Pauley v. Kelly

Neely, Justice,

dissenting:

When the average bright law student first encounters the doctrine that courts will not decide “political questions,” it usually appears that such deference to other authorities is more cowardice on the part of the judiciary than anything which passes for statesmanship. However, maturity brings a recognition that all power has its inherent limitations and I dissent on the grounds that the majority has overstepped the limits of a court. 1 *744 State supported public education is an area where the other agencies of government are actively working while taking cognizance of other compelling yet competing imperatives, among which are included an appropriate lev *745 el of taxation, help for the aged, infirm, mentally ill, and destitute along with the more mundane demands upon the public treasury such as roads, sewers, fire protection and police protection.

Where the other agencies of government totally neglect the needs of a constituency entirely devoid of an effective political voice, as for example Black citizens in 1954, Brown v. Board of Education, 347 U.S. 483 (1954), mental health patients in 1974, State ex rel. Hawks v. Lazaro, _ W.Va. _, 202 S.E.2d 109 (1974) or juvenile status offenders in 1977, State ex rel. Harris v. Calendine, _ W.Va. _, 233 S.E.2d 318 (1977), it may be appropriate for a court to intervene in the political process under the authority of constitutional interpretation because there is no effective political alternative. These cases are distinguishable from the case at bar, however, by the fact that they presented problems susceptible to judicial management. In those cited instances there were structural obstacles to effective political participation by the abused constituency which only the courts could overcome on behalf of those to whom the political process was foreclosed. However, with regard to the particular invitation to judicial activism before as now, the Legislature has committees meeting constantly during its sessions on the subject of education; there is a huge bureaucracy dedicated to carrying out the legislative program; and, there are numerous, powerful, active constituencies who routinely devote time and money to effective (as well as ineffective) lobbying for education.

Many excesses of judicial zeal in attempts to solve problems of government may be analogized to an effort to reduce to possession a part of a balloon full of water; whenever a piece of the balloon is grasped towards the bottom, there will develop a bulge at the top. The courts do not have control of the entire balloon; the courts do not appropriate money; the courts do not tax; and, the courts do not have the manpower or expertise to enforce their orders absent the good will of the other branches. The personal philosophies of judges may prompt them to attempt to grab a piece of the water balloon, but the *746 bulge which the court creates must be handled by others who often decline to handle it. If then, the bulge is not handled, the courts, unless they are to become laughing stocks, must handle it, which will produce another bulge, until the courts are trying to control the entire balloon. At that point courts cease being courts and become administrators. Obviously when they become administrators they will also, ipso facto, become judges of their own causes and there ends the separation of powers. This is what the judges who developed the political question doctrine meant when they spoke of “judicially manageable standards.”

The case before us presents an attempt by parents and public interest lawyers to pry more money from the Legislature while at the same time avoiding the cumbersome legislative/political process with all of the implications which that process entails that something more than the mere appropriation of money may be forthcoming. As originally brought, the suit did not challenge teacher incompetency, nor the existence of an enormous interlocking statutory scheme which guarantees that security of position for those within the educational establishment will take precedence over the education of children. 2 That statutory scheme is the result of political bargaining and must be corrected through political bargaining if the result is to have any legitimacy.

*747 “Thorough and efficient” education apparently does not mean in this modern world just advanced mathematics, chemistry, physics, foreign languages, competence in written and spoken English, and a well-developed knowledge of history. Something more in the form of vocational training and preparation for life is implied, yet whatever it is, it is far too unmanageable a standard to be developed in a vacuum devoid of political give and take by the logical judicial mind, because inherent in any consensus about “thorough and efficient” education is a difficult balance between irreconcilable value systems. I have my own ideas of what constitutes “thorough and efficient” education; nonetheless, I am constitutionally constrained not to force them down the throats of other equally well-informed persons who have different values merely because I am a judge.

Accordingly, as woeful as the West Virginia public education system is, I would affirm the judgment of the lower court because the entire question comes within the classic definition of a “political question” set forth in Baker v. Carr, 369 U.S. 186 (1962), where Justice Brennan indicated that a question is not justiciable if it lacks “judicially discoverable and manageable standards for resolving it.” 369 U.S. at 217 3

When the Thorough and Efficient Clause is considered, along with other aspects of the statutory scheme of education, it should be apparent that political hiring, teach *748 er tenure, irrational certification requirements, lack of school consolidation, and a host of other considerations, which would present “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” Baker v. Carr, supra at 217 , make it impossible to decide these issues without “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker v. Carr, supra at 217 .

The courts can act upon a question such as the one presented in this case only when it is possible to remedy the situation by an order operating upon a discrete aspect of the problem. The lower courts will not find any aspects of the problem of substandard schools which taken alone, under the Thorough and Efficient Clause, can be acted upon by a court order without thereby implying that the courts must, in order to carry out their mandate, run the schools. If they find the financing system improper they cannot properly order the Legislature to raise taxes. This latter difficulty involves “the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources for enforcement.” Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 571 (1947). Furthermore, where a facet of a given total problem is susceptible of court resolution, but such resolution aggravates, distorts, or intensifies the magnitude of other aspects of the total problem which must then be left for resolution by another branch of government, (the water balloon problem) there is a dangerous possibility of “a court’s undertaking independent resolution without expressing ... the respect due coordinate branches of government.” Baker v. Carr, supra at 217 .

