IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

Docket No.

STATE OF WEST VIRGINIA,

Petitioner,

v.

TRAVIS BEAVER and WENDY PETERS,

Respondents.

______________________________________________

PETITIONER’S MOTION FOR STAY PENDING APPEAL

_____________________________________________

Circuit Court of Kanawha County

Case Nos. 22-P-24, 22-P-26

PATRICK MORRISEY
ATTORNEY GENERAL

Lindsay S. See (WV Bar # 13360)

Solicitor General
Counsel of Record
Michael R. Williams (WV Bar # 14148)
Senior Deputy Solicitor General
Caleb A. Seckman (WV Bar # 13964)
Assistant Solicitor General
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305-0220
Email: [email protected]
[email protected]
[email protected]
Telephone: (304) 558-2021
Facsimile: (304) 558-0140
 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

BACKGROUND ............................................................................................................................ 1

LEGAL STANDARD ..................................................................................................................... 4

ARGUMENT .................................................................................................................................. 5

I. The State Is Exceedingly Likely To Prevail On Appeal. ..................................................... 5

II. The Other Stay Factors Support The State’s Request. ....................................................... 14

CONCLUSION ............................................................................................................................. 15

i
 TABLE OF AUTHORITIES

Page(s)

Cases

In re A.H.,
999 F.3d 98 (2d Cir. 2021).......................................................................................................15

Bailey v. Truby,
174 W. Va. 8, 321 S.E.2d 302 (1984) ......................................................................................11

Baker v. Carr,
369 U.S. 186 (1962) ...................................................................................................................7

Ballard v. Kitchen,
128 W. Va. 276, 36 S.E.2d 390 (1945) ....................................................................................14

Cathe A. v. Doddridge Cnty. Bd. of Educ.,

200 W. Va. 521, 490 S.E.2d 340 (1997) ..................................................................................10

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ...................................................................................................................7

Edlis, Inc. v. Miller,

132 W. Va. 147, 51 S.E.2d 132 (1948) ......................................................................................3

Gallant v. Cnty Comm’n of Jefferson Cnty.,

212 W. Va. 612, 575 S.E.2d 222 (2002) ............................................................................12, 13

Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc.,

527 U.S. 308 (1999) ...................................................................................................................3

Hart v. State,
774 S.E.2d 281 (N.C. 2015).......................................................................................................8

Issa v. Sch. Dist. of Lancaster,

847 F.3d 121 (3d Cir. 2017).....................................................................................................15

Jackson v. Benson,
578 N.W.2d 602 (Wis. 1998) .....................................................................................................8

Justice v. W. Va. AFL-CIO,

246 W. Va. 205, 866 S.E.2d 613 (2021) ..............................................................................8, 13

Lewis v. Canaan Valley Resorts, Inc.,

185 W. Va. 684, 408 S.E.2d 634 (1991) ....................................................................................8

ii
 TABLE OF AUTHORITIES
(continued)

Page(s)

Lindsie D.L. v. Richard W.S.,

214 W. Va. 750, 591 S.E.2d 308 (2003) ..................................................................................15

Maryland v. King,
567 U.S. 1301 (2012) ...............................................................................................................14

Men & Women Against Discrimination v. Fam. Prot. Servs. Bd.,

229 W. Va. 55, 725 S.E.2d 756 (2011) ......................................................................................6

Meredith v. Pence,
984 N.E.2d 1213 (Ind. 2013) .....................................................................................................8

Moats v. Preston Cnty. Comm’n,

206 W. Va. 8, 521 S.E.2d 180 (1999) ........................................................................................4

Morrisey v. W. Va. AFL-CIO,

239 W. Va. 633, 804 S.E.2d 883 (2017) ....................................................................................8

Ne. Nat. Energy LLC v. Pachira Energy LLC,

243 W. Va. 362, 844 S.E.2d 133 (2020) ....................................................................................3

Nken v. Holder,
556 U.S. 418 (2009) .........................................................................................................4, 5, 15

Orville Young, LLC v. Bonacci,

246 W. Va. 26, 866 S.E.2d 91 (2021) ........................................................................................5

Pauley v. Kelly,
162 W. Va. 672, 255 S.E.2d 859 (1979) ..................................................................................10

Pendleton Citizens for Cmty. Schs. v. Marockie,

203 W. Va. 310, 507 S.E.2d 673 (1998) ..................................................................................11

Plyler v. Doe,
457 U.S. 202 (1982) .................................................................................................................15

Robertson v. Hatcher,
148 W. Va. 239, 135 S.E.2d 675 (1964) ....................................................................................9

Robinson v. Charleston Area Med. Ctr., Inc.,

186 W. Va. 720, 414 S.E.2d 877 (1991) ....................................................................................9

Schwartz v. Lopez,
382 P.3d 886 (Nev. 2016) ..........................................................................................................8
iii
 TABLE OF AUTHORITIES
(continued)

Page(s)

St. Paul Fire & Marine Ins. Co. v. AmerisourceBergen Drug Corp.,
868 S.E.2d 724 (W. Va. 2021) .............................................................................................5, 13

