E-FILED | 9/16/2020 2:11 PM

CC-40-2020-C-148
Putnam County Circuit Clerk
William Mullins

IN THE CIRCUIT COURT OF PUTNAM COUNTY, WEST VIRGINIA

CONNOR ROBERTSON, as parent

and Guardian of G.R. and A.R., minors
under the age of 18.,

Petitioner,

v. CIVIL ACTION NO.:

THE BOARD OF EDUCATION OF

THE COUNTY OF PUTNAM,
a West Virginia Statutory Corporation.,

Respondent.

VERIFIED COMPLAINT FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF

Now Comes Plaintiff by and through his counsel David A. Sims, and Law Offices of David

A. Sims, PLLC and does hereby aver the following in support of his Verified Complaint for

Injunctive and Declaratory Relief:

Background Information

1. Petitioner Connor Robertson understands that COVID-19 has been classified as a

pandemic by the Centers for Disease Control and as a pandemic, and that much must be

done to combat it to save lives.

2. Petitioner understands the Respondent is facing difficult, demanding and constantly

changing regulations, standards, suggestions and guidelines from our State and Federal

governments.

3. Petitioner recognizes that Governor James Justice has spent hours on television

discussing and attempting to explain why our COVID-19 numbers are poor, each day, in
 an effort to curb the growing pandemic in the State of West Virginia, but that his efforts

have been a demonstrated failure for our State.

4. Petitioner recognizes and understands that despite the pandemic, constitutional rights

must be protected. A state of martial law has not been declared and thus there is no

constitutional basis to violate rights afforded citizens in the State of West Virginia.

5. In an effort to address what has been a failed political response to the pandemic,

Governor Justice has made certain decisions like closing bars and restaurants in

Monongalia County, or as he referred to it in one of his daily briefings “Monongahela”

County, in an effort to curb growing numbers.

6. Petitioner understands the Respondent is attempting to do what is right for the citizens

of Putnam County, but in doing so, the West Virginia Constitution requires that that

manage those efforts within the constitutional rights afforded to its citizens, including

Plaintiff and his children.

7. Petitioner is attempting to protect the constitutional rights of his children to an

education, as well as those others who elected to have their children attend school, as

opposed to being “virtual students”.

8. Prior to the start of the school year, Plaintiff was required to elect for his children if he

wanted them to attend public school in-person or to pick up an iPad and let his children

attend school virtually.

9. Respondent’s insistence in knowing if Plaintiff was sending his children to school was

reasonable and necessary for it to prepare for the opening of the school year, but what

Respondent Putnam County Board of Education failed to consider that the pandemic
 would prevent it from returning to in-person educational instruction and would deprive

those students who opted for in-person education of their constitutional rights.

RELIEF SOUGHT

10. Petitioner Connor Robertson is the parent of two school-aged children, both of whom

are residing in Putnam County.

11. Petitioner, in accordance with the requirements of Respondent Putnam County Board of

Education, notified it that he was going to be sending his children to in-person

attendance, as he believed that his children would learn best in the structured

environment of an in-person education.

12. Petitioner did not recognize the potential consequences of his decision when he notified

the school that his children would be attending in person, including that their

constitutional rights would be trampled by Respondent in its efforts to combat COVID-

19. The constitutional rights of others have not been so trampled; thus, he did not

foresee those of his children being trampled as they have been.

13. Petitioner brings the instant Complaint for Preliminary Injunction seeking to have this

Court to Order the Respondent cease following the West Virginia Schools Re-Entry

Metrics and Protocols program (“WV Metrics Map”), as the same is unconstitutional and

violates the constitutional rights of Petitioner’s children as well as all other children

whose parents opted for in-person attendance to receive their public education.
 14. Petitioner seeks a ruling from this Court prohibiting Respondent Putnam County Board

of Education from enforcing the unconstitutional and discriminatory portions of the WV

Metrics Map.

15. Petitioner specifically seeks to enjoin the Respondent from enforcing the WV Metrics

Map protocols against public and private schools in Putnam County where the WV

Metrics Map places Putnam in “orange” or “red” status, thereby shutting down its

schools.

16. Petitioner avers that the WV Metrics Map strips Putnam County children of their

Constitutional right to a thorough and an efficient system of a free schools.