The courts’ inability to resolve many public issues such as the one before us is compounded by the problem of interest representation. Public law litigation has wide impact and, therefore, seems to necessitate representation of all who will be affected by its resolution; however, no reliable criteria have yet been found for identifying the affected interest, “apart from the decibel of the *749 protest.” Chayse, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 at 1311 (1976). It should be obvious that the traditional adverseness necessary to “[sharpen] the presentation of the issues” envisaged by Baker v. Carr is absent when the named defendant is either in reality not adverse or, at the very least, ambivalent. This is obviously the case before us; certainly the State Treasurer, State Board of Education, and State Superintendent of Schools are all in favor of “thorough and efficient” education. The adverse party, if there be one, is the taxpayer who is not a named defendant and cannot even be effectively represented by naming the President of the Senate and Speaker of the House of Delegates.

Consequently, it is with reluctance that I must dissent from the opinion of my learned colleagues, not because I am less outraged than they about the condition of West Virginia schools, but because I am neither Governor nor the entire Legislature. On remand I would hope that the lower court does not confine itself to an investigation of the problem of school financing alone; the children are entitled to a better inquiry than that if the courts are going to get into the question. The lower court should investigate, as suggested in the majority opinion, the relationship of tenure without need to demonstrate continuing competence, salaries which are not based on performance, lack of consolidation, inferior curricula, poor discipline, and a host of other ingredients which comprise the total problem. Only after adequate development of all those problems will the issue of finance be capable of being placed in proper perspective.

The development of the “political question” doctrine runs from Luther v. Borden, 48 U.S. (7 How.) 1 (1849) to Gilligan v. Morgan, 413 U.S. 1 (1973). In Luther the Supreme Court was asked to recognize a rebel government of Rhode Island as opposed to the government established under the original colonial charter. The Court determined that they could not decide which state government was in power but that Congress had that power under the guaranty *744 clause, U. S. Const, art. 4, § 4, which it had delegated to the President. The Court seemed to intimate that if Congress possessed the power then the judiciary did not since it involved a question not susceptible to conflicting answers. Other nineteenth century cases, Forsyth v. Hammond, 166 U.S. 506 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) arose under the guaranty clause and followed Luther’s lead to the extent of denying relief but recognized that the guaranty clause could be applied to protect individual rights. However, in Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912), the Supreme Court held that the question of whether a state government is “republican” was not capable of judicial resolution; the guaranty clause did not yield itself to judicial power since that would “obliterate the division between judicial authority and legislative power ...” 223 U.S. at 142 . At tbat point it seemed that the constitutional provision relied on determined justiciability but that approach was abandoned by the plurality in Colegrove v. Green, 328 U.S. 549 (1946) where the Court held it could not reapportion voting districts by itself reasoning that the Constitution plainly granted the questioned power to Congress and “Courts ought not to enter this political thicket.” 328 U.S. at 556 . This analysis was decisively rejected in Baker v. Carr, 369 U.S. 186 (1962) where the Court clarified the doctrine as one of “political questions” not “political cases.” 369 U.S. at 217 . The Court returned to the traditional question of whether the constitutional provision invoked was susceptible to translation into judicially enforceable rights. Other political question cases, Coleman v. Miller, 307 U.S. 433 (1939); Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103 (1948), evidenced the enforcement problem. Decisions since Baker v. Carr, United States v. Nixon, 418 U.S. 683 (1974); Powell v. McCormack, 395 U.S. 486 (1969), have remained true to its doctrine of enforceable rights, manageable standards, and constitutional commitment, but only one, Gilligan v. Morgan, 413 U.S. 1 (1973) (14th Amendment challenge to the training of the Ohio National Guard), has invoked the political question doctrine to hold an issue nonjusticiable reasoning that “it is difficult to conceive of an area of governmental activity in which the courts have less competence ... [than] professional military judgments, subject always to civilian control of the Legislative and Executive Branches. 413 U.S. at 10 . Thus the political question doctrine evolved, not as an off-limits sign on certain constitutional provisions, but as a requirement that courts consider whether manageable judicial standards can be developed in order to make certain rights judicially enforceable.

Under W. Va. Code, 18A-2-2 [1969], a teacher’s contract with the county board of education becomes “continuing” after three years of employment and can be canceled only in one of two ways: (1) by the teacher’s written resignation or (2) by majority vote of the full membership of the school board for cause. If cancellation is by vote of the school board, the teacher must be given an opportunity to be heard prior to cancellation and if cancellation is improper (not sufficient cause) the board can be subjected to monetary claims. Mason County Board of Education v. State Superintendent of Schools, _ W.Va. _, 234 S.E.2d 321 (1977). See also W. Va. Code, 18A-2-8 [1969] (dismissal of school personnel); W. Va. Code, 18A-3-1 [1969] (teacher certification); W. Va. Code, 18A-3-3 [1969] (permanent certification); and W. Va. Code, 18A-4-2 [1977] and W. Va. Code, 18A-4-2a [1977] (state minimum and supplemental salaries based exclusively on years experience and educational training without consideration of competency or quality of training).

While justiciability is generally considered a question of law preliminary to judicial intervention, commentators are increasingly recognizing a fact-finding element in the determination of justicia-bility. The issue, arising predominantly in public law litigation, does not involve “adjudicative” fact-finding envisaged in the traditional private dispute resolution function of the courts, but rather involves “legislative” fact-finding necessary to assess and appraise the viability of alternative resolutions. While usual private party litigation is primarily concerned with assessing past conduct (adjudicative facts), public law litigation is concerned with prospective conduct (legislative facts) which must be ascertained before the “judicially discoverable and manageable standards” test of Baker v. Carr can be met. See generally Chayes, The Bole of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281 (1976).