672 S.E.2d 224
3. Under the five-part test adopted by this Court in Blower v. Educational Broadcasting Authority, 182 W.Va. 528, 389 S.E.2d 739 (1990), the West Virginia Secondary Schools Activity Commission is not a state agency.
McHugh, Senior Status Justice: (See footnote 1)
The West Virginia Secondary Schools Activities Commission (SSAC) appeals from the May 21, 2007, order of the Circuit Court of Cabell County, through which the trial court struck down certain legislative rules promulgated by the SSAC as unconstitutional or arbitrary and capricious; ruled that the SSAC is a state agency; and awarded attorney's fees and costs to Appellee O.J. Mayo. The proceeding below was initiated on January 30, 2007, when O.J. Mayo sought an injunction to prohibit enforcement of the two-game suspension he received for committing two technical fouls in an interscholastic basketball contest on January 26, 2007. By the time the trial court held a hearing on February 9, 2007, the matters relating to the injunction had been resolved by agreement of the parties. Despite the resolution of the suspension-related issues, the trial court ruled that SSAC Rule (See footnote 2) 127-3-8.5, (See footnote 3) a forfeiture rule never invoked or at issue in the proceeding below, is unconstitutional; that SSAC Rule 127-3-15.3, (See footnote 4) a rule proscribing the protest of a contest or ejection, is unconstitutional due to the absence of immediate administrative review following a student's ejection from an athletic contest; that the SSAC is a state agency; and that O.J. Mayo is entitled to an award of attorney's fees and costs. Upon our review of these rulings, we find that the trial court committed error and, accordingly, we reverse.
The failure of the WVSSAC to establish an appeal process available before enforcement of the punishment is clearly wrong. The current regulations are repugnant to any notion of due process. Balancing the mandatory, unreviewable sanction of a multi-contest suspension against the limited resources necessary to ensure equity and an opportunity for a student- athlete to be heard results in this Court's finding that the appeal process is indeed lacking in fundamental fairness. (emphasis supplied).
After making this finding, the trial court purportedly attempted to strike the rule down. (See footnote 12)
Not only do we find it unwise to proceed down the path suggested by the trial court _ inviting courts to review an official's judgment call in assessing technical fouls _ but the foundational underpinnings upon which the trial court based its rulings on the issue of due process are fatally flawed. In making its ruling, the lower court overlooked this Court's recognition over twenty years ago that [p]articipation in interscholastic athletics or other nonacademic extracurricular activities does not rise to the level of a constitutionally protected 'property' or 'liberty' interest.' Bailey v. Truby, 174 W.Va. 8, 21, 321 S.E.2d 302, 316 (1984) (quoting Clarke v. Board of Regents, 166 W.Va. 702, 279 S.E.2d 169 (1975)). Because there is no property or liberty interest that attaches to extracurricular activities, procedural due process protections do not apply. Truby, 174 W.Va. at 21, 321 S.E.2d at 316.
As this Court made clear in Truby, the absence of a constitutionally protected interest attached to participation in interscholastic sports obviates the necessary predicate for requiring procedural due process protections before instituting SSAC sanctions. Because the due process protections that the trial court found lacking were inapplicable, it follows that the rulings which were premised on the lack of such protections are not sustainable. Thus, the circuit court's attempt (See footnote 13) to declare SSAC Rule 127-3-15.3 unconstitutional for lacking an administrative review process before imposing a multi-game suspension sanction is without any basis in the law. Similarly, because the justification for amending the SSAC rules was improper, the trial court's directive to the SSAC to take steps to amend its rules to conform to this Order is also set aside.
16. Although not mentioned in the Plaintiff's Complaint, the Court expressed deep concern about the possibility of Huntington High School being required under Rule 127-3-8 to forfeit basketball games in which the Plaintiff participated in pursuant to the injunction.
. . . .
28. Therefore, since it is foreseeable that the issue of the possible application of the forfeiture rule to other aggrieved parties who seek a remedy in court will arise again, the Court
finds that the question remains justiciable for future guidance and it is appropriate for the Court to rule on this issue. (citation omitted).
As part of the relief granted through its amended order, the trial court determined that the forfeiture rule was unconstitutional except as it applies to restraining orders or injunctions in which a judge makes a specific finding in a final determination that the restraining order or injunction was not justified.
