CHARLESTON, W.Va. — A Kanawha circuit judge has denied a request to ask the state Supreme Court for preliminary guidance about whether Gov. Jim Justice complies with the state Constitution’s residency requirement.
But Judge Charles King, as an alternative, agreed to explain his own earlier ruling against throwing out the residency case entirely.
King said the plaintiff, state Delegate Isaac Sponaugle, has done enough to show there are ways through the court system to compel Justice to change his residency habits.
But King did grant a stay of further proceedings.
That’s because lawyers for the governor have said that if their motion was denied then they would file their own writ of prohibition to the Supreme Court.
In the meantime, Sponaugle said he is pleased with the ruling.
He said he is looking forward to asking questions about where Justice spends his time.
“Then we may finally find out how many days Justice has resided at Charleston and where he’s been lurking since becoming Governor,” said Sponaugle, a Democrat and a lawyer in Franklin.
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.
Justice has continued to make his home in Lewisburg, about two hours from Charleston. He says he works hard no matter where he is and that he may be reached at all hours via his flip phone.
And his lawyers have said it is hard to precisely define “reside.”
The motion by the governor’s lawyers wanted the Supreme Court to address these legal issues about whether residency can be compelled by the courts:
- 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?
Judge King, in July, denied a motion by the governor’s lawyers to dismiss the case. Then in August, King presided over a hearing focused on whether to ask state Supreme Court justices a set of questions about the legal issues surrounding residency.
That’s what King denied in an Oct. 21 order.
But the judge did issue a second order explaining his own thinking when he denied the motion to dismiss.
One factor, the judge wrote, was whether an alternative resolution would be just as good.
“Waiting for a future election and waiting for an impeachment procedure to take place, two remedies Respondent argued were available to Petitioner, are not remedies that are as equally convenient, beneficial and effective as this mandamus action,” King wrote.
And the judge concluded that Sponaugle so far has argued effectively that there are ways for the court to compel Justice’s action.
“Assuming all of the alleged facts contained in Petitioner’s Petition to be true, as the court is required to do,” King wrote, “the Petitioner has sufficiently pleaded and provided theories under which relief could be granted.”