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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2000 Term
STATE OF WEST VIRGINIA
JESSICA A. JUSTICE,
THE BOARD OF EDUCATION OF THE COUNTY OF
MONONGALIA; JACK C. DULANEY, SUPERINTENDENT
OF MONONGALIA COUNTY SCHOOLS; AND
JENNIFER SNIDER, ASSISTANT SUPERINTENDENT OF
MONONGALIA COUNTY SCHOOLS; THE
WEST VIRGINIA BOARD OF EDUCATION AND
DR. HENRY R. MAROCKIE, SUPERINTENDENT OF SCHOOLS,
RULE IN MANDAMUS
WRIT GRANTED AS MOULDED
Submitted: September 19, 2000
Filed: October 26, 2000
|R. Clarke VanDervort, Esq.
Charleston, West Virginia.
Attorney for Petitioner
Nancy W. Brown, Esq.
James M. Wilson, Esq.
Steptoe & Johnson
Clarksburg, West Virginia
Attorneys for Monongalia County Board of Education
|Charles R. Bailey, Esq.
Bailey & Wyant, PLLC
Charleston, West Virginia
Attorney for West Virginia Board of Education and Dr. Henry R. Marockie
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT, deeming himself disqualified, did not participate in the decision
of this case.
- A writ of mandamus will not issue unless three elements
coexist -- (1) a clear legal right in the petitioner to the relief sought;
(2) a legal duty on the part of respondent to do the thing which the
petitioner seeks to compel; and (3) the absence of another adequate
remedy. Syllabus Point 1, State ex rel. Billy Ray C. v. Skaff,
190 W.Va. 504, 438 S.E.2d 847 (1993) (citations omitted).
In the instant case we determine
that the Monongalia County Board of Education, because it failed to provide
certain special education services to a child, must provide an additional compensatory
period of such services.
On July 18, 1994, the petitioner,
Jessica A. Justice (petitioner), filed a petition for a writ of
mandamus in this Court, invoking the original jurisdiction that is conferred
by W.Va. Const., Art. VIII, Section 3. The petitioner named as respondents
the Board of Education of Monongalia County (the Board) and the
Board's Superintendent and Assistant Superintendent.
The gravamen of the petitioner's
complaint was that the respondents were not complying with their duty to provide
special education services to the petitioner's child -- as they are required
to do by federal law (The Education for All Handicapped Children Act of
1975, as amended by the Individuals with Disabilities Education
Act, 20 U.S.C. § 1400 et seq.); and as they are required to
do by state law (Education of Exceptional Children, W.Va. Code,
18-20-1, et seq., and West Virginia Department of Education Policy 2419:
Regulations for the Education of Exceptional Students, 126 C.S.R. Series 16,
On July 20, 1994, this Court
issued a rule to show cause, requiring the respondents to appear and respond
to petitioner's allegations -- unless sooner mooted by provision of the
services sought to be compelled. (Quoting this Court's order.)
On November 2, 1994, this Court
heard oral argument on the rule to show cause. On November 4, 1994, this Court
issued an order appointing Kanawha County Circuit Judge Irene Berger as a special
master, to conduct evidentiary hearings and to make recommendations to this
Court regarding the following issues:
(1) whether the respondent,
Board of Education of the County of Monongalia, has performed its legal obligations
under the current Individualized Education Plan [IEP] at issue;
(2) whether corrective measures
can be undertaken by the respondent, Board of Education of the County of Monongalia,
to achieve compliance with its legal obligations under the current IEP; and
(3) whether changes to the
current IEP are necessary, in conjunction with the development of a new IEP,
in order for the respondent, Board of Education of the County of Monongalia,
to comply with its legal obligations under applicable statutes and regulations.
Subsequently, in proceedings
before the special master, the petitioner sought to engage in discovery regarding
events and matters that the respondents claimed were not relevant to the issues
before the special master. Upon the respondent's motion for a protective order,
the special master ruled on September 19, 1995, that the effective period of
the IEP for the petitioner's child -- and the relevant period of time for purposes
of the issues before the special master -- was from June 8, 1993 to August 4,
The special master ruled that
because of the limitations in this Court's order referring the case to the special
master, the petitioner's discovery must be relevant to that time period.