Because the issue of the SSAC forfeiture rule was not before the circuit court, the SSAC argues that the trial court was wrong to address the constitutionality of the rule. It is axiomatic that a court cannot adjudicate a controversy on its own motion; before it can act there must be proper application invoking the judicial power of the court to litigate the matter at issue. Board of Educ. v. W. Harley Miller, Inc., 159 W.Va. 120, 130, 221 S.E.2d 882, 887 (1975) (Neely, J., concurring). As support for its authority to address the forfeiture rule, the trial court looked to Israel v. Secondary Schools Activity Commission, 182 W.Va. 454, 388 S.E.2d 480 (1989), a decision which addresses under what circumstances a court can rule upon technically moot issues. As we held in syllabus point one of Israel,
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.
182 W.Va. at 455, 388 S.E.2d at 481.
In stark contrast to how the controversy arose in Israel _ a direct challenge on equal protection grounds of an SSAC rule prohibiting girls from participating on a boys' team when a separate girls' team existed for that particular sport _ the issue of the SSAC forfeiture rule's constitutionality was raised solely by the trial court. And, unlike the compelling public interest in the gender discrimination issues presented in Israel, there is arguably minimal public interest in the application of the forfeiture rule. Moreover, as we explained in Gallery v. Secondary Schools Activity Commission, 205 W.Va. 364, 518 S.E.2d 368 (1999), the limited record developed on the forfeiture rule prevents us from identifying the scope of any collateral consequences that could result from failing to rule on this issue. See id. at 368, 518 S.E.2d at 372 (refusing to decide mooted issue of whether SSAC rules may constitutionally prohibit home-schooled athletes from participating in interscholastic sports given limited record development). (See footnote 15)
Another compelling reason for not applying Israel to this case arises from the
fact that while issues centered on sports-team eligibility are ineluctably rendered moot by
a student's graduation, the forfeiture rule does not similarly evade judicial review. When
properly raised, this issue can be addressed and pursued through the appellate process
without concern that mootness will be used to bar judicial review. The absence of
controversy surrounding the forfeiture rule in this case combined with the circuit court's
improper reliance on Israel rendered the trial court's ruling on this issue advisory. See
generally State ex rel. Alsop v. McCartney, 159 W.Va. 829, 228 S.E.2d 278 (1976)
(discussing prerequisites for advisory ruling where case or controversy element of judicial
review is missing). While such rulings may be warranted when compelling issues require
immediate resolution, no such circumstances are present in this case. Because we determine
that the advisory ruling on the forfeiture rule was improper, the trial court's conclusion that
the forfeiture rule is unconstitutional is reversed.
As support for its conclusion that the SSAC is a statutorily-created agency of the government, the trial court cites dicta from this Court's decision in Hamilton v. Secondary Schools Activity Commission, 182 W.Va. 158, 386 S.E.2d 656 (1989). At issue in Hamilton was the impact of an SSAC regulation aimed at preventing redshirting (See footnote 16) on the eligibility of an athlete during his senior year of high school who had been forced to repeat the ninth grade for academic reasons. Because we had ruled in Oakley that decisions issued by the SSAC Board of Review were not subject to further review by the West Virginia Supreme Court of Appeals, the Court was attempting to distinguish Oakley for the purpose of reaching the merits of the issue presented in Hamilton. See Oakley, 152 W.Va. at 539, 164 S.E.2d at 779. With no in-depth discussion, (See footnote 17) we commented that in Oakley we treated the [Secondary Schools Activity] Commission as simply a private association, not as a statutorily-created agency of the government. Hamilton, 182 W.Va. at 160, 386 S.E.2d at 658.
The trial court's decision in the case sub judice to elevate that singular
reference in Hamilton, which is clearly dictum in nature, to a legal determination by this
judicial body that the SSAC is a state agency is simply erroneous. The SSAC's status was
not relevant in Hamilton. The redshirting rule was determined to be unenforceable for
failing to tie ineligibility to those cases involving intentional athletic redshirting. Id. at 161,
386 S.E.2d at 659; see also Oakley, 152 W.Va. at 538, 164 S.E.2d at 778 (recognizing
determination of SSAC's status as voluntary organization or corporation was immaterial to
disposition of case). Based on the lack of inquiry into whether an athlete's nonparticipation
in sports was intentional as opposed to academic in origin, we concluded that the SSAC
redshirting rule exceeded the Commission's legitimate authority to promulgate 'reasonable'
regulations for school sports. Hamilton, 182 W.Va. at 161, 386 S.E.2d at 659 (quoting
W.Va. Code § 18-2-25); see also supra n.17 (citing authority for challenging legislative
rules issued in excess of statutory authority). Moreover, by solely relying on dicta in Hamilton to support its ruling that the SSAC is a state agency, the trial court was ignoring
past decisions of this Court that clearly restrict judicial review of SSAC decisions relating
to extracurricular activities.
