Extracts from the Recht Decision of May 1982
IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA
Ms2002-075
Janet Pauley; Duane Berkman Pauley, an infant, by Janet Pauley, his parent; and Delbert Thurman Pauley, Jr., an infant, by Janet Pauley, his parent, and on behalf of all other similarly situated, Plaintiffs,
vs.
Larrie Bailey, Treasurer of the State of West Virginia; Glen B. Gainer, Jr., Auditor of the State of West Virginia; West Virginia State Board of Education, Mary Martha Merritt, President, Members William M. Smith, James P. Clark, Duke A. McDaniel, Paul J. Morris, Bob E. Meyers, Carl J. Roncaglione, Charles H. Wagoner, Richard N. Schnacke, and Robert Ramsey, in their capacities as Members of the West Virginia State Board of Education; and Roy Truby, State Superintendent of Schools; David C. Hardesty, Tax Commissioner of the State of West Virginia; Board of Education of the County of Lincoln, a statutory corporation; Charles S. McCann, Lincoln County Superintendent of Schools; County Commission of Lincoln County; and Dennis Browning, Lincoln County Assessor, Defendants.
CIVIL ACTION NO. 75-1268
I.
This action was instituted in the Circuit Court of Kanawha County, by the parents of five (5) children who attended, at the time of the commencement of the action, public schools in Lincoln County, West Virginia.[1]
The action was filed pursuant to West Virginia Code Ch. 55, Art. 13, Sec. 1, et seq., cited as the "Uniform Declaratory Judgment Act".[2]
The relief sought by the plaintiffs is a declaration that they have been denied a thorough and efficient system of education in violation of Article XII, Section 1 of the Constitution of West Virginia, and further denied equal protection of the laws in violation of Article III, Sections 10 and 17, as a result of discriminatory classifications found in the educational financing system.
The constitutional infirmities raised by the plaintiffs within the language of the two cited provisions can be summarized as:
1. The Legislature of the State of West Virginia has not provided by general law a thorough and efficient system of free schools in that it failed to:
a. Define and establish standards of a high quality system of education, and
b. Guarantee to each child enrolled in free schools that the standards which should be adopted, would be available, due to the lack of adequate financing to assure the implementation of the standards.
2. That the system of financing education throughout the State creates discriminatory classifications which cannot stand, as the State cannot demonstrate some compelling State interest to justify the unequal classification.
The plaintiffs finally contend, that upon the declaration of these unconstitutional ingredients of the system of free education in West Virginia, that a "Master" be appointed to monitor the transition from an unconstitutional to a constitutional system under the aegis of this Court.
The original complaint was dismissed by the Circuit Court of Kanawha County (Robert K. Smith, J). That case was decided upon the pleadings, admissions, affidavits and statistical material from public documents. However, no testimony was taken. Judge Smith did make findings of fact, the essence of which suggest at the very least that the public school system in Lincoln County was less than thorough and efficient.
However, notwithstanding the findings in relation to the condition of the quality of education in Lincoln County, Judge Smith held that there was an insufficient showing of any correlation between a deficient educational system that existed, and the school financing system in West Virginia.
In reversing Judge Smith, the West Virginia Supreme Court recognized that the granting of the Motion to Dismiss was procedurally erroneous, as genuine issues of fact existed, militating against disposition by a Motion to Dismiss or a Motion for Summary Judgment.
However the Supreme Court did not facilely reverse the lower court. In Pauley, et al v. Kelly, et al, supra., the Court provided a detailed legal historical analysis of constitutional provisions similar to West Virginia as they relate to education, as well as a mandate for further evidentiary development committed to certain and distinct guidelines.
Thereafter, this Court conducted a non-jury trial, commencing on August 10, 1981, and continuing, albeit not successively, for a period in excess of forty (40) days.
During the many days of trial, this Court attempted, with strict fidelity, to develop the issues which were directly or by implication outlined by the Court in Pauley, et al v. Kelly, et al, supra. These are summarized as follows:
1. What are suitable standards to set the core values of a thorough and efficient educational system;
2. Whether Lincoln County Schools specifically, and the public schools of West Virginia generally, meet these standards of a thorough and efficient educational system;
3. Whether the equal protection requirements in terms of equality of substantive educational offerings have been met;
4. Whether the system of financing public education in West Virginia violates the constitutional guarantees of equal protection, and in providing a thorough and efficient system of free schools;
5. Whether the appraisal and assessment practices in the State of West Virginia comply with constitutional and statutory requirements;
6. Whether all state and local officers, agencies and departments, including but not limited to State Board of Education; State Superintendent of Schools; Tax Commissioner of the State of West Virginia; local county boards of education; local superintendents of schools, and local assessors are performing their constitutional and statutory responsibilities.
It is within this framework that this Opinion, Findings and Conclusions are made.
[1.] The original action was styled Pauley, et al., v. Kelly, et al An amended complaint was filed as Pauley, et al v. Bailey, et al., which reflects the change in the office of the Treasurer of the State of West Virginia, and further includes, the Auditor of the State of West Virginia, the members of the West Virginia State Board of Education, the State Superintendent of Schools, the Tax Commissioner of the State of West Virginia, the Board of Education of the County of Lincoln, the Superintendent of Schools of Lincoln County, the County Commission of Lincoln County, and the County Assessor of Lincoln County.
[2.] The original action was filed as a class action on behalf of other students in the Lincoln County school system. See West Virginia Rules of Civil Procedure 23(a). While the amended compalint [sic] which was filed subsequent to the decision by the West Virginia Supreme Court of Appeals in Pauley, et al v. Kelly, et al., 255 S.E.2d 859 (1979), did not expand the class specifically to include all children attending the public elementary and secondary schools of each county in West Virginia, there was no attempt during the course of the trial in this matter to exclude this general class from the impact of this decision. Accordingly, this Court finds that the pleadings should be treated in all respects as containing a broader class than that contained in the amended complaint. This is accomplished by the application of West Virginia Rules of Civil Procedure 15(b).
