West Virginia Supreme Court justices acted skeptical of an argument that they call a halt to lower court proceedings about whether Gov. Jim Justice lives up to his constitutional requirement to reside at the seat of government.
Justices heard the case this morning. Justice Tim Armstead sat out because of his prior role as House Speaker. Judge Bridget Cohee of Berkeley County served in his place.
“Would there be a difference if the governor moved to Florida but just used the phone and computer to work remotely?” asked Justice Margaret Workman.
The state Constitution says governor and other members of the Board of Public Works must live at the seat of government. But Justice has said he makes his home in Lewisburg, a couple of hours from the Capitol.
Delegate Isaac Sponaugle, acting as a citizen, has challenged the governor’s residency in court. Sponaugle is asking for the governor to be compelled to reside at the seat of government.
He acknowledged that the governor has appeared regularly at the Capitol over the past year to handle the coronavirus pandemic, but questioned the governor’s habits prior to that.
“He just wasn’t showing up,” Sponaugle said.
The case has been in Kanawha Circuit Court, awaiting the possibility of more fact-gathering. But lawyers for the governor asked the Supreme Court to review whether the case should go forward at all.
Attorney George Terwilliger, a former acting U.S. Attorney General, argued on behalf of Justice that the question boils down to a political one and that the courts should not intervene with the governor’s discretion to handle his duties as he sees fit.
“That’s no role for the judiciary,” Terwilliger said.
The General Election is Nov. 3. Early voting starts Oct. 21 in West Virginia.
Terwilliger argued it would be better for citizens to decide this matter at the ballot box rather than continuing the case brought by Sponaugle.
“He can mobilize to defeat the governor at the polls,” Terwilliger said. “Political avenues to challenge the governor on political grounds stay open.”
He continued, “The remedies he has suggested would put the court in position of trying to manage the governor’s schedule, in essence.”
But Justice Beth Walker asked if it wouldn’t be better for a lower court to take some evidence before the higher court ends the case. “It seems to me you’re a little premature for prohibition,” she said.
There was also some back-and-forth over what “shall” and “reside” actually mean.
“Reside has no certain definition in the law,” Terwilliger said. “It does not equal domicile.”
Walker wanted more specifics about how the constitutional requirement should actually be interpreted as a practical matter.
“What I’m hearing you to say is there’s no bone of contention about the constitutional provision the governor shall reside at the seat of government,” Walker said. “But what you’re saying is the court can’t tell the governor any further than that?”
She asked, “Where’s the line?”
Walker asked Sponaugle, “The governor has contended your litigation should be disregarded or not considered in some way because you are politically motivated. What’s your response to that?”
Sponaugle replied, “Yes, I wanted him to show up to work.”
Sponaugle argued that the discretion lies in where the governor resides– it must be at the seat of government but not necessarily the Governor’s Mansion “He can reside at a hotel,” Sponaugle said. :”He can buy a van, down by the river.”
Justice Evan Jenkins asked whether there any examples in law of “shall” being discretionary: “Why should we not make a clear statement that the Constitution says what it says — ‘shall reside’?”
“I’m an originalist,” Sponaugle said. “I think ‘shall’ means ‘shall.'”
Governor Justice was asked during Tuesday night’s gubernatorial debate whether he intends to reside at the seat of government if he is elected to a second term. Justice never said yes.
The governor indicated it doesn’t matter if he drives to Lewisburg and then turns around and drives back. “All I do is work,” he said.
His challenger, Democrat Ben Salango, responded: “You don’t get to pick and choose which parts of the Constitution you follow.”
Justice Walker made note of comments the governor has made in the past about his residency.
“Hasn’t the governor sort of undermined that discretion somewhat?” she asked.
“How now are you trying to make the argument that no, no, no he really does reside, he gets to determine how he resides, even though he has made it clear he does not reside?”
Walker asked Terwilliger again about the rationale behind the Supreme Court being asked to cut off this entire case. She indicated it would be useful for the lower court to bring out some facts
And Walker said the court wouldn’t want to get into micromanaging the governor “but there’s something in between.”
“I think it’s an uphill battle for you,” Walker told Terwilliger.