By Eric Eyre
The Charleston Gazette
CHARLESTON, W.Va. — West Virginia Attorney General Patrick Morrisey, Gov. Earl Ray Tomblin and schools Superintendent Michael Martirano want a judge to dismiss a lawsuit filed by Berkeley County Delegate Michael Folk, who’s seeking the repeal Common Core educational standards being taught in public schools.
In court filings, Tomblin’s attorney said Folk, a Republican, is trying to “bully through the courts … a purely political attack.”
Folk’s lawsuit alleges that Common Core-aligned student testing in West Virginia violates the U.S. Constitution.
“That claim is dead wrong,” Tomblin attorney Ben Bailey wrote in a motion filed this week in Berkeley Circuit Court.
Bailey wrote that Folk’s lawsuit is “procedurally deficient and substantively ill-conceived,” and appears to be copied, in large part, from a similar lawsuit opposing Common Core that was filed in Missouri.
For instance, Folk’s lawsuit names the West Virginia “Office of Administration” as a defendant. Missouri has an “Office of Administration.” West Virginia has a “Department of Administration.”
Folk, a commercial airline pilot, defended his lawsuit Wednesday, saying he drafted it on his own during an overnight stopover.
“I actually wrote this thing while I was in Orlando, Florida, where I had less access to legal material and the annotated code,” said Folk, who filed the lawsuit without an attorney. “I will freely admit I probably made some procedural mistakes, but I don’t necessarily believe they’re fatal.”
Folk called Bailey’s allegation that he filed the lawsuit for political reasons “baseless.”
“Mr. Bailey never argues the merits of the case,” Folk said. “If he wants to get into the merits, he’s going to have a difficult time.”
More than 40 states, including West Virginia, have adopted Common Core, a set of math and English standards that specify what students across the nation should learn at each grade level. Common Core critics say the standards are part of a federal takeover of local schools.
In February, Folk sponsored legislation aimed at repealing Common Core in West Virginia.
The House of Delegates passed the bill, but it died in the Senate.
Two months later, Folk filed a lawsuit in Berkeley County to stop the state from funding a group — called the Smarter Balanced Assessment Consortium — that developed the Common Core-based standardized exams taken by West Virginia schoolchildren.
“This [lawsuit] — a contrived ‘constitutional challenge’ to the state’s participation in the Smarter Balanced Assessment Consortium — is simply Delegate Folk’s collateral attempt to revive his political cause through the courts,” Bailey wrote in the state’s filing this week.
Bailey and attorneys for Martirano and Morrisey’s office cited several other reasons for dismissing Folk’s lawsuit:
n Folk filed the lawsuit at the wrong courthouse. Lawsuits against state officials must be filed in Kanawha Circuit Court.
n Folk failed to give the state 30-days notice of his plans to sue.
n The Berkeley County delegate’s lawsuit misstated the correct amount of time that government officials have to respond to a lawsuit. Folk gave state officials 30 days to file a response. State law gives public officials 60 days.
“Our Legislature has enacted a common core of practical, procedural measures to ensure that litigation involving the state is conducted at a minimum taxpayer expense,” Bailey wrote to the court. “Delegate Folk has flouted these measures.”
Folk said the fact that he pays taxes in Berkeley County should give him the right to file his lawsuit there.
“I will re-file this in Kanawha County if I have to,” Folk said. “The issue is not going away. The merits of this case need to be heard.”
Morrisey’s top lawyer, Solicitor General Elbert Lin, argued that “the state of West Virginia has “sovereign immunity” against Folk’s allegations and cannot be named as a defendant.
“At this time, the state expresses no view on the merits of Delegate Folk’s claims, and has not discussed the merits with any other defendants to protect against any possibility that the state might ultimately take a different view of the merits, if this case reaches that point,” Lin wrote to the court.
Bailey also took issue with Folk for naming Tomblin as a defendant, “in light of his role as Senate president in 2009.”
“Governor Tomblin played no significant role in the action Delegate Folk challenges,” Bailey wrote to the court. “Perhaps the current Senate President [Bill Cole, R-Mercer] and Speaker of the House [Tim Armstead, R-Kanawha] are more appropriate defendants.”
Folk said he has three children in public schools and doesn’t like some of the things they’re being taught. He wants Common Core standards abolished in West Virginia.
“This isn’t political to me,” he said. “This is personal.”
Reach Eric Eyre at [email protected], 304-348-4869 or follow @ericeyre on Twitter.