RESPONSIBILITY OF THE STATE VERSUS COUNTY
BOARDS OF EDUCATION
Before undertaking a factual and legal analysis of the testimony, exhibits and arguments of counsel, it is imperative to discuss the relative roles of the State and the various fifty-five (55) local boards of education.
One of the more agonizing aspects of this case is a reconciliation of the constitutional mandate imposed upon the Legislature, and the direct responsibility of county school systems to "control and manage all of the schools and school interests for all school activities" for the benefit of the children of the counties in which they reside. See West Virginia Code Chap. 18, Art. 5, Sec. 13.
The defendants, that are directly associated with the State Board of Education, take the position that they have no direct obligation to implement a thorough and efficient system of education. Their position is expressed in terms of recognizing their power in general supervisory terms over county school systems. They argue that it is the county that is directly responsible for the implementation of a school system for the benefit of its children.
The question that thus presents itself is whether there would be an erosion of the local authority, if the Thorough and Efficient clause is interpretated in such a manner that requires: (1) development of a statewide, high quality standard of education, and (2) the method and means these standards are implemented on a statewide basis.
This Court does not find that the defendants' interpretation of its duties and responsibilities vis-a-vis local boards, to be persuasive. Indeed, Pauley, et al v. Kelly, et al., supra, is quite specific in its demand that the Thorough and Efficient clause requires the development of certain high quality educational standards, and that it is in part by these quality standards that the existing educational system must be tested. See Pauley, et al v. Kelly, et al., supra, at 255 S.E.2d 859, 878.
Without deprecating the role of the county boards of education, their function must be viewed strictly within the constitutional requirement that the Legislature must provide for a thorough and efficient system of education.
The fountainhead of the county boards' authority must devolve from the State. If the State's position, as expressed in their brief is adopted, the result would be a reversal of the respective roles of State and local boards of education.
Education has been expressed in terms of being a statewide concern. See Ohio Valley Contractors v. The Board of Education of Wetzel County, et al., _____W.Va. ______, 284 S.E.2d 374 (1982).
The most significant aspect of the relative roles of the State and counties in regard to educating the children of this State, is, that while the Legislature may feel that they are providing for a thorough and efficient system of education by delegating certain responsibility to county boards of education, if the evidence establishes that, on a statewide basis, each student is not being offered a high quality system of education, then, the Legislature must take an active and direct role to assure that its constitutional duty is being performed.
Our Leglislature [sic] has decided that local school boards are an effective vehicle to help provide a thorough and efficient school system. See Ohio Valley Constractors [sic] v. The Board of Education of Wetzel County, supra. However, it is the Legislature that must: (1) adopt standards of a high quality system of education; and (2) provide resources to guarantee that these standards are being implemented. The vehicle for this implementation, certainly should be the county boards of education. However, unless the standards and resources are made available, the counties are rendered impotent to carry out its delegated responsibility.
. . .
CONCLUSIONS OF LAW
The Court hereby concludes as a matter of law, and pursuant to West Virginia Code Ch. 55, Art. 13, Sec. 1 et seq., hereby declares, as follows:
1. The state's duty to provide a thorough and efficient education is imposed by Article XII, Sec. 1 of the West Virginia Constitution which provides: "The legislature shall provide, by general law, for a thorough and efficient system of free schools." This education provision requires the legislature to privide [sic] a public school system of high quality.
2. A thorough and efficient system must develop "as best the state of education expertise allows, the minds, bodies and social morality of its charges to prepare them for useful and happy occupations, recreations and citizenship,..." Pauley v. Kelly, 255 S.E. 2d at 977-78. To implement such a system, high quality physical facilities, instructional materials, personnel, and careful state and local supervision must be provided; and thorough and efficient educational standards as well as funding to assure that they can be implemented in every county, are required. Thorough and efficient educational standards are standards that clearly define the specific resources, including staff, instructional materials and supplies, equipment and facilities, necessary to provide high quality educational offerings for all essential educational programs and services.
3. As recognized by the West Virginia Supreme Court of Appeals in Pauley v. Kelly, 255 S.E. 2d 859, 877 (1979), there are eight general elements of a thorough and efficient system of education:
(a) Literacy,
(b) The ability to add, subtract, multiply and divide numbers,
(c) Knowledge of government to the extent the child will be equipped as a citizen to make informed choices among persons and issues that affect his own governance,
(d) Self-knowledge and knowledge of his or her total environment to allow the child to intelligently choose life work -- to know his or her options,
(e) Work-training and advanced academic training as the child may intelligently choose,
(f) Recreational pursuits,
(g) Interests in all creative arts such as music, theatre, literature, and the visual arts, and,
(h) Social ethics, both behavioral and abstract, to facilitate compatibility with others in this society.
4. The state has a legal duty to develop general elements of a thorough and efficient education in all studies through the provision of high quality educational programs in the following subject areas: art, early childhood education, foreign languages, health education, home economics, industrial arts, language arts, mathematics, media, music, physical education, science, social studies, vocational education, and extracurricular education.
(a) "Literacy" is developed through virtually every program, but primarily through language arts, media programs, social studies, early childhood education, foreign language, and special education.
(b) The "ability to add, substract [sic], multiply and divide numbers" is developed through mathematics, early childhood education, science, music, home economics, industrial arts, vocational education, health education, and special education.
(c) "Knowledge of government to the extent that the child will be equipped as a citizen to make informed choices among persons and issues that affect his own governance" is developed primarily through social studies and language arts.
(d) "Self-knowledge and knowledge of his or her total environment to allow the child to intelligently choose life work -- to know his or her options" is developed through exposure to all educational programs including language arts, media, math, science, foreign languages, social studies, arts, music, physical education, industrial arts, vocational education including home economics, health education, and extracurricular activities.
(e) "Work-training and advanced academic training as the child may intelligently choose" requires exposure to the same programs listed in (d).
(f) "Recreational pursuits" are developed through music, art, foreign languages, physical education, home economics, industrial arts, language arts, media, health education, and extracurricular activities.
