respects. First, in the apparent

belief that our opinion in Board I rested wholly or in significant part on the Court’s implicit

holding that public libraries serve a “non-school purpose,” the Legislature enacted new

subsection 11(f), which specifically stated that such libraries serve a “legitimate school

purpose.” 13 W. Va. Code § 18-9A-11(f) (2008). Second, the Legislature also enacted new

subsection 11(h), which provided that

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

13
We subsequently dispelled the Legislature’s assumption as to the significance of
the “non-school purpose” language in Board I:

“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 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.”

Board II, 231 W. Va. at 403, 745 S.E.2d at 441 (footnote omitted).

16
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 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[.]

17
W. Va. Code 18-9A-11(h) (2008) (emphasis added). Thereafter, the Kanawha County

Board filed suit against the West Virginia Board of Education (“the State Board”),

challenging the constitutionality of both revised West Virginia Code section 18-9A-11 and

Chapter 178 of the Acts of the Legislature, Regular Session, 1957 (“the Kanawha Special

Act”) on equal protection grounds. The Kanawha County Public Library Board (“the

Kanawha County Library”) intervened as a party defendant. See Board II, 231 W. Va. at

390, 745 S.E.2d at 428. Although the case languished for several years without factual or

legal development, the circuit court ultimately granted summary judgment for the Kanawha

County Board, finding that both the statute and the Special Act violated equal protection

principles. Of specific relevance to the instant case, the court concluded that the

Legislature’s action in

moving the obligation to the excess levy was . . . 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.”

Board II, 231 W. Va. at 394, 745 S.E.2d at 432 (emphasis added).

The Kanawha County Library and the State Board appealed, and this Court

affirmed:

[T]his Court finds that the fact that the Kanawha County BOE
is being treated differently than forty-six other counties 14 by

The Court’s reference to “forty-six other counties” makes it clear that the decision
14

in Board II applied by its express terms only to the nine Special Act counties which were
18
 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 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.

Id. at 404, 745 S.E.2d at 442 (footnote added). Succinctly put, we found that the crux of

the equal protection problem inherent in Special Acts was not the revenue stream, i.e.,

regular levies or excess levies, but rather the fact that Special Act counties were treated

differently than non-Special Act counties “by virtue of [their] mandatory library funding

obligation[s.]” Id.

In the instant case, the Board contended below, and argues on appeal, that

the mandatory library funding provisions contained in the Public Library Special Act and

the mandatory park district funding provisions contained in the Park District Special Act

violate equal protection pursuant to this Court’s decision in Board II. The circuit court

originally required to fund their library obligations from their discretionary retainage. See
supra text. The question before us in the instant case is whether the Court’s rationale in
Board II would also apply to Cabell County, one of the two remaining Special Act counties,
notwithstanding that its Library (and Park District) funding obligations have never had any
impact on the monies it receives pursuant to the school funding formula. See W. Va. Code
§§ 18-9A-1 to -26.
19
disagreed, finding that Board II does not apply because in that case we specifically

identified only nine counties affected by our decision – all counties whose boards of

education were required by Special Acts to divert a portion of their regular levy receipts

to support their counties’ public libraries. The court wrote that “[i]n sharp contrast, the

Public Library Special Act and the Park District Special Act do not burden the Cabell

BOE’s regular levy receipts or its discretionary retainage, and the Cabell BOE is not

required to make a ‘Hobson’s choice.’” (Emphasis added). Finally, the court found it

significant that the money collected pursuant to Cabell County’s excess levies “never

becomes part of the Cabell BOE’s budget or enters its accounts.”

We agree with the circuit court that the Cabell County and Lincoln County

Special Acts were not directly addressed in Board II, see supra note 14, but disagree that

ipso facto the case does not apply to the constitutional challenge presented here. Similarly,

we agree with the court that the Cabell County Special Acts are different from those of the

nine counties involved in the Board II litigation, in that they place a funding obligation on

the county’s excess levy receipts rather than on its regular levy receipts. However, it is

clear that this difference is immaterial to the constitutional issue presented here: whether

the Special Acts at issue create a discriminatory classification and, if so, whether there

exists a compelling State interest to justify this classification. See Pauley, 162 W. Va. at

672, 255 S.E.2d at 861, Syl. Pt. 4: “Because education is a fundamental, constitutional right

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

20
the State’s educational financing system cannot stand unless the State can demonstrate

some compelling State interest to justify the unequal classification.”