17. The WV Metrics Map also discriminates against Putnam County children by favoring

other counties in the State of West Virginia in providing differing levels of public

education based primarily on population and access to COVID-19 testing.

18. Absent a Preliminary Injunction, irreparable harm will continue to Petitioner’s children

and all other Putnam County children enrolled in public and private schools.

19. Irreparable harm to our educational system will result if the instant action is delayed by

30 days as schools in Putnam County are already closed.

Parties, Standing & Venue

20. Petitioner Connor Robertson is a citizen, taxpayer, and resident of West Virginia.

Petitioner has two school-aged children who attend public elementary schools in

Putnam County, West Virginia.

21. Petitioner brings this action on their behalf as well as similarly situated Putnam County

children being harmed by this unconstitutional conduct.

22. Respondent Putnam County Board of Education is situated in Winfield, Putnam County

West Virginia.

23. Respondent Putnam County Board of Education is a Corporation established by the laws

of the State of West Virginia under W.Va. Code § 18-5-5.

24. Respondent Putnam County Board of Education is vested with the authority to control

and manage the public schools within its borders pursuant to W.Va. Code § 18-5-13.

25. Respondent is also charged with appropriately utilizing the funds paid by Putnam

County residents, taxpayers and citizens, as well as to educate and protect Putnam

County children’s health, social and constitutional interests.

26. Respondent Putnam County Board of Education does not have the power or authority to

enforce unconstitutional laws, executive orders, or other unlawful mandates of other

West Virginia State Agencies without the input of its citizens.

27. Respondent Putnam County School Board, acting on its own and as an agent of the West

Virginia Board of Education, are applying and enforcing unconstitutional mandates to

the substantial detriment and prejudice of Putnam County school-aged children.

28. Petitioner, as the father of two school-aged children, both of whom are enrolled in

constitutionally provided and protected public schools in Putnam County, has standing

to seek the relief sought in this Complaint.

29. Every child in Putnam County is being deprived of the same thorough and efficient

system of education as other children in the State of West Virginia who are receiving in

person instruction.
30. Respondent Putnam County Board of Education continues to enforce the WV Metrics

Map, despite its unconstitutionality.

31. Due to “orange” status, Petitioner’s children remain at home with little to no in-person

instruction, while other children are receiving a thorough and efficient public education

through in-person attendance in the classroom throughout the State of West Virginia.

32. Petitioner’s children and other Putnam County children should not continue to suffer an

inferior education, just because they live in a more heavily populated county.

33. Respondent Putnam County Board of Education should be allowed and is in fact

constitutionally and legislatively mandated to provide equal schooling opportunities for

all of its children.

34. On Saturday, September 6, 2020, Putnam County was declared “orange” according to

the WV Metrics Map. Under the WV Metrics Map, Petitioner’s children are prevented

from receiving an in-person class beginning September 8, 2020.

35. Because Petitioner elected for his children to receive in-person classroom instruction, as

they have received for the entirety of their educational lives, they are now deprived of

any classwork where other children who opted to be “virtual students” continue to

receive educational instruction as planned.

36. In the first week of school, Petitioner’s children received approximately twenty minutes

of online access to a Putnam County teacher and nothing more. Petitioner avers and

believes that children whose parents had opted for “virtual student” education received

a great deal more education than his children have received.

37. Putnam County is the proper venue for this Petition. Petitioner and his children reside in

Putnam County.

38. By statute, Respondent Putnam County Board of Education is considered to be a

resident of Putnam County.

39. Venue is proper in Putnam County as it is currently a county suffering from an “orange”

designation by the WV Metrics Map and being discriminated against and threatened

with further discrimination under said Map.

Putnam County Children Have a Constitutional Right to Education

40. The West Virginia Constitution, Article XII, Section 1, provides a fundamental

constitutional right to education for our children. “The Legislature shall provide, by

general law, for a thorough and efficient system of free schools.”

41. The West Virginia Supreme Court has already determined that Article XII, Section 1, of

the West Virginia Constitution, creates a fundamental right to education, as that

provision requires the State to provide a “thorough and efficient system of free

schools…”. See syl. pt. 3, Phillip Leon M. v. Greenbrier County Bd. of Educ., 484 S.E.2d

909 (W.Va. 1996). See also syl. pt. 3, Pauley v. Kelly, 162 W.Va. 672 (1979).

