The chambers of the West Virginia Supreme Court of Appeals
CHARLESTON — The West Virginia Supreme Court of Appeals has docketed an appeal challenging a Kanawha Circuit Court order that permanently enjoined the enforcement of key provisions of the state’s public charter school law.
The petitioners says the Kanawha County decision threatens the continued operation and future authorization of charter schools statewide.
The appeal, filed Dec. 18, arises from a Dec. 3 order entered by Circuit Judge Jennifer F. Bailey in consolidated civil actions brought by plaintiffs Sam Brunett, Robert McCloud and Jaclyn Sanchez against the West Virginia Professional Charter School Board and several state officials .
In the order under review, the circuit court concluded that portions of House Bill 2012, which was enacted in 2021 and created and empowered the West Virginia Professional Charter School Board to authorize charter schools, violate Article XII, Section 10 of the West Virginia Constitution.
That constitutional provision restricts the creation of independent school districts or organizations without the consent of voters in the affected districts.
Based on its interpretation, the circuit court permanently enjoined further enforcement of House Bill 2012 and directed that the Professional Charter School Board be barred from authorizing any new charter schools without countywide voter approval.
The court stayed its own order for 60 days, leaving open the possibility of further injunctions or mandamus relief if legislative or executive action did not occur within a “reasonable time.”
The defendants in the case, which are the Professional Charter School Board, Senate President Randy Smith, House Speaker Roger Hanshaw, Gov. Patrick Morrisey and several charter schools that intervened, quickly moved to challenge the ruling.
Along with their notice of appeal to the Supreme Court of Appeals, they also filed a motion asking for a stay of the circuit court’s injunction pending exhaustion of all appellate remedies.
In that motion, petitioners characterized the injunction as unusually sweeping, arguing it cast doubt on the legality of the entire charter school system and risked immediate and irreparable consequences if allowed to take effect before appellate review.
According to the filings, the underlying lawsuit dates back to September 2021, when plaintiffs first challenged the charter school framework, contending that voter approval was constitutionally required before charter schools could operate.
An earlier preliminary injunction entered by the circuit court in 2022 was stayed and later vacated by the Supreme Court of Appeals, which held that the plaintiffs lacked standing to pursue relief against certain state officials, including the governor.
After that ruling, that case returned to circuit court, where plaintiffs amended their complaint to add the Professional Charter School Board as a defendant while continuing to seek declaratory and injunctive relief.
Earlier this month, following a hearing held more than a year earlier, the circuit court issued the permanent injunction now on appeal.
The petitioners argue the court erred on multiple fronts: by finding the plaintiffs had standing to sue the Senate president, House speaker, and governor; by declaring unconstitutional a legislative immunity statute that directs dismissal of legislative leaders from suits challenging statutes; and by concluding that charter schools authorized by the Professional Charter School Board constitute independent school organizations created “out of” existing school districts within the meaning of Article XII, Section 10.
The petitioners maintain that charter schools do not alter district boundaries, do not levy taxes and therefore fall outside the constitutional restriction relied upon by the circuit court.
Under the Supreme Court scheduling order, the petitioners must perfect their appeal by April 3, 2026, by filing their brief and appendix.
The respondents’ brief is due by May 18, 2026, or within 45 days of the appeal being perfected, with any reply brief due by June 8, 2026.
Once briefing is complete, the appeal will be mature for consideration by the Court.
Until the Supreme Court rules on the merits or on the pending motion for a stay, the circuit court’s injunction remains stayed under its own 60-day provision.
West Virginia Supreme Court of Appeals case number: 25-851