As was the case in Board II, the first question is easily answered because “the

fact that the [Board] is being treated differently than [fifty-three] other counties by virtue

of its mandatory library funding obligation [and Park District funding] is fairly manifest.”

Board II, 231 W. Va. at 404, 745 S.E.2d at 442. Pursuant to the West Virginia Constitution,

article X, section 10, every county in this State is authorized to increase “tax levies on the

several classes of property for the support of public schools . . . for a period not to exceed

five years,” if such increase is approved by a majority of the county’s voters. As of mid-

2022, forty-four counties had passed excess levies pursuant to this constitutional grant of

authority. See Ellie Heffernan, West Virginia schools rely on voters to approve additional

funding. When residents vote down a levy, students suffer, MOUNTAIN STATE SPOTLIGHT,

August 25, 2022, http://www.mountainstatespotlight.org/2022/08/25/west-virginia-

school-levy-funding-fails/. Significantly, only two of those counties, Cabell and Lincoln,

are required by virtue of the Special Acts herein to put line items for libraries (and in the

case of Cabell County, park services as well) on their excess levy proposals; the other forty-

two counties, as well as the eleven counties whose voters have not approved excess levies,

have no such restrictions placed on the uses for which excess levy funds may be sought.

Thus, Cabell and Lincoln Counties are disadvantaged in two significant ways vis-à-vis the

other fifty-three counties: first, their boards of education have less freedom of choice with

respect to what educational “extras” to ask the voters to fund, since they are required by

21
the Special Acts to make library funding (and park funding) two of those “extras”; and

second, they run a greater risk of “failure of their excess levy and the educational ‘extras’

it affords by placing a large library [and park service] funding line item on the ballot.”

Board II, 231 W. Va. at 404, 745 S.E.2d at 442. Additionally, as noted supra the Board

does not have the option of meeting both its own identified needs as well as its obligations

to the Library and the Park District by increasing the total amount of tax revenues sought

in an excess levy, because the West Virginia Constitution, article X, section 10, limits the

amount sought to one hundred percent of the “maximum rates authorized and allocated by

law for tax levies on the several classes of property[.]” Id. In short, the total amount sought

in an excess levy is circumscribed by factors beyond the Board’s control: the amount of

Class I, Class II, Class III, and Class IV property located in Cabell County and the statutory

tax rates for such property.

In summary, the requirements of the Special Acts result in less favorable

treatment of Cabell and Lincoln Counties with respect to choosing what their boards of

education deem to be the “extras” that will best enhance their educational offerings. See

231 W. Va. at 388, 745 S.E.2d at 427-28, Syl. Pt. 11, in part (quoting Board I, 219 W. Va.

at 803, 639 S.E.2d 895, Syl. Pt. 6, in part) (holding that West Virginia Code section 18-

9A-12 “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.”).

22
 Our initial inquiry having demonstrated the clear existence of less favorable

treatment of Cabell and Lincoln Counties with respect to the requirements imposed upon

their excess levy proposals, we turn to the question of whether the respondents can

demonstrate some compelling State interest to justify the inequality. See Pauley, 162 W.

Va. at 672, 255 S.E.2d at 861, Syl. Pt. 4, in part; accord Syl. Pt. 2, State ex rel. Bd. of Educ.

for Cnty. of Randolph v. Bailey, 192 W. Va. 534, 535, 453 S.E.2d 368, 369 (1994). 15 This

question is also easily answered because the respondents have not suggested the existence

of any State interest, let alone a compelling State interest, to justify the requirement that

the Boards of Education of Cabell and Lincoln Counties – alone among the State’s fifty-

five counties – include library funding and park service funding on any excess levy

proposal, and we discern none. See supra note 11.

