SER W. Va. Secondary School Activities Commission v. Hon. David W. Hummel, Judge, etc.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2015 Term
FILED
_______________ February 26, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-1045 OF WEST VIRGINIA
_______________
STATE OF WEST VIRGINIA EX REL. THE WEST VIRGINIA SECONDARY
SCHOOL ACTIVITIES COMMISSION;
DAVID COTTRELL, President;
MIKE ARBOGAST, Vice President;
GARY RAY, Executive Director;
RICK JONES, Member;
DAN ERENRICH, Member;
EDDIE CAMPBELL, Member;
GREGORY PRUDICH, Member;
CRAIG LEE LOY, Member;
GREG WEBB, Member;
ROBERT DUNLEVEY, Member;
RONALD SPENCER, Member,
Petitioners
v.
THE HONORABLE DAVID W. HUMMEL, Judge of the Circuit Court of Marshall
County;
PAMELA F., Individually, and as Parent and Legal Guardian of D.W., a Minor,
Respondents
____________________________________________________________
Petition for Writ of Prohibition
WRIT DENIED
____________________________________________________________
Submitted: February 4, 2015
Filed: February 26, 2015
William R. Wooton, Esq. James G. Bordas, Jr., Esq.
Wooton & Wooton Michelle Marinacci, Esq.
Beckley, WV Bordas & Bordas, PLLC.
Counsel for the Petitioners Wheeling, WV
Counsel for the Respondents
JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE LOUGHRY concurs and reserves the right to file a concurring opinion
and is joined therein by CHIEF JUSTICE WORKMAN.
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court.” Syl. Pt. 2, in part, State ex rel. Peacher v. Sencindiver, 160
W.Va. 314, 233 S.E.2d 425 (1977)
2. “Decisions properly within the purview of the legislative grant of
authority to the West Virginia Secondary Schools Activities Commission under West
Virginia Code § 18–2–25 (2008), such as the application of WVSSAC Rules and the
review of calls or rulings made by game officials, are not subject to judicial review.” Syl.
Pt. 3, State ex rel. W.Va. Secondary Sch. Activity Comm’n v. Webster, 228 W.Va. 75, 717
S.E.2d 859 (2011).
3. “As a general rule courts should not interfere with the internal affairs
of school activities commissions or associations.” Syl. Pt. 2, State ex rel. W.Va.
Secondary Sch. Activities Comm’n v. Oakley, 152 W.Va. 533, 164 S.E.2d 775 (1968).
4. “The judiciary is the final authority on issues of statutory
construction, and we are obliged to reject administrative constructions that are contrary to
the clear language of a statute” Syl. Pt. 5, CNG Transmission Corp v. Craig, 211 W.Va.
170, 564 S.E.2d 167 (2002).
5. “Where the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation.” Syl. Pt. 2,
Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970).
i
6. “It is fundamental law that the Legislature may delegate to an
administrative agency the power to make rules and regulations to implement the statute
under which the agency functions. In exercising that power, however, an administrative
agency may not issue a regulation which is inconsistent with, or which alters or limits its
statutory authority.” Syl. Pt. 3, Rowe v. W.Va. Dep’t of Corr., 170 W.Va. 230, 292
S.E.2d 650 (1982).
7. “The word ‘shall’, in the absence of language in the statute showing
a contrary intent on the part of the legislature, should be afforded a mandatory
connotation.” See Syl. Pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480(1969).
ii
Justice Ketchum:
Petitioner, the West Virginia Secondary School Activities Commission
(SSAC), seeks a writ of prohibition to halt enforcement of an October 3, 2014, order of
the Circuit Court of Marshall County. The circuit court enjoined the SSAC from
enforcing its penalty against a high school student-athlete. The student-athlete was
ejected from a football game, resulting in his automatic suspension from the next game.
By statute, the Legislature required the SSAC to provide a “proper review
procedure.” The circuit court found the SSAC violated this statutory requirement by
adopting a regulation prohibiting review of ejections and refusing review of its penalty
against the student-athlete. The SSAC argues that the circuit court erred because circuit
courts have no review over its internal affairs and because the “non-review of ejections
rule” is not unconstitutional. The student-athlete responds that the SSAC’s regulations
may be constitutional, but they also must comply with state statutes, which the non-
review of ejections rule fails to do.