42. “The Thorough and Efficient Clause contained in Article XII, Section 1, of the West

Virginia Constitution requires the Legislature to develop a high quality State-wide

education system.” See syl. pt. 5, Pauley v. Kelly, 162 W.Va. 672 (1979).

43. The West Virginia Supreme Court has legally defined what the words thorough and

efficient system of free schools means. Those words mean an educational system that

“develops, as best the state of education expertise allows, the minds, bodies and social
 morality of its charges to prepare them for useful and happy occupations, recreation

and citizenship, and does so economically.” Id. at 705. To meet these goals, the Court

further set forth legally recognized elements which our children are entitled: (1) literacy;

(2) ability to add, subtract, multiply and divide numbers; (3) knowledge of government

to the extent that the child will be equipped as a citizen to make informed choices

among persons and issues that affect his own governance; (4) self-knowledge and

knowledge of his or her total environment to allow the child to intelligently choose life

work to know his or her options; (5) work-training and advanced academic training as

the child may intelligently choose; (6) recreational pursuits; (7) interests in all creative

arts, such as music, theatre, literature, and the visual arts; (8) social ethics, both

behavioral and abstract, to facilitate compatibility with others in this society. Id. at 705-

706. To carry out these elements, our children are entitled to “supportive services: (1)

good physical facilities, instructional materials and personnel; (2) careful state and local

supervision to prevent waste and to monitor pupil, teacher and administrative

competency." Id.

44. As demonstrated above, West Virginia children are entitled not just to education, but all

things that go along with them: classroom instruction, field trips, football, baseball,

basketball, cheerleading, dance, school government, driver’s education, and extra-

curricular activities which enhance the education of our children.

45. West Virginia has recognized education as a fundamental right under the Equal

Protection Clause, which provides that: “No person shall be deprived of life, liberty, or

property, without due process of law….” Article III, Section 10. “Because education is a
 fundamental constitutional right in this State, then, under our equal protection

guarantees any discriminatory classification found in the educational . . . system cannot

stand unless the State can demonstrate some compelling State interest to justify the

unequal classification. Id.

WEST VIRGINIA’S METRICS MAP VIOLATES EQUAL PROTECTION

46. The WV Metric Map deprives Plaintiff’s children and other children whose parents

opted for in-person education for their children of their constitutional right to a

thorough and efficient free education.

47. The deprivation of education is directly caused by Respondent Putnam County Board of

Education’s enforcement of the unconstitutional WV Metrics Map, which discriminates

against more heavily populated counties like Putnam.

48. The WV Metrics Map includes the following unlawful and unconstitutional

discriminatory categories and practices:

a. In unlawfully discriminates against counties with 10 or more “cases” per 100,000

population by depriving the parents and students of those counties of many of

the benefits associated with school, including organized sports-i.e. “recreation”,

and, in certain circumstances (referred to in the next category of discrimination),

of access to the school building as a place for learning, with the accompanying

benefits of social interaction for the children and supervision by school

personnel for the benefit of parents and children.

b. It unlawfully discriminates against counties which are designated as “orange”,

such as Putnam County, by depriving those counties children access to the

 school buildings as places for learning, with the accompanying benefits of social

interaction, and sports based on population of the differing counties and the

availability of testing.

c. The highly populated counties are at a distinct disadvantage with the absolute

number system being used by the WV Metrics Map. The higher populated

counties obviously have more people to be exposed and to be infected, but also

have more restaurants, more bars, more churches, more nursing homes, more

stores, more jails, more hospitals, more urgent care, and necessarily provides

more opportunities for its residents to be infected.

d. All of these factors lead to more positive tests results, which necessarily puts the

counties school system in “orange” thereby shutting down the schools.

e. Plaintiff does not have any ability to control the population of Putnam County,

but because he chose to purchase a home and live in Putnam County, as

opposed to Wirt County, they receive no education while Wirt County schools

receive live in-person education.

f. At the time of the drafting of this Petition, Putnam County has been given 11,818

Confirmatory Lab Tests compared to 576 in Wirt County, West Virginia.

