A West Virginia appeals court has affirmed a circuit court, which enjoined the West Virginia Secondary School Activities Commission (SSAC) from enforcing a penalty against a high school student-athlete because the SSAC did not have a proper review procedure in place for the disciplinary action, in this case an ejection.
The incident that led to the litigation occurred at a high school football game that was played on September 19, 2014. During the game, a referee flagged one of the student-athletes, D.W., for allegedly committing a flagrant personal foul. According to the referee’s report to the SSAC, the student-athlete, while lying on his back on the ground, “drew back his right leg and delivered an upward kick striking the helmet/face mask of the Defender.”
The referee ejected the student-athlete from the game. As required by the SSAC’s rules, the referee completed a detailed report of the incident and submitted it to the SSAC within 24 hours. He also submitted the report to the student-athlete’s principal. Because the SSAC does not allow participation in the game following an ejection, he was suspended from playing in the next game, scheduled for September 26th. The September 19th ejection and the suspension from the September 26th game was considered a single punishment.
In the week leading up to the September 26th game, the student-athlete sought administrative review from the SSAC. He hoped to use video-evidence to show that the alleged kick to the opposing player’s face (or any other misconduct) did not occur. Allegedly, the student-athlete made multiple attempts that week to get the SSAC to review its punishment against him.
The SSAC is required by state statute to provide a proper review procedure, according to the court. Nevertheless, it refused to review the student-athlete’s administrative appeal. The SSAC instead invoked its non-review of the ejections rule.
As a last resort, the student-athlete (by his mother, Pamela F.) sought a temporary restraining order and preliminary injunction from the Circuit Court of Marshall County, alleging the SSAC’s non-review of ejections rule was not enforceable. The student-athlete successfully argued before the circuit court that the SSAC’s non-review of ejections rule violated the Legislature’s requirement that the SSAC provide a proper review procedure.
SSAC then petitioned the appeals court for a writ of prohibition.
In its analysis, the court reviewed West Virginia Code § 18-2-25 (1967), which provides, in pertinent part, that: “the rules and regulations of the West Virginia secondary school activities commission shall contain a provision for a proper review procedure and review board and be promulgated in accordance with the provisions of [the State Administrative Procedures Act].”
The court continued: “The SSAC argues that circuit courts must stay out of its internal affairs and that its non-review of ejections rule is not unconstitutional. We agree with the SSAC on these two points, but we disagree that they serve as a proper basis for finding that the circuit court’s order, which centered upon whether the regulation complied with statute was error. Rather, we agree with the circuit court that the SSAC’s non-review of ejections rule is a direct violation of West Virginia Code § 18-2-25’s requirement that the SSAC provide a proper review procedure. Therefore, we deny the requested writ of prohibition.”
State Of West Virginia ex rel. The West Virginia Secondary School Activities Commissionet al. v. The Honorable David W. Hummel, et.al.; S.Ct App.W.Va.;No. 14-1045,2015 W. Va. LEXIS 132; 2/26/15
Attorneys of Record: (for petitioners) William R. Wooton, Esq., Wooton & Wooton, Beckley, WV. (for respondents) James G. Bordas, Jr., Esq., Michelle Marinacci, Esq., Bordas & Bordas, PLLC., Wheeling, WV.
