By Steven Allen Adams, Parkersburg News and Sentinel
CHARLESTON — The West Virginia Board of Education is asking the state’s highest court whether lawmakers have any legal authority to approve or reject rules approved by the state board.
The state Board of Education filed a lawsuit Friday against Secretary of State Kris Warner seeking a writ of mandamus to compel the Secretary of State’s Office to publish the state board’s proposed rules in the State Register and to declare House Bill 2755 unconstitutional.
In its filing, attorneys for the state board point out this will be the second time in nearly 40 years that the justices will have to weigh in on this issue again.
“What is old is new again,” wrote Bailey and Glasser attorney Christopher Smith. “In 1988, the Legislature tried to usurp the Board’s Constitutional rulemaking authority and passed a law requiring the Board to submit its rules and regulations to the Legislature for approval prior to enactment. This Court rejected the Legislature’s power grab…
“The Legislature now attempts the very same Constitutional coup this Court thwarted nearly 40 years ago,” Smith continued. “That law is as unconstitutional today as it was 40 years ago, and this Court should declare this iteration unconstitutional again.”
House Bill 2755, which went into effect in July, requires that all legislative rules enacted by the board must first be authorized by the Legislative Oversight Commission on Education Accountability. The proposed rules would then be submitted to the full Legislature for review, which could result in approval, amendment or rejection.