Intermediate court’s chief judge recuses from appeal after advising on Hope Scholarship

The chief judge on West Virginia’s new intermediate court has been recused from a case about a controversial educational scholarship program because, in his previous job as a top legislative attorney, he gave advice about a legal challenge to the scholarship.

Legal decisions focused on the Hope Scholarship, which provides money for students leaving public schools, are among the first matters before the West Virginia Intermediate Court of Appeals.

Dan Greear

Dan Greear, one of three new intermediate court judges, wrote in a letter that his voluntary recusal was because he previously served as counsel to House Speaker Roger Hanshaw, who is one of the named parties in a lawsuit over the Hope Scholarship.

“I have also participated in conversations regarding this case with the Speaker, in my capacity as counsel,” Greear wrote on July 19. “I have also participated in discussions with counsel from the Office of Attorney General in that capacity.”

Greear was sworn in as a judge on the intermediate court in early May. He had served as House counsel until just before that.

John Hutchison, the chief justice of the state Supreme Court, accepted Greear’s recusal. The other judges on the new court are Charles Lorensen and Thomas Scarr.

Judge Jennifer Dent of Greenbrier County was named on July 21 to participate in place of Greear in the Hope Scholarship case.

The intermediate court has not yet scheduled or ruled on matters relating to the scholarship, court officials said today.

A lawsuit over the Hope Scholarship was first filed in January. 

A Kanawha Circuit judge ruled on July 6 that the scholarship program runs afoul of the state Constitution’s requirement for the Legislature to provide for “for a thorough and efficient system of free schools.” Circuit Judge Joanna Tabit verbally issued an injunction halting the scholarship and then filed a written order July 22.

The West Virginia Attorney General on July 19 asked the intermediate court to stay the judge’s order so the scholarship money could flow.

This week, the Attorney General followed up with a full motion for appeal to the intermediate court.

Patrick Morrisey

“We know this law is constitutional. So, we urge the court to act because thousands of families who were supposed to receive educational funding for their children remain in limbo — with the school year just around the corner,” stated Attorney General Patrick Morrisey.

The Legislature passed and the governor then signed a bill establishing the Hope Scholarships in 2021, providing money for students leaving the public school system to use for a variety of financial costs.  West Virginia’s program also allows students old enough to enter the school system for the first time to be eligible immediately.

The conservative publication the Federalist concluded “West Virginia just passed the nation’s broadest school choice law.” That’s because eligibility in other states with similar programs is more narrowly defined.

More than 3,000 students had been awarded the scholarship, which could be used for education expenses this fall.

The scholarship amount varies each school year. For the 2022-23 year, it will be $4,298.60.

So the total amount of public funding so far would be about $13 million.

Joanna Tabit

“Because West Virginia appropriates money to public schools, in part, based on the number of students who attend public schools, this harm is two-fold,” Judge Tabit wrote in the injunction order.

“Parents have always had the legal option to send their children to private school or provide home schooling. But, now the government is providing parents with $4,300 per child to take this route, diminishing the funds available for public education.”

“At the same time, this is direct state action creating an incentive to leave the public school system, reducing its enrollment and funding. The loss of this funding will impact public school students, including Plaintiffs’ children who have special needs that can only be met through West Virginia’s public schools.”

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