Members of the West Virginia Supreme Court of Appeals questioned counsel from both sides of a case involving whether Gov. Jim Justice should be compelled to live in Charleston. The justices mulled over whether to dismiss the case sent to them by a Kanawha County Circuit Court or let the case continue to proceed in the lower court.
The five justices heard arguments from Geroge Terwilliger, who is serving as counsel for the governor, and Issac Sponaugle, an attorney, state lawmaker and frequent critic of Justice who initiated the case, asking that the governor to abide by a constitutional mandate and live in the state capital of Charleston.
Article VII of the West Virginia Constitution states that the governor and the five state constitutional officers in the executive branch “shall reside at the seat of government during their terms of office.”
But the case now focuses on whether the governor has discretion in carrying out his constitutional duties, whether intervention by the courts would be political and the definition of the word “reside.”
Chief Justice Tim Armstead was disqualified and recused himself from hearing the case. Berkeley County Circuit Court Judge Bridget Cohee sat on the bench in his place, while Justice Evan Jenkins took on the role as the top judge on the panel.
Wednesday’s proceedings come more than a year after Kanawha County Circuit Court Judge Charles King ordered Justice’s legal team to submit questions to the West Virginia Supreme Court of Appeals to help define the word “residency.” Justice’s legal team is seeking to have the case dismissed.
“If the courts were to entertain a case like this — allowing far reaching discovery such as the Circuit Court seems to approve — then the judicial branch will put itself in the position of empowering any citizen with a political complaint, regarding how the governor performs the discretionary duties of his office, that they are free to sue him and conduct searching discovery of the affairs in his office,” Terwilliger said. “That’s no role, I would submit, for the judiciary.”
Terwilliger argued that the case remains a deeply political one that would bring questions of the separation of powers doctrine, should the courts be forced to “manage” the governor’s schedule. Instead, he argued, Sponaugle should consider that Justice is up for re-election and his effectiveness as governor could be decided by voters.
“He can mobilize to defeat the governor at the polls or in an extreme case he could seek to pursue impeachment,” Terwilliger said. “Put another way, political avenues to challenge the governor on political grounds stay open.”
Members of the Supreme Court asked a string of questions of both Terwilliger and Sponaugle Wednesday over the course of more than 40 minutes.
“This court has made very clear that, except in the context of an election law residential issue, reside has no certain definition in the law — and it does not equal domiciled and having to be here 24-7 is domiciled,” Terwilliger said. “That’s not what the text of the Constitution states.”
Acting Justice Cohee then said the state has ruled on a residency case as it pertains to the executive branch.
“The court has previously stated in State Ex Rel. Thomas v. Wysong that, clearly, if one of the officers listed refused to reside at the seat of government that officer would, of course, be in violation of his constitutional duty,” Cohee said.
Justice Margaret Workman later asked Terwilliger about why the state’s high court should halt the entire case. She indicated it would be useful for the lower court to bring out “some facts.”
Workman also said the court wouldn’t want to get into micromanaging the governor, as Terwiller argued throughout Wednesday’s proceedings, but said their role would be “something in between.”
“I think it’s an uphill battle for you,” Workman told Terwilliger.
Sponaugle, who also currently serves as a Democratic member of the House of Delegates from Pendleton County, brought forth the suit as a private citizen. He argued that Justice needs only to reside in Charleston — not on the grounds of the Capitol Complex.
“I don’t believe he resides at the seat of government. Discretion in that would be the seat of government,” Sponaugle argued. “He doesn’t have to reside at the mansion. He can reside at a motel. He can buy a house, he can get a van or RV and put it down by the river — it doesn’t matter. That’s his discretion. But the Constitution says that you will reside at the seat of government during your term.”
On Wednesday, Sponaugle acknowledged that the governor has regularly appeared at the Capitol throughout the coronavirus pandemic, but he had rarely done so prior to recent times. Since taking office in 2017, Justice has said repeatedly that he continues to live in Lewisburg.
“He just wasn’t showing up,” Sponaugle said.
Sponaugle was asked by Justice Workman whether the court was being asked to oversee the governor’s schedule and regulate when and where he carried out his duties.
“What do you say about the other side’s argument that the judicial system is being asked to sort of micromanage his schedule: When he’s in town, when he’s not, where he sleeps, etc.?” Workman asked.
“You’re not being asked to do that, whatsoever. You’re asked to put him in compliance of his constitutional duty. ‘Shall’ means shall and that is what this order said,” Sponaugle replied. “You can either follow the rule and read the rules and follow them or you don’t have to. And if you don’t, then what remedy does a citizen and taxpayer have but to come to the court and ask to put that conduct of the governor — which has been ruled [on] many times before — in compliance.”
Sponaugle also noted that Justice has admitted to not living in Charleston multiple times — even during Tuesday’s gubernatorial debate against Democrat Ben Salango.
“From the standpoint of whether or not I drive to Lewisburg and turn around and drive right back — what in the world does that have anything to do with anything?,” Justice said Tuesday evening.
A spokeswoman for the West Virginia Supreme Court of Appeals said there is no set timeline for the justices to issue a ruling following Wednesday’s hearing. The court generally issues opinions in the same term the case is argued, although justices sometimes carry cases into another term.
