State of West Virginia ex rel. West Virginia Secondary School Activities Commission v. Honorable Timoty L. Sweeney, Judge of the Circuit Court of Ritchie County and L.M., By and Through his Parents and Legal Guardians

FILED
STATE OF WEST VIRGINIA November 17, 2022
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL.
WEST VIRGINIA SECONDARY SCHOOL
ACTIVITIES COMMISSION,
Petitioner,
vs. No. 22-0268
HONORABLE TIMOTHY L. SWEENEY,
JUDGE OF THE CIRCUIT COURT OF RITCHIE COUNTY,
AND L.M.,
BY AND THROUGH HIS PARENTS AND LEGAL GUARDIANS,
HEATHER M. AND TODD M.,
Respondents.
MEMORANDUM DECISION
The petitioner, the West Virginia Secondary School Activities Commission
(“WVSSAC”), seeks a writ of prohibition to prevent the enforcement of an order entered
March 7, 2022, by the Circuit Court of Ritchie County granting the respondent, student
L.M.,1 a preliminary injunction to prevent the WVSSAC from enforcing its Semester and
Season Rule and thereby allowing L.M. to play high school baseball during his fifth year
of high school. 2
As set forth below, upon consideration of the standard for the issuance of a writ of
prohibition, the Court finds that the WVSSAC is entitled to the prohibitory relief it seeks,
as moulded, and determines that a memorandum decision is appropriate under Rule 21 of
the Rules of Appellate Procedure.
1
In cases involving sensitive facts such as the instant proceeding, we use initials,
rather than the parties’ full names. See generally W. Va. R. App. P. 40(e) (restricting use
of personal identifiers in cases involving children); In re K.L., 241 W. Va. 546, 548 n.1,
826 S.E.2d 671, 673 n.1 (2019) (using initials to refer to child parties).
2
Stephen F. Gandee represents the West Virginia Secondary School Activities
Commission, and Frank E. Simmerman, Jr.; Chad L. Taylor; and Frank E. Simmerman, III,
represent student L.M., and his parents, Heather M. and Todd M. (collectively, “L.M.” or
“the student”).
1
This case began in March of 2020, when L.M. was a junior at Williamstown High
School (“WHS”), in Wood County, West Virginia. L.M. was on the roster to play baseball
for WHS during the 2019-2020 school year. On March 2, 2020, the high school baseball
season began, but on March 13, 2020, Governor Jim Justice closed all West Virginia
schools, and, by extension, cancelled all West Virginia spring school sports, because of the
COVID-19 global pandemic. High school baseball games were scheduled to begin on or
after March 18, 2020, but were cancelled due to the statewide school closure. Therefore,
L.M. did not play any high school baseball games during the spring 2020 semester.
Shortly thereafter, L.M. requested to be academically reclassified so that he could
repeat his junior year of high school, 3 and, ostensibly would have two more years to play
high school baseball but for the WVSSAC’s Semester and Season Rule. The Semester and
Season Rule provides: “A student may have the privilege to participate in the
interscholastic program for four consecutive years (eight consecutive semesters or
equivalent) after entering the 9th grade.” W. Va. C.S.R. § 127-2-5.1 (eff. 2020).4 L.M.’s
reclassification request was granted, 5 and, by being reclassified, L.M. attended high school
for five years (ten consecutive semesters).
After his reclassification, L.M. requested a waiver of the WVSSAC’s Semester and
Season Rule to permit him to play high school baseball during his senior (fifth) year of
high school. The WVSSAC provides the following guidance regarding Semester and
Season Rule waiver requests:
The Board of Directors [of the WVSSAC] is authorized to grant a
waiver to the Semester and Season Rule when it feels the rule fails to
accomplish the purpose for which it is intended and when the rule causes
3
The request to be reclassified was not based on poor academic performance.
According to the record, L.M. had a 4.0 grade point average at the time. Rather, L.M.
claimed that he wanted to repeat his junior year of high school because the pandemic-
related school closure deprived him of the opportunity to be a high school student, attend
school in person, take college admissions tests, and visit colleges.
4
Because the events giving rise to the instant proceeding occurred in 2020, the
version of the WVSSAC’s Semester and Season Rule in effect at the relevant time applies
to the facts of this case.
5
L.M.’s academic reclassification request was approved by his school and/or the
board of education for the school’s county; the WVSSAC has indicated that it does not
handle requests for academic reclassification.
2
extreme and undue hardship upon the student. Waivers may be granted in the
following circumstances:
The Board of Directors is authorized to consider cases in which a
student entering 9th grade did not stay in continuous enrollment because of
personal illness, or no school was available, or because of other undue
hardship reasons ascertained through investigation.
