David C. Tabb v. Jefferson Co. Board of Education, 16-0533

Background

David C. Tabb (pro se) sued to invalidate a December 12, 2015 special excess levy election for Jefferson County Board of Education, alleging respondents failed to comply with West Virginia Code §§ 11-8-9, 11-8-12, and 11-8-16.
Tabb sought a declaratory judgment and requested the court enjoin the election; the circuit court did not rule before the election, and voters approved the levy.
Respondents moved to dismiss; because the court considered materials outside the pleadings, motions were converted to motions for summary judgment and the parties were allowed additional briefing and authenticated records were filed.
The circuit court granted summary judgment to respondents on April 20, 2016 (finding statutory compliance) and denied Tabb’s Rule 59(e) motion to alter or amend on May 23, 2016.
On appeal, the West Virginia Supreme Court reviewed the summary judgment de novo, considered Tabb’s additional arguments (including alleged pro se accommodation and due process deficiencies), and affirmed the circuit court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Compliance with statutory requirements for holding the special excess levy election	Tabb argued respondents failed to comply with WV Code §§ 11-8-9, 11-8-12, 11-8-16, so election should be invalidated	Respondents produced authenticated records showing compliance with the statutory procedures	Court granted summary judgment to respondents — respondents complied with statutes; election not invalidated
Emergency injunctive relief before the election	Tabb sought a pre-election injunction to stop the December 12 election	Respondents noted the court had discretion and the delay was not attributable to them; the merits could be addressed after the election	No reversible error: absence of pre-election ruling did not prejudice Tabb; merits addressed post-election
Consideration of ballot language and issues from other pending cases	Tabb argued the ballot language was defective and that matters from his other cases should be considered	Respondents and court noted Tabb did not amend his complaint to raise ballot-language claims and did not move to consolidate other cases	Claims were waived for failure to timely amend/ consolidate; court properly refused to consider them
Pro se accommodation / due process	Tabb contended the court failed to reasonably accommodate him as a pro se litigant and denied due process	Respondents argued Tabb is a sophisticated, frequent litigant and the court afforded fair process	Court concluded Tabb received adequate due process and reasonable accommodation; pro se status did not excuse procedural defaults

Key Cases Cited

Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (summary judgment review is de novo)
Wickland v. Am. Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998) (standard for reviewing Rule 59(e) motion mirrors review of underlying judgment)
Blair v. Maynard, 174 W.Va. 247, 324 S.E.2d 391 (1984) (courts should reasonably accommodate pro se litigants but not overlook rules to a party's prejudice)
State ex rel. Peck v. Goshorn, 162 W.Va. 420, 249 S.E.2d 765 (1978) (due process synonymous with fundamental fairness)
W.Va. Dept. of Health & Human Resources Employees Fed. Credit Union v. Tennant, 215 W.Va. 387, 599 S.E.2d 810 (2004) (pro se litigant may waive rights by procedural failures)
State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996) (review focuses on whether the court's order reflects law and record, not drafting style)
Sprouse v. Clay Communication, Inc., 158 W.Va. 427, 211 S.E.2d 674 (1975) (parties are entitled to a fair, not perfect, proceeding)