Upon review, we find that the SSAC’s non-review of ejections rule violates
the Legislature’s requirement that the SSAC provide a proper review procedure. Because
the circuit court’s order was not in error, we deny the requested writ of prohibition.
I.
FACTUAL AND PROCEDURAL BACKGROUND
This dispute has its origin in a high school football game played on
September 19, 2014. During the game, a referee flagged one of the student-athletes,
1
D.W., for allegedly committing a flagrant personal foul.1 According to the referee’s
report to the SSAC, the student-athlete, while lying on his back on the ground, “drew
back his right leg and delivered an upward kick striking the helmet/face mask of the
Defender.”
The referee ejected the student-athlete from the game. As required by the
SSAC’s rules, the referee completed a detailed report of the incident and submitted it to
the SSAC within twenty-four hours. He also submitted the report to the student-athlete’s
principal. Because the SSAC does not allow participation in the game following an
ejection, he was suspended from playing in the next game, scheduled for September 26th.
The September 19th ejection and the suspension from the September 26th game operated
as a single punishment.
In the week leading up to the September 26th game, the student-athlete
sought administrative review from the SSAC. He hoped to use video-evidence to show
that the alleged kick to the opposing player’s face (or any other misconduct) did not
occur. The student-athlete made multiple attempts that week to get the SSAC to review
its punishment against him.
The SSAC is required by state statute to provide a proper review
procedure.2 Nevertheless, it refused to review the student-athlete’s administrative appeal.
The SSAC instead invoked its non-review of ejections rule, which states: “The protest of
1
Because the student-athlete is a minor, we follow our traditional practice
in cases involving sensitive facts and use only his initials.
2
See W.VA. CODE § 18-2-25 [1967]. We discuss this statute in greater
detail in our analysis.
2
a[n] . . . ejection will not be allowed. Accordingly, the Board of Directors is not
authorized to order . . . ejections to be reconsidered.” W.VA. C.S.R. § 127-3-15.3 [2014].
The SSAC did not review the video-evidence to determine whether the student-athlete’s
punishment was proper.
As a last resort, the student-athlete (by his mother, Pamela F.)3 sought a
temporary restraining order and preliminary injunction from the Circuit Court of
Marshall County, alleging the SSAC’s non-review of ejections rule was not enforceable.4
The student-athlete argued before the circuit court that the SSAC’s non-review of
ejections rule violated the Legislature’s requirement that the SSAC provide a proper
review procedure. The SSAC responded that its non-review of ejections rule is
enforceable because it is not unconstitutional. The SSAC did not address the student­
athlete’s statutory argument.
Before ruling on the matter, the judge stated, “I’m not making any ruling
that anything is unconstitutional.” The judge also said, “I am not reversing a referee. I’m
not considering the call that the referee did.” Likewise, the circuit court’s order granting
the preliminary injunction states: “[t]his Court is not, and has no intention of, examining
3
Because of Pamela F.’s relation to the student-athlete, a minor, we refer to
her using her first name and last initial.
4
The circuit court had two separate hearings on this matter. The first
hearing, scheduled for September 26th, was on whether to grant the requested temporary
restraining order, preventing the SSAC from enforcing its punishment. The circuit court
granted the requested temporary restraining order, which, by its own terms, expired on
October 2, 2014. The second hearing, scheduled for October 2, 2014, was on whether to
grant the requested preliminary injunction, preventing the SSAC from enforcing its
punishment. The parties’ arguments remained virtually the same at both hearings.
3
the constitutionality of [the non-review of ejections rule]. . . . [t]his Court is not, and has
no intention of, reviewing the ejection call made by the game official on September 19,
2014.” The circuit court limited its analysis to whether the non-review of ejections rule
complied with a statute that required the SSAC to provide a proper review procedure.
The circuit court found that the SSAC’s non-review of ejections rule
violates the Legislature’s requirement that the SSAC provide a proper review procedure.
It then granted an injunction against the SSAC’s enforcement of its punishment. The
SSAC then petitioned this Court for a writ of prohibition.
II.