State ex rel. Cooper v. Tennant,

229 W. Va. 585, 730 S.E.2d 368 (2012) ..........................................................................8, 9, 12

State ex rel. Kutil v. Blake,

223 W. Va. 711, 679 S.E.2d 310 (2009) ....................................................................................4

State ex rel. Loughry v. Tennant,

229 W. Va. 630, 732 S.E.2d 507 (2012) ..................................................................................11

State ex rel. Metz v. Bailey,

152 W. Va. 53, 159 S.E.2d 673 (1968) ......................................................................................9

State ex rel. TermNet Merch. Servs., Inc. v. Jordan,

217 W. Va. 696, 619 S.E.2d 209 (2005) ....................................................................................6

State ex rel. W. Va. Bd. of Educ. v. Gainer,

192 W. Va. 417, 452 S.E.2d 733 (1994) ....................................................................................8

State Farm Mut. Auto. Ins. Co. v. Schatken,

230 W. Va. 201, 737 S.E.2d 229 (2012) ....................................................................................7

State Rd. Comm’n v. Kanawha Cnty. Ct.,

112 W. Va. 98, 163 S.E. 815 (1932) ..........................................................................................9

State v. King,
64 W. Va. 546, 63 S.E. 468 (1908) ............................................................................................9

Tabata v. Charleston Area Med. Ctr., Inc.,

233 W. Va. 512, 759 S.E.2d 459 (2014) ....................................................................................7

W. Platte R-II Sch. Dist. v. Wilson,

439 F.3d 782 (8th Cir. 2006) .....................................................................................................3

Wampler Foods, Inc. v. Workers’ Comp. Div.,

216 W. Va. 129, 602 S.E.2d 805 (2004) ....................................................................................7

Wiley v. Toppings,
210 W. Va. 173, 556 S.E.2d 818 (2001) ..................................................................................12

Wilson v. Zarhadnick,
534 F.2d 55 (5th Cir. 1976) .......................................................................................................6
iv
 TABLE OF AUTHORITIES
(continued)

Page(s)

Constitutional Provisions
W. VA. CONST. art. XII, § 1 ...............................................................................................3, 7, 9, 13

W. VA. CONST. art. XII, § 4 ...........................................................................................................12

W. VA. CONST. art. XII, § 12 ...........................................................................................................8

Statutes
W. VA. CODE § 18-2-5 ...................................................................................................................12

W. VA. CODE § 18-9A-1 ..................................................................................................................6

W. VA. CODE § 18-9A-11 ................................................................................................................6

W. VA. CODE § 18-9A-12 ................................................................................................................6

W. VA. CODE § 18-9A-25 ..............................................................................................................12

W. VA. CODE § 18-31-1 ...................................................................................................................1

W. VA. CODE § 18-31-2 ...................................................................................................................6

W. VA. CODE § 18-31-3 ...................................................................................................................2

W. VA. CODE § 18-31-5 ...............................................................................................2, 3, 6, 11, 13

W. VA. CODE § 18-31-6 .........................................................................................2, 3, 6, 12, 13, 14

W. VA. CODE § 18-31-7 .............................................................................................................1, 13

Rules
W. VA. R. APP. P. 28 ....................................................................................................................4, 5

Other Authorities
Alan Greenblatt,
School Choice Advances in the States, EDUC. NEXT 18 (2021) .................................................3

Brad McElhinny,
3,000 students must reassess school plans after Hope Scholarship is halted,
METRONEWS (July 7, 2022, 4:57 PM) .....................................................................................14

v
 TABLE OF AUTHORITIES
(continued)

Page(s)

Jeff Jenkins,
Hope Scholarship numbers grow, some late applications will be processed,
METRONEWS (June 21, 2022 7:17 PM) .....................................................................................2

S.B. 250, Title II, Section 1 (Appropriations for general revenue),

2022 Leg., Reg. Sess. 33-34 (W. Va. 2022) ............................................................................11

W. VA. DEP’T OF EDUC., H.B. 2013 FISCAL NOTE (2013) ................................................................7

W. VA. STATE BUDGET OFFICE, REVENUE COLLECTIONS FISCAL

YEAR 2022 (2022) ....................................................................................................................10

vi
 INTRODUCTION

Just weeks before school starts, the lower court granted “preliminary and permanent

injunctive relief” against the Hope Scholarship Act, a celebrated law building on other States’

success providing alternative educational funding. Thousands of West Virginia families are now

in limbo, questioning whether they can afford the education they planned for their kids this coming

year. This should not have happened. The district court acted without jurisdiction, awarded relief

that no party had requested, agreed with baseless claims, and speculated harms into existence.

This Court should stay the circuit court’s order enjoining the State from implementing the

Act. Riddled with jurisdictional problems and meritless theories of relief, the injunction will

almost certainly fall on appeal. And absent a stay, the State and its families will suffer irreparable

harm: A validly enacted law will stand mute because the Legislature’s policy judgments “troubled”

a single judge, and students across the State will be stripped of educational opportunities for at

least a year. On the other hand, a stay will not hurt Respondents because the Act does not disturb

public school funding for the upcoming academic year. And given how the Act helps kids, a stay

serves the public interest, too. The Court should stay this order to help ensure that West Virginia’s

students have the best available education options for their individual needs—this school year.