(g) "Interests in all creative arts, such as music, theatre, literature, and the visual arts" are developed through music, art, physical education, language arts, media, foreign language, and extracurricular activities.
(h) "Social ethics, both behavioral and abstract, to facilitate compatibility with others in this society" are developed through all programs that require interaction among students, teachers, etc., and may include all the programs listed in (d).
5. The state has a duty to develop the legally recognized elements of a thorough and efficient system of education in every child to his or her capacity, by providing high quality programs to children of all abilities. This duty to provide the high quality substantive educational offerings to every child pursuant to the constitutional mandate is the duty to provide the resources in terms of the following components: the requisite curriculum offerings, personnel, facilities, and materials and equipment to assure the development of every child. Special education, remedial and advanced programs, are essential to a thorough and efficient system. The higher cost programs such as special education, remedial and enrichment education, vocational education, early childhood education, and secondary education must be reflected in the funding system.
6. A high quality program consistent with Article XII, Section 1 of the West Virginia Constitution requires that all direct and indirect costs of the educational programs must be fully included in the state financing structure, i.e., curriculum costs, instructional, support and administrative staff salaries, benefits, supplies and equipment costs, and facility costs.
7. Further, in order to develop thorough and efficient programs, the state has a duty to provide that the counties have the ability to:
(a) attract, employ, and retain a high quality staff of sufficient size to perform the educational tasks, including sufficient administrative staff;
(b) provide high quality well-maintained educational facilities; and
(c) provide high quality textbooks, workbooks, and instructional supplies and equipment.
8. To support the educational program, the State has a duty to provide that the counties are able to provide high quality support services in the areas of counseling and guidance, health, food preparation, and transportation.
9. Based on the extensive testimony and documentary evidence presented in this case, this Court concludes as a matter of law that all elements of the educational services and programs set out in findings 19 to 91, comprise the essential standards of a thorough and efficient system of education.
10. The State Board of Education has the duty to "determine the educational policies of the State" "(s)ubject to and in conformity with the Constitution and laws of this State." Therefore the State Board must adopt educational standards consistent with Article XII, Section 1, of the West Virginia Constitution as set out in Findings 19 to 91. West Virginia Constitution Article XII, Section 2, West Virginia Code Ch. 18, Art. 2, Sec. 5. Beginning with these standards, the State Board of Education, pursuant to its constitutional responsibility to supervise the schools of this state, West Virginia Constitution Article XII, Section 2, and implement the constitutional guarantee of a high quality education, West Virginia Constitution Article XII, Section 1 and the State Superintendent of Schools acting under the Board's general authority, have the duty to further develop such standards as the need arises, maintain their currency and relevancy to the "best the state of education expertise allows," and to pursue their implementation throughout the State on a uniform and equitable basis to assure that every child is afforded the substantive education offerings specified by the standards.
11. "The mandatory requirements of a thorough and efficient system of free schools, found in West Virginia Constitution Article XII, Section 1, demonstrates that education is a fundamental constitutional right in this State." Because education is a fundamental constitutional right, the equal protection guarantees of Article III, Sections 10 and 17, of the West Virginia Constitution demand equitable financing of the state's educational system. Pauley v. Kelly, 255 S.E. 2d 859, 878.
12. Equal protection requires equality in substantive educational offerings and results. Pauley v. Kelly, 255 S.E. 2d 859, 865, n.7. The state has a legal duty to provide equal educational opportunities by allocating resources to counties according to criteria substantially related to educational needs and costs. The requirement of a thorough and efficient system of schools imposes the same duty on the state. Since equality in substantive educational offerings is guaranteed by the constitutional equal protection guarantee, it is the resources that is, the specific inputs in terms of curriculum offerings, personnel, facilities and materials and equipment, not the outcomes in terms of achievement test scores by which the constitutional adequacy of the school system must be measured.
13. Equal means that all factors contributing to differences in curriculum needs and costs among counties; including, concentrations of educationally disadvantaged and culturally isolated students, differences in concentrations of children needing services to address specific handicapping conditions, differences in the need for vocational education programs must be incorporated into the financing structure. The State has a legal duty to insure that school systems with greater educational needs and costs receive sufficient educational resources to meet those needs so that all children with similar needs are treated equally and receive a high quality education.
14. The State also has a duty to eliminate the effects of unequal costs among counties of providing educational services due to factors such as county isolation, sparsity, terrain and road conditions.
15. The State has a duty to eliminate the effects of unequal costs among counties of providing non-instructional services such as transportation and facility construction, renovation and equipment.
16. The State has a duty to eliminate the effects of varying numbers of pupils among counties on the quality of county educational services by equalizing the ability of counties to have sufficient county administrative staff and curriculum supervisors.
17. The State has a duty to eliminate the effects of small school size on the ability to offer a broad range of education programs and services.
18. The State has a duty to equalize the ability of counties to attract and retain sufficient high quality staff.
19. Since education is a fundamental constitutional right in West Virginia, and since the various discriminatory classifications are found to exist as stated herein, and since the state has not demonstrated any compelling state interest to justify the unequal classification, the result is that the educational system in West Virginia violates Article III, Section 10 of the West Virginia Constitution.
20. The current system of school finance prevents Lincoln County and many other poor counties from providing educational programs and services necessary to meet the standards of a thorough and efficient system of education. Due to inadequate resources, not a single program in Lincoln County meets the thorough and efficient requirements. All programs are hampered by insufficient staff, obsolete, inappropriate and overcrowded facilities, and a serious lack of necessary instructional texts, materials and equipment. Lincoln County fails to provide a thorough and efficient program of art, early childhood education, foreign language, health education, home economics, industrial arts, mathematics, media, music, physical education, science, social studies, vocational education, or extra-curricular activities. Lincoln County is unable to meet the special education and remedial needs of students in the county. Lincoln County is unable to provide high quality supportive services in the areas of counseling and guidance, health, food service, and transportation as required in a thorough and efficient education system.
