WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has upheld a judge’s ruling that the Gilmer County Board of Education was correct in ordering a child to attend school where her parents reside, and not where they work.

The Court on Nov. 16 affirmed Judge Richard A. Facemire’s decision last year that denied Eddie E. Anderson's and Hilary D. Miller’s writ of mandamus against the Board, John Bennett, the former county superintendent of schools and Ronald Blankenship, the current superintendent. In a unanimous five-page memorandum opinion, the Court said Facemire was correct in denying the writ on the grounds Anderson and Miller could not make a convincing case to keep their daughter enrolled at their choice of elementary schools due to “dual residency.”

Memorandum opinions are issued by the Court in cases that would not be significantly aided by oral arguments, and present no new or significant questions of law.

According to court records, Anderson and Miller own a home that is part of the attendance zone for Normantown Elementary. However, at the start of the 2010-2011, Anderson and Miller enrolled their daughter, who is only identified by her initials K.A. at Glenville Elementary.

On Sept. 14, 2010, Bennett sent Anderson and Miller a letter informing them K.A. needed to be attending Normantown, and they had two weeks to enroll her there. However, upon application of a student transfer request by the deadline, Bennett said he would give strong consideration to keeping her enrolled at Glenville.

Anderson and Miller opted to file a writ of mandamus in circuit court. Though they did not deny living at the home on Heritage Lane in the Normantown attendance zone, Anderson and Miller maintained they had “dual residence” because, as a result of their work as physicians being on-call, they often live out of the basement of their medical practice on Main Street in Glenville.

Before he would give any consideration to their writ, Facemire ordered Anderson and Miller to appeal Bennett’s decision to the Board. After the Board in December 2010 voted to uphold Bennett’s decision, Anderson and Miller notified Facemire of their intent to proceed with their writ.

Following a hearing on July 23, 2011, Facemire entered an order eight days later denying Anderson and Miller’s writ. In his order, Facemire said they were unable to point to any policy or law that provides for “dual residency” thus enabling parents to pick and choose where they may enroll their children in school.

“Were a dual residency rule for school zone attendance purposes forced upon the Board of Education,” Facemire said, “it would have to recognize such claims from those who own property and those who merely use property in multiple school attendance zones. Obviously, such a loose rule could easily and frequently be abused, resulting in changing classroom enrollments, including enrollments beyond the classroom size limits required by law—thus necessitating the hire of additional staff.

“This Court cannot find that the Petitioners have a right to force the Board of Education into such a situation.”

In its ruling, the Court said a writ of mandamus is an extraordinary remedy for someone to use in challenging a government agency or official’s abuse of discretion in recognizing a legal right the person may have. Because Anderson and Miller could not find anywhere in either county policy or state law that allows for “dual residency,” the Court said Facemire was correct in denying their writ.

“The circuit court found that petitioners failed to show that the Board of Education’s action in upholding the Superintendent’s finding that petitioners live in the Normantown school attendance zone and in not recognizing petitioners’ claim of ‘dual residency’ were violations of a clear legal duty and/or the result of caprice, passion, partiality, fraud, arbitrary conduct, ulterior motive, or misapprehension of the law,” the Court said. “We agree.

“Upon consideration and review of the parties’ arguments and the appendix record and for the reasons set forth above, we find no clear error in the decision of the circuit court as reflected in its August 1, 2011, order dismissing petitioners’ petition for a writ of mandamus. We agree with the circuit court’s conclusion that petitioners failed to show that respondents had a legal duty to do that which petitioners seek to compel and failed to show that they have ‘a clear and indisputable right’ to the issuance of the writ.”

Anderson and Miller were represented by Charleston attorney Mark McMillian while the Board, its members – Misty Pritt, Alton Skinner II, Phyllis Starkey, Tom Ratliff and Dorothy Rhoades – Bennett and Blankenship were represented by Richard S. Boothby, and Howard Seufer, Jr. with Bowles, Rice, McDavid, Graff and Love.

Blankenship, who retired in 2007 after serving as the Calhoun County schools superintendent, replaced Bennett as superintendent of Gilmer County in June 2011 after the state Board of Education seized control following a recommendation by its Office of Education Performance Audits. In its report released the previous month, OEPA found “county board members were in discord[,] the county board operations were dysfunctional and meetings were unproductive and resulted in the board being incapable of following State Code and West Virginia Board of Education policies.”

In addition to Gilmer, also under state control are schools in Grant, Fayette, McDowell, Mingo and Preston counties.

West Virginia Supreme Court of Appeals, case number 11-1235

Gilmer Circuit Court, case number 10-C-26