BACKGROUND

In March 2021, the West Virginia Legislature passed and the Governor signed House Bill

2013, the Hope Scholarship Act. W. VA. CODE §§ 18-31-1 to -13. Although the circuit court

considered the Act a “voucher law,” it is not. Unlike single-use vouchers to private schools, the

Act creates and funds education-savings accounts that parents can use to pay for many educational

expenses: tutoring, college-prep courses, homeschool curriculum, education therapies, and more.

Id. § 18-31-7. As an alternative to public-school enrollment, eligible students receive a

1
scholarship—paid into their accounts—equal to the adjusted average of state funding for each

student. Id. § 18-31-6. The Hope Scholarship Board oversees the program. Id. §§ 18-31-3, -4.

Although the law went into effect last summer, Respondents waited until January 2022—

weeks before the scholarship application period opened, id. § 18-31-5(c)—to file a complaint for

injunctive and declaratory relief. The complaint against the State Treasurer, State Superintendent,

President of the Senate, Speaker of the House, and Governor alleged the Act was unconstitutional

for five reasons. First, the Legislature purportedly can fund only public schools, not any other

educational initiative. Second, the Legislature allegedly failed to establish a compelling purpose

and narrowly tailored scheme. Third, Respondents insisted the Act improperly took money from

the “School Fund” enshrined in Article XII, Section 4 of the West Virginia Constitution. Fourth,

they argued the Act usurps the Board of Education’s authority. And fifth, Respondents called the

Act an unconstitutional “special law” that makes improper distinctions among students.

Respondents did not move for a preliminary injunction until March 30—months after

suing, well after the application period opened, and more than a year after the Act was passed.

Respondents’ motion relied on their same five claims. Despite alleging grave harms, they did not

seek a temporary restraining order, move for an immediate hearing, ask the court to rule on an

expedited basis, or otherwise request immediate relief. Nevertheless, several named defendants

moved to dismiss, a group of intervening parents moved for judgment on the pleadings, and the

State of West Virginia moved to intervene.

Meanwhile, the Hope Scholarship Program marched forward. Through the spring and

early summer, the Hope Scholarship Board approved more than 3,100 students to receive

scholarships, with hundreds more still in the application process. See Jeff Jenkins, Hope

Scholarship numbers grow, some late applications will be processed, METRONEWS (June 21, 2022

2
7:17 PM), https://bit.ly/3PqWuM9. The program met its July 1 statutory deadline to become

“operational.” W. VA. CODE § 18-31-5(a). It was set to distribute millions of dollars in scholarship

funds no later than August 15. See id. § 18-31-6(d). In short, West Virginia seemed poised to

become another success story in expanding learning options through education-savings accounts.

See generally Alan Greenblatt, School Choice Advances in the States, 21 EDUC. NEXT 18 (2021).

But the circuit court changed all that. Respondents had never moved for a permanent

injunction or even summary judgment, and the circuit court provided no notice that it intended to

decide the entire case anytime soon. Even so, the court announced at a July 6 hearing that it was

“granting preliminary and permanent injunctive relief enjoining the state from implementing [the

Act].”1 Ex. 1, Tr. 07/06/20 Hearing, at 68. Observing that the Legislature must provide “a

thorough and efficient system of free schools,” W. VA. CONST. art. XII, § 1, the court applied “the

doctrine of expressio unius” to hold that “the state of West Virginia cannot [also] provide for

nonpublic education,” Ex. 1, at 65. The court was “troubled” by the Legislature’s choice how to

oversee the program and found it “problematic” that scholarship funds would purportedly

“divert[]” money from public schools and “provide[] a financial incentive to students enrolled in

public schools to leave the public education system.” Id. at 66. Although it cited no evidence, the

court expected that “many disabled or special needs students are not going to be utilizing the

vouchers,” so “public schools will be left with less funds to educate the students with the most

needs.” Id. at 67. And the court determined that the Hope Scholarship Board “usurp[ed]” the

Board of Education’s role and the Act otherwise offended limits on using the School Fund. Id.

1
A preliminary injunction “preserve[s] the relative positions of the parties until a trial on the merits can be
held.” Ne. Nat. Energy LLC v. Pachira Energy LLC, 243 W. Va. 362, 370, 844 S.E.2d 133, 141 (2020).
Because the circuit court’s permanent injunction was a final order, Edlis, Inc. v. Miller, 132 W. Va. 147,
155, 51 S.E.2d 132, 136 (1948), it immediately mooted any preliminary injunction, Grupo Mexicano de
Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 314 (1999). See also, e.g., W. Platte R-II Sch. Dist.
v. Wilson, 439 F.3d 782, 785 (8th Cir. 2006) (collecting authorities).
3
Without further explanation, the court then said that “all [injunctive relief] factors weigh[ed] in

[plaintiffs’] favor.” Id. at 68.

Thus, the court “grant[ed] the Declaratory Judgment Relief” and enjoined enforcing the

Act. Ex. 1, at 68. Renaming it the “Voucher Law,” the court held that the Act “violates Article

XII, Sections 1, 2, 4 and 5 of the West Virginia Constitution, and Article VI, Section 39 … and

accordingly, is null and void.” Id.