The Board of Directors may provide release from the continuous
enrollment restriction provided no participation has occurred during the
semester(s) in question.
In no event may a student be allowed to participate for more than four
seasons in any one sport in grades 9-12.
W. Va. C.S.R. §§ 127-2-5.7.a-c (eff. 2020).6
By letter dated August 27, 2021, the WVSSAC Board of Directors denied L.M.’s
request for a waiver of the Semester and Season Rule. L.M. then appealed to the
WVSSAC’s Board of Review (“Board of Review”), which, by order entered December 8,
2021, also denied the requested waiver. In January 2022, L.M., by and through his parents,
filed the underlying civil action seeking injunctive relief in the Circuit Court of Ritchie
County. 7 By order entered March 7, 2022, the circuit court granted L.M. a preliminary
injunction preventing the WVSSAC from enforcing the Semester and Season Rule against
him, and permitting him to play high school baseball during the spring 2022 semester. The
WVSSAC then filed this petition for a writ of prohibition to prevent the circuit court from
enforcing its order allowing L.M. to play high school baseball during the spring 2022
semester.
Before reaching the merits of the errors asserted by the WVSSAC and the standard
under which we consider whether prohibitory relief is warranted in this case, we must first
consider whether this Court has jurisdiction to entertain this proceeding. See generally Syl.
pt. 1, in part, James M.B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995) (“[T]his
Court has a responsibility sua sponte to examine the basis of its own jurisdiction.”). The
6
See note 4, supra.
7
L.M.’s reason for filing his request for a preliminary injunction in the Circuit Court
of Ritchie County is not apparent from the record. As stated above, L.M. attended high
school in Wood County and sought to play baseball for WHS. However, the WVSSAC did
not object to the case proceeding in the Ritchie County Circuit Court.
3
question of this Court’s jurisdiction in this case concerns mootness, which is a
jurisdictional consideration. See N. Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404,
30 L. Ed. 2d 413 (1971) (per curiam) (observing that “[m]ootness is a jurisdictional
question” (citations omitted)). The instant controversy regarding L.M.’s eligibility as a
student athlete in the spring of 2022 is now technically moot since L.M. was permitted, by
the circuit court’s preliminary injunction, to play high school baseball during the spring
2022 semester, and now, at the time of deciding this matter, the 2022-2023 school year is
well underway. See State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 155,
697 S.E.2d 740, 747 (2010) (“Simply stated, a case is moot when the issues presented are
no longer live or the parties lack a legally cognizable interest in the outcome.” (internal
quotations and citations omitted)).
Nevertheless, this Court may consider technically moot issues under certain
enumerated circumstances:
Three factors to be considered in deciding whether to address
technically moot issues are as follows: first, the court will determine whether
sufficient collateral consequences will result from determination of the
questions presented so as to justify relief; second, while technically moot in
the immediate context, questions of great public interest may nevertheless be
addressed for the future guidance of the bar and of the public; and third,
issues which may be repeatedly presented to the trial court, yet escape review
at the appellate level because of their fleeting and determinate nature, may
appropriately be decided.
Syl. pt. 1, Israel by Israel v. W. Va. Secondary Schs. Activities Comm’n, 182 W. Va. 454,
388 S.E.2d 480 (1989). Here, the issue of a student’s eligibility to participate in a WVSSAC
sanctioned activity is capable of repetition and is of a fleeting nature such that judicial
consideration of the matter may not be possible while the matter is ripe due to the finite
duration of the school academic year. Accordingly, we find that this Court may consider
this case on its merits even though it is technically moot.
Our analysis of the merits of this case is guided by the standard for issuing a writ of
prohibition, which provides as follows:
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
4
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.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). See also
Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977) (“A
writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It
will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds
its legitimate powers. W. Va. Code, 53-1-1.”).
The WVSSAC contends in its petition for writ of prohibition that the circuit court
erred by granting L.M. a preliminary injunction. In rendering its ruling, the circuit court
found that the WVSSAC had “acted in an arbitrary in [sic] capricious manner in denying
the [S]emester and [S]eason waiver request” and that it was “troubled by the nature of the
WVSSAC’s administrative process/findings in this manner,” which the court opined had
not resulted in a “fair administrative process.”
We find that the WVSSAC is entitled to a writ of prohibition on the first basis for
the circuit court’s preliminary injunction because the circuit court erred as a matter of law
by reviewing the manner in which the WVSSAC had applied its eligibility rules. See Syl.
pt. 4, Hoover, 199 W. Va. 12, 483 S.E.2d 12. In so ruling, the circuit court did not find that
the Semester and Season Rule, itself, was arbitrary and capricious, nor did L.M. challenge
the validity of the rule. Rather, the circuit court assessed the manner in which the WVSSAC
had applied the rule to declare L.M. ineligible for the 2022 high school baseball season.
