William W. Talbott, Esq. Basil R. Legg, Jr., Esq.
Webster Springs, West Virginia Clarksburg, West Virginia
Attorney for Appellants Attorney for Appellee
JUSTICE McGRAW delivered the Opinion of the Court.
JUSTICE STARCHER concurs in part, and dissents in part,
and reserves the right to file a separate opinion.
1. Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.
Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
2. 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 v. West Virginia Secondary Schools Activities
Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989).
3. Because the State has a compelling interest in providing a safe and secure environment to the school children of this State pursuant to W. Va. Const. art. XII, section 1, and because expulsion from school for as much as 12 months pursuant to the provisions of the Productive and Safe Schools Act, W. Va. Code, 18A-5-1a(g)  is a
reasonably necessary and narrowly tailored method to further that interest, the mandatory
suspension period of the Act is not facially unconstitutional. Syl. pt. 3, Cathe A. v.
Doddridge County Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340 (1997).
4. Under W. Va. Code § 18A-5-1a (1996), both a principal and the
members of a county board of education may examine the facts surrounding an alleged
violation of the statute, at their respective hearings. Both principals and members of the
board of education have the authority and discretion to end expulsion proceedings if either
determines that a student has not violated the statute.
5. When a county board of education expels a student for twelve months for a violation of W. Va. Code § 18A-5-1a (1996), the county superintendent of schools still has the power to reduce the student's punishment, if the superintendent finds it disproportionate to the student's actions. However, the superintendent must make a public record of this decision, and provide the reason for the reduction, as set forth in the statute.
J.M., a minor, appeals an order of the Circuit Court of Webster County that
upheld a decision of the Webster County Board of Education expelling him for possession
of a firearm on school property in violation of W. Va. Code § 18A-5-1a (1996), also known
as the Safe Schools Act. He argues that the actions taken against him by the principal of
his high school and the county board of education were procedurally deficient, and that,
although he had a gun on his person, he did not have the necessary intent to be found in
violation of the statute. For the reasons set forth below, we affirm the decision of the trial
We relate the facts with some detail because these details are important to appellant's argument. On Tuesday, May 12, 1999, appellant J.M., a 15-year-old student at Webster County High School, misbehaved and was reported to the principal. For this
infraction,See footnote 1
the principal suspended J.M. for two days, effective noon that same day. The
principal called J.M.'s mother, who was a teacher at a local elementary school, to come to
the high school and retrieve J.M. On their way back to the mother's place of employment,
J.M.'s father happened to see the two of them drive by, so he followed them to the
elementary school to learn why J.M. was not in class.
J.M.'s father was extremely upset to learn of his son's two day suspension and,
as a result, made a decision to remove J.M. from school and put him to work immediately.
Toward this end, the father went to the high school and demanded the contents of J.M.'s
locker and announced that he was withdrawing J.M. from school. The father then went to
a local lumber yard to obtain a job for J.M., but was unable to find the owner of the business.
J.M.'s father then returned to the elementary school where J.M.'s mother was employed and retrieved J.M., who allegedly did not wish to accompany his father. The two made a second attempt to find someone at the lumber yard, but failed. They then proceeded home and parked in the garage. Upon exiting the family truck, J.M. hit the family lawnmower with the truck door, to the extreme displeasure of his father. At that point, the father picked up an axe or hatchet and declared to J.M. that, if the truck door were damaged,
that he, the father, would pole-ax him, and that he, J.M., might just end up like that
Linkous boy. See footnote 2
The father then went out into the yard, leaving J.M. in the house alone. The
family kept several firearms in the home, most of them in a gun cabinet. With his father
outside, J.M. searched for and found the keys to this gun cabinet. Using the keys, J.M.
secured all of the firearms by locking them into the gun cabinet. After locking the cabinet,
J.M. hid the keys under some clutter in the corner of the room. After hiding the keys, J.M.
discovered on top of the cabinet a box of ammunition and one last gun, a .45 caliber revolver
with a nine inch barrel. According to J.M., before he could secure the .45, he looked out the
window and saw his father returning. Not wanting his father to discover him with the gun,
J.M. stuck the .45 in the back of his pants and pocketed the shells.