21. The inadequacies and inequalities in educational offerings in West Virginia are directly produced by the inadequacies and inequalities in the level of educational resources and expenditures among counties in West Virginia. The present system allocates funds according to factors such as the amount of a county's property wealth and its ability to pass excess and bond levies. These factors bear no relation to educational needs and costs of substantive educational offerings and results. Indeed, counties where children have the greatest educational needs attend school in counties which in most instances have the least taxable wealth per pupil and the fewest education resources.
22. The West Virginia school finance system thus violates the requirements of Article XII, Section 1 and Article III, Sections 10 and 17 of the West Virginia Constitution.
23. The reliance on locally funded excess levies to provide educational programs essential to a thorough and efficient system of education violates Article XII, Section 1 of the Constitution, because the amount of revenue that is raised through the excess levy varies dramatically among counties based upon the local property wealth of the county and the ability of voters to approve an excess levy. Counties that are unable to pass an excess levy cannot fund high quality programs. Many other counties are unable to provide high quality programs because even a 100% levy is inadequate to meet the county's needs. Because the state is responsible for providing a thorough and efficient system of education, it cannot make fulfullment [sic] of this responsibility dependent on the ability to pass an excess levy or the amount of money that can be raised by an excess levy.
24. The state's failure to provide an ongoing program for the adequate funding of school construction violates Article XII, Section 1 and Article III, Sections 10 and 17 of the West Virginia Constitution:
(a) The Better School Building Program, West Virginia Code Ch. 18, Art. 9C, Sec. 1 et seq., does not begin to meet current facility needs in the state and does not provide ongoing funding to address future needs.
(b) Because the financial capacity of a county to construct facilities depends on the county's bonding capacity, (local property wealth) and on voter willingness to pass bond issues instead of criteria related to educational needs, the current method of funding facility construction violates the equal protection and thorough and efficient guarantees of the West Virginia Constitution.
(c) There is no state funding of facilities based upon need pursuant to uniform state criteria.
25. Numerous components of the West Virginia Public Support Plan, West Virginia Code Ch. 18, Art. 9A, Sec. 1 through 20, violate Article XII, Section 1 and Article III, Sections 10 and 17 of the West Virginia Constitution. Certain elements of the Support Plan are unconstitutional in effect because they compound the relationship between local wealth and resources for education created by other elements of the school finance system. Other aspects of the Support Plan are unconstitutional per se, that is, they are violative of the constitutional mandates and would be objectionable even in a system that had eliminated the direct relationship between property wealth and educational resources.
26. The aspects of the Support Plan that are unconstitutional per se include:
(a) The arbitrary 55/1000 reimbursement limit in step one and the 34/1000 limit in step two which do not recognize that some counties with smaller schools or more children with educational problems need more staff in order to provide a thorough and efficient education;
(b) The requirement in step one that all counties must maintain a minimum of forty-nine (49) instructional personnel per one thousand (1,000) students regardless of a county's relative need for administrators;
(c) The failure of steps one and two to reimburse counties for staff costs, other than the mimimun [sic] salary, such as county supplements and extended employment;
(d) The failure of step three to fund fixed charges attributable to county funded salary supplements;
(e) The failure of step four to fully fund transportation expenses including bus replacement and driver salaries; and
(f) The failure of step six to fully fund current expenses, including costs associated with the purchase of instructional materials and equipment.
(g) The use of an adjusted pupil count for determining state assistance that includes an indentical [sic] additional pupil count for all special educational students, such as gifted, that bears no relationship to the varying additional cost of educating such students.
27. The aspects of the Support Plan that unconstitutionally compound the wealth discrimination of the school finance system include:
(a) Steps one and two which reimburse counties for staff salaries according to the state minimum salary schedule, which provides higher salaries to personnel with greater experience and education. This factor of the finance system is constitutionally impermissible in the context of a funding system in which wealthy counties, because of their greater ability to attract and retain large numbers of more experienced, and better trained personnel, receive greater advantage from steps one and two than do poorer counties.
(b) Step three, which allocates funds for fixed charges, as a percentage of steps one and two, perpetrates the inequitable distribution of those steps.
(c) Step five exacerbates the wealth inequalities in the school finance system, because it provides the same amount of funds to all counties for administrative costs regardless of county property wealth and actual needs.
(d) Step six, which allocates funds for current expenses and substitute employees as a percentage of steps one and two, perpetuates the inequitable distribution of those steps.
(e) Step seven, although in name equalizing, because it allocates 80 % of its funds in inverse proportion to county expenditures per pupil, will never overcome the inequities of the school finance system, because it does not equalize excess levy revenues.
28. The net effect of the basic foundation program, steps one through seven, is that the wealthiest counties have the highest foundation level while the poorest counties have the lowest level, making the foundation program inequitable in violation of the West Virginia Constitution, Articel [sic] III, Sections 10 and 17. In addition, the foundation program is not based on actual educational needs and costs and provides insufficient funds to counties to develop a high quality system of education as required by Article XII, Section 1 of the constitution.
29. The Incentive for Staffing Improvement, West Virginia Code Ch. 18, Art. 9A, Sec. 14, while intended to "encourage counties to move toward new and improved programs and to reduce class size", is ineffective in producing these results within the near future. The incentive only applies to counties with ratios of enrollment to professional staff higher than the state average. The state average bears no relation to staff needed for a thorough and efficient system. The provision limits the number of staff than can be added in a given year. Finally, the provision only provides current funding for the staff person's minimum salary. A county must pay for all benefits associated with the minimum salary in the first year and must pay all supplements and other costs associated with the employment of additional staff, including instructional materials and equipment. The county receives no increase in other steps dependent on steps one and two, namely steps three, five, and six. In short, this provision will never produce a thorough and efficient system of education in counties such as Lincoln that are in desperate need of additional staff.
30. The existing method of distributing supplemental state aid outside of a comprehensive financing system violates Article III, Sections 10 and 17 and Article XII, Section 1 of the West Virginia Constitution. Most supplemental aid is distributed to counties without regard to their fiscal ability, and supplemental aid does not cover the county needs in such areas of supplemental funding as special education, vocational education, and drivers' education.