In light of the foregoing, we find that the instant case is controlled by the

rationale underpinning our decision in Board II, which focused on the “lack of uniformity

15
We reject the respondents’ argument that a compelling interest standard set forth
in Pauley and its progeny does not apply to this case because excess levy receipts have no
direct effect on the school funding formula established by the Legislature to create a
thorough and efficient system of public schools. See W. Va. Code §§ 18-9A-1 to -26. The
“extras” provided by excess levy funding enable a county to enhance the educational
opportunities available to its students, all of which serves what we have described as “the
people’s clear mandate to the Legislature, that public education is a prime function of our
State government.” Pauley, 162 W. Va. at 719, 255 S.E.2d at 884 (footnote omitted); see
also Syl. Pt. 13, State v. Beaver, 248 W. Va. 177, 887 S.E.2d 610, 616 (2022) (“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.”).
23
in the educational financing system.” In Board II, the lack of uniformity arose from the

operation of West Virginia Code section 18-9A-11 on nine Special Act counties, leaving

forty-four counties free of any obligation to fund their public libraries. In the instant case,

the lack of uniformity arises from the operation of the Cabell County Special Acts, which

impose a requirement that the Board include funding for the Library and the Park District

on any excess levy proposal, leaving the remaining fifty-three counties free of any such

obligation. Accordingly, we hold that to the extent that Chapter 207 of the Acts of the

Legislature, Regular Session, 1967, and Chapter 187 of the Acts of the Legislature, Regular

Session, 2011, require the Board of Education of the County of Cabell, West Virginia, to

include funding for the Cabell County Public Library and the Greater Huntington Park and

Recreation District, respectively, on its excess levy proposals, while the boards of

education of fifty-three other counties are free to seek voter approval of excess levy funding

without such restriction, the Acts violate the equal protection guarantees of the West

Virginia Constitution, article III, section 10, and are thus unenforceable.

We turn now to the second issue in this case: whether the respondents are

entitled to equalization payments for fiscal years 2024 and 2025 pursuant to Cabell County

voters’ passage of the May 18, 2018, excess levy. The Board first argues, in effect, that this

issue is wholly subsumed by the preceding issue, i.e., that if the Special Acts are

unconstitutional insofar as they compel any Library or Park District funding, they cannot

be read to compel funding beyond the specific amounts set forth on the excess levy ballot.

We disagree, as our decision today cannot and does not erase history; on May 28, 2018,

24
the voters of Cabell County approved passage of an excess levy providing funding to the

Library and the Parks District for a five-fiscal-year period, and the exercise of their rights

under West Virginia Constitution, article X, section 10, must prevail notwithstanding the

Board’s belated attack on the constitutional validity of its own levy proposal. Thus, to

resolve the question of whether the respondents are entitled to equalization payments for

fiscal years 2024 and 2025, we review what information voters were given on the May 18,

2018, excess levy ballot because “[t]he true interpretation of the language of a special levy

proposal is the meaning given to it by the voters of the county, who, by their approval of

the special levy, consent to be taxed more heavily to provide the necessary funds.” Syl. Pt.

1, Thomas v. Bd. of Educ. of McDowell Cnty., 164 W. Va. 84, 261 S.E.2d 66 (1979)

(emphasis added).

First, as set forth supra, voters were informed that the Board was requesting

passage of an excess levy to provide certain sums of money for certain purposes, including

$1,471,860.00 annually for the Library and $455,229.00 annually for the Park District.

Significantly, the ballot did not indicate that the amounts sought, either in total or for the

twelve specific categories of need, 16 were estimates; rather, the ballot stated simply that

16
The twelve categories included: Professional Salary, $7,05,547.00; Service
Salary, $2,050,000.00; Substitute, $1,101,000.00; Athletics, $3,336,378.00; Personnel
Taxes and Benefits, $3,336,378.00; Textbooks, Digital Resources, Supplies, Postage,
Insurance and Travel, $2,287,538.00; Contracted Services, $1,700,000.00; Construction,
Repair and Maintenance, $1,232,000.00; Equipment and Rentals, $1,691,937.00; Cabell
County Public Library, $1,471,869.00; Greater Huntington Park and Recreation District,
25
this was an “[e]lection to authorize additional levies for the fiscal years beginning July 1,

2020, July 1, 2021, July 1, 2022, July 1, 2023 and July 1, 2024, in the total amount of

$24,128,149.00 annually for the purpose of paying the current expenses of [the Board.]”

(Emphasis added). 17

The respondents point out language on the ballot specifically referencing

“Section 5, Chaptr 207, of the 1967 Acts of the West Virginia Legislature” and “Section 7,

Chapter 194, of the 1983 Acts of the West Virginia Legislature[.]” See supra text. Based

$455,229.00; Technology, $1,119,651.00. The total for all twelve categories was
$24,128,149.00.

