CHARLESTON – The two-year-old case of whether Governor Jim Justice violates the West Virginia Constitution by not living in Charleston or working full-time was the subject of an approximately 45-minute hearing in the state Supreme Court on Wednesday morning.
The arguments between George Terwilliger, one of the lawyers for Gov. Justice, and Del. Isaac Sponaugle, a lawyer by profession, stayed clear, but questioning the judges revealed how they viewed the case in which Sponaugle says Justice is violating the constitution by not living in Charleston.
In July 2019, Kanawha Circuit Judge Charles King denied a motion by the governor's attorneys to dismiss the case. In the same order, King ordered lawyers for the judiciary to refer questions to the state Supreme Court to define the legal meaning of "residence".
By order of the King, the West Virginia Supreme Court heard an appeal from Terwilliger of McGuire Woods in Washington, DC. Terwilliger previously served as a U.S. attorney, appointed by President Ronald Reagan, and later as Assistant U.S. Attorney General and Acting Attorney General for President George H.W. Bush. Justice is also represented in Charleston by Michael Carey and David Pogue of Carey, Scott, Douglas & Kessler.
Sponaugle is a Democrat who has represented Eastern Pendleton and Hardy counties since 2013. However, he said throughout the proceedings in the case, including Wednesday, that he filed the lawsuit against the Republican governor as a private individual.
Judge Evan Jenkins served as Chief Justice on the case after Chief Justice Tim Armstead withdrew from the case. Berkeley Circuit judge Bridget Cohee has been appointed to try the case in Armstead's absence.
Terwilliger informed the court that Article 7 Section 1 of the section of the Constitution in question was more about the establishment of a seat of government than about the manner in which elected law enforcement officials carry out their duties, including where they perform them.
"I really can't believe that this court wants the county courts to tell the governor where to sleep," said Terwilliger. "The point of the constitutional provision is to build the seat of government here."
Based on his arguments, the judges' questions to Terwilliger centered on the constitution that the governor and all other elected executive officials should reside in the seat of government, Charleston. Jenkins later told Terwilliger that he was "concerned" about Terwilliger's focus on constitutional formulation rather than arguing his own definition of "residence" and why the court should support it.
In legal terms, the verb "shall" tends to mean that something must be done that is described in the law and other legal documents, as opposed to the word "may", which means that the person who "can decide for himself" at its own discretion decide whether to do something.
Terwilliger further argued that no court should consider the case as the case is a political issue. You said it was up to the governor or the legislature to determine residence by amending state law or the state constitution. They said it would be a violation of the separation of powers between the executive, judiciary and legislative branches for the court to make a decision on this case.
Justice attorneys have also argued that if the court makes a decision about what it means for the governor to "reside" in Charleston, it would enable the courts to determine how the chief executive officer will be during his tenure acts.
Sponaugle informed the court that the appeal was nothing more than an attempt to dismiss the lawsuit against the judiciary and that Judge King had not misused his discretion in deciding not to dismiss the lawsuit or request the court to "reside" define.
When asked by Jenkins whether he thought the words in the constitution had a fixed meaning or whether they had changed over time, Sponaugle called himself an originalist.
"I think should means should," said Sponaugle.
Sponaugle said there is a generally accepted understanding of what it means when someone says they live in a certain place. He said understanding should become the definition of what the Constitution means when it says that executives must "reside" in the seat of government.
He and Jenkins discussed an example where if Jenkins had a house in Huntington, Jenkins' hometown and where his family lives, and a house in Greenbrier County, what would Jenkins reside?
Sponaugle said he would consider the Huntington's House to be Jenkins residence.
He said the governor should be kept to the same standard.
"I understand that he is the governor and I understand that he is a person of power," said Sponaugle. "He should be treated like everyone else."
Sponaugle is one of many lawmakers who publicly called the justice system during his tenure for not working full-time in Charleston. The judiciary has repeatedly admitted that his Greenbrier County home is doing government work, including gatherings, and has not come to Charleston until it is convenient for him.
On Wednesday, Sponaugle said the governor has been working more from Charleston since the COVID-19 pandemic began, as evidenced by his three weekly press conferences.
The absence of justice in Charleston has led to scandals, mismanagement of public funds, no communication with cabinet secretaries and a decline in the productivity of the state government, argued Sponaugle.
The Wednesday morning hearing was held 15 hours after a debate between the Republican Attorney General and Kanawha County Commissioner Ben Salango, a Democrat who is questioning the judiciary for governor this election cycle.
During the debate, Justice noted that he was dividing his time between Charleston and his Lewisburg home between a 2 and 2 1/2 hour drive and asked debate host Hoppy Kercheval, “What in the world has this got to do with anything? ? "