The State immediately requested a stay, which the court denied; it agreed with

Respondents’ suggestion that “[t]hese monies are getting set to go out, and that is part of the harm

to send money out.” Ex. 1, at 70. After the State stressed again that time is of the essence, the

circuit court eventually called for Respondents to submit proposed orders by July 20, a full two

weeks after the July 6 hearing. See Exs. 2-4, Correspondence Concerning Orders. The court has

not said when it will ultimately issue its written orders, even though the program was set to start

depositing funds for families next month.2 The State plans to appeal from that order quickly.

Given the urgency and interests at stake, it moves for a stay now.

LEGAL STANDARD

A stay “simply suspend[s] judicial alteration of the status quo” long enough to “allow[] an

appellate court to act responsibly.” Nken v. Holder, 556 U.S. 418, 427, 429 (2009). Courts

traditionally consider four factors: “(1) whether the stay applicant has made a strong showing that

he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a

stay; (3) whether issuance of the stay will substantially injure the other parties interested in the

2
The Court can grant relief without a written order. See State ex rel. Kutil v. Blake, 223 W. Va. 711, 718,
679 S.E.2d 310, 317 (2009) (Supreme Court of Appeals granted a stay filed “[b]efore the written order was
issued,” premised on “the [oral] pronouncement of the lower court”); Moats v. Preston Cnty. Comm’n, 206
W. Va. 8, 13, 521 S.E.2d 180, 185 (1999) (“An oral order has the same force, effect, and validity in the law
as a written order.”); W. VA. R. APP. P. 28(a)-(b) (anticipating stay motions before the appeal is presented).
4
proceeding; and (4) where the public interest lies.” Id. at 434; see also W. VA. R. APP. P. 28(b)

(stay motions must give “the reasons for the relief requested and the grounds for the appeal”).

ARGUMENT

All four factors strongly support a stay. The State is likely to prevail in its appeal, but it

will be irreparably harmed if the Hope Scholarship Program remains on hold while the circuit court

drafts an appropriate order and the case then wends its way through appeal. Conversely, a stay

would not injure Respondents because the program will not affect this year’s school funding. And

putting duly enacted laws into effect serves the public interest, especially when they concern

interests as important as education.

I. The State Is Exceedingly Likely To Prevail On Appeal.

The circuit court’s grant of a permanent injunction “call[ed] for the exercise of sound

judicial discretion in view of all the circumstances of the particular case,” including “the nature of

the controversy, the object for which the injunction is being sought, and the comparative hardship

or convenience to the respective parties.” Syl. pt. 2, St. Paul Fire & Marine Ins. Co. v.

AmerisourceBergen Drug Corp., 868 S.E.2d 724, 726 (W. Va. 2021). Appellate courts review

injunctions under an abuse-of-discretion standard, evaluating factual findings for clear error and

legal conclusions de novo. Id. at syl. pt. 3. Declaratory judgment awards are reviewed de novo,

too. Orville Young, LLC v. Bonacci, 246 W. Va. 26, 866 S.E.2d 91, 96 (2021). Because the circuit

court’s ruling is flawed on jurisdictional, merits, and prudential grounds, the State is very likely to

win on appeal under these standards.

A. Several threshold issues doom the circuit court’s order. For one thing, it was

“error” to issue a permanent injunction when “there had been no notice or order consolidating”

requests for preliminary and permanent injunctive relief. Wilson v. Zarhadnick, 534 F.2d 55, 57

5
(5th Cir. 1976) (collecting authorities). For another, the circuit court did not have subject-matter

jurisdiction for three separate reasons. Because “any decree made by a court lacking jurisdiction

is void,” State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 700, 619 S.E.2d

209, 213 (2005), the State is extremely likely to succeed on appeal.

Respondents’ lack of standing is the first problem. Respondents must show “injury-in-

fact”—that is, a “concrete and particularized” injury that is also “actual or imminent and not

conjectural or hypothetical.” Men & Women Against Discrimination v. Fam. Prot. Servs. Bd., 229

W. Va. 55, 61, 725 S.E.2d 756, 762 (2011). Then they must tie that injury to the conduct they

challenge and establish how a favorable decision will redress it. Id. But Respondents did none of

that. Nor could they. Their children are enrolled in public schools, so they are eligible for Hope

Scholarship funds should they choose. See W. VA. CODE §§ 18-31-2(5), 18-31-5, 18-31-6. The

Act on its face also takes nothing from public school funding. So Respondents’ theory is

necessarily indirect: The Act might encourage other students to leave their children’s public

schools, which might lead to a significant drop in enrollment, which might eventually cause

decreased state public-school funding (at least under existing formulas),3 which might be large

enough for their particular schools’ funding to slip below adequate levels, which the Legislature

might fail to correct through new appropriations, and which might then hurt their children should

they remain in public schools. To trace this logic defeats it; Respondents’ theory of standing is

too attenuated to survive. After all, when “a prospective injury” is “conjectural,” it “does not meet

the requirement for standing.” Tabata v. Charleston Area Med. Ctr., Inc., 233 W. Va. 512, 517,

3
The school-aid formula provides an allowance to each county for various categories of costs, including
some tied to enrollment. See generally W. VA. CODE §§ 18-9A-1 -10. The sum of these costs is called the
county’s “basic foundation program.” Id. § 18-9A-12. Generally, the amount of state aid per county is the
difference between the cost of the county’s basic foundation program and its local share, which is the
county’s projected property tax collections for the year. See id.; see also id. § 18-9A-11.
6
759 S.E.2d 459, 464 (2014). Respondents’ “speculative chain of possibilities” thus “does not

establish” concrete and imminent injury. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 414 (2013).

