Judge's denial that Marple's suit be dimissed is appealed

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By Ryan Quinn  
The Charleston Gazette 

The West Virginia Board of Education is appealing to the state Supreme Court after a lower judge refused to dismiss an ousted state superintendent’s suit against the school board.

Jorea Marple sued the board and individual member Wade Linger in April, arguing that Linger led a “covert agenda,” violating open meetings laws, to get other members to agree to vote to fire her in November 2012. Along with defamation and other counts, Marple argued the defendants had violated her due process.

Last month, Kanawha County Circuit Judge James Stucky denied the defendants’ request to dismiss the suit based on the argument that Marple was an at-will board employee who could be fired at the board’s discretion.

In a notice of appeal filed with the Supreme Court last week, Linger and the board said Stucky wrongly decided they weren’t immune to Marple’s suit because they were exercising their proper governmental authority to dismiss her.

Victor Flanagan, the defendants’ attorney, said normally a circuit judge or jury must make a final ruling before a case can be appealed to the Supreme Court, but such immunity issues are an exception because the high court wants to save state agencies the cost of discovery — the back-and-forth requests and exchanges of evidence between attorneys for the plaintiffs and defendants — and other preparations for a trial.

“They don’t want state entities going through the costs of litigating cases and then learning they’re immune from suit,” Flanagan said.

Also last week, Flanagan asked Stucky to file official questions to the Supreme Court asking whether Marple “can circumvent the constitutional and statutory prescription that the position of Superintendent of Schools of the West Virginia Board of Education is an at-will position by simply alleging a constitutional due process claim.”

Stucky can decide to ask the Supreme Court those questions or simply dismiss them.

That filing states that undisputed facts exist to prove the superintendent role is “an at-will position regardless of Plaintiff’s allegations of a constitutional violation” and that no employment contract existed between Marple and the board — nor did the board even have the legal authority to offer a contract.

“Allowing Plaintiff’s claim to proceed would also likely open the Court’s floodgates to similar meritless or frivolous lawsuits by similarly situated employees who are disgruntled by being discharged from their at-will position which they are not entitled to maintain indefinitely,” the filing states.

Marple’s original complaint argues that West Virginia’s public policy for “all contracts including agreements of employment” include a provision, whether written or orally stated or not stated at all, guaranteeing good faith and fairness free “of arbitrary, capricious or despotic action.”

Flanagan has also asked Stucky for a halt in circuit court proceedings until such questions are resolved. No hearings on the issues have been set.

Marple — who said her dismissal has harmed lifelong reputation and limited her ability to ever get such a high-ranking education position again — requests compensatory and punitive damages in her suit as well as a full hearing on why the board wanted to fire her with an opportunity to defend herself.

Marple said she did not know that she was being fired until Linger distributed pieces of paper with the intention at a board meeting and instructed members to vote on the matter.