A year after the Hamilton decision was issued, this Court adopted a five-part test to identify whether a given entity qualifies as a state agency. In syllabus point one of Blower v. Educational Broadcasting Authority, 182 W.Va. 528, 389 S.E.2d 739 (1990), we held:
In determining whether a particular organization is a
state agency, we will examine its legislative framework. In
particular, we look to see if its powers are substantially created
by the legislature and whether its governing board's
composition is prescribed by the legislature. Other significant
factors are whether the organization can operate on a statewide
basis, whether it is financially dependent on public funds, and
whether it is required to deposit its funds in the state treasury.
Id. at 529, 389 S.E.2d at 740.
Application of the factors articulated in Blower to the instant case demonstrates that the SSAC does not qualify as a state agency. The first factor requires an examination of whether the organization's powers are substantially created by the Legislature. As discussed above, the SSAC was in existence for fifty-one years before the enactment of West Virginia Code § 18-2-25. And, while the statute served to recognize the existence of the SSAC, it did not expand the powers exercised by the SSAC during the preceding half-century. As was the case before statutory recognition, the SSAC remains an organization comprised of the voluntary membership of secondary schools the purpose of which is to control, regulate and supervise interscholastic athletics, as well as other extracurricular activities. See Oakley, 152 W.Va. at 538, 164 S.E.2d at 778 (recognizing that notwithstanding incorporation of SSAC under authority of W.Va. Code § 18-2-25, organization is still for all intents and purposes in the same position as it has been for the past fifty years) (emphasis supplied). Consequently, we are compelled to conclude that the SSAC's powers were not substantially created by the legislature. Blower, 182 W.Va. at 529, 389 S.E.2d at 740, syl. pt. 1, in part.
The second factor announced in Blower requires an inquiry into whether the governing board of the SSAC is controlled by the Legislature. The composition of the governing board of the SSAC is prescribed through the bylaws and Constitution of the SSAC. Thus, the Legislature has no control over the makeup of the governing board of the SSAC.
With regard to the third factor of the Blower test _ whether the organization operates on a statewide basis _ this inquiry requires an affirmative answer. Although there is statewide participation in the SSAC, membership in the SSAC is not compulsory. The parties concur that not all middle school and high schools in West Virginia belong to the SSAC.
Application of the fourth factor of Blower involves an examination of whether the organization relies on public funds to support its operations. The method by which the SSAC finances its operations is to charge its members dues and to collect admission or entry fees at interscholastic athletic events and interscholastic band events. See Manchin, 178 W.Va. at 700, 364 S.E.2d at 26. The SSAC does not receive legislative appropriations. As a result, any reliance on public funds is indirect. (See footnote 18)
The final factor examined under Blower is a determination of whether the organization is required to deposit its funds into the state treasury. This issue was settled in Manchin in which we held that SSAC funds, while quasi-public in nature, are not funds due the state under specific legislative enactment (See footnote 19) and, consequently, are not required to be deposited into the state treasury. 178 W.Va. at 699, 364 S.E.2d at 25, syl. pt. 1; W.Va. Code § 18-2-25 (characterizing all moneys paid to such commission [SSAC], as well as moneys derived from any contest or other event . . . [as] quasi-public funds).
Upon application of the Blower test to the question of whether the SSAC is a state agency, only one factor required an affirmative answer. That inquiry, which focused on the state-wide operation of the organization, is not enough to compel a conclusion that the SSAC falls under the state agency rubric. Of more importance is the legislative control of the organization, both in terms of its creation; its powers; its governing board; and its funding. See also 4-H Road Community Ass'n v. West Virginia Univ. Found., 182 W.Va. 434, 388 S.E.2d 308 (1989) (holding that nonprofit corporation formed to assist university's fundraising efforts is not public body subject to FOIA because it was not created by state authority and is not primarily funded by state authority). For all intents and purposes, the SSAC operates in an autonomous fashion without legislative control. (See footnote 20) Accordingly, we hold that under the five-part test adopted by this Court in Blower, the SSAC is not a state agency. The ruling of the trial court on this issue is reversed.