CHARLESTON, W.Va. — Lawyers for Gov. Jim Justice want to ask the state Supreme Court whether he can be forced to reside at the seat of government as the Constitution requires.
Kanawha Circuit Judge Charlie King has scheduled a hearing for 11 a.m. Wednesday — or as soon as possible after that — on two motions by the governor’s lawyers.
One aims at guidance from the Supreme Court about the residency issue before the case goes any farther.
If that one isn’t approved, the lawyers for the governor are asking Judge King to spell out his own rationale for continuing to let the case move forward.
Their argument continues to boil down to one big question: How can the governor’s residency habits be enforced?
“How many hours, days, and/or nights per week or per month must Respondent spend in Charleston before he is deemed to be ‘residing’ there?” the lawyers ask. “Is he ‘residing’ in Charleston if he sleeps there but departs in the morning and spends his waking hours elsewhere? Conversely, is he ‘residing’ in Charleston if he spends some portion of his waking hours there but sleeps elsewhere?
“These questions should be conclusively resolved by the West Virginia Supreme Court of Appeals before this litigation proceeds any further, as the answers to these questions are necessary to determine the proper scope of discovery, evaluate whether respondent is or is not already “residing” in Charleston, and define the parameters of any writ ultimately issued.”
The plaintiff in the case, state Delegate Isaac Sponaugle, says he is opposed to the motions.
He says the first issue that should be addressed is the factual question of where the governor truly resides. And Sponaugle noted that the Supreme Court has already had an earlier chance to exercise original jurisdiction on the issue.
“I want this matter to conclude at some point soon. By completing the discovery process and having a final hearing before the Circuit Court is the fastest way for that to happen,” Sponaugle stated.
“The Governor, in his typical civil litigation fashion, wants to drag the matter out and slow play it. I’ve never seen a person fight so hard to avoid working on a regular basis, but here we are with Governor Jim Justice.”
The court case over the governor’s residency has been going on for a couple of years now but, in a practical sense, is just getting started.
Sponaugle, a Democratic delegate and a lawyer in Franklin, first filed suit as a private citizen last August 27. The case went to Judge King’s court but he dismissed it because Sponaugle had not provided 30 days notice that he intended to sue a state agency.
Sponaugle then took the case to the state Supreme Court, which rejected the petition with very little explanation.
“Upon consideration and review, the court is of the opinion that a rule should not be awarded, and the writ prayed for by the petitioner should be refused,” justices wrote in a two-paragraph Nov. 14, 2018, order.
So the justices already had one crack at this.
Sponaugle suggests the Supreme Court wanted the case to be laid out in circuit court prior to review.
“It denied the case without prejudice,” he stated. “This implied that it wanted the facts straightened out by the Circuit Court before it weighed in on the matter.
Now, with the case back in Judge King’s court, the governor’s lawyers are asking for Supreme Court guidance.
The lawyers describe this as a novel issue, previously unexplored by the courts.
“Petitioner has not cited, nor has Respondent found, a single case in which a court employed mandamus to order a state governor to ‘reside’ at any particular location and/or made any attempt to set specific criteria as to the nature and amount of time the governor just spend in that (or any) location,” the lawyers write.
Their motion asks for the Supreme Court to look at five questions about whether residency can be defined and enforced:
- As a matter of law, is mandamus available to compel the Governor of the State of West Virginia to ‘reside’ at the seat of government?
- Is the duty to ‘reside’ at the seat of government sufficiently clear, defined and free from the elements of discretion that it can be enforced through mandamus without improperly prescribing the manner in which the Governor shall act?
- Does prescribing the amount of time the Governor must spend in Charleston and/or restraining his discretion to determine where he will be present on any given day under any given set of circumstances, involve non-justiciable issues and run afoul of the political question doctrine and corresponding separation of powers principles?
- Is mandamus available to compel a general course of conduct to be performed over a long period of time, as opposed to a discrete act, especially where it would require a court to monitor and supervise the conduct of the State’s chief executive on an ongoing basis?
- If mandamus available to compel the Governor to ‘reside’ at the seat of government, what is the definition of ‘reside’ in the context of W.Va. Const. art VII and W.Va. Code 6-5-4, and what are the specific parameters of the character and amount of time that the Governor just spend at the seat of government before he is deemed to be ‘residing’ there?
The state Constitution addresses where officers of the executive branch should live: “They shall reside at the seat of government during their terms of office, keep there the public records, books and papers pertaining to their respective offices, and shall perform such duties as may be prescribed by law.”
That applies to the governor, secretary of state, auditor, treasurer, agriculture commissioner and attorney general.
Where Justice lives has been an issue ever since he took office. He has continued to make his home in Lewisburg, a couple of hours from the Capitol. He says he works hard no matter where he is and that he may be reached at all hours via his flip phone.
Justice is represented in the residency case by former U.S. Attorney Michael Carey and his firm.
Also representing Justice is George J. Terwilliger III, who leads the crisis response practice and the white collar team in the Washington, D.C. office of the McGuireWoods firm. Terwilliger spent years in the U.S. Department of Justice, including a stint as deputy attorney general under President George H.W. Bush.
The state has been billed $21,158.50 to represent the Governor’s Office so far.
Justice’s lawyers say the money and time have already gone too far.
“If, as Respondent has argued, mandamus is not legally available and Petitioner is therefore not entitled to the writ he seeks as a matter of law, then any and all time, effort and taxpayer money spent on this litigation (e.g. responding to and/or opposing Petitioner’s discovery requests, preparing for and attending hearings, arguing various motions, etc.) will have been pointless and wasteful.
“Accordingly, the novel, purely legal issue of whether mandamus is available to compel the Governor to “reside” in Charleston (and the above-expressed question of law intrinsic to the determination of that issue) should be presented to the West Virginia Supreme Court of Appeals before any further proceedings occur at the circuit court level.”