31. Several other state aid programs, not administered by the State Department of Education, also violate Article III, Sections 10 and 17. The State Teachers Retirement System, West Virginia Code Ch. 18, Art. 7A, Sec. 2, et seq., is inherently discriminatory and constitutionally infirm, because teachers of identical experience and education at retirment [sic] receive different benefits depending on the level of salary supplements in the county in which they taught. Teachers from wealthy counties with larger supplements receive substantially larger retirement benefits than teachers from counties with no supplement or an insignificant supplement. The health and life insurance and liability insurance programs are also inequitable and violative of Article III, Sections 10 and 17, because wealthier counties with greater numbers of staff receive greater benefits.
32. The State in funding public schools must insure that all of the duties set out in this part of the Conclusions are met.
33. The State has a legal duty to design a system of school finance which eliminates all expenditure inequalities and inadequacies resulting from the use of the excess levy to fund public education.
34. Under no circumstances may the funding system rely on the excess levy to raise more than an insignificant amount of revenue for the public schools in any county. Any excess levy so permitted must be fully equalized among counties so that any given excess levy rate raises the same amount of revenues in each county in which it is levied.
35. The State has a legal duty to eliminate all expenditure inequalities and inadequacies resulting from unequal and deficient appraisal and assessment practices in West Virginia.
36. To meet the mandate of Article X, Section 1 of the West Virginia Constitution, there must be like treatment in the valuation of all species of property, both within a species of property and among all species of property. In comformance [sic] with this constitutional standard, it is the duty of the Tax Commissioner in all valuation efforts to value all property at true and actual value. West Virginia Code Ch. 11, Art. 3, Sec. 1.
37. The Tax Commissioner is not fulfilling his constitutional (West Virginia Constitution Article III, Section 5) and statutory (West Virginia Code Ch. 11, Art. 1, Sec. 1) duties to see that the constitutional mandates of equal and uniform taxation and equal taxation among species of property (West Virginia Constitution Article X, Section 1) are enforced.
38. Substantial interspecies inequities in violation of Article X, Section 1 of the West Virginia Constitution exist among virtually all species of property throughout the state, due to the Tax Commissioner's lack of effective methodology in appraisal practice and failure to provide adequate guidelines to assessors from the Tax Commissioner. To meet the constitutional mandates of Article X, Section 1 of the West Virginia Constitution of taxation in proportion to value and equal valuation among species there must be like treatment among varying species of property. This requires that all valuations -- appraisals and assessments -- result in a like valuation for property of equal value, regardless of species or class. Different approaches to value may be employed for valuation purposes of difference species of property, but these approaches must be appropriate to reach equitable valuations.
39. A lack of meaningful guidelines to determine what is operating and non-operating property of public utilities that is immediately connected with a public service activity, allowing utilities to incorporate much non-operating property in their report to the state as a public utility and thereby escaping local taxation, creates inequity in valuation and taxation relative to other species of property in violation of Article X, Section 1 of the West Virginia Constitution.
40. The use of unaudited data by the Tax Commissioner's office, and his failure to obtain information from other sources in fixing the tentative assessments of public utilities in at least a few instances results in an understatement of net income and consequently an undervaluation in violation of Article X, Section 1 of the West Virginia Constitution.
41. To meet the constitutional mandate of equal and uniform taxation, there must be similar treatment of like species of property throughout the state. This imposes the duty on the Tax Commissioner to use and enforce uniform standards for valuation for like properties statewide, absent some compelling reason to the contrary.
42. The failure of the Tax Commissioner to monitor assessment practices, provide comprehensive guidelines to assessors, and enforce general assessment standards results in inequality and lack of uniformity among counties in taxation in violation of Article X, Section 1 of the West Virginia Constitution.
43. The Tax Commissioner's failure to appraise all non-utility real property and personal property at its true and actual value in all counties of the state is in violation of West Virginia Code Ch. 18, Art. 9A, Sec. 11(b) and West Virginia Code Ch. 11, Art. 3, Sec. 1. Under West Virginia law, it is the duty of the Tax Commissioner in all valuation efforts to value all property at "its true and actual value, that is to say, at the price for which such property would sell if voluntarily offered for sale by the owner thereof, upon such terms as such property,..., is usually sold..." West Virginia Code Ch. 11, Art. 3, Sec. 1.
44. The Tax Commissioner's failure to appraise all species of personal property is in violation of his statutory duty to appraise all property. West Virginia Code Ch. 18, Art. 9A, Sec. l(b). The statute specifies that such appraisal, except for machinery, equipment, etc., shall be done by the prescription of "accepted methods of determining such values". The Tax Commissioner has failed to properly prescribe such methods for each species of tangible and intangible personal property.
45. The Tax Commissioner has the primary responsibility to implement the constitutional mandates of Article X, Section 1 of the Constitution by providing guidance to county assessors. The State Tax Commissioner has a statutory duty pursuant to West Virginia Code Ch. 11, Art. 1, Sec. 2 to "give such information and require such action as will tend to produce full and just assessments throughout the state." These constitutional and statutory duties impose a general supervisory responsibility upon the State Tax Commissioner to prescribe such regulations, guidelines, standards, methodologies and formulas as are necessary to meet the constitutional mandate of equal and uniform taxation and taxation in proportion to value, and the statutory mandate of true and actual market value assessments.
46. The Tax Commissioner has the authority to issue comprehensive regulations relative to the assessment practices throughout the state, and in order to fulfill his duty to assure that the constitutional mandate of uniform and equal taxation is met, and to "require such action as will tend to produce full and just assessments", he has the duty to prescribe (1) uniform assessment practices and procedures, (2) adequate form returns for the reporting of all property in adequate detail, and (3) procedures for the gathering of all information requisite to the appraisal and assessment of property. (West Virginia Code Ch. 11, Art. 1, Sec. 2).
