Motion For Stay
Motion For Stay
Docket No.
Petitioner,
v.
Respondents.
______________________________________________
PATRICK MORRISEY
ATTORNEY GENERAL
INTRODUCTION .......................................................................................................................... 1
BACKGROUND ............................................................................................................................ 1
ARGUMENT .................................................................................................................................. 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
Hart v. State,
774 S.E.2d 281 (N.C. 2015).......................................................................................................8
Jackson v. Benson,
578 N.W.2d 602 (Wis. 1998) .....................................................................................................8
ii
TABLE OF AUTHORITIES
(continued)
Page(s)
Maryland v. King,
567 U.S. 1301 (2012) ...............................................................................................................14
Meredith v. Pence,
984 N.E.2d 1213 (Ind. 2013) .....................................................................................................8
Nken v. Holder,
556 U.S. 418 (2009) .........................................................................................................4, 5, 15
Pauley v. Kelly,
162 W. Va. 672, 255 S.E.2d 859 (1979) ..................................................................................10
Plyler v. Doe,
457 U.S. 202 (1982) .................................................................................................................15
Robertson v. Hatcher,
148 W. Va. 239, 135 S.E.2d 675 (1964) ....................................................................................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 v. King,
64 W. Va. 546, 63 S.E. 468 (1908) ............................................................................................9
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
Statutes
W. VA. CODE § 18-2-5 ...................................................................................................................12
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
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.
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
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
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
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
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
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
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
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
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,
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
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
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,
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]
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
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.
Because all Respondents’ claims fail, awarding an injunction was an abuse of discretion
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
“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
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
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
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
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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.
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
CONCLUSION
This Court should stay the circuit court’s order until this appeal is resolved.
Respectfully submitted,
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By Counsel,
PATRICK MORRISEY
ATTORNEY GENERAL
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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
Docket No.
Petitioner,
v.
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:
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
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