Emily Allen Published

W.Va. Governor Requests Dismissal Of Month-Old Petition For Special Session


Attorneys representing Gov. Jim Justice filed a response Monday, requesting that the West Virginia Supreme Court of Appeals dismiss a request from state legislators for a special legislative session.

Five lawmakers, mostly Republican, filed a petition in the state’s highest court in May, alleging the governor’s COVID-19 “stay home orders” in March violated the state constitution. 

By not consulting the West Virginia legislative branch first, the petition accused Justice of “usurping the power” of that branch and excluding the lawmakers from “their responsibilities as the elected representatives of their constituents.” 

Justice’s response, filed by members from the West Virginia Attorney General’s office on Monday, called the petition an attempt to “gut the Governor’s emergency powers” and “force an outcome” that state lawmakers already have the power to achieve on their own, as long as they have support from three-fifths of the Legislature. 

“Lack of success persuading the three-fifths of the Legislature to demand a special session is no more a separation-of-powers violation than is failing to get enough votes for a particular bill,” attorneys from the governor wrote.

“When is the last time you saw three-fifths of the Legislature agree on anything?” said Del. Marshall Wilson, I-Berkeley, in an interview with West Virginia Public Broadcasting on Tuesday.

Wilson signed the petition in May with four Republican lawmakers – Dels. Tom Bibby, Tony Paynter, Jim Butler and Sen. Mike Azinger. 

In the May 22 petition, West Virginia legislators referred to a decision from the Wisconsin Supreme Court, siding with a group of Republican legislators who challenged their governor’s orders to close Wisconsin businesses. 

Attorneys for Justice argued the Wisconsin court’s decision was based on statute, and not a problem with the state Constitution, as Wilson and the other four lawmakers alleged.

Instead, Justice’s attorneys likened the West Virginia petition to one in Michigan, which the Michigan Court of Claims dismissed in favor of upholding executive orders from Gov. Gretchen Whitmer. 

Senate president Mitch Carmichael, R-Jackson, and Speaker of the House Roger Hanshaw, R-Clay, did not respond to requests for comment Tuesday afternoon. House Minority Leader Tim Miley also did not respond to a request for comment. 

Wilson said he didn’t seek support for a special session from three-fifths of the Legislature because he believes most of his Republican colleagues are “beholden” to Justice, who is the Republican nominee for governor. 

Wilson announced his own campaign for governor June 12, following the primary election. He’s in the process of gathering the 7,200 signatures required to get his name on the ballot in November. 

He said several other Republican lawmakers contacted him after the petition was filed to say they agreed with the document, but he declined to name anyone. 

Senate minority leader Roman Prezioso said he doesn’t agree with Wilson’s petition in May regarding the March executive orders, but he thinks it’s necessary to call the Legislature into a special session for the more than $2.2 billion West Virginia has received from Congress for COVID-19 costs. 

“I think he is wrong by not having the Legislature come in to appropriate the dollars, according to the constitution,” Prezioso said Tuesday. 

Prezioso added that he mostly agrees with plans the governor has shared for spending the money. Lawmakers were invited to an informational session on the governor’s plan for the money last week.

Emily Allen is a Report for America corps member.