On October 12, 1995, the petitioner
asked this Court to overrule the special master's ruling on the protective order
motion, and to broaden the issues and time frame to be addressed in the discovery
before the special master. On November 2, 1995, this Court refused that motion,
without prejudice to petitioner's filing a motion seeking to amend her original
On March 14, 1996, the petitioner
filed with this Court a motion for leave to amend and supplement her original
petition; to add the West Virginia State Board of Education and its State Superintendent
of Schools as respondents; to revise the questions presented to the Special
Master; and to conduct expanded discovery. On March 28, 1996, this Court denied
all of the petitioner's requests, except her request to add the State respondents
During this period of time,
the parties engaged in discovery which it is not necessary to detail. Also unnecessary
to detail are a series of continuances and cancellations that added substantial
time to the proceedings. Ultimately, the special master decided to appoint independent
experts to report to the master; and the special master then held hearings regarding
the opinions of those experts.
Finally, on July 7, 1999, the
special master (who we feel proceeded as expeditiously as possible, given the
difficulties posed by these proceedings) issued a report to this Court.
In her report, the special master
found that the Board did not fully perform its legal obligations under the IEP
during the relevant time period; and that the Board's efforts to make
up the omitted services, because of the nature of age-appropriate educational
services, was not the same as providing the services when they should have been
provided in the first instance. The special master recommended that an extension
of the period of time that the Board must be responsible for providing educational
services to petitioner's child after their statutory obligation expires would
be appropriate, to compensate for the Board's partial failure to provide services.
The special master also found that the petitioner's child strongly needed a
new IEP, including a new medical evaluation and health plan as part of that
Thereafter, on July 20, 1999,
the Board filed suit in federal district court, seeking declaratory and injunctive
relief regarding the Board's obligations under IDEA toward petitioner's child
-- for the period of time from June 10, 1999 forward. The parties were referred
to mediation, which was unsuccessful. The federal court case was subsequently
dismissed by the court, by order dated September 25, 2000, on the grounds that
the Board had failed to exhaust its administrative remedies.
April 18, 2000, following the unsuccessful conclusion of the federal court mediation
process, the petitioner filed a multi-faceted motion in this Court. In this
motion, the petitioner alleged that there has been a 14-year history of inadequate,
bad-faith, malfeasance by the respondents with respect to providing services
to her child -- and she asked this Court: (a) to appoint third-party providers
to provide education services for the petitioner's son at the Board's expense;
(b) to appoint a monitor to oversee the provision of services to her son; and
(c) to require the respondents to pay the petitioner for all of the services
that she has performed and obtained that the respondents should have provided
to her child in the past.
The respondents have replied
to the petitioner's motion by reiterating their contention that since the petitioner
initially filed this action, the respondents have made sincere and extraordinary
efforts to remediate any past inadequacy in their provision of services to the
respondent's son -- and to provide such services on an ongoing basis -- but
that the petitioner's lack of cooperation with the respondents has made these
The respondents and the petitioner
have submitted voluminous documentary materials, etc. in support of their contentions.
As we stated in State ex
rel. West Virginia Deputy Sheriff's Ass'n, Inc. v. Sims, 204 W.Va. 442,
444, 513 S.E.2d 669, 671 (1998):
This is an original jurisdiction
proceeding. Consequently, we are not directly reviewing a ruling or determination
by a lower tribunal. Our standard for original mandamus jurisdiction has been
recently stated as:
A writ of mandamus will not issue unless three elements coexist--(1) a clear
legal right in the petitioner to the relief sought; (2) a legal duty on the
part of respondent to do the thing which the petitioner seeks to compel; and
(3) the absence of another adequate remedy. Syllabus Point 1, State ex
rel. Billy Ray C. v. Skaff, 190 W.Va. 504, 438 S.E.2d 847 (1993).
Upon our review of the five
banker's boxes full of documents, depositions, videotapes, and audiotapes that
were submitted to the special master in this case, it is clear that the limited
purpose that underlay this Court's initial acceptance of the mandamus petition
in the instant case has been less and less served, as more and more time has
By setting the instant case
for a prompt show cause hearing unless sooner mooted by provision
of the services sought to be compelled, this Court clearly hoped that
the Board would assess, and if appropriate augment, its provision of services
to the petitioner's child -- and thereby resolve the petitioner's complaints.
Unfortunately, this did not
occur -- for reasons about which the parties strongly disagree.