STANDARD OF REVIEW
When considering a petition for a writ of prohibition, we have held:
In determining whether to entertain and issue the writ
of prohibition for cases not involving an absence of
jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will
examine five factors: (1) whether the party seeking the writ
has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3)
whether the lower tribunal’s order is clearly erroneous as a
matter of law; (4) whether the lower tribunal’s order is an oft
repeated error or manifests persistent disregard for either
procedural or substantive law; and (5) whether the lower
tribunal’s order raises new and important problems or issues
of law of first impression. These factors are general
guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue.
Although all five factors need not be satisfied, it is clear that
the third factor, the existence of clear error as a matter of law,
should be given substantial weight.
4
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).
Furthermore, “[a] writ of prohibition will not issue to prevent a simple
abuse of discretion by a trial court.” Syl. Pt. 2, in part, State ex rel. Peacher v.
Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). Rather, the circuit court’s abuse of
powers must be “so flagrant and violative of petitioner’s rights as to make a remedy by
appeal inadequate[.]” Syl. Pt. 2, in part, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d
717 (1973).
III.
ANALYSIS
West Virginia Code § 18-2-25 (1967), provides, in pertinent part, that:
“[t]he rules and regulations of the West Virginia secondary school activities commission
shall contain a provision for a proper review procedure and review board and be
promulgated in accordance with the provisions of [the State Administrative Procedures
Act].” (Emphasis added). At issue is whether this statute was violated by the SSAC’s
regulation, which states, in pertinent part, “[t]he protest of a[n] . . . ejection will not be
allowed. Accordingly, the Board of Directors is not authorized to order . . . ejections to
be reconsidered.” W.VA. C.S.R. § 127-3-15.3 [2014].
The SSAC argues that circuit courts must stay out of its internal affairs and
that its non-review of ejections rule is not unconstitutional. We agree with the SSAC on
these two points, but we disagree that they serve as a proper basis for finding that the
circuit court’s order (which centered upon whether the regulation complied with statute)
was error. Rather, we agree with the circuit court that the SSAC’s non-review of
5
ejections rule is a direct violation of West Virginia Code § 18-2-25’s requirement that the
SSAC provide a proper review procedure. Therefore, we deny the requested writ of
prohibition.
A. Judicial review over the SSAC
The SSAC argues that circuit courts do not have judicial review over its
internal affairs. We generally agree. We have dealt with the frustrating scenario on
many occasions where a student-athlete who is displeased with an on-the-field ejection
petitions his/her local court for a temporary restraining order and a preliminary
injunction, thereby preventing the SSAC from enforcing its decision. Of course, the
student-athlete in this scenario can rely on the sports season being over by the time the
temporary restraining order and preliminary injunction are finally litigated. In this way,
student-athletes have literally been using circuit courts to run out the clock on
unfavorable decisions by the SSAC.
However, the student-athlete’s argument posits a different scenario in
which a referee ejects a football player, #21 for example, from a football game for
fighting but there is clear video-evidence showing that #21 was thirty yards away from
the fight and that the real fighter was #12. If the referee in this scenario refuses to reverse
his call and he submits an ejection report to the SSAC against #21 (who is innocent), any
penalty arising out of the ejection is automatic and will not be reviewable under the
SSAC’s non-review of ejections rule. Under the non-review of ejections rule, the SSAC
will refuse to discuss the matter with the player or consider his video-evidence.
6
We have held that “[d]ecisions properly within the purview of the
legislative grant of authority to the West Virginia Secondary Schools Activities
Commission under West Virginia Code § 18–2–25 (2008), such as the application of
WVSSAC Rules and the review of calls or rulings made by game officials, are not
subject to judicial review.” Syl. Pt. 3, State ex rel. W.Va. Secondary Sch. Activity
Comm’n v. Webster, 228 W.Va. 75, 717 S.E.2d 859 (2011) (emphasis added).
“Coincident with the legislative grant of authority to the SSAC . . . matters falling within
the province of the SSAC’s bailiwick are, as a rule, beyond the purview of court
interference.” Id., 228 W.Va. at 83-84, 717 S.E.2d at 867-68. Furthermore, “[a]s a
general rule courts should not interfere with the internal affairs of school activities
commissions or associations.” Syl. Pt. 2, State ex rel. W.Va. Secondary Sch. Activities
Comm’n v. Oakley, 152 W.Va. 533, 164 S.E.2d 775 (1968).