We have repeatedly held that the manner in which the WVSSAC applies its rules is not
subject to judicial review:
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.
5
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). 8 Therefore, the circuit court invaded the WVSSAC’s authority to
determine how the Semester and Season Rule should be applied to determine whether an
individual student is eligible to participate in a sanctioned activity and whether a waiver of
the Rule is warranted. This invasion of the WVSSAC’s authority was clear error.
In granting L.M. a preliminary injunction, the circuit court also questioned the
propriety of the WVSSAC’s administrative process by which the WVSSAC’s Board of
Review upheld the denial of L.M.’s requested waiver of the Semester and Season Rule.
L.M. alleged that the Board of Review had improperly considered extraneous evidence that
had not been officially submitted as part of the administrative proceedings, and, upon a
review of the administrative record, the circuit court found the administrative process had
not been fair.
While, “[a]s a general rule[,] courts should not interfere with the internal affairs of
school activities commissions or associations,” 9 the statute governing the WVSSAC
requires it to “provide a proper review procedure,” 10 which includes that “a fair hearing be
had.” 11 Accord 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.’ Syl. pt. 1, Trimboli v. Board of Education, [163 W. Va.
1,] 254 S.E.2d 561 (W. Va. 1979); Syl. pt. 1, Powell v. Brown, [160 W. Va. 723,] 238
S.E.2d 220 (W. Va. 1977).”). Although it appears that the circuit court was provided with
the entire administrative record from the underlying WVSSAC proceeding, the parties did
not provide that record to this Court. The portion of the appendix record in this case
8
See also Syl. pt. 4, State ex rel. W. Va. Secondary Sch. Activities Comm’n v. Oakley,
152 W. Va. 533, 164 S.E.2d 775 (1968) (“In the absence of statutory power or of
circumstances such as fraud, a court has no jurisdiction to determine a controversy
regarding the eligibility of an athlete suspended from competition under rules promulgated
by an association to which the secondary school in which he was a student at the time of
suspension voluntarily belonged.”). Cf. Mayo v. W. Va. Secondary Schs. 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.”
(citations omitted)).
9
Syl. pt. 2, Oakley, 152 W. Va. 533, 164 S.E.2d 775.
State ex rel. W. Va. Secondary Sch. Activities Comm’n v. Hummel, 234 W. Va.
10731, 738, 769 S.E.2d 881, 888 (2015).
11
Oakley, 152 W. Va. at 539, 164 S.E.2d at 779 (citation omitted).
6
pertaining to the administrative proceeding contains only the Board of Review’s final order
denying L.M. a waiver of the Semester and Season Rule and finding him ineligible to play
high school baseball during the spring 2022 semester. The record before this Court does
not contain a transcript of the Board of Review hearing or any of the evidence that L.M.
alleges was improperly considered by the Board. “If . . . an aggrieved party wishes to
challenge a lower court’s ruling . . . through a petition for a writ of prohibition to this Court,
a record must be made to permit this Court to consider the sufficiency of the grounds
asserted for the [relief sought].” Bluestone, 226 W. Va. at 154 n.3, 697 S.E.2d at 746 n.3
(citation omitted). See also Syl. pt. 2, Conservative Life Ins. Co. v. Alexander, 114 W. Va.
451, 172 S.E. 520 (1933) (“Upon an application for a writ of prohibition, facts not
negatived by the record, will be presumed in aid of the inferior court.”). Due to the lack of
a sufficient record of the Board of Review’s proceedings, we are unable to determine
whether the circuit court erred in concluding that L.M. did not receive a fair hearing before
the Board of Review or whether the WVSSAC is entitled to relief from the circuit court’s
order on this basis.
For the foregoing reasons, we conclude that the circuit court exceeded its
jurisdiction by conducting a judicial review of the WVSSAC’s application of its Semester
and Season Rule, but that the record before this Court is insufficient to permit our review
of the circuit court’s finding that the WVSSAC’s administrative proceedings were
improperly conducted. Therefore, the writ of prohibition requested by the WVSSAC to
prohibit the enforcement of the circuit court’s March 7, 2022 order is hereby granted as
moulded.
Writ Granted as Moulded.
ISSUED: November 17, 2022
CONCURRED IN BY:
Chief Justice John A. Hutchison
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice C. Haley Bunn
Judge James W. Courrier, Jr., sitting by temporary assignment
DISQUALIFIED:
Justice William R. Wooton
7