g. Within Putnam County, and other “orange” or “red” counties, WV Metrics Map

unlawfully discriminates against Plaintiff’s children by prohibiting or restricting

their main productive and social activities, which are school and school-

sponsored sports and extra-curricular activities, without giving them the less
 restrictive option of complying with social distancing, masking, and hygiene

protocols that are deemed to be sufficient for adults in all other settings.

h. WV Metrics Map discriminates against counties that report 10 new “cases” of

COVID-19 per 100,000 population compared to counties that report 10 new

“cases” of flu per 100,000 population, given that the flu is universally recognized

as being a greater threat to school aged children than COVID-19 is thought to be.

i. WV Metrics Map’s new “gold” category does not solve the problem and

continues to discriminate against counties that are not provided with enough

testing to proportionally represent the population of the county. On September

15th only 109 people were tested with a positivity rate of 24. Without adequate

testing available only the sick or individuals experiencing symptom will be

compelled to get tested which results in an extremely high positivity rate, but

does not represent the overall population of the county.

WV METRICS MAP IS NOT NARROWLY TAILORED TO A COMPELLING STATE INTEREST

49. The WV Metrics Map is not a narrowly tailored solution to satisfy the required

compelling state Interest. In fact, the compelling state interest behind the WV Metrics

Map has never been specifically identified or explained, but is presumed to be

diminishing the infection rate of COVID-19 in the State of West Virginia.

50. If that is the compelling state interest, the State of West Virginia’s approach to COVID-

19 has been a failure, as the State continues to be first in the rate of infection.

51. The WV Metrics Map protocols for shutting down public schools is clearly not narrowly

tailored to Public Health, assuming that is the compelling state interest. The WV Metrics
 Map hinges on the absolute number of new “cases” of COVID-19, but the metric is

completely indifferent to whether those “cases” are symptomatic or asymptomatic,

even though transmission rates vary enormously between the two categories.

52. The current system discourages testing amount public school children, as it would likely

demonstrate larger numbers of infected persons. Those children who are wishing to go

back to school and play sports are not going to go and get tested for fear their schools

may get shut down or sporting events cancelled. This notion is especially true for

asymptomatic children who may have COVID-19. The current system does not take into

account data relating to the spread of COVID-19. The absolute number system does not

take into account the overall percentage of positivity of a county’s population, sustained

new case growth, proportion of cases that are non-congregate cases, sustained increase

in emergency room visits, sustained increase in outpatient visits, sustained increases in

new COVID-19 hospital admissions, and ICU bed occupancy.

53. The WV Metric Map provides no data showing how shutting down public schools slows

the rate of transmission of the virus compared to CDC approved social distancing

measures. In fact, Putnam County schools have been in “orange” for the first two weeks

of school, yet the number of COVID-19 cases is not slowing here, which is direct

evidence that the WV Metrics Map is an absolute failure. The WV Metric Map wrongly

assumes that shutting schools down will slow the spread among children, but this

assumption is not data driven. When children stay at home, they are not locked in their

rooms in indefinite quarantine. Instead, most parents and children attempt to go do

other things other than school related events, which are not restricted in any way under
 the WV Metric Map. For example, many children participate in traveling or recreational

sports, which continue to be allowed under the guidelines, but provide the same

opportunity for infection, if not more, than attending public school. In fact, many

children being denied the opportunity to participate in local school sports are instead

travelling out-of-state to play in youth sports events, which actually increases the

chance of further community spread when they return. In short, shutting down our

schools and extracurricular activities is illogical, irrational, not narrowly tailored and thus

cannot satisfy the compelling interest scrutiny that it must pass in order for it to pass

constitutional muster.

54. The standard for this Court to evaluate the WV Metrics Map is one of strict scrutiny. In

consideration of the above factors, the WV Metric Map falls woefully short of meeting

this standard.

55. Data and common sense reveal that the WV Metric Map is unfair and even irrational to

school-aged children. More importantly in this forum, its application violates these

students’ Constitutional rights to education and equal protection.

56. Respondent’s efforts to follow the WV Metrics Map is a violation of the rights school

children in more largely populated counties.

PRELIMINARY INJUNCTION

57. An immediate preliminary injunction is needed to prevent irreparable harm to Plaintiff

and his children. Each day that passes, Plaintiff’s children lose the opportunity to learn.

