W.Va. Attorney General and challenger weigh in on mask order and emergency powers

As the state’s top legal officer, the Attorney General often has an advisory role for issues such as the governor’s emergency powers.

Incumbent Attorney General Patrick Morrisey discussed his view of Gov. Jim Justice’s ongoing use of emergency powers to handle the coronavirus pandemic, during a recent appearance on “Panhandle Live” on WEPM Radio. Morrisey also discussed this week’s mandate for West Virginians to wear face coverings, which was issued under the emergency powers.

In a separate telephone interview, Morrisey’s opponent for the upcoming election, Democrat Sam Petsonk, also discussed when and how those powers are invoked.

Morrisey has been publicly involved several times already in shaping how the emergency powers have been used during West Virginia’s response to the pandemic.

When West Virginia delayed its primary election by a month, Morrisey issued an opinion citing state code once the governor has declared a State of Emergency, which went into effect because of the coronavirus on March 16.

In April, when the governor cited emergency powers in halting elective medical procedures, Morrisey spoke up at a regular briefing to conclude the order would apply to abortions.

Executive power

As the state’s pandemic response has gone on, though, some West Virginia citizens and lawmakers have questioned the extent of the powers and how long they are intended to go on. Justice has spoken about needing to react until medical science has settled on a vaccine or treatment.

The governor’s executive orders — and there have been 50 of them now — typically cite Chapter 15, Article 5, Section 6 of state code, which includes the authority “to control ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein.”

That would last until “the proclamation of the termination thereof by the Governor, or the passage by the Legislature of a concurrent resolution terminating such emergency.”

Justice brushed off a question on Friday about whether the Legislature should be called in to oversee the allocation of $1.25 billion in federal relief, saying that would result in a “soapbox show” and a “political nightmare.”

Gov. Jim Justice

The federal spending issue is not a matter of the governor’s emergency powers, but it is part of a related question about his authority.

Justice and his staff have said Congress intended for chief executives to oversee the relief spending and that the budget passed by lawmakers has boilerplate language allowing the executive branch to direct federal grants.

Although state representatives in many other states have helped direct spending, Justice’s administration has described relying on guidance from the Bailey & Glasser law firm from Charleston and  BDO which is Binder Dijker Otte, an international accounting and tax advisory network.

Justice said he welcomes discussion about the decisions he makes, but then said he doesn’t have time, citing the state health emergency.

“If anyone can find a fallacy with what I’m doing, I’d welcome it and welcome it tomorrow,” the governor said, then adding “I’ve got a lot to do here.”

Marshall Wilson

Five state lawmakers, including Delegate Marshall Wilson, I-Berkeley, who is running independently for governor this fall, challenged the governor’s use of emergency powers in a filing with the state Supreme Court. The thrust of the legal challenge is that Justice should have been involving the Legislature.

The writ alleges, “West Virginia’s governor is currently ruling the state by executive fiat and is drastically expanding the power of the executive branch.”

After this week’s mask order, Wilson issued a statement contending the governor’s actions violate the Constitution.

“Even if such ’emergency’ authority were available to the Chief Executive, he certainly would hold no authority to extend indefinitely his dictatorial rule over the People of West Virginia in the absence of their guidance via their duly elected representatives in the Legislature,” Wilson stated.

Guidance from the Attorney General

Morrisey was asked on “Panhandle Live” whether his office was consulted on the mask order, the latest example of the governor’s use of emergency powers. He did not respond in terms of legal guidance but instead discussed whether face coverings are effective.

“Rather than go through the consultation part, I would say this: First, I’ve looked at a lot of the clinical literature relating to masks and certain types of masks seem to actually have some efficacy,” Morrisey said.

Specifying N95 masks, in particular, Morrisey said, “they do seem to be effective in reducing the spread of contagion because it minimizes the droplets, so I think that’s a good thing.”

But, “other types of masks, that’s a separate question,” he added. The governor’s order applied to face coverings meant to be cloth.

“I would encourage people to wear the masks that are going to help them reduce the contagion,” he said.

As a legal matter, he said, “If there are issues or questions — and people are entitled not only to their perspectives but to their constitutional rights — so if there are people with questions they can call our office. I do think when you’re doing things like this you want to be very sensitive to people’s First Amendment rights or expressive rights.

“So obviously encouragement, in my mind, is the appropriate approach.”

Morrisey also addressed how long the governor’s emergency powers may last. He noted that a preparedness declaration has a shelf life of 30 days. But an emergency declaration may go on much longer.

“In terms of the public emergency, the Legislature did not put any cap on that,” Morrisey said.

“I think the governor has done a lot of positive things during this pandemic. But I think people do legitimately say ‘What’s the right role? Should there be a time limit on emergencies? Should there be other consultation that’s required when you have an emergency? What’s the trigger when you actually call the Legislature back?'”

He predicted a vigorous legislative discussion over the terms of any emergency executive authority.

“I would argue West Virginia should revisit some of its authority,” he said. “I think that’s a debate the Legislature’s going to have.”

The challenger’s view

Petsonk, in a telephone interview, a lawyer in Beckley who has focused on labor issues, also spoke about the Attorney General’s role in providing guidance about legal issues such as the governor’s emergency powers.

He indicated the state’s top lawyer should only go so far with his own perspective.

“Merciful heavens, we don’t need a lawyer telling a politician how to overrule a panel of top scientists on how to protect the public health. Talk about too many cooks in the kitchen. That is not the role of the Attorney General,” he said.

However, he said, the Attorney General should be prepared to interpret state laws.

“What is the role of the Attorney General? To interpret our statutes, our laws and to look out for our fundamental constitutional rights — our religious freedom, freedom of expression, the right to address our legislators and observe the affairs of government and, of course, the right to an equitable, thorough, efficient and free public education.”

Over the past few months, the governor has used the emergency powers to order citizens to stay home unless it’s necessary to go out, to keep businesses closed unless they are deemed essential and now to wear face coverings when they’re in public.

“Each of these issues needs to be scrutinized, but, of course, broadly speaking the governor has expansive powers,” Petsonk said. “In fact, in West Virginia we have always embraced a strong executive framework.”

Disputes over the balance of power could be settled by the courts, but the Attorney General could weigh in with guidance.

“It’s not for the Attorney General to make a final determination as to the constitutionality of any particular measure but rather to assess the overall balance of power and the competing values in our Constitution, in our statutes and advise the governor about the best way to balance those rules in protecting the public interest,” Petsonk said.

Petsonk is particularly focused on oversight of federal relief dollars as they flow through the state and to local governments.

“Namely, during and after a disaster or emergency, our county and municipal governments can claim reimbursement from a variety of federal programs to recover monies that offset the local, out-of-pocket emergency expenditures,” Petsonk said.

“But they must keep scrupulous records in order to do so. The Attorney General should ensure adequate guidance for documenting those local expenditures so that we don’t forfeit our ability to recover those losses through federal reimbursement.”

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