47. The Tax Commissioner has failed to prescribe guidelines and returns for the effective implementation of the canvass by the assessor's office. The canvass requires the assessor to call upon every person to provide to the assessor "a full and correct description of all of the real estate and personal property." West Virginia Code Ch. 11, Art. 3, Sec. 2. To efficiently and most effectively carry out this responsibility, the Tax Commissioner's guidelines or regulations must assure the provision of appropriate returns to each taxpayer, be it individual corporation, partnership, or other entity, require the completion of the return in full by a specified date, and the return in full by a specified date, and require follow-up by correspondence and personal visit to the extent necessary to obtain compliance and complete information. Adequate and complete form returns must be prescribed by the Tax Commissioner to assure comprehensive reporting.
48. The Tax Commissioner has the responsibility for statewide enforcement of the constitutional and statutory mandates relative to ad valorum [sic] taxation, and he has failed to take measures to assure enforcement of the constitutional mandates of uniform and equal taxation and taxation in proportion to value. The Tax Commissioner has a clear duty to enforce the Constitution, West Virginia Code Ch. 11, Art. 1, Sec. 1. Further, he must take "such action as will tend to produce full and just assessments throughout the state" West Virginia Code Ch. 11, Art. 1, Sec. 2. He has a specific duty to "order and direct a reassessment" any time the assessments are not at ture [sic] and actual value in any county. West Virginia Code Ch. 11, Art. 3, Sec. 1. He has the duty to make "such corrections in the valuations" as necessary to comply with the mandates of Chapter 11 of the Code. West Virginia Code Ch. 18, Art. 9A, Sec. 11. The Tax Commissioner's failure to correct valuations or direct reassessments in the face of clear knowledge that assessments are not at true and actual value is in violation of his enforcement duties.
49. The current administrative structure of public school administration under the State Board of Education, consisting of RESAs and fifty-five county superintendents is a constitutionally effective administrative structure. West Virginia Constitution, Article XII, Section 1.
50. The State Board of Education has failed to fulfill its statutory duty to "determine the educational policies of the state" "(s)ubject to and in conformity with the Constitution and laws of this State". West Virginia Code Ch. 18, Art. 2, Sec. 5. The State Board's failure to adopt thorough and efficient standards violates Article XII, Sections 1 and 2 of the West Virginia Constitution and West Virginia Code Ch. 18, Art. 2, Sec. 5.
(a) The standards promulgated by the State Board of Education pursuant to West Virginia Code, Ch. 18, Art. 2, Sec. 6, West Virginia Code Ch. 18, Art. 2, Sec. 23 and West Virginia Code Ch. 18, Art. 9A, Sec. 22, have been far too general and minimal to define the elements of a thorough and efficient system of education for the state.
(b) The state standards for classification adopted pursuant to West Virginia Code Ch. 18, Art. 2, Sec. 6 bear no relationship to a high quality educational system. Nor does the State Board of Education monitor the classification process to insure accuracy. The North Central Association's accrediting system is similarly general and minimal, and cannot be considered consistent with the requirements of a thorough and efficient system of education.
(c) Although West Virginia Code Ch. 18, Art. 2, Sec. 23 mandates the development of high quality education standards through the establishment of a comprehensive educational program, the State Board of Education has not complied with the provisions of this statute. The Board has begun a process of replacing earlier specific resource-related standards adopted pursuant to West Virginia Code Ch. 18, Art. 2, Sec. 23, with general, program statements, essential competencies and learner outcomes. Such standards do not fulfill the State Board's constitutional (Article XII, Section 1 of the West Virginia Constitution) of statutory (West Virginia Code Ch. 18, Art. 2, Sec. 23) duties.
(d) The State Department of Education has not used the mandate of S.B. 15, West Virginia Code, Ch. 18, Art. 9A, Sec. 11 to develop education standards of high quality education. West Virginia Code, Ch. 18, Art. 9A, Sec. 22 is violative of the mandate of West Virginia Constitution Article XII, Section 1 in that it authorizes the State Board of Education to withhold three percent (3%) of a county's public school support if the county does not meet standards developed under West Virginia Code Ch. 18, Art. 9A, Sec. 22, yet does not provide funds to permit counties to provide a thorough and efficient system.
51. The supervisory responsibility of the State Board of Education pursuant to West Virginia Constitution Article XII, Section 1 and Article XII, Section 2, include the responsibility to assist in the delivery of, and to monitor and delivery of, educational programs in the counties, which functions are not being adequately performed at the present time, nor could they be with the present staffing and funding of the State Department of Education in this regard.
52. The State Board is not meeting its constitutional supervisory responsibility pursuant to West Virginia Constitution Article XII, Section 2, in failing to provide adequate assistance in the area of facility planning, transportation routing, and curriculum support and development.
53. The performance of the budgeting and accounting functions by the State Department of Education under the supervision of the State Superintendent of Schools and State Board of Education is an efficient and constitutionally proper administrative responsibility. West Virginia Constitution Article XII, Sections 1 and 2; West Virginia Code Ch. 18, Art. 9A, Sec. 17; West Virginia Code Ch. 18, Art. 9B, Sec. 1 et seq. These are not the cause of the inadequacies in the public schools.
54. The Lincoln County Board of Education and Superintendent of Schools are fulfilling their legal responsibilities in the general administration of the county's school system in an economical and efficient manner.
55. The unconstitutional condition of the public school system in Lincoln County and other counties is not due to inefficiency or failure on the part of the county school systems to follow existing school statutes. Inadequate and inequitable funding is the overriding cause of the current unconstitutionality of the system.
56. The State Board of Education, pursuant to constitutional responsibility in the general supervision of the schools of the state, West Virginia Constitution Article XII, Section 2, and its duty to enforce the constitutional mandate of a thorough and efficient system of schools. West Virginia Constitution Article XII, Section 1, has the duty to provide a grievance mechanism and remedy at the state level for citizens to pursue grievance against county school board members, county superintendents, or other administrative officials for failure to provide elements of a high quality education that resources permit them to provide or for violation of any other legal duty, and to assure a remedy is provided for failure to perform such legal duties. The statutory remedy of removal from office. West Virginia Code Ch. 6, Art. 6, Sec. 5 and Ch. 6, Art. 6, Sec. 7, is not adequate for lesser failures to meet educational responsibilities. Such grievance mechanism must afford proper and timely opportunity to be heard, before an impartial official, upon reasonable notice, written reasons for decision, and procedure for appeal.