They lose the opportunity to socialize. They lose the opportunity to develop. A child’s

opportunity to learn through public education is finite. It does not last forever. Similarly,
 a child’s opportunity to play certain sports in finite. It does not last forever. When the

right taken away from our children is one that is so fundament in our society, such as

education, any deprivation of this right is irreparable. "When one is deprived of a right,

it matters not that the deprivation is minimal. A restriction of a property right,

temporarily or permanently, is nevertheless a prohibited curtailment of a right

protected by the Constitution when such is accomplished without notice or hearing,

absent a showing of a special or extraordinary State or creditor interest." Syllabus point

2, State ex rel. Payne v. Walden, 156 W.Va. 60, 190 S.E.2d 770 (1972). Ashland Oil, Inc. v.

Kaufman, 384 S.E.2d 173, 181 W.Va. 728 (W. Va. 1989). No amount of money can get

back the time Plaintiff’s children have missed, and will continue to miss, out on their

education because of the WV Metrics Map policies.

58. The harm to similarly situated Putnam County students cannot be underestimated.

Putnam County High School Athletes - Football, Soccer, Volleyball, Cheerleading, Band,

Dance, etc. are missing out on games that they will need to achieve athletic

scholarships.

59. Athletics in high school are also finite in number. Most high school football players get

20 games, maybe, to prove they can play at the next level. Having recruiters watch film

on these athletes is what makes or breaks the opportunity. Without playing, these

opportunities will go elsewhere – to the players in other states whose governments are

not experimenting with new and “novel” ideas.

60. Athletics are a key part of the educational experience. In many cases, the experiences

athletes get on the field of play shape their lives for the better. Under the WV Metrics
 Map, all of these positives are denied. Yet, some sports still continue. For example, the

San Francisco 49ers are traveling to and presumably practicing at the Greenbrier in late

September. And WVU football games will be played while Monongalia high school

students cannot play.

61. There is also no indication that deprivation of education in Putnam County is a short-

term problem. With no cure or vaccine credibly identified as being available any time

soon, Putnam County’s deficient education system in its current form could exist for an

entire school year or longer.

62. The Respondent Putnam County Board of Education suffers no harm through the

issuance of an injunction stopping it from enforcing an unconstitutional law.

63. Granting this injunction allows the Respondent Putnam County Board of Education to do

what it is statutorily and constitutionally required to do – provide a thorough and

efficient education to Putnam County children.

64. Plaintiff is likely to succeed on the merits of this action. It is undisputable that Plaintiff’s

children have a fundamental constitutional right to a thorough and efficient education.

It is likewise indisputable that Plaintiff’s children are not receiving such an education.

65. Respondent Putnam County Board of Education cannot demonstrate the WV Metrics

Map is narrowly tailored to prevent the spread of Covid within Putnam County.

66. Similar constitutional challenges attacking the right to education based on population of

counties have been successful. See Pauley supra where a constitutional attack was

sustained by the West Virginia Supreme Court which showed Lincoln County children

were deprived of a thorough and fair education compared to other counties because
 the population of the other counties brought in higher tax revenues. In other words,

Lincoln County children were being provided less educational opportunities simply

because the population of other counties were more affluent. A similar comparison can

be made in this case, but in reverse. Here, Putnam County children are being deprived

of education based on population and testing availability alone.

REQUEST FOR RELIEF

Plaintiff request the following immediate relief:

1. An immediate preliminary injunction against the Putnam County School Board to

prevent enforcement of the WV Metric Maps in Putnam County, which will allow

Plaintiff’s children to return to live in-person and in-school instruction, to participate in

and attend live athletic events and any other extracurricular activities associated with

the school until such time as the Court can take evidence and decide this case on the

merits.

2. An immediate preliminary injunction ordering the Putnam County School Board to

assume control of their schools until such time as the executive branch of West Virginia

Government and/or Legislative branch of government amends the WV Metric Maps to

not infringe upon the rights of children.

3. An Order deeming the WV Metrics Map provisions unconstitutional as violating school-

aged children’s right to a thorough and efficient free education.

TRIAL BY JURY IS DEMANDED.

David A. Sims

David A. Sims (W. Va. Bar No. 5196)
Law Offices of David A. Sims, PLLC
P.O. Box 5349
Vienna, WV 26105
(304) 428-5291
(304)428-5293 Facsimile
david.sims@mywvlawyer.com