Residency case may dive deeper into constitutional requirements

Gov. Jim Justice

CHARLESTON, W.Va. — The lawsuit over Gov. Jim Justice’s residency has a new legal twist that goes back to 1889.

The current case is about whether Justice defies the West Virginia Constitution by continuing to live in Lewisburg, rather than at the seat of government.

Kanawha Circuit Judge Charles King will preside over a hearing in the case this Wednesday.

During a previous hearing, King asked how he would be expected to compel Justice to live anywhere in particular.

Isaac Sponaugle

The plaintiff, Delegate Isaac Sponaugle, D-Pendleton, suggests one possibility is to file an order. Punishment for not complying could mean being held in contempt.

Alternatively, the latest filing from Sponaugle offers the possibility the judge could find that Justice is acting under an ongoing “disability.”

That doesn’t necessarily refer to a physical disability — just some factor that may prevent Justice from going about his duties in the usual way.

“So if the court finds that Jim Justice has not resided and has continued to be absent then, in fact, he’s acting under a disability,” Sponaugle stated.

The language is found in Section 1 of Article VII of the state Constitution, which is about how vacancies for governor may be filled.

“In the case of death, conviction or impeachment, failure to qualify, resignation or other disability of the governor, the president of the Senate shall act as governor until the vacancy is filled, or the disability removed.”

The filing by Sponaugle, acting in his capacity as a private citizen, suggests that principle may come to bear.

“Respondent could be granted a certain amount of days to remove this ‘other disability’ by residing at the seat of government during his term of office, and keep there the public records, books and papers pertaining to his respective office,” Sponaugle wrote.

“If Respondent doesn’t remove the disability then the President of the Senate shall act as governor until the disability has been removed.”

The current president of the Senate is Mitch Carmichael, R-Jackson.

The “disability” concept — and the line of succession — are important aspects of an 1889 state Supreme Court case that involved a weird moment of West Virginia politics.

The subject was the election of 1888, which resulted in four people declaring their right to the governor’s office.

The incumbent governor was E. Willis Wilson, who was at the end of his term.

The two candidates were A.B. Fleming and Nathan Goff. The result was contested.

And the Senate President was Robert S. Carr, who made a claim to serve as governor until the rest could be hashed out.

The dispute went to the Supreme Court, where a key part of Carr’s position was the “disability” premise.

Because no one had been declared elected, inability to serve was a disability.

From the opinion:

“It is not like insanity, conviction of the officer for crime, continued absence or other disability connected with the person of the governor.

“Death, conviction on impeachment, failure to qualify or resignation would produce a vacancy, and it would seem that the language ‘or other disability’ means something of a different character from those cases named — something attaching to the person off the governor and disabling him; and this construction seems confirmed by the after language of the section, providing that ‘the president of the Senate shall act as governor until the vacancy is filled or the disability is removed,’ thus using the words ‘vacancy’ and ‘disability’ as meaning different things; vacancy referring to death, conviction, failing to qualify and resignation, but disability referring to something relating to the person, and for the time being disabling him, notwithstanding the use of the word ‘other.'”

West Virginia’s Supreme Court wound up ruling in that case that a governor was bound to have been elected; it just needed to be sorted out.

Until then, Wilson was entitled to a prolonged term.

After months and months and many more political entanglements, Fleming was declared the next governor.

Sponaugle has been contending that Justice has ignored a basic requirement of the governor’s job, residing at the seat of government.

In his most recent filing, Sponaugle wrote, “The West Virginia statutory and constitutional duty for the Governor of the State of West Virginia to ‘reside’ can neither be described as ‘nebulous’ nor labeled as ‘discretionary.’ It can accurately be described as precise and mandatory.”

Mike Carey

Attorneys representing the Governor’s Office disagree.

In a Feb. 19 filing, lawyers from Carey, Scott, Douglas and Kessler wrote that the constitutional language is not so clear cut.

“The purported duty to ‘reside” at the seat of government is so nebulous and laden with discretion that any writ granted in this case would necessarily involve prescribing the manner in which the Governor shall act thereby improperly encroaching on his autonomy,” wrote the lawyers, led by former federal prosecutor Mike Carey.

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