17
The ballot further provided that

[i]n the event The Board of Education of the County of Cabell
shall obtain additional money by grant or otherwise from the
state or federal government, or from any agency of either, or
from any other sources, for the purposes aforesaid, levy monies
specified for these purposes may be used for the general
operation of the school system. The additional levies shall be
on Class I property 22.95¢; on Class II property, 45.90¢; on
Class III property 91.80¢; on Class IV property, 91.80¢, for
each tax year that property tax revenues are not projected.

(Emphasis added).

The Board argues that the difference between the amounts the relevant tax rates
were estimated to generate for the Library and the Park District, i.e., the specific amounts
listed on the excess levy ballot, and the amounts actually assessed and collected over the
course of each fiscal year, falls within the rubric of “additional money . . . from any other
sources” and can thus “be used for the general operation of the school system[.]” We find
it unnecessary to resolve this issue, although we note that the principle of ejusdem generis
would militate against construing “additional money . . . from any other sources” as broadly
as the Board urges.
26
on these references, the respondents contend that voters were on notice that (a) per Section

5(B) of the Library Special Act, the Library was to receive “per $100 of assessed valuation

of the property taxable in the area served by it according to the last assessment for state

and county purposes” the following amounts: 1.4 cents for Class I Property; 2.8 cents for

Class II Property, and 5.6 cents for Class III and Class IV Properties; and (b) per Section

7(b)(3) of the Park District Special Act, the Park District was to receive “on each $100 of

assessed valuation of the property taxable in the area served by it according to the last

assessment for state and county purposes” the following amounts: 0.433 cents for Class I

Property, 0.866 cents for Class II Property, and 1.73 cents for Class III and Class IV

Property. Accordingly, the respondents argue, the above-cited language of the Special Acts

controls over the specific amounts shown on the excess levy ballots, and the respondents

are entitled to what the Special Acts give them: equalization payments representing the

difference between the estimated tax receipts shown on the ballot and the actual amounts

assessed and collected during each relevant fiscal year.

The circuit court agreed with the respondents, finding that the Acts “do not

limit the amounts due . . . to the estimates included on the levy ballots. Instead, the amounts

due are the actual taxes assessed and collected. Under the language of the Special Acts, the

payment of these amounts is not discretionary.”

Although we find this to be a close question, “we must be guided by the

purpose the voters of [Cabell] County sought to effect in approving the special levy rather

27
than by the intention of those who interpreted the proposal.” Thomas, 163 W. Va. at 89,

261 S.E.2d at 69-70. In that regard, specific amounts sought for Library and Park District

funding were set forth on the face of the ballot for voters to read, see supra note 16, and

there was no indication that these were only estimated amounts. 18 Further, although the

ballot referenced the Special Acts, it did not set forth any of the provisions contained

therein and thus cannot reasonably be said to have put voters on notice of those provisions.

Therefore, under the particular facts and circumstances of this case, we find that at the May

28, 2018, excess levy election, the “meaning given to [the ballot language] by the voters

of the county” 19 was that they were being asked to provide a line-item amount of

$1,471,860.00 in yearly funding for the Library and $455,229.00 in yearly funding for the

Park District, not a percentage of actual levy collections.

In light of the foregoing, we conclude that although the Board was and is

required to make annual payments in the amounts specified on the excess levy ballot to the

Library and the Park District for fiscal years 2021, 2022, 2023, 2024, and 2025, it was not

required to make equalization payments for fiscal year 2024 and is not required to make

such payments for fiscal year 2025. The circuit court’s decision, which came to a contrary

conclusion, is accordingly reversed.

The fact that the amounts were “approximate” was referenced in the Board’s Levy
18

Order but not on the ballot which was presented to the voters.
19
See Thomas, 164 W. Va. at 84, 261 S.E.2d at 67, Syl. Pt. 1, in part.
28
 IV. Conclusion

For the foregoing reasons, the circuit court’s order of December 1, 2023, is

reversed, and this case is remanded with instructions for the court to enter an order

dismissing the respondents’ Verified Petition for Writ of Mandamus.

Reversed and remanded with instructions.

29