Judge is deciding whether to ask Supreme Court if governor’s residency can be compelled

CHARLESTON, W.Va. — Kanawha Circuit Judge Charles King is deciding whether to send the state Supreme Court questions about whether Gov. Jim Justice can be compelled to reside at the seat of government.

The governor, appearing at a separate public event today, called the focus on his residency “garbage.”

Nevertheless, over a little less than an hour Wednesday, King heard arguments about why he should nor should not ask the Supreme Court for guidance.

He halted discovery in the case while he decides.

Some of his comments sounded like he wants to involve the Supreme Court without expressing the questions the way they have been proposed by lawyers for Justice.

“I’ll resolve it,” King said.

The question about where Justice lives has swirled almost since he took office.

The state Constitution says governor and other members of the Board of Public Works must live at the seat of government. But Justice lives in Lewisburg, a couple of hours from the Capitol.

Lawyers for the governor say there is no reason for the case to move forward until the Supreme Court weighs in on a practical matter — how the governor could be compelled to reside at the seat of government.

George Terwilliger

“It’s almost impossible for you to control discovery in a case where we don’t know what the legal issues are,” said George Terwilliger, a lawyer for Justice who works for the McGuireWoods firm in Washington, D.C.

King responded, “I think everyone knows what the legal issue is, but they don’t know what the facts are.”

Terwilliger said the question of whether the court can compel the governor to live anywhere in particular is overriding, though.

The motion by the governor’s lawyers asks these questions:

  1. 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?
  2. 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?
  3. 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?
  4. 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?
  5. 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?

“I’m not so sure I agree with all of ’em,” Judge King said.

“What can we do to help you?” Terwilliger asked.

“I’m not sure,” King said, opening the possibility that he might phrase questions his own way. “I have my own ideas.”

Isaac Sponaugle

Delegate Isaac Sponaugle, who brought the lawsuit as a private citizen, said he opposes sending the questions to the Supreme Court.

“I think it’s a waste of time,” said Sponaugle, D-Pendleton.

Sponaugle filed the case with the Supreme Court last year, but justices dismissed it without much comment. He concluded that they want a lower court to lay out the facts.

“They had an opportunity last fall to jump on this thing,” Sponaugle said.

King responded that the justices might not have wanted to jump on it.

“It seems like the only one who wants to jump on this is you,” King told Sponaugle.

Last year, Governor Justice appointed Tim Armstead, Evan Jenkins and John Hutchison to the state Supreme Court after impeachment hearings led to three vacancies. After that, Armstead and Jenkins won special election, and Hutchison remains on the court too.

So, if the Supreme Court examines the governor’s residency case, recusals may be a factor.

Governor Justice and his administration have described the residency question as frivolous. The Governor’s Office put out a statement ahead of today’s hearing, attributed to General Counsel Brian Abraham.

Brian Abraham

“No one has worked harder for the people of West Virginia than Governor Justice,” Abraham stated.

“He has used his unique skills as a businessman to drive economic growth and job creation, as evidenced by our number-one rankings in GDP and personal income growth. This lawsuit is a frivolous political stunt designed to distract from the important work that needs to be done for this state.”

Justice himself addressed the residency issue after a public appearance this morning in Beckley.

“I hope to goodness that you’ll take away from it just this and that is that the garbage will at some point in time stop,” he said.

“My day today is I’m in Beckley, then I’m in Charleston, then I speak in Charleston, then I’m going to Mineral Wells to speak on Hino Motors. That’s a typical day. I am all over this state all the time.”

Justice then cast the residency issue as an out-of-proportion story.

“I work my hind end off and all you’ve got is just a media soapbox deal. It’s nothing. It’s absolutely, teatotally nothing,” he said.

“I hope to goodness the garbage will stop and we can get on with doing our good stuff.”

MetroNews reporter Pete Davis contributed reporting from Beckley.

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