In November of 1994, at the
initial oral argument in the instant case, it became clear that disputed factual
issues underlay both the petitioner's complaint and the Board's response to
that complaint -- including: whether the Board had been doing all that it was
legally required to do; what should and could be done to remedy any such deficiency;
and whether a new IEP was needed as part of such a remedy. Consequently, we
appointed a special master to address these issues, to aid this Court in making
an appropriate ruling. We recognize
that this case has radically deviated from the time frame that we originally
contemplated as appropriate. Nevertheless, now that we have a report from the
special master on the issues that we identified, we must -- despite this deviation
and the time that has passed -- make as appropriate as possible a resolution
of this case.
There is no dispute between
the parties as to the legal duty of the Board (and if the Board fails to do
its duty, of the state respondents) to provide appropriate special education
services for the petitioner's child. See generally State ex rel. Boner v.
Kanawha County Board of Education, 197 W.Va. 176, 475 S.E. 2d 176 (1996).
Additionally, the record fully
supports the finding by the special master that -- for reasons that were not
the petitioner's fault -- the Board failed to fully comply with
its legal duty to provide special educational services to the petitioner's child
during the period of time that the special master was addressing: June 8, 1993,
through August 4, 1995. The record also supports the special master's factual
finding that corrective measures cannot themselves fully unring the bell
of the Board's failure during that period; and the record supports the master's
finding that a new IEP for the petitioner's child, including a medical evaluation,
is necessary.See footnote 1
It would be erroneous for this
Court to go beyond these facts and beyond the limited scope of issues that we
have adhered to in the instant case.
Based on the foregoing reasoning,
we grant the requested writ of mandamus as moulded, and make the following ruling:
accept the special master's report, and commend her for her services in this
require both parties to fully cooperate in the prompt creation of a new IEP
that will serve as the basis for the BOE's future provision of educational services
to the child. In conjunction with the development of a new IEP, the petitioner
must permit a full physical and psychological examination of her child. If any
conflicts or problems arise in the IEP creation process, or in the adequacy
or delivery of services after the IEP is created, these problems must be addressed
in an appropriate administrativeSee footnote
2or trial court proceeding, if necessary -- and not by further proceedings
in the instant case.
require the respondents to be responsible for providing special educational
services for the petitioner's child for 2 additional years beyond the period
of time that is statutorily required, to compensate for past deficiencies in
the BOE's provision of services.See footnote
the petitioner has prevailed on certain claims for relief that she has asserted
in this mandamus action, she is entitled to an award of her reasonable attorney
fees for those portions of the claims upon which she prevailed. The petitioner
shall within 90 days of the date of the filing of this opinion submit a detailed
fee request and supporting affidavit(s) to the special master, sitting as a
judge, who shall have the authority to determine an award of appropriate attorney
fees pursuant to the principles enunciated in State ex rel. West Virginia
Highlands Conservancy, Inc. v. West Virginia Div. of Environmental Protection,
193 W.Va. 650, 458 S.E.2d 88 (1995). Petitioner's fee request should include
the date, duration, and nature of each attorney service and charge for which
reimbursement is sought -- including identification of the claim(s) for relief
to which the service is related. The respondents may within 30 days file a response
to the petitioner's fee request; and the petitioner may within 20 days of such
response file a reply. The parties are strongly encouraged to meet and attempt
to agree upon an attorney fee amount.
We deny the petitioner's requests:
(a) for an award of costs for the petitioner's provision of past
services for her child; (b) that we require that services for her child be provided
by third parties; (c) and that we appoint a monitor for the provision of services
to her child.
The writ of prohibition is granted
Granted as Moulded.
Additionally, there are two other facts that are well-supported
in the record. The first such fact is that the petitioner is a deeply loving
and caring parent. Her consistent dedication to her child's welfare is exceptional
and superlative. The second fact is that personnel of the Board of Education
of Monongalia County have worked hard and well, when it has been possible,
to provide special education services to the petitioner's child. The failure
(to date) of the parties to this case to cooperate effectively does not adversely
reflect on the dedication or competence of the petitioner or the Board's personnel.
West Virginia Department of Education Policy 2419: Regulations for the
Education of Exceptional Students, 126 C.S.R. Series 16 establishes procedures
for addressing disputes about the provision of special education services.
We emphasize that our ordering of this remedy arises out of the unique facts of
this case -- and is not to be construed as either an endorsement or disapproval
of the appropriateness of an award of such relief in other cases.