After the two shared some uncomfortable silence, J.M.'s father lay down to take a nap. J.M. took this opportunity to remove himself from his father vicinity and departed, leaving on foot for a friend's house, where he hoped to await his mother's return from work. About 15 minutes later, J.M.'s father awakened and was enormously disappointed to learn of J.M.'s unauthorized exodus. He set off down the road in his truck
to find J.M., who had covered about half a mile in his abortive bid for freedom. J.M. had not
discarded the gun or ammunition, and both were still concealed upon his person.
Having reacquired J.M., the father proceeded again to the lumber company,
where he intended to sign J.M. up for a job as soon as possible. After reaching the lumber
yard, J.M.'s father left J.M. in the truck while he went inside to inquire about the job. J.M.'s
father learned that he would have to have a form signed at the school before J.M. could be
allowed to work at the lumber yard. J.M.'s father returned to the truck, and the two drove
to the school to obtain the proper form.
At the school, they parked near the main entrance and J.M.'s father left J.M.
at the truck while he went in search of the principal. School was over for the day, so J.M.'s
father had no luck finding the principal and returned to the truck. J.M., who was some six
feet, three inches in height, and weighed close to three hundred pounds, had lettered in
football and had a close relationship with his football coach. Hoping that J.M.'s football
coach might be able to provide a signed form, J.M.'s father drove them to another building
on school property in search of the coach. J.M. was not in favor of this visit with the coach,
but acceded to his father's demands and accompanied him into the building, with the gun and
ammunition still hidden in his pants.
The coach found the particular expletives chosen by J.M.'s father to be quite
objectionable, and feared that the argument might escalate into a physical altercation, so he
asked J.M.'s father to go outside and calm down. He complied, leaving J.M. and the coach
alone. After his father left the room, J.M. took out the loaded gun and fifty-six additional
rounds of ammunition, and surrendered them to the coach, asking the coach to take care of
them, and adding that he thought his father was going to kill him. The coach secured the
gun and ammunition in a filing cabinet and took J.M. to the nearby state police barracks and
reported the incident to the troopers, and subsequently reported the incident to the school
principal and the superintendent.
The next day, the principal and the superintendent of schools held an informal conference with J.M., his mother, coach Rogers, the county prosecuting attorney, and a local state police trooper. J.M., his mother, and coach Rogers gave their accounts of the events.
Apparently, the principal and superintendent then continued this conference with J.M. and
his mother after the others had left, and attempted to persuade J.M. and his mother to
stipulate to a 365 day suspension, which they refused.
At the conference, the principal determined that J.M. probably had violated the
Act, and by letter dated that day, May 13, 1999, notified both the superintendent and J.M.'s
mother that J.M. would be suspended for a period of ten days. The principal then notified
J.M.'s parents by letter dated May 18, 1999, that the board of education would hold a hearing
on May 24, 1999, and that J.M. had the right to be represented by counsel at the hearing.
At the board hearing of May 24, 1999, J.M. was represented by counsel, and
had the opportunity to present evidence, call witnesses, and cross-examine witnesses. J.M.,
his father, his mother, and coach Rogers all testified about the events of May 12. After the
hearing, the board voted to suspend J.M. for 365 days and place him in an alternative
education program. The board notified his parents of this decision by letter dated the next
Subsequently, J.M. appealed this decision to the Circuit Court of Webster County, which conducted a hearing on August 2, 1999. At that hearing, J.M., his mother, his father, and coach Rogers all testified again. At the close of the hearing, the judge denied
J.M.'s request for an injunction, and ordered the parties to submit briefs. Thereafter, the
court issued an order on August 23, 1999, which upheld J.M.'s suspension, from May 13,
1999, to May 12, 2000. It is from that order that J.M. now appeals. For the reasons set forth
below, we affirm the decision of the trial court.
In this case, we are asked to review the lower court's interpretation of the Safe
Schools Act. In such a case, our review is de novo. Where the issue on an appeal from the
circuit court is clearly a question of law or involving an interpretation of a statute, we apply
a de novo standard of review. Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995); Syl. pt. 1, McKinley v. Fairchild Intel, Inc., 199 W. Va. 718, 487 S.E.2d
First, because J.M.'s period of expulsion was scheduled to end effective May 12, 2000, we must address the question of mootness. We were faced with a similar question in the case of Cathe A. v. Doddridge County Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340
(1997), where the expulsion of the student in that case had also ended before we had the
opportunity to decide the case. We noted that our treatment of technically moot cases is
guided by the test established in syllabus point 1 of Israel v. West Virginia Secondary
Schools Activities Comm'n, 182 W. Va. 454, 388 S.E.2d 480 (1989):
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.