For much the same reason, Respondents’ claims are not ripe. The ripeness doctrine ensures

that courts do not issue advisory opinions, resolve academic disputes, or decide matters dependent

on contingent events. See State Farm Mut. Auto. Ins. Co. v. Schatken, 230 W. Va. 201, 210, 737

S.E.2d 229, 238 (2012). Even when a party seeks declaratory relief, “future and contingent events

will not be considered.” Id. at 211, 737 S.E.2d at 239. And the circuit court should have been

especially reluctant to jump into the fray here, as courts should not “act to prematurely reach

ultimate constitutional issues.” Wampler Foods, Inc. v. Workers’ Comp. Div., 216 W. Va. 129,

146, 602 S.E.2d 805, 822 (2004). Yet Respondents are not suffering any injury now. Hope

Scholarship dollars do not come from public school appropriations. Projected enrollment figures

do not create a present threat, either, as the State’s public-school funding formulas look to the

preceding year’s enrollment figures. See W. VA. DEP’T OF EDUC., H.B. 2013 FISCAL NOTE (2013),

https://bit.ly/3OavM9H. Given that lag, if there are fewer children in a given public school this

year because of the Hope Scholarship Program, that school will have more funding this year for

each student that stays enrolled. So even if Respondents are right about what might happen in

future years, that feared harm is not “imminent.”

The political-question doctrine also bars this suit. Nonjusticiable political questions arise

either when “a textually demonstrable constitutional commitment” hands the “issue to a coordinate

political department” or there is a “lack of judicially discoverable and manageable standards.”

Baker v. Carr, 369 U.S. 186, 217 (1962). Here, we have both. Respondents rely on Article XII,

Section 1, which includes the necessary “commitment”—it specifies that “[t]he Legislature shall

provide, by general law, for a thorough and efficient system of free schools.” See also W. VA.

7
CONST. art. XII, § 12 (“The Legislature shall foster and encourage[] moral, intellectual, scientific,

and agricultural improvement.”). And the constitutional text gives no judicially manageable

standard, as Respondents are asking the courts to make policy-based judgments like “how much

money is enough” or “what educational programs beyond public schools should the State support.”

But school-funding issues usually must be decided in “the voting booth.” State ex rel. W. Va. Bd.

of Educ. v. Gainer, 192 W. Va. 417, 419, 452 S.E.2d 733, 735 (1994). More generally, courts

cannot decide the “wisdom, desirability, and fairness of a law”—these questions belong “in the

court of public opinion and the ballot box, not before the judiciary.” Morrisey v. W. Va. AFL-CIO,

239 W. Va. 633, 636, 804 S.E.2d 883, 886 (2017).

B. If Respondents get past jurisdiction, their claims will very likely fail on the merits,

too. Challenges like these have failed in many other courts. See, e.g., Schwartz v. Lopez, 382 P.3d

886, 896 (Nev. 2016) (rejecting claims analogous to Respondents’ and enjoining law only

concerning funding features not present here); Hart v. State, 774 S.E.2d 281, 289 (N.C. 2015);

Meredith v. Pence, 984 N.E.2d 1213, 1222-23 (Ind. 2013); Jackson v. Benson, 578 N.W.2d 602,

628 (Wis. 1998). For good reason. To start, “a facial challenge to the constitutionality of

legislation is the most difficult challenge.” Lewis v. Canaan Valley Resorts, Inc., 185 W. Va. 684,

691, 408 S.E.2d 634, 641 (1991). Courts presume statutes are constitutional; Respondents must

prove otherwise. See Justice v. W. Va. AFL-CIO, 246 W. Va. 205, 866 S.E.2d 613, 620-21 (2021).

To make that showing, Respondents must “establish that no set of circumstances exists under

which [the Act] would be valid.” State ex rel. Cooper v. Tennant, 229 W. Va. 585, 594, 730 S.E.2d

368, 377 (2012) (citation omitted). Despite their five-way, scattershot effort, Respondents cannot.

First, the Act does not offend the Legislature’s constitutional requirement to provide for

“a thorough and efficient system of free schools.” W. VA. CONST. art. XII, § 1.

