CHARLESTON – While O.J. Mayo of Huntington represents the University of Southern California in basketball, he represents West Virginia high school athletes in a battle with authority.
The West Virginia Secondary School Activities Commission wants the Supreme Court of Appeals to overturn an order Mayo obtained last year, finding that a school can't enforce a two-game suspension after ejection from a game without holding a hearing.
Cabell Circuit Judge Dan O'Hanlon ruled in Mayo's favor last spring, after intervening last winter in the aftermath of a Jan. 26 clash between Huntington High and Capitol High at the Charleston Civic Center.
That Friday night all eyes watched Mayo, who had already achieved national fame. They watched him commit a technical foul, and they watched him commit another.
Under a School Activities Commission rule, the second one meant automatic ejection.
Mayo approached the referee Michael Lazo, who fell.
Cameras caught the action and national debate ensued over whether Mayo bumped Lazo or Lazo flopped.
Mayo sued the School Activities Commission the next Tuesday, seeking an injunction to block his suspension.
O'Hanlon granted the injunction "ex parte," with no one representing the commission. He set a hearing the following Friday and ruled that Mayo could play until then.
Though O'Hanlon would have let Mayo play, Huntington High would not let him play. School officials suspended him for four games, for bumping Lazo.
That opened a chance for compromise. The SSAC asked Mayo to serve its two-game suspension concurrently with the school's four game suspension.
That would have preserved the rule, without costing Mayo any floor time.
Mayo turned down the offer.
O'Hanlon held a hearing Feb. 9. Huntington High, though not a party, settled the case by agreeing to reduce the suspension to three games.
The SSAC agreed to let its suspension run concurrently.
That didn't end the case, however, for O'Hanlon spent weeks building a bomb.
On April 5 he struck down a different commission rule as unconstitutional.
The rule provided that if an ineligible player competed under a court order that later proved faulty, the opposing team could retroactively demand forfeiture.
O'Hanlon reached his decision "sua sponte," or on his own motion. Mayo hadn't raised any constitutional issue.
O'Hanlon ordered the SSAC to pay Mayo's legal bills.
The commission moved April 16 to alter judgment, and O'Hanlon held a hearing May 9.
In a May 21 order he repeated earlier decisions. "The current regulations are repugnant to any notion of due process," he wrote.
"A review of the suspension would necessarily involve a review of the decision of the referee to assess a technical foul," he wrote.
He amended the judgment, but not the way the commission expected. He declared the SSAC a state agency.
For the commission, William Wooton of Beckley petitioned for appeal in October.
"Requiring a hearing is to invite the courts to review a referee's judgment call in assessing two technical fouls to a player during a game," Wooton wrote to the Justices.
He rejected Mayo's claim of due process, arguing that the Constitution does not protect participation in school sports as a liberty or property interest.
If O'Hanlon had developed a record, Wooton wrote, it would have shown a marked decline in ejections for flagrant fouls following adoption of the rule.
"In addition," he wrote, "had such a record been developed it would have demonstrated that simply obtaining qualified officials is a real problem facing high school athletics and that establishing an administrative procedure to consider an 'appeal' of a referee's decision would exacerbate that problem."
Wooton urged the Justices to steer around a constitutional debate.
He wrote, "... questions regarding the constitutionality of the WVSSAC's forfeiture rule are not of such magnitude or of such significance to the public as to warrant the Court undertaking to issue what is essentially an advisory opinion."
He pleaded to remove O'Hanlon's label identifying the School Activities Commission as a state agency.
The commission has never received public funds, he wrote, and membership includes parochial schools.
If a parochial school qualifies for a state playoff, he argued, the commission defrays its travel expenses.
"If the WVSSAC were a state agency," he asked, "would this not broach the question of establishing a state religion?"
He wrote that the assets of the commission belong to the members.
"If by judicial fiat the WVSSAC suddenly becomes a state agency," he asked, "would not such a ruling amount to an unconstitutional taking of the assets of the SSAC's private and parochial school members?"
Michael Woelfel and Matthew Woelfel of Huntington represent Mayo.