We have made clear that if the SSAC does not exceed its constitutional or
statutory authority, circuit courts must stay out of the SSAC’s internal affairs. However,
the SSAC must comply with all applicable statutory and constitutional provisions. See
Mayo v. W.Va. Secondary Sch. Activities Comm’n, 223 W.Va. 88, 95 n.17, 672 S.E.2d
224, 231 n.17 (2008) (“[A]n SSAC rule is subject to challenge, like all properly
promulgated legislative rules, on grounds that it exceeds constitutional or statutory
authority and for being arbitrary or capricious.”); Hamilton v. W.Va. Secondary Sch.
Activities Comm’n, 182 W.Va. 158, 386 S.E.2d 656 (1989) (finding the SSAC’s rule
unenforceable under W.VA. CODE § 18-2-25). Likewise, “the authority of a court to inject
itself into an SSAC matter arises when that body exceeds its legitimate rule-making
7
authority,” and judicial review of an SSAC matter is permitted when there is a “well­
founded challenge to a legislative rule promulgated by the SSAC.” Webster, 228 W.Va.
at 84, 717 S.E.2d at 868.
The SSAC argues that this Court in Webster approved the SSAC’s non-
review of ejections rule as proper. That is untrue. Not once in Webster did we discuss,
or even mention, the non-review of ejections rule. Rather, in Webster, we examined the
narrow issue of whether a circuit court erred in finding that a referee’s ejection of a
football player violated the rules of the National Federation of State High School
Associations. Id., 228 W.Va. at 81, 717 S.E.2d at 865. We specifically stated in
Webster, “[c]ritically, no one has suggested that the SSAC rules . . . are an unreasonable
exercise of the legislative grant of rulemaking authority to the SSAC. . . . Because no
allegation was ever asserted by the respondent players that the rules were an
unreasonable exercise of the SSAC’s authority, the trial court had no basis for injecting
itself into this matter.” Id. 228 W.Va. at 84, 717 S.E.2d at 868. Here, the student-athlete
asserts that the SSAC’s non-review of ejections rule was an unreasonable exercise of the
legislative grant of authority under West Virginia Code § 18-2-25. Therefore, the SSAC
cannot rely on Webster to find error in the circuit court’s order based on West Virginia
Code § 18-2-25.
We have stressed before and will stress again that when the SSAC is in
compliance with all applicable constitutional and statutory provisions, circuit courts must
stay out of the SSAC’s internal affairs. That includes, among other things, review of
calls by game-day officials, rulings by the SSAC, and how the SSAC interprets and
8
implements its own rules. However, the SSAC does not have a blank check to ignore its
statutory obligations. Circuit courts have judicial review over the SSAC matters only to
the extent that the SSAC exceeds either its statutory or constitutional authority.
B. The SSAC did not exceed its constitutional authority
The SSAC argues that its non-review of ejections rule is not
unconstitutional. We agree. In fact, we have already examined and ruled on this very
issue. Mayo, 223 W.Va 88, 672 S.E.2d 224 (holding non-review of ejections rule is
constitutionally sound). See also Bailey v. Truby, 174 W.Va. 8, 21, 321 S.E.2d 302, 316
(1984) (“There is no fundamental or constitutional right to participate in nonacademic
extracurricular activities in the ‘liberty’ or ‘property’ interest sense for purposes of due
process analysis.”).
This Court’s position that student-athletes have no constitutionally-
protected due process interest in playing sports is supported by the overwhelming
majority of courts in this country. See, e.g., Seamons v. Snow, 84 F.3d 1226, 1235 (10th
Cir. 1996); Davenport v. Randolph Cnty. Bd. of Educ, 730 F.2d 1395, 1397 (11th Cir.
1984); Niles v. Univ. Interscholastic League, 715 F.2d 1027 (5th Cir. 1983); In re U.S. ex
rel. Mo. Sate High Sch. Activities Ass’n, 682 F.2d 147 (8th Cir. 1982); Herbert v.