8
 Applying the canon of expressio unius est exclusio alerius (“the expression of one thing is

the exclusion of another”), the circuit court incorrectly read the Legislature’s duty to fund public

schools to bar funding any other educational initiatives. Yet that canon “is not of universal

application,” and applying it requires “great caution.” State Rd. Comm’n v. Kanawha Cnty. Ct.,

112 W. Va. 98, 163 S.E. 815, 817 (1932). Here, especially: Unlike situations when courts might

well presume the Legislature did not intend more than it said expressly (like when making conduct

criminal or delegating certain powers to a state board), the Legislature starts with “almost plenary”

powers under our Constitution. Robinson v. Charleston Area Med. Ctr., Inc., 186 W. Va. 720,

725, 414 S.E.2d 877, 882 (1991). In other words, the Constitution affirms the Legislature’s broad

“authority to enact any measure not inhibited thereby.” Cooper, 229 W. Va. at 594, 730 S.E.2d at

377; see also Robertson v. Hatcher, 148 W. Va. 239, 251, 135 S.E.2d 675, 683 (1964) (if the

Constitution does not forbid legislators from acting, “they may” (cleaned up)). So Respondents

would have to point to a specific provision negating the Legislature’s power “beyond reasonable

doubt.” Syl. pt. 4, State ex rel. Metz v. Bailey, 152 W. Va. 53, 159 S.E.2d 673, 674 (1968). They

have not. See also State v. King, 64 W. Va. 546, 63 S.E. 468, 493 (1908) (refusing to use expressio

unius to limit legislative power). At most, the expressio unius canon implies that the Legislature

is not obligated to fund educational initiatives beyond “free schools.” But that would not foreclose

its right to do so as a discretionary, policy matter.

Nor does the Act frustrate the Legislature’s obligation to provide and fund free schools.

The Act gives parents more options for their children’s education. And yes, under the current

funding formula lower public-school numbers may eventually decrease county funding (though

with fewer students at least some of the counties’ costs will go down, too). But that means only

that, at some point, the existing funding structure might prove inadequate. If that happens, the

9
Legislature would be duty-bound to come up with something else. The Act would not frustrate its

ability to do so. The circuit court thought the program would cost $100 million (despite numbers

closer to $13 million for the coming year). See, e.g., Ex. 1, at 29, 38, 58, 62. But that cost is not

an unconstitutional frustration when last fiscal year’s revenue collections closed more than $1.3

billion ahead of estimates. See W. VA. STATE BUDGET OFFICE, REVENUE COLLECTIONS FISCAL

YEAR 2022 (2022), https://bit.ly/3O5LqDa. The Legislature can also amend the Hope Scholarship

Program to account for future budgetary needs. And if a public-school funding shortage ever did

occur and the Legislature failed to correct it, Respondents would be able to sue for a declaration

that the shortage is unconstitutional. See Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979).

The Constitution does not bar statutes that might “incentivize” students to leave public

schools. Ex. 1, at 39-40. The Constitution requires funding public schools for every child who

attends them—it is not a de facto bar on supporting anything else. And no precedent prohibits

programs that might have eventual consequences for funding metrics. On that logic, any new

spending program that draws down the State fisc could be said to “frustrate” the constitutional

obligation if someone thinks it does not leave enough money to cover public-school funding

challenges down the road. Schools numbers fluctuate for many reasons, after all—West Virginia’s

have been declining for some time. No one suggests these fluctuations create a constitutional

injury, and those that Hope Scholarships may spur are no different.

Second, strict scrutiny does not apply and thus cannot defeat the Act. Only a “denial or

infringement of the fundamental right to an education” triggers strict scrutiny review. Cathe A. v.

Doddridge Cnty. Bd. of Educ., 200 W. Va. 521, 528, 490 S.E.2d 340, 347 (1997). Here, the Act

leaves public schools’ doors open to all students—it provides more choice while leaving existing

options in place. If freedom of choice causes enrollment to move, that shift is no constitutional

10
crisis; changing school sizes does not violate the Constitution. See Pendleton Citizens for Cmty.

Schs. v. Marockie, 203 W. Va. 310, 317, 507 S.E.2d 673, 680 (1998) (school consolidation was

constitutional even if some students would have done better in smaller schools). Speculating

(again) that schools might be underfunded in the future is not enough, either. Strict scrutiny applies

only if the Act actually denies or abridges public school students’ educational rights.

Regardless, the Act would satisfy strict scrutiny’s “compelling interest” and “narrowly

tailored” hurdles. See State ex rel. Loughry v. Tennant, 229 W. Va. 630, 637, 732 S.E.2d 507, 514

(2012). Promoting “learning activity is indeed a compelling State interest.” Bailey v. Truby, 174

W. Va. 8, 23, 321 S.E.2d 302, 317 (1984). The Act directly advances this interest by “provid[ing]

the option for [parents] to better meet [their children’s] individual education needs.” W. VA. CODE

§ 18-31-5(a). And the Legislature narrowly tailored the Act by funding it through General Fund

dollars instead of re-appropriating money set aside for public schools. The circuit court repeatedly

questioned the wisdom of these choices. E.g., Ex. 1, at 42 (“[The Legislature] might need to

reevaluate. Isn’t that what I’m supposed to do here today?”), id. at 54 (“It just seems to me to be

fundamentally inappropriate, if not unconstitutional, to do what this statutory mechanism

suggests.”). But second-guessing policy choices is not the same as identifying a “less restrictive

remed[y]” the Legislature could have chosen instead. State ex rel. Loughry, 229 W. Va. at 640,

732 S.E.2d at 517.

Third, the Act does not touch the School Fund. Nothing in the Act says that monies from

that Fund will be diverted to the Hope Scholarship Program. Quite the opposite: The General Fund

pays for the Act, see S.B. 250, Title II, Section 1 (Appropriations for general revenue), 2022 Leg.,

Reg. Sess. 33-34 (W. Va. 2022), and the Department of Education seeks a separate appropriation

to meet program obligations. See W. VA. CODE §§ 18-9A-25, 18-31-6. Given that, the Act

11
conforms to the Constitution’s limits on using the “permanent and invested school fund.” W. VA.

