By KYLA ASBURY
MARTINSBURG – Gov. Earl Ray Tomblin, the Department of Administration and Secretary Jason Pizatella have filed a motion to dismiss the lawsuit against them and other state officials that was filed by a state House of Delegates member seeking to repeal the Common Core education standards.
"Delegate Michael Folk claims that the State's participation in the Smarter Balanced Assessment Consortium violates the Constitution," the June 1 motion to dismiss states. "That claim is dead wrong, and an unfortunate and wasteful attempt to bully through the courts a non-justiciable, purely political attack."
The motion to dismiss calls Folk's petition "procedurally deficient and ill-conceived," and states that Folk did not give the state agencies 30 days' notice before filing the lawsuit, did not file the lawsuit in Kanawha Circuit Court and overlooked the fact that the state must be given 60 days to respond to a complaint.
"Each of these errors provides an independent ground for dismissal," the motion states.
Folk's petition also fails to explain why Tomblin, Pizatella and the Department of Administration were even named in the lawsuit as defendants, which challenges actions in which they played no substantial role, if any at all.
Benjamin Bailey of Bailey Glasser, one of the attorneys for Tomblin, Pizatella and the Department of Administration, wrote that Folk's petition must be dismissed for improper venue because the only authorized venue for a suit against a state official is Kanawha Circuit Court.
"It is black-letter law in West Virginia that any suit in which the governor or another state officer is named as a defendants must be brought in the Circuit Court of Kanawha County," Bailey wrote. "Delegate Folk's petition names not only Governor Tomblin, but also Treasurer (John) Perdue, Superintendent (Michael) Martirano and Secretary Pizatella – all state officers – as defendants. As a result, Berkeley County is an improper venue."
In his petition, Folk readily admits that he failed to provide the required notice and asserted his belief that waiting to file the petition would have resulted in irreparable harm, according to the motion.
"Frankly, it seems that Secretary Pizatella and the 'Office of Administration' were named as defendants simply because Delegate Folk's Petition appears to have been copied in substantial part from a similar petition filed in Missouri," the motion states. "While the secretary and Office of Administration in Missouri may have had something to do with the events in that case, Delegate Folk has made no such allegation here."
Folk names West Virginia's "Office of Administration" as a defendant in the lawsuit. West Virginia has a Department of Administration, while Missouri has an Office of Administration, according to the motion.
Folk filed his lawsuit in April in Berkeley Circuit Court against Tomblin, Pizatella, the Department of Administration; W.Va. Superintendent of Schools Michael J. Martirano; the West Virginia Department of Education; the West Virginia Board of Education; W.Va. Treasurer John D. Perdue; the Office of the Treasurer; and the State of West Virginia seeking to enjoin the defendants from taking any action to authorize, permit or allow disbursement of West Virginia taxpayer funds to the SBAC.
More than 40 states, including West Virginia, have adopted Common Core, a set of math and English standards that specify what students across the nation should learn at each grade level.
Common Core critics say the standards are part of a federal takeover of local schools.
In February, Folk sponsored legislation aimed at repealing Common Core in West Virginia. The House of Delegates passed the bill, but it died in the Senate.
"This petition – a contrived 'constitutional challenge' to the state's participation in the SBAC – is simply Delegate Folk's collateral attempt to revive his political cause through the courts," Bailey wrote in the motion.
The court "need not indulge Delegate Folk's collateral attack on the state's legislative and executive functions," the motion states. "A straightforward application of the basic procedural requirements Delegate Folk has blatantly ignored should result in the prompt dismissal of his petition."
Tomblin, Pizatella and the Department of Administration are represented by Benjamin L. Bailey, Michael B. Hissam and Ryan McCune Donovan of Bailey & Glasser; Peter G. Markham of the Office of the Governor; and Robert P. Paulson of the Department of Administration.
Berkeley Circuit Court case number: 15-C-255