Ventetuolo, 638 F.2d 5 (1st Cir. 1981); Ademek v. Penn. Interscholastic Athletic Ass’n
Inc., 57 Pa.Commw. 261, 262, 426 A.2d 1206, 1207 (1981); NCAA v. Gillard, 352 So. 2d
1072, 1081 (Miss. 1977); Whipple v. Or. Sch. Activities Ass’n, 52 Or.App. 419, 423, 629
P.2d 384, 386 (1981); Caso v. N.Y. Pub. High Sch. Athletic Ass’n, 78 A.D.2d 41, 46, 434
N.Y.S.2d 60, 64 (1980); Bruce v. S.C. High Sch. League, 258 S.C. 546, 551-52, 189
9
S.E.2d 817, 819 (1972). See also Walter T. Champion, Jr., Due Process, Equal
Protection, and State Action, Fundamentals of Sports Law § 12:5 (2014) (discussing the
constitutionality of the adverse actions of an athletic association).
The SSAC argues that the circuit court’s order “is directly contrary” to our
decision in Mayo, which held that the SSAC’s adoption and enforcement of its non-
review of ejections rule is constitutionally sound. See Mayo, 223 W.Va. at 93, 672
S.E.2d at 229. However, the SSAC conveniently fails to mention that the circuit court’s
order was based on whether the non-review of ejections rule violated West Virginia Code
§ 18-2-25, a statute. The circuit court’s order stated: “[t]his Court is not, and has no
intention of, examining the constitutionality of [the non-review of ejections rule].” In
Mayo, we did not rule on, or even mention whether the non-review of ejections rule
exceeded the SSAC’s statutory authority. The SSAC is subject to both the Constitution
and statutes. The non-review of ejections rule is not unconstitutional. Therefore, we
proceed to determine whether the SSAC’s non-review of ejections rule exceeded the
SSAC’s statutory authority. See Jones v. W.Va. Bd. of Educ., 218 W.Va. 52, 61, 622
S.E.2d 289, 298 (2005).
C. The SSAC exceeded its statutory authority
The Legislature granted the SSAC authority to regulate interscholastic
athletic events in West Virginia Code § 18-2-25. In that same statute, the Legislature
plainly stated, in pertinent part:
The rules and regulations of the West Virginia
secondary school activities commission shall contain a
provision for a proper review procedure and review board
10
and be promulgated in accordance with the provisions of [the
State Administrative Procedures Act], but shall, in all
instances be subject to the prior approval of the state board. . .
. The West Virginia secondary school activities commission
shall promulgate reasonable rules and regulations providing
for the control, supervision and regulation of the
interscholastic athletic events[.]
(Emphasis added).
Accordingly, the SSAC’s own regulations properly recognize: “[a]ll cases
involving disciplinary action against member schools, coaches, students, team attendants,
or officials may be protested in accordance with § 127-6.” W.VA. C.S.R. § 127-4-3.10
[2014] (emphasis added). The SSAC’s regulations also require investigation and
adjudication of all reports of unsportsmanship action. W.VA. C.S.R. § 127-4-3.8 provides,
in pertinent part:
Unsportsmanship action must be reported in detail to
the WVSSAC. A copy of the complaint must also be filed
with the principal of the school involved. Each principal
involved shall report such information or answers to the
report as they deem appropriate. Upon receipt of all reports,
the Executive Director and/or the Board of Directors of the
WVSSAC shall investigate and adjudicate such reports[.]
Id. (emphasis added).
Nevertheless, the SSAC’s non-review of ejections rule prohibits student-
athletes, coaches, and principals from protesting a student-athlete’s ejection from a sports
event, and the rule does not allow for an ejection to be reconsidered. West Virginia Code
of State Rule § 127-3-15.3, provides: “The protest of a contest or ejection will not be
allowed. Accordingly, the Board of Directors is not authorized to order contests to be
replayed or ejections to be reconsidered.” When the student-athlete in this case sought to
11
present video-evidence to protest his ejection and suspension for alleged unsportsmanlike
conduct, the SSAC responded that it provided no review procedure for the punishment it
imposed against the student-athlete.
The SSAC construes West Virginia Code § 18-2-25 (which requires a
proper review procedure) to allow it to not provide a review procedure for ejections.