CONST. art. XII, § 4. Running from Section 4’s plain text, Respondents tried to read Article XII,

Section 5’s direction that the Legislature support public schools through “general taxation of

persons and property or otherwise” to transform any tax funds used for educational ends into

“School Fund” money. But Section 5 does not say funding public schools is the only permissible

education-related way to use tax revenue; this argument seems to be another botched use of the

expressio unius canon. And any doubt on that score “must be resolved in favor of the [Act’s]

constitutionality.” Cooper, 229 W. Va. at 594, 730 S.E.2d at 377.

Fourth, the Act respects the Board of Education’s role. The Act does not change the

Board’s responsibilities. Below, Respondents invoked Article XII, Section 2, but that provision

gives the Board “[t]he general supervision of the free schools of the State.” It does not assign

authority over all schools or education writ large. Respondents also thought that West Virginia

Code § 18-2-5 somehow expanded the Board’s constitutional powers. But the Constitution defines

the reach of statutes, not the other way around—the statute itself reiterates that the Board’s

authority is “[s]ubject to and in conformity with the Constitution.” W. VA. CODE § 18-2-5(a). At

any rate, the statute refers only to the Board’s “general supervision of the public schools.” Id.

§ 18-2-5(a), (b) (emphasis added). And if there were a conflict between the Act and Section 18-

2-5 despite all that, then the Act—the more recent law—would prevail. Wiley v. Toppings, 210

W. Va. 173, 175, 556 S.E.2d 818, 820 (2001).

Fifth, the Act is not a special law. It is a general law because it operates “uniformly on all

persons and things of a class”—here, parents and guardians with school-age kids. Gallant v. Cnty

Comm’n of Jefferson Cnty., 212 W. Va. 612, 620, 575 S.E.2d 222, 230 (2002) (citation omitted).

This classification is “natural, reasonable and appropriate to the [Act’s] purpose.” Id. Respondents

12
tried to make hay from the discrimination laws that might apply to public but not private schools;

not even the circuit court accepted that argument. The circuit court was right not to bite, as any

differences in how anti-discrimination laws might apply in one school versus another arise from

other, pre-existing laws. Nor must the Act be fully “uniform in its operation and effect.” Id.

Instead, it need only operate “alike on all persons and property similarly situated.” Id. The Act

does just that. It empowers families to make the same choices by subjecting everyone who wants

to take advantage of its terms to the same requirements, spending restrictions, and funding caps.

See W. VA. CODE §§ 18-31-5(d), 18-31-6(b), 18-31-7.

Because all Respondents’ claims fail, awarding an injunction was an abuse of discretion

and the State’s appeal is highly likely to succeed.

C. The State is likely to prevail because the circuit court’s order flunks the rest of the

injunction factors, too. Consider “the comparative hardship or convenience to the respective

parties involved in the award or denial of the writ.” Syl. pt. 2, St. Paul Fire, 868 S.E.2d 724, 726

(W. Va. 2021). Respondents did not meet their burden to show they would suffer irreparable harm

absent an injunction. Respondents’ arguments about insufficient public-school funding are

“conjecture” arising from “unsubstantiated fears of what the future may have in store.” Justice,

866 S.E.2d at 628. And any actual decreases in funding would not be irreparable because they

could be remedied in many ways. See id. The Act cannot discharge the Legislature of its duty to

provide “a thorough and efficient system of free schools.” W. VA. CONST. art. XII, § 1. So if—

and it is a big if—Respondents’ fears of underfunding came to fruition, the Legislature’s duty to

address it would negate the asserted harm.

On the other hand, the injunction will irreparably injure the public, including the more than

3,100 students already approved for scholarships. With just over a month until school starts, the

13
“blessing” of the Hope Scholarship these students’ families planned around has been “pulled out

from under” them. Brad McElhinny, 3,000 students must reassess school plans after Hope

Scholarship is halted, METRONEWS (July 7, 2022, 4:57 PM), https://bit.ly/3nVg738. Respondents

heightened those problems by waiting to act—suing months after the Governor signed the bill,

then waiting even longer to pursue any kind of injunctive relief. Plaintiffs’ delays like these, even

when they do not “involve[] a long period of time,” can justify denying injunctive relief. Ballard

v. Kitchen, 128 W. Va. 276, 285, 36 S.E.2d 390, 394-95 (1945). And the State suffers, too. “[A]ny

time a State is enjoined by a court from effectuating statutes enacted by representatives of its

people, it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 1303 (2012)

(Roberts, C.J., in chambers) (citation omitted). So the circuit court should not have entered any

injunction, permanent or otherwise. The appeal will almost certainly succeed.