57. The named plaintiffs represent a class consisting of themselves and all other children presently or in the future attending schools in Lincoln County and their parents. These children and parents as all West Virginia children and parents, are entitled to enforcement of their rights under the West Virginia Constitution.
RELIEF
This Court has discharged what it considers to be its responsibility within the contours of Pauley, et al v. Kelly, et al., supra. The result is no less than a call to the Legislature to completely re-construct the entire system of education in West Virginia.
This immensely complicated process can only be accomplished by a coordination of the Legislative and Executive branches of government at the highest levels, together with the State Board of Education; The State Department of Education; The Tax Commissioner of the State of West Virginia; County Boards of Education; County Assessors, as well as representative of the plaintiffs, and conceivably representative of other interested educational groups, e.g. West Virginia Association of School Administrators; West Virginia Secondary School Principal's Association; West Virginia Elementary School Principal's Association; West Virginia State Reading Council; West Virginia Association of Supervisors; West Virginia Education Association, and the West Virginia State Congress of Parents and Teachers.
Because of the far reaching systemic reforms mandated by this decision, the coordination of all the branches, agencies, officials and representatives of interested educational groups, is not best suited directly to this Court.
Instead the responsibility of developing a complete remedial plan, addressing the issues of educational standards, resources to fund those standards and public taxation, should be with a person with a knowledge, background and experience in the areas of concern, working under the aegis of this Court.
This concept of appointing a coordinator or "Commissioner", as the person will be designated, may be novel in form, but not in substance within the context of implementing judicial decisions which require a plan to conform to certain legal mandates.
In E. H. v. Matin, _____W.Va._____, 284 S.E. 2d 232 (1981); and Cooper v. Gwin, _____W.Va._____, _______S.E. 2d_____ (1982); the West Virginia Supreme Court recognized the it lacked certain expertise in institutional reform, and designated a lower court to serve as a coordinator to develop plans and programs consistent with stipulated legal standards adopted by the Court.
What this Court is attempting to do, is to anticipate what the Supreme Court may do in the future, and in the interest of judicial economy and efficiency have a plan developed within the confines of Pauley, et al v. Kelly, et al and this Opinion, in a more abbreviated period of time.
Actually, circuit courts in West Virginia have the power to appoint Commissioners, pursuant to West Virginia Code Ch. 51, Art. 5, Sec. 1. See also West Virginia Rules of Civil Procedure Rule 53.
Heretofore the role of the Commissioner in West Virginia has been rather narrow, and limited to those matters relating to hearing evidence and making findings in divorce cases, as well as presiding over matters relating to disputed accounts.
However, the appointment of .a Commissioner is within the wide discretion of the trial court, see Hooper v. Wood, 100 W.Va. 272, 130 S.E. 444 (1925), and this Court does not feel compelled to limit its discretion within the narrow confines of the prior usage of a Commissioner.
The Legislature, State Educational Officers, and State Tax Commissioner, are required by this Opinion to conform to certain constitutional mandates. With the appropriate attitude which I am sure will be exhibited by all concerned, reflecting the change in the course of education which is required by this Opinion, and with the assistance of all of the fine representatives from the Legislative and Executive branch, the parties, and the educational associations, all under the leadership and guidance of a qualified Commissioner, a plan implementing these constitutional mandates will, I am sure, come to fruition.[6]
Accordingly, this Court does hereby appoint to serve in the role of Commissioner, who shall, subject to the time periods later described, within one hundred twenty (120) days after consulting with the representatives of the plaintiffs, all the named defendants, state officials, bodies and agencies, Representative of the Speaker of the House of Delegates and the President of the Senate, and any interested educational groups as referred to herein, develop a master plan for the implementation of this decision.[7]
The plan, shall then be submitted to this Court, and must be consistent with the standards of a high quality system of education as recognized in this opinion. This Court shall retain continuing jurisdiction of all future proceedings necessary to insure the implementation of the approved plan by the appropriate state and county officials.
The referral of this case to the Commissioner named herein shall be deferred for a period of sixty (60) days to allow the state defendants time to present a Petition for Writ of Error if they so desire to the West Virginia Supreme Court of Appeals.
[6.] The other alternate relief considered by this Court was to permit the Legislature a sufficient period of time to develop its own plan, consistent with the standards set forth in this Opinion and Findings.
However, this concept was not thought to be as acceptable as the referral of the development of the plan to a Commissioner. The reason for this is that the plan conceived as outlined in this Opinion, will have the cooperative spirit of all branches of government officials, agencies, and other interested groups, all under the skillful direction of the commissioner and under the aegis of this Court. It is felt that the latter alternative could best carry out the mandate of this Opinion within the shortest period of time, and actually, if all goes as planned, with less interference from the Courts.
[7.] The costs and expenses of the Commissioner shall be taxed as part of the costs of this case and assessed against all of the state defendants.
EPILOGUE
During the early days of this trial, I listened to and observed all of the many witnesses who testified and a single recurring thought kept haunting me. That thought arose out of reading Justice Neely's excellent dissenting opinion in Pauley, et al v. Kelly, et al. Even though the educational system in West Virginia is in an outrageous condition, what is this case doing in the courts? Initially I thought that the resolution of all the myriad of problems associated with the public schools in West Virginia could only be solved by "prying more money from the Legislature" through the cumbersome legislative/political process suggested by Justice Neely.
Slowly, however, as more witnesses testified and more exhibits considered, that original thought dissipated and gave way to the realization of -- if not the judicial branch of government -- then who?
The other branches of government have over these many years not only the duty, but obviously the opportunity to have made the standards set forth herein a reality. Indeed, there should have been no reason to have instituted this suit in the first instance. However, as occassionally [sic] occurs, despite the rather precise constitutional mandates, other branches of government need the judicial direction to assist them in discharging their oath. This is the genius written the concept of separation of power, and judicial review.