Id. As we went on to note in Cathe A., each of the three factors is present in this case, in that
there may well be other students whose cases are awaiting the outcome of this appeal,
students and administrators are interested in how the statute should be applied in the future,
and a statute that calls for one year expulsions, by its very nature, will continue to spawn
controversies with limited life spans that end before the appellate process can run its course.
Cathe A. was not the first time we addressed the Safe Schools Act. Nor is the instant case the first in which we have been faced with the expulsion of a fifteen-year old boy who was found with a gun on his person while on school premises. In Phillip Leon M. v. Greenbrier County Board of Education, 199 W. Va. 400, 484 S.E.2d 909 (1996), the student also had a gun at school, and was also expelled for a year, but we were asked to address a
different issue. In that case we examined whether or not the state had to provide some sort
of alternative education for students expelled under the Safe Schools Act, and held:
[T]he thorough and efficient clause of Article XII, Section 1 of the West Virginia Constitution requires, the creation of an alternative program for pupils suspended or expelled from their regular educational program for a continuous period of one year for the sole reason of possessing a firearm or other deadly weapon at an educational facility.
Syl. pt. 4, in part, Phillip Leon M. v. Greenbrier County Board of Education, 199 W. Va.
400, 484 S.E.2d 909 (1996).
We later examined the constitutionality of the statute in question. In Cathe A.,
supra, we were asked whether or not the requirement of a one-year expulsion for violating
the statute could pass constitutional muster; we answered that question in the affirmative:
Because the State has a compelling interest in providing a safe and secure environment to the school children of this State pursuant to W. Va. Const. art. XII, section 1, and because expulsion from school for as much as 12 months pursuant to the provisions of the Productive and Safe Schools Act, W. Va. Code, 18A-5-1a(g)  is a reasonably necessary and narrowly tailored method to further that interest, the mandatory suspension period of the Act is not facially unconstitutional.
Syllabus Point 3, Cathe A. v. Doddridge County Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340 (1997).See footnote 3 3
Before addressing these specific assignments of error, we shall analyze the
procedural requirements of the Safe Schools Act. The Code section that governs this case
calls for a student's expulsion in certain situations:
(a) A principal shall suspend a pupil from school or from transportation to or from the school on any school bus if the pupil, in the determination of the principal, after an informal
hearing pursuant to subsection (d) of this section, has: (i)
Violated the provisions of subsection (b), section fifteen, article
two, chapter sixty-one of this code; (ii) violated the provisions
of subsection (b), section eleven-a, article seven, chapter
sixty-one of this code; or (iii) sold a narcotic drug, as defined in
section one hundred one, article one, chapter sixty-a of this
code, on the premises of an educational facility, at a
school-sponsored function or on a school bus. . . .
(f) The county board shall hold the scheduled hearing to
determine if the pupil should be reinstated or should, or under
the provisions of this section, must be expelled from school . .
(g) Pupils may be expelled pursuant to the provisions of this
section for a period not to exceed one school year, except that if
a pupil is determined to have violated the provisions of
subsection (a) of this section the pupil shall be expelled for a
period of not less than twelve consecutive months:
W. Va. Code § 18A-5-1a (1996). So in order to determine if J.M.'s actions violated W. Va.
Code § 18A-5-1a (1996), we must first examine section 61-1-11a,See footnote 4
which deals with carrying
firearms on school property:
(b)(1) It shall be unlawful for any person to possess any firearm or any other deadly weapon on any school bus as defined in section one, article one, chapter seventeen-a of this code, or in or on any public or private primary or secondary education building, structure, facility or grounds thereof, including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are conducted or at any school-sponsored function.
In an earlier case, we discussed this distinction, drawing upon the well-known
criminal law treatise authored by
LaFave & Scott:
It has been said that a crime of which a criminal intent is an element is malum in se, but if no criminal intent is required, it is malum prohibitum; and that generally a crime involving moral
turpitude is malum in se, but otherwise it is malum prohibitum.
In a general way, it may be said that crimes which are dangerous
to life or limb are likely to be classified as malum in se, while
other crimes are more likely to be considered malum prohibitum.
