Attorneys for ousted state schools superintendent Jorea Marple have requested a rehearing of the West Virginia Supreme Court's unanimous Nov. 10 decision to dismiss her case against the state Board of Education.
In a petition filed with the high court earlier this month, Marple's lawyers take issue with the justices' finding that the two defendants in Marple's lawsuit - the state school board as a whole and former board President Wade Linger specifically - have "qualified immunity" from the suit, which was filed in April 2014.
Victor Flanagan, an attorney representing Linger and the board, said petitions for rehearing are very rarely accepted.
His side filed a short response Tuesday basically arguing that the court has already addressed all issues raised in the petition, so its order, which stopped the case from going to trial, should stand as is. It says the "regurgitated" arguments not suitable for a rehearing meant for the court to address points it overlooked or misapprehended.
Marple's petition, which has about five pages of arguments, takes issue with the Supreme Court opinion's statement that Marple's complaint - the common substantive initial filing in a lawsuit - didn't "contain any allegation that the Board or Mr. Linger acted fraudulently, maliciously, or oppressively."
Considering that the state Constitution says the state schools superintendent serves at the "will and pleasure" of the state school board, Marple's attorneys were tasked with arguing that her termination by the board was illegal regardless.
While specifically stating in their opinion that "we do not pass judgment on the wisdom, correctness, or fairness of Dr. Marple's termination," the justices - Circuit Judge Christopher Wilkes was assigned to the case after Chief Justice Margaret Workman disqualified herself - ruled that the firing was at the board's discretion.
The court said the state and its officials or employees are immune from liability for such discretionary actions unless "plaintiff has demonstrated that such acts or omissions are in violation of clearly established statutory or constitutional rights or laws of which a reasonable person would have known or are otherwise fraudulent, malicious, or oppressive." The court found Marple had not established that.
Marple's petition for rehearing counters this through listing several phrases that were in her complaint.
One accused Linger, who's still a board member but no longer president, of leading a "covert agenda" to fire her. Another said Linger made "completely false" allegations about why the board was firing Marple. Another said the board's actions "were and are willful, wanton and in reckless disregard of plaintiff's rights." Another phrase said the "agenda" was "contrived in secret by defendant Linger and his recruited allies on the defendant Board to advance his agenda to deprive plaintiff of her performance as a dedicated, honest and incorruptible public servant."
"Consideration should be accorded as to how these allegations could not be construed to be either or all 'fraudulent, malicious or oppressive' so as to engage the application of substantive law," the petition for rehearing states.
The petition also takes issue with the Supreme Court's dismissal of Marple's claims that Linger and the board violated the state open meetings laws. Her lawyers say the law directly focuses on governmental agencies.
"To allow that focus to be blunted by a claim of some immunity strikes as the very essence of the law," the petition states.
Tim Barber, the Marple attorney who signed the petition, declined comment.
Supreme Court spokeswoman Jennifer Bundy said the first case conference of the court's next term is Jan. 5, so it's likely there won't be any action on the filing before that time, and there's no way to know when the court may act afterward.
Reach Ryan Quinn at ryan.quinn@wvgazettemail.com, facebook.com/ryanedwinquinn, 304-348-1254 or follow @RyanEQuinn on Twitter.