Kanawha Circuit Judge Richard Lindsay wants to know more about the governor’s powers to send the West Virginia National Guard to Washington, D.C.
Lindsay heard about an hour of courtroom argument today in a challenge to Gov. Patrick Morrisey’s deployment of 300 to 400 Guard members after President Trump declared a “crime emergency” in the nation’s capital.
The judge then continued the hearing until 10 a.m. Nov. 3 because he wants the lawyers to more fully develop the question of how the law affects the governor’s deployment powers, particularly in the federal district.
“The central issue to this court is whether or not the what the governor did is in compliance with West Virginia law,” Lindsay said at the conclusion of a hearing today.
The judge ordered both sides of the case to submit written briefs on that filing by Oct. 28.
The lawsuit filed by ACLU-West Virginia seeks to halt the West Virginia National Guard deployment, arguing that the governor’s order exceeds his constitutional and statutory authority.
The lawsuit was filed on behalf of West Virginia Citizen Action Group, which contends that the deployment is an unprecedented political act, not a response to a genuine emergency and violates West Virginia law that outlines specific, limited circumstances for out-of-state Guard deployments.
A response filed this week by the West Virginia Attorney General’s Office argues that the request for a temporary restraining order should be denied.
Generally, the Attorney General’s Office maintains that the West Virginia Citizen Action Group lacks standing to challenge the deployment by the governor.
Judge Lindsay said he wants to hear more about the question at the heart of the matter.
“Because,” he said, “if what the governor has done in the deployment of the National Guard to Washington, D.C., if that is lawful, that cures, at least in this court’s mind, the whether or not a (temporary restraining order) is necessary, whether or not a irreparable harm has been suffered, whether or not there’s standing.”
President Trump’s emergency order for D.C., which federalized the D.C. police force, was signed on August 11 for a 30-day period. It automatically expired Sept. 10 and was not extended.
Federal agencies and the National Guard have remained in D.C. following the declaration’s expiration, but they no longer have the authority to control the D.C. police.
The West Virginia National Guard has said deployment to Washington, D.C., could last until late November, although the timing could evolve.
“West Virginia is proud to stand with President Trump in his effort to restore pride and beauty to our nation’s capital,” Morrisey said when the governor first announced the deployment in August.
“The men and women of our National Guard represent the best of our state, and this mission reflects our shared commitment to a strong and secure America.”
The governor’s announcement noted that the mission would be funded at the federal level. That’s a Title 32 order, typically for natural disasters, where the National Guard remains under the control of the state’s governor but receives pay and benefits from the federal government for federal missions.
The court hearing on Friday morning featured testimony from Dani Parent, executive director of West Virginia Citizen Action Group, who said her organization’s mission applies to a range of issues regarding whether the government is using resources wisely and properly.
“We are reinvigorating our democracy work based on the outreach and I would almost say outcry of our members — folks who are really concerned about this, the deployment of the Guard and just the general transparency and accountability level of the government,” Parent said on the witness stand.
A lawyer for the Attorney General’s Office, Chris Etheredge, countered that “to the extent that anybody has been directly harmed by this deployment — or directly affect them, not even harmed — it would be the only persons that could be directly affected by the deployment are members of the Guard or residents of D.C.”
Lindsay questioned that conclusion.
“You’re not saying that in order for the only possible plaintiff that could bring this type of action would be a National Guard member? You’re not saying that are you?” said Lindsay, suggesting that if a Guard member had concerns the proper route would be up the organization’s chain of command.
Etheridge, the lawyer representing the State of West Virginia, responded by saying that the only way Citizen Action Group could demonstrate that it has a stake in this question would be if it were representing people directly affected, like Guard members.
“I’m saying that the only theoretical harm they’ve even alleged that could possibly give them a right to relief would be harms by a National Guard member,” he said.
Lindsay then elaborated on that question with Aubrey Sparks, the lawyer for ACLU-West Virginia.
“Is your client claiming harm because your client believes that the governor is acting unlawfully?” the judge asked.
“Yes, your honor,” Sparks replied, going on to say citizens have a right to challenge actions that are “ultra vires,” a term meaning beyond authority.
“I think that there’s a number of different harms here, and I believe that part of the problem with defendant’s argument is that they are sort of artificially creating such a narrow definition of harm such that no member of the public would be able to challenge an ultra vires act of the government.”