State v. Vollmer, 163 W. Va. 711, 714, 259 S.E.2d 837, 839 n. 4 (1979), (quoting LaFave
and Scott, Criminal Law at 29 (1972)). From even this short discussion, it is evident that
making such a determination is not an exact science. We do not find it necessary to explore
this fine distinction in our criminal jurisprudence to decide the outcome of this case. We are
also reluctant to accept either J.M.'s or the lower court's categorization of the statute. If we
adopt J.M.'s interpretation, we invite an appeal to this court on nearly every expulsion,
challenging proof of a student's intent. If we adopt the view that the statute calls for a
mechanical adherence and expulsion in every circumstance when a student has a gun on his
or her person, we remove the discretion of the principal and the board of education. We
decline to follow either approach.
While we are aware that almost any student charged with any violation at school is likely to make all manner of excuses for his or her actions, we also recognize that there might be circumstances where a child is found with a gun at school, but could not be said to be in possession of that gun in a manner that violates W. Va. Code § 18A-5-1a (1996). For example, an older student might secretly place a gun in the bookbag of a second grade boy who was either unaware of the gun, or had been told that the older student would beat him up if he disclosed the weapon. However, in that hypothetical case, just as in this
case, it would be up to the finder of fact to determine if that second grader possessed a
firearm on school property. With regard to the statute under consideration, W. Va. Code §
18A-5-1a (1996), we have two fact finders, the principal and the board of education. In order
to elaborate upon this point, we shall examine the statute, and we divide it, for purposes of
explanation, into two general parts:
Although not mentioned first in the statute, the first step of the process starts
with the principal of the school where the alleged violation has occurred. Once someone
reports an incident, if the principal believes that the alleged violation would warrant
suspension, he or she must hold an informal hearing with the student and the student's
(d) . . . If the principal determines that the alleged actions of the pupil would be grounds for suspension, he or she shall conduct
an informal hearing for the pupil immediately after the alleged
actions have occurred. . . .See footnote 6
The pupil and his or her parent(s), guardian(s) or custodian(s),
as the case may be, shall be given telephonic notice, if possible,
of this informal hearing, which notice shall briefly state the
grounds for suspension.
At the commencement of the informal hearing, the principal
shall inquire of the pupil as to whether he or she admits or
denies the charges. If the pupil does not admit the charges, he
or she shall be given an explanation of the evidence possessed
by the principal and an opportunity to present his or her version
of the occurrence. At the conclusion of the hearing or upon the
failure of the noticed student to appear, the principal may
suspend the pupil for a maximum of ten school days, including
the time prior to the hearing, if any, for which the pupil has been
excluded from school.
W. Va. Code § 18A-5-1a (1996). So, in other words, if the principal hears that a student might have a weapon, and the principal believes this is a credible allegation, the principal phones the parents and has them come down to the school for a meeting with the principal
and student. If the principal does not find the allegation credible, he or she need proceed no
If the principal does proceed, at this principal's informal hearing, the
principal is to make a determination as to whether or not the student violated the statute.
Thus the principal becomes the finder of fact at this stage in the process. The Code permits
the principal to make a determination. At this point, should the principal determine that,
for example, a student has found an abandoned gun and prudently turned it in to his or her
teacher, the principal would be free to end the inquiry, and would be under no obligation to
suspend the student.
However, if the principal determines that the student probably did violate the
statute, then that principal has certain obligations under the Code:
(a) A principal shall suspend a pupil from school or from transportation to or from the school on any school bus if the pupil, in the determination of the principal, after an informal hearing pursuant to subsection (d) of this section, has: (i) Violated the provisions of . . . subsection (b), section eleven-a, article seven, chapter sixty-one of this code; [by possessing a firearm on school property]
W. Va. Code § 18A-5-1a (1996) (emphasis added). So again, a principal must only suspend a student when, after hearing of the potential misconduct, the principal calls the parents, has an informal hearing and finds, in the determination of the principal, that the student has
violated the code. If the principal determines that, for some reason, the student is not
guilty of possessing a firearm on school property, the principal may end the proceedings.
If the principal finds otherwise, the parties move on to the next step.
In this case, J.M. argues that there is no evidence that his father received notice
of the informal hearing, and that the hearing was somehow irregular and insufficient under
the statute because the state trooper and prosecutor also attended. He also argues that
nothing in the record shows that J.M. was notified of the possible grounds for his suspension,
or that the principal inquired of J.M. as to whether he admitted or denied the charges. We
find these arguments unpersuasive.