However, “[t]he judiciary is the final authority on issues of statutory construction, and we
are obliged to reject administrative constructions that are contrary to the clear language of
a statute.” Syl. Pt. 5, CNG Transmission Corp v. Craig, 211 W.Va. 170, 564 S.E.2d 167(2002). “Where the language of a statute is free from ambiguity, its plain meaning is to
be accepted and applied without resort to interpretation.” Syl. Pt. 2, Crockett v. Andrews,
153 W.Va. 714, 172 S.E.2d 384 (1970). See also, Syl. Pt. 5, State v. Gen. Daniel Morgan
Post No. 548, Veterans of Foreign Wars, 144 W.Va. 137, 107 S.E.2d 353 (1959) (“When
a statute is clear and unambiguous and the legislative intent is plain, the statute should not
be interpreted by the courts, and in such case it is the duty of the courts not to construe
but to apply the statute.”).
Similarly, “[a] statute, or an administrative rule, may not, under the guise of
‘interpretation,’ be modified, revised, amended or rewritten.” Syl. Pt. 1, Consumer
Advocate Div. v. Pub. Serv. Comm’n, 182 W.Va. 152, 386 S.E.2d 650 (1989). We have
said, “[i]t is fundamental law that the Legislature may delegate to an administrative
agency the power to make rules and regulations to implement the statute under which the
agency functions. In exercising that power, however, an administrative agency may not
issue a regulation which is inconsistent with, or which alters or limits its statutory
12
authority.” Syl. Pt. 3, Rowe v. W.Va. Dep’t of Corr., 170 W.Va. 230, 292 S.E.2d 650(1982) (emphasis added). See also Anderson & Anderson Contractors, Inc. v. Latimer,
162 W.Va. 803, 807-08, 257 S.E.2d 878, 881 (1979) (“[T]he rules and regulations [of an
agency] must be reasonable and conform to the laws enacted by the Legislature.”). A
regulation’s validity under the statute it administers is not entitled to deference if the
Legislature has spoken directly to the precise question at issue. See Syl. Pt. 3,
Appalachian Power Co. v. State Tax Dep’t, 195 W.Va. 573, 466 S.E.2d 424 (1995).
The Legislature granted the SSAC no discretion on whether to provide a
proper review procedure for ejections, as manifested by the word “shall” in West Virginia
Code § 18-2-25. See Syl. Pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480(1969) (“The word ‘shall’, in the absence of language in the statute showing a contrary
intent on the part of the legislature, should be afforded a mandatory connotation.”).
Furthermore, West Virginia Code § 18-2-25 contains no limiting language with which we
can infer that the SSAC was allowed to exclude protests of ejections from review.
West Virginia Code § 18-2-25 is clear and unambiguous that the SSAC
must provide a proper review procedure. By contrast, the SSAC’s non-review of
ejections rule prohibits any review for ejections. Therefore, when an ejection occurs, it is
impossible for the SSAC to abide by both West Virginia Code § 18-2-25 and its non-
review of ejections rule because one requires a review and the other prohibits review.
Likewise, the non-review of ejections rule directly contradicts West Virginia Code § 18­
2-25. The SSAC cannot adopt a regulation that is inconsistent with or alters its statutory
13
authority, and accordingly, West Virginia Code of State Rule § 127-3-15.3, the non-
review of ejections rule is invalid and unenforceable.
The Legislature’s requirement that the SSAC provide a review procedure
for ejections is so clear that it is embodied in the SSAC’s own regulations. For example,
West Virginia Code of State Rule § 127-4-3.10 states, “[a]ll cases involving disciplinary
action against member schools, coaches, students, team attendants, or officials may be
protested in accordance with § 127-6.” (Emphasis added). The SSAC also requires that
a detailed report of all cases of unsportsmanlike conduct (including ejections) be
investigated, adjudicated, and submitted to the student-athlete’s principal, in which case
the principal is given opportunity to reply to the report. W.VA. C.S.R. § 127-4-3.8.
Simply, the SSAC’s non-review of ejections rule is not only contrary to West Virginia
Code § 18-2-25, but also to its own regulations, which recognize its obligation under state
law to provide a review procedure for all disciplinary action. See Syl. Pt. 1, State ex rel.
Wilson v. Truby, 167 W.Va. 179, 281 S.E.2d 231 (1981) (“An administrative body must
abide by the remedies and procedures it properly establishes to conduct its affairs.”).
The SSAC argues that providing review of ejections could create the
following problems: (1) making its own system vulnerable to the same abuse as that
experienced in the circuit courts (i.e., student-athletes getting a stay on valid punishments
until the sports season is over); and (2) interfering with SSAC operations (i.e., the
administrative appeal would not be resolved by the time the next game was scheduled).