II. The Other Stay Factors Support The State’s Request.

All the above should make the relative harm to the parties plain enough: In the near-term

while the stay would be in place pending appeal, the State faces serious, irreparable harm. Given

that the Act could not cause any immediate decrease in school funding levels that derive from last

year’s enrollment numbers, Respondents face next to none. The school year is a few weeks away.

So too is a key deadline: Under West Virginia Code § 18-31-6(d), “one half of the totally annually

required deposit” must be deposited into eligible recipient accounts “no later than August 15 of

every year.” And whether in this Court or in the Supreme Court of Appeals, litigation will

probably still be pending when the next statutory deadline rolls in on January 15. So if the circuit

court’s injunction stays in place, students will lose the chance to use the Hope Scholarship for most

or all of this school year. That one year can be critical: “A sound educational program has power

to change the trajectory of a child’s life, while even a few months in an unsound program can make

14
a world of difference in harm to a child's educational development.” Issa v. Sch. Dist. of Lancaster,

847 F.3d 121, 142 (3d Cir. 2017) (cleaned up); see also, e.g., In re A.H., 999 F.3d 98, 106 (2d Cir.

2021) (irreparable harm from loss of preferred school for a semester).

A stay would also serve the public interest. A State’s interest in enforcing a valid law

merges with the public interest. Nken, 556 U.S. at 435. The public interest is even more

pronounced here because the Act increases parental autonomy in the realm of education. The Act

supports parents’ “fundamental right” “to make decisions concerning the care, custody, and control

of their children,” Lindsie D.L. v. Richard W.S., 214 W. Va. 750, 755, 591 S.E.2d 308, 313 (2003).

Indeed, the “American people have always regarded education and the acquisition of knowledge

as matters of supreme importance,” Plyler v. Doe, 457 U.S. 202, 221 (1982) (cleaned up), and the

Act gives parents more tools to secure those precious items. The circuit court’s order, on the other

hand, assumes that the State should support a single model of education alone. But despite the

circuit court’s disagreement with the choice to use state funds for the Hope Scholarship, e.g., Ex.

1, at 52 (“And [the Legislature] want[s] to spend money on this scholarship fund? … What’s the

purpose of it?”), substantial evidence supports the Legislature’s conclusion that the program would

help all students, participants and non-participants alike. See Ex. 5, Aff. of Benjamin Scafidi; Ex.

6, Aff. of Dr. Patrick Wolf; Ex. 7, Aff. of Dr. Anna Egalite. The public should not have to wait

for final appellate vindication to benefit from the Legislature’s deliberate choice. West Virginia

students are counting on Hope Scholarships now.

CONCLUSION

This Court should stay the circuit court’s order until this appeal is resolved.

Respectfully submitted,

STATE OF WEST VIRGINIA

15
By Counsel,

PATRICK MORRISEY
ATTORNEY GENERAL

_/s/ Lindsay S. See___________________

Lindsay S. See (WV Bar # 13360)
Solicitor General
Michael R. Williams (WV Bar # 14148)
Senior Deputy Solicitor General
Caleb A. Seckman (WV Bar # 13964)
Assistant Solicitor General
State Capitol Complex
Building 1, Room E-26
Charleston, WV 25305-0220
Email: [email protected]
[email protected]
[email protected]
Telephone: (304) 558-2021
Facsimile: (304) 558-0140

16
 IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
Docket No.

STATE OF WEST VIRGINIA,

Petitioner,

v.

TRAVIS BEAVER and WENDY PETERS,

Respondents.

CERTIFICATE OF SERVICE

I, Lindsay See, do hereby certify that the foregoing “Motion for Stay Pending Appeal” has
been served on counsel of record via the E-Filing System or, for those parties who are not capable
of receiving electronic service, by email and by depositing a copy of the same in the United States
Mail, via first-class postage prepaid, this the 19th day of July, 2022, addressed as follows:

John H. Tinney, Jr. Wendy Lecker

Hendrickson & Long, PLLC Jessica Levin
214 Capitol Street Education Law Center
Charleston, WV 25301 60 Park Place, Suite 300
Newark, NJ 07102

Tamerlin Godley
Timothy D. Reynolds Jesse Suh
Paul Hastings LLP Paul Hastings LLP
515 South Flower Street, 25th Floor 2050 M Street NW
Los Angeles, CA 90071 Washington, DC 20036

Anna Faber Kelly C. Morgan

Zoe Lo Bailey & Wyant, PLLC
Paul Hastings LLP 500 Virginia Street East, Suite 600
200 Park Avenue Charleston, West Virginia 25301
New York, NY 10166

Joshua A. House
Michael A. Kawash Joseph Guy
Jonathan C. Stanley Jeff Rowes
Robinson & McElwee PLLC Institute for Justice
700 Virginia Street East 901 N. Glebe Road, Suite 900
Charleston, WV 25301 Arlington, VA 22203

1
Sarah Canterbury Michael Bindas
General Counsel Institute for Justice
West Virginia State Treasurer’s Office 600 University Street, Suite 1730
1900 Kanawha Boulevard, Bldg. 1, E-145 Seattle, Washington 98101
Charleston, WV 25305

/s/ Lindsay S. See

Lindsay S. See (WV Bar # 13360)
Solicitor General