What is most intriguing, is that despite the strong language in Pauley, et al v. Kelly, et al., that "our basic law makes education's funding second in priority only to payment of the state debt, and ahead of every other state function", and in State ex rel. Board of Education v. Rockefeller, _____W.Va._____, 281 S.E. 2d 131, 135 "in the final analysis, ..our Constitution...gives a constitutionally preferred status to public education in this State", the Legislature still failed to adopt legislation which could have dispensed with further consideration of this case.
Instead Senate Bill 15, although a rather noble effort, failed to adequately address the fundamental deficiencies of the system -- the absence of standards of a high quality system of education, the absence of dispensing with the reliance on excess levies, and a plan for facility construction.
At the conclusion of this trial, after the last witness left the courtroom, the only thing that then haunted me, was a rather apt, albeit often used thought of Rabbi Hillel "If not now -- when?" The "when" must be now, and the "who" is the judicial branch, bringing together the energy and talents of all interested West Virginians for the benefit of our most precious natural resource -- our children.
Accordingly, based upon the within opinion, findings of fact and conclusions of law, it is hereby ORDERED, ADJUDGED and DECREED as follows:
(1) The system of financing public schools in West Virginia is declared unconstitutional in that it:
(a) Violates the provisions of Article XII, Section 1 of the West Virginia Constitution on the basis that the Legislature has not provided for a thorough and efficient system of free schools;
(b) Violates the provisions of Article III, Sections 10 and 17 of the West Virginia Constitution, on the basis that it permits to exist discriminatory classifications in financing education and educational offerings.
(2) That in an effort to bring the public school system in West Virginia into constitutional conformity a master plan shall be developed with the assistance of the commissioner appointed hereunder. The master plan shall incorporate the standards of all the aspects of a high quality system of education regarding: (1) curriculum; (2) personnel, (3) facilities; and (4) materials and equipment, as defined herein.
The structure of the master plan shall include:
(a) All legislative proposals necessary to implement every component of a thorough and efficient and equal educational system, including the ingredients of a high quality system of education and the resources necessary to guarantee deliverance of the system to each public school student in West Virginia;
(b) All administrative or other regulatory proposals to implement a thorough and efficient and equal educational system as well as the implementation of a property tax system compatible with constitutional and statutory mandates and standards. To this extent, the plan that is hereinafter described to be developed by the State Tax Commissioner shall be incorporated in the master plan;
(c) Any and all required changes within the West Virginia Board of Education, State Department of Education and Office of the State Tax Commissioner to implement a thorough and efficient and equal educational and property tax system, compatible with constitutional and statutory mandates and standards.
(3) That the Tax Commissioner of the State of West Virginia shall cause a plan to be developed to provide remedial action for all the deficiencies identified in the findings contained herein which shall include, but is not limited to:
(a) A detailed outline of comprehensive regulations or guidelines addressed to local assessors for their use in the valuation of all real and personal non-utility property;
(b) Recommended forms for the detailed reporting of all species of real and persona1 property by each taxpayer in the State of West Virginia, containing detailed explanations to the assessor as to how to make the actual assessment from the reported information;
(c) A description of the method of valuation of active coal;
(d) A description of the method of valuation of reserve coal;
(e) A description of the method of valuation of oil and gas producing properties;
(f) A description of the method of valuation of known oil and gas producing areas;
(g) A description of the method of valuation of timber property on a comprehensive basis throughout the State of West Virginia;
(h) A description of the method of valuation of active mining mineral interests including limestone, fire clay, dolomite, sandstone and other actively mined minerals;
(i) A description of the method of valuation of residential and commercial real property;
(j) A description of the method of valuation of industrial and commercial machinery and equipment:
(k) A description of the method of valuation of intangible personal property including stock and accounts receivable, etc.
(l) A description of the method establishing tentative assessments for public utilities;
(m) A description of enforcement techniques and procedures to be used by the Tax Commissioner including the events which would trigger their intended use and the utilization of subpoena power to remedy inadequate assessments;
(n) A description and time-table for the installation of computer capabilities with county terminals into and through which information from all current sales and other valuation information shall be processed, permitting the update of all residential, commercial and other real property valuations on an annual basis throughout the State of West Virginia.
(4) That subject to any action by the West Virginia Supreme Court of Appeals, the plans required to be developed herein shall be submitted as follows:
(a) The plan required to be developed by the Tax Commissioner of West Virginia within ninety (90) days from and after the date of this Order.
(b) The master plan to be developed through the commissioner designated herein within one hundred twenty (120) days from and after the date of this Order.
(5) That the plans required to be submitted hereunder shall contain the procedures, mechanisms and time-tables for their execution in terms of proposed legislative and/or proposed regulations.
(6) That the function and duty of the commissioner appointed hereunder shall be as follows:
(a) To monitor the implementation of this Order;
(b) To coordinate and work with all representatives from the legislative and executive branches of grovenment [sic], representatives of the State Board of Education, State Department of Education; State Tax Commissioner; the plaintiff; local boards of education; local assessors, and it is recommended that representatives of any or all of the educational groups referred to herein be included all for purposes of developing and implementing the master plan described herein.
(c) To provide any and all assistance to the Legislator as requested:
(d) To obtain further information on the methods and manner for the implementation of this Order;
(e) To obtain any and all other expert assistance necessary for the implementation of this Order, subject to the prior approval of this Court;
(f) To make any recommendations to this Court regarding any further relief that may be necessary.
(7) This Court shall retain jurisdiction until the master plan developed and approved by this Court is fully implemented.
(8) The terms of this Order may be suspended for a period of ninety (90) days so that any party who feels aggrieved hereunder shall present a Petition for Writ of Error to the West Virginia Supreme Court of Appeals.
(9) The objection and exception to the Court's ruling by the defendants is hereby saved.
ENTER this 11th day of May, 1982.
[Signed]
Arthur M. Recht, Special Judge
Circuit Court of Kanawha County