We are sympathetic to these concerns. However, the SSAC has presented no evidence
that student-athletes abuse the review procedure in states where they are entitled to a
14
review of ejections (i.e., Virginia, Florida, Texas, Oregon, and South Dakota). The mere
potential for abuse does not justify the SSAC failing to provide a review procedure when
a statute requires it to do so.
More importantly, the SSAC can avoid interference with its operations by
adopting a separate, informal review procedure for ejections that does not involve a
hearing. The West Virginia Code has many examples of expedited, informal review
procedures that do not involve formal hearings. For example, West Virginia Code §
18A-5-1a [2014] provides that when a student is accused of possessing a weapon on
school grounds, the principal holds an informal hearing, allows the student to present
evidence supporting his/her side of the story, and makes a decision on the matter that
same day. In suspending students from its regular operations, schools are bound by the
student’s procedural due process rights.5 Because student-athletes do not have a
constitutionally-protected interest in playing high school sports, the SSAC would be even
less restricted in adopting a similar, expedited and informal review for ejections.
The SSAC already has regulations in place that would be helpful to crafting
an expedited, informal review procedure for ejections. For example, West Virginia Code
of State Rule § 127-4-3.8 requires referees to submit a detailed report of any incident of
unsportsmanlike conduct to the SSAC and the student-athlete’s principal within twenty-
four hours. Given the fact that the SSAC already has the referee’s side of the story within
a day of the incident, the SSAC could give the student-athlete a similar twenty-four hour
5
See Goss v. Lopez, 419 U.S. 565, 574 (1975) (suspension from school is
subject to student’s procedural due process rights).
15
period to submit information supporting his/her side of the story. If the SSAC were to
implement a similar informal procedure, it would be able to deliberate on the matter for
an additional day, render a decision, and the dispute could be resolved within three days
of the ejection.
Such a review procedure for ejections would satisfy the State
Administrative Procedures Act. West Virginia Code § 18-2-25 requires that the SSAC
provide a review procedure; it does not require a hearing. The SSAC would not violate
the State Administrative Procedures Act by choosing to adopt a review procedure for
ejections without a formal hearing. See State ex rel. W.Va. Bd. of Educ. v. Perry, 189
W.Va. 662, 665, 434 S.E.2d 22, 25 (1993) (“[T]he provisions in [the State Administrative
Procedures Act], outlining the procedure for hearing contested cases do not create
substantive rights [e.g., right to a formal hearing], as such rights must exist either by
statutory language creating an agency hearing, by the agency’s rules and regulations, or
by some constitutional command.”). Accordingly, the SSAC’s concern that a review of
ejections would interfere with its operations is without merit.
West Virginia Code § 18-2-25, which states, in pertinent part: “[t]he rules
and regulations of [the SSAC] shall contain a provision for a proper review procedure
and review board and be promulgated in accordance with the [State Administrative
Procedures Act],” requires the SSAC to provide a proper review procedure. Therefore,
the SSAC’s non-review of ejections rule, West Virginia Code of State Rule § 127-3-15.3,
which states, “[t]he protest of a[n] . . . ejection will not be allowed. Accordingly, the
Board of Directors is not authorized to order . . . ejections to be reconsidered,” is a direct
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violation of West Virginia Code § 18-2-25 insofar as it prohibits the protests of ejections.
To comply with West Virginia Code § 18-2-25, the SSAC must either include the review
of ejections in its general review procedure or adopt an expedited, informal review
procedure for ejections. Exactly what the review procedure for ejections entails is within
the SSAC’s exclusive discretion so long as it does not exceed its statutory authority.
Lastly, an ejectment decision by the SSAC made in accordance with a
proper review procedure is not subject to judicial review. See Oakley, 152 W.Va. at 538­
39, 164 S.E.2d at 779 (“[T]he courts have no jurisdiction to entertain an appeal from the
decisions of such school activities commissions or associations.”).
IV.
CONCLUSION
Therefore, we find that the circuit court did not err in finding that the
SSAC’s non-review of ejections rule violated West Virginia Code § 18-2-25’s
requirement that the SSAC provide a proper review procedure. Accordingly, we deny the
requested writ of prohibition.
Writ denied.
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