There is little question that J.M., after a trip to the state police barracks with his coach, would not realize that the informal hearing concerned the incident with the gun. His mother was notified and was present, and the record suggests that the father was aware of the proceedings as well. The addition of the police and prosecutor no doubt made the meeting more intimidating to J.M., but did not deny him the opportunity to give his side of the incident. Because the entire purpose of the hearing was to inquire as to what J.M. was doing with the gun, it would be incredible if the principal did not ask J.M. if he admitted or denied the charges. Thus we refuse to reverse on the basis of any of these alleged procedural deficiencies.
Before the board can hold a hearing, the board must provide notice to the
student and parents of the charges against the student and the time of the hearing. The
hearing itself resembles a trial, in that the student may be represented by counsel and may
present and examine witnesses. However, an important difference exists in that the board
employs a preponderance of the evidence standard:
(e) Prior to a hearing before the county board, the county board shall cause a written notice, which states the charges and the recommended disposition, to be served upon the pupil and his or her parent(s), guardian(s) or custodian(s), as the case may be. Such notice shall set forth a date and time at which such hearing shall be held, which date shall be within the ten-day period of suspension imposed by the principal.
(i) In all hearings under this section, facts shall be found by a
preponderance of the evidence.
W. Va. Code § 18A-5-1a (e), (f), (i) (1996).
Under this scheme, the board also acts as a finder of fact, and must come to its
own conclusions about the actions of the alleged offender, but need not use the beyond a
reasonable doubt standard that courts employ in regular, criminal proceedings. Just like the
principal, the board has the authority to find that a student, even if he or she had a gun, did
not violate the statute. Somewhat like a jury, the board listens to the story presented by
the accused to explain why he or she had a weapon. If they believe it, then they are free to
find that the student is not in violation.
Of course, if the members of the board find otherwise, however, they must
expel the student, as quoted above.
(g) Pupils may be expelled pursuant to the provisions of this section for a period not to exceed one school year, except that if a pupil is determined to have violated the provisions of subsection (a) of this section the pupil shall be expelled for a period of not less than twelve consecutive months:
W. Va. Code § 18A-5-1a (g) (1996).
We find, however, that even after making such a determination, there is still an opportunity to reduce the punishment, if the situation warrants. When a county board of education expels a student for twelve months for a violation of W. Va. Code § 18A-5-1a (1996), the county superintendent of schools still has the power to reduce the student's punishment, if the superintendent finds it disproportionate to the student's actions. However,
the superintendent must make a public record of this decision, and provide the reason for the
reduction, as set forth in the statute:
Provided, That the county superintendent may lessen the mandatory period of twelve consecutive months for the expulsion of the pupil if the circumstances of the pupil's case demonstrably warrant. Upon the reduction of the period of expulsion, the county superintendent shall prepare a written statement setting forth the circumstances of the pupil's case which warrant the reduction of the period of expulsion. The county superintendent shall submit the statement to the county board, the principal, the faculty senate and the local school improvement council for the school from which the pupil was expelled.
W. Va. Code § 18A-5-1a(g) (1996). So in effect, a student who is found with a weapon at
school has several opportunities for exoneration. The principal may find at the informal
hearing that the situation is not a violation of the statute. The Board may find at the formal
hearing that certain factors explain or excuse the student's conduct. Finally, the
superintendent may, after the board hearing, reduce the period of expulsion if he or she feels
that circumstances so warrant.See footnote 10
It may be that some of the school officials misunderstood their duty under the statute. It may also be significant that J.M.'s incident, of May 12, 1999, came just three weeks after the April 20, 1999 massacre at Columbine High school in Colorado, where two students murdered many of their classmates.See footnote 11 11 However, we do not feel it appropriate to undermine the authority of school officials, by rejecting the factual findings of those closest to the events in this case.See footnote 12 12
For the reasons stated, the judgment of the Circuit Court of Webster County
See syllabus point 5, Cathe A. v. Doddridge County Bd. of Educ., 200 W. Va. 521, 490 S.E.2d 340 (1997).
The hearing shall be held before the pupil is suspended unless
the principal believes that the continued presence of the pupil in
the school poses a continuing danger to persons or property or
an ongoing threat of disrupting the academic process, in which
case the pupil shall be suspended immediately and a hearing
held as soon as practicable after the suspension.
W. Va. Code § 18A-5-1a(d) (1996).