CHARLESTON – Attorneys for a group of Paden City residents and school employees are continuing to fight the Wetzel County Superintendent in court after she appealed a judge’s decision to keep the town’s high school school open.
Superintendent Cassandra Porter filed a notice of appeal August 2 with the state Supreme Court just two days after Wetzel Circuit Judge C. Richard Wilson filed an order granting a preliminary to keep PCHS open for the upcoming school year. Porter had announced plans earlier in the summer to close the school because of unsafe conditions.
The school sits on a U.S. Environmental Protection Agency Superfund site. But the U.S. EPA says vapors from the site are at acceptable levels, so members of the community filed their petition to keep the school open.
Toriseva
In response to Porter’s August 2 appeal, attorneys for the Paden City supporters said the motion to stay should be dismissed for failure to comply with the state Rules for Appellate Procedure, saying Porter needed to present an application to stay to the lower court that issued the order being appealed.
“If the party desiring a stay applies to the Circuit Court for the stay but is denied, that party can then move the appellate court with jurisdiction over the appeal for the stay,” the response, written by attorneys Teresa Toriseva and Joshua Miller, states. “The petitioner (Porter) did not apply to the Circuit Court of Wetzel County for a stay of the injunction issued by that court. The Circuit Court therefore did not deny the application for stay and obviously did not provide reasons for denying the stay.
“It is a jurisdictional prerequisite that a party seeking a stay to first apply to the Circuit Court that entered the order before filing a motion with the Supreme Court requesting a stay of the Circuit Court’s order. As such, the petitioner’s Motion for Stay is not properly before this appeals court.”
That response also notes that the state Supreme Court is not a court of record.
“It does not conduct evidentiary hearings,” the attorneys wrote. “It reviews the record developed below at the trial court level. The Supreme Court requires the party seeking a stay to first apply to the Circuit Court for the stay so the evidentiary and argument record may be developed below. If the stay is denied at the Circuit Court level, the Supreme Court has a specific record developed on which it can base its’ review of that decision should a properly brought stay be before it.”
They also say the emergency motion to stay should be denied for lack of merit and that the school “must stay open.”
“Here, this is an obvious urgency to re-open the school and stop the irreparable harm being suffered by the students,” the attorney wrote. “Because Mandamus does not apply, the ‘arbitrary and capricious’ conduct standard does not apply. Injunctive relief was the only possible remedy, therefore the Circuit Court had jurisdiction to award it. …
“No government agency has indicated there is any threat to the pupils of PCHS. The government agencies that have tested and reported those tests have also commented on the risks associated with those tests. The Petitioner is intentionally confusing and conflating screening levels with allowable levels to achieve her goal of creating a “condition detrimental to the health and safety of the pupils.”
And on August 5, Porter filed a corrected Emergency Motion to Stay with the Supreme Court. The next day, she filed a motion to expedite the emergency stay.
But, the attorneys on the other side again filed a response saying expediting that motion isn’t warranted and asks for the request to be denied.
“There is no emergency here,” the August 8 response states. “A superintendent requesting this Supreme Court to assist her in stopping students from attending a safe school is not sufficient basis for expedited relief. Consistent with her June 12, 2024, letters to parents and faculty closing the school and consistent with her testimony at the July 25, 2024, hearing, her pleadings herein are nothing but fearmongering.
“The petitioner has argued and continues to argue that the mere presence of screening levels of impurities in the air at PCHS is going to harm the students. This argument is contrary to the government agencies that we rely on to find, test and advise the public on whether or not a condition is unsafe. Here, the EPA, CDC, and the ATSDR have said PCHS is not unsafe. The EPA has specifically said it does not recommend closing the school.”
In his 30-page order dated July 31, Wilson said Porter did not have the statutory authority to close the school, noting the inclusion of the phrase “until further notices” doesn’t indicate the announced closure was temporary.
“The petitioners have established the likelihood of irreparable harm to the petitioners without an injunction,” Wilson wrote. “The closure of PCHS may jeopardize and threaten its students with eligibility to play sports and be members of a marching band. …
“Having found that Superintendent Porter acted unjustifiably so, Paden City High School remains open, and its longevity, future and fate is appropriately an issue for the elected representatives on the Wetzel County Board of Education to determine.”
Toriseva filed the petition to stop the planned closure on July 12, and Wilson immediately issued a temporary restraining order that opened the school temporarily. Days later, Porer filed an emergency motion to rescind or reconsider the TRO. Wilson scheduled a hearing for July 25, and that hearing lasted nearly seven hours until almost 11 p.m. He said then he would issue his ruling before August 1.
Toriseva previously said Porter’s action was a misuse of her power because there isn’t an emergency situation that requires the closure. In the original filing, the petitioners also said they wanted to stop a planned closure of the school that is “a great source of pride for the members of the community.”
The plaintiffs, led by the Paden City Schools Athletic Association, filed the petition July 12 against Porter and the West Virginia Secondary Schools Activity Commission, which governs prep sports in the state.
The other petitioners include football coach Nathan Anderson, art teacher and archery coach Matt Kinnard, teacher Samantha Smith, athletic trainer and parent Thomas Duncan, bus driver Chris McGinnis, football coach Josh Billiter, coach and PCAA President Jon Baker, school secretary and PCAA Vice President Penelope Baker, Alumni President Shauna Williams-Yoho, schools employee Mary McGinnis, school employee and mother Zoa Postlethwait, teacher and coach Trey Barcus, teacher and parent Stacey Yoho, teacher and Paden City Council member Bill Bell as well as other parents, grandparents and guardians of children who attend Wetzel County schools.
Paden City High School is home to students in seventh to 12th grade. It opened in 1951 and currently has an enrollment of about 160 students. It has been honored for academics, and its athletic teams have seen success as well.
In March 2021, Paden City was added to the U.S. EPA list of Superfund Sites National Priority List. After that designation, the school remained open through the 2024 school year.
Wetzel County teachers and staff are scheduled to report to school August 12, and students will begin classes August 19. And because of WV SSAC rules requiring players to practice on 12 separate days before participating in a sporting event, “time is running out for the PCHS Wildcats to field any sports team, including a football team and a marching band.”
The plaintiffs are being represented by Toriseva, Miller and Andrew Carpenter of Toriseva Law in Wheeling. Porter is being represented by Kenneth E. Webb Jr., Richard S. Boothby and William M. Lorensen of Bowles Rice in Charleston, and the WVSSAC is being represented by Stephen F. Gandee of Robinson & McElwee in Charleston.
West Virginia Supreme Court of Appeals case number 24-420 (Wetzel Circuit Court case number 24-P-48)