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Governor Questions Supreme Court's Authority to Enforce Residency Requirements

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For more than two years, courts in Kanawha County have heard arguments related to the physical-residence of West Virginia Governor Jim Justice.

At its core, the question is the sitting Governor in violation of the state’s constitution by failing to reside at the seat of power in Charleston? However, this seemingly-simple question has become shrouded in divisive complexities.

In August of 2018, Del. Isaac Sponaugle (D-Pendleton) filed a lawsuit claiming that the W.Va. Gov. is in violation of the state’s constitution by failing to reside at the Governor’s mansion in Charleston. Judge Charles King of the Kanawha County circuit-court initially dismissed the suit for procedural reasons, as Del. Sponaugle did not provide the required 30-days notice of his intent to sue a state-agency. It was refiled soon thereafter, and the judge has denied each subsequent request by the Governor’s attorneys for dismissal. The case has once again made its way to the state Supreme Court, where oral arguments are scheduled to be heard next month.

The alleged violation pertains to Article 7, Section 1 of the W.Va. state constitution, which states in its entirety: ‘The executive department shall consist of a governor, secretary of state, auditor, treasurer, commissioner of agriculture and attorney general, who shall be ex officio reporter of the court of appeals. Their terms of office shall be four years, and shall commence on the first Monday after the second Wednesday of January next after their election. 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.’ Article 6, Section 20 of the state’s constitution states: ‘The seat of government shall be at Charleston, until otherwise provided by law.’

By his own admission, Gov. Justice does not reside “at the seat of government.” Throughout the duration of his term thus far, Justice has maintained his residence in Lewisburg.

In August of 2019, Gov. Justice said to reporters: “From time to time, if it’s convenient, I surely stay here and everything. But I’m all over the state all the time. If it’s not convenient and I can stay in my own bed, I want to stay in my own bed.”

Justice went on to say that the lawsuit is “a total waste of time,” and a “political stunt.” Next month will mark the second time the state’s Supreme Court has been tasked with making a ruling regarding the Governor’s residency.

In September of 2018, shortly after Judge King dismissed his initial suit, Del. Sponaugle filed a petition with the state’s highest-court. However, on November 14, the Court denied the petition with very little explanation. Aside from listing the names of the parties involved, the order simply stated: ‘Upon consideration and review, the Court is of the opinion that a rule should not be awarded, and the writ prayed for by the petitioner is hereby refused.’

 “It (the Court) denied the case without prejudice,” Del. Sponaugle said last year, in comments made to the WV Metro News. “This implied that it wanted the facts straightened out by the circuit court before it weighed in on the matter.”

The initial position taken by Gov. Justice’s attorneys focused on the idea that the term “reside” is vague, and therefore open to interpretation. In a hearing on July 17, 2019, those same attorneys referred to the constitutional requirement as being both “nebulous” and “slippery like an eel.”

As a point of reference, Merriam-Webster defines “reside” as: ‘to dwell permanently or continuously; occupy a place as one’s legal domicile.’

Recently, however, the Governor’s defense has taken a somewhat different approach; it is now questioning the legal authority of the state Supreme Court to enforce the constitutional requirements of the executive branch. Gov. Justice’s attorneys have further argued that this case has no precedent within the United States, and have been actively requesting the Supreme Court’s intervention.

In a motion filed on the Governor’s behalf, his attorneys wrote: “Petitioner has not cited, nor has respondent found, a single case which a court employed mandamus to order a state governor to ‘reside’ at any particular location and/or made any attempt to set specific criteria as to the nature and amount of time the governor must spend in that, or any, location.”

The motion continues, requesting that the Court consider five questions:

 1. ‘As a matter of law, is mandamus (judicial writ issued as a command) 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 discreet act, especially when it could require a court to monitor and supervise the conduct of the State’s chief executive on an ongoing basis?
 5. Is mandamus available to compel the Governor to ‘reside’ at the seat of government, what is the definition of ‘reside’ in the context of West Virginia constitution article 7, and the West Virginia code 6-5-4, and what are the specific parameters of the character and amount of time that the Governor must spend at the seat of government before he is deemed to be ‘residing’ there?’

 Governor Justice is represented by former United States Attorney Michael Carey, and former Deputy Attorney General George J. Terwilliger III. According to both, the cost of the Governor’s legal-expenses are being paid by the state of West Virginia, and that Del. Sponaugle’s lawsuit is to blame for the burden to tax-payers, calling it “pointless and wasteful.”

In a hearing held on December 14, 2019, those same attorneys reaffirmed the Governor’s opinion that the suit is political in nature by arguing that the question of Gov. Justice’s residency should be addressed by voters in the next election, or through impeachment proceedings. Del. Sponaugle is, himself, an attorney, and former candidate for West Virginia State Attorney General.

  In addition to requesting a judicial-explanation as to the meaning of the word “reside,” the questions which Carey and Terwilliger have presented to the Court are centered around the division of power within the state; the argument being that the judicial branch of state government does not have the legal authority to enforce constitutional-adherence by the executive branch. Should the state Supreme Court find in favor of the Governor, the implications of that decision could reach far beyond the residency of a sitting chief executive.

The state’s Supreme Court will begin hearing oral arguments pertaining to this matter at 10 a.m. on October 14.

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