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West Virginia Record

Saturday, May 30, 2020

Lawmakers file petition claiming Justice has exceeded his authority through pandemic

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By Chris Dickerson | May 22, 2020

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CHARLESTON – A state Senator and four members of the House of Delegates have filed a petition with the state Supreme Court saying Gov. Jim Justice has abused his power through the Coronavirus pandemic.

Delegates S. Marshall Wilson, James Harry Butler, Thomas M. Bibby and Tony Paynter, along with Senator Michael Azinger, filed their petition for Writ of Mandamus and a supporting Memorandum of Law against Justice on May 22. All of the lawmakers filing the petition are Republicans except for Wilson, who is an Indeoendent  Justice is a Republican  

“This petition presents the question of whether the Governor of the State of West Virginia is required to convene a special session of the West Virginia Legislature if he finds that the ‘public safety and welfare’ are threatened by an emergency, as defined by the emergency powers statute … or whether the governor can act unilaterally in the capacities of both the executive and legislative branch for so long as he finds that an emergency exists, and whether the governor can, in so doing, expand the power of the executive branch of state government, so as to encroach on the core powers and responsibilities of the legislative branch, as well as the core rights of the people of West Virginia, in violation of the West Virginia Constitution and United States Constitution?” the petition begins.

Attorney John Bryan filed the lawsuit for the five lawmakers.

“I wasn’t OK with the executive action here and in other states based on the way I feel about liberty and the constitution and personal rights,” Bryan told The West Virginia Record. “I didn’t really know that the Legislature had had completely zero involvement at all until they approached me about this issue.”

The petition claims Justice currently is ruling the state “by executive fiat and is drastically expanding the power of the executive branch.”

The governor's office has not yet returned messages seeking comment.

Wisconsin lawmakers recently filed a similar petition with their state Supreme Court, which struck down Gov. Tony Evers’ executive orders.

The 40-page West Virginia petition details the timeline of the Coronavirus pandemic and the state’s response since Feb. 26.

Referring to a March 11 press release from Justice, the petitioners say the governor “had been meeting regularly with members of his administration on Coronavirus preparations going back for more than a month.”

“Thus the governor and his administration had already been planning their actions since at least early February,” the petition states.

Later, the petitioners say Justice was telling residents the government was “stepping up” in every way.

“He failed to mention that the Legislature had been entirely excluded from involvement in the COVID-19 response,” the petition states. “He hadn’t called the Legislature into session – nor consulted them as a body since the beginning of the long-anticipated crisis. He alone was running the government via the issuance of executive orders.

“Despite several months of ongoing crisis and policy discussions, he had found it unnecessary to include the Legislature in the COVID-19 response.”

They also say Justice proclaimed Dr. Clay Marsh from West Virginia University as the state’s COVID-19 “czar,” a title they say “is conspicuously absent from both the West Virginia Constitution and the West Virginia Code.”

They say that Justice opined that there was no end in sight to the state of emergency.

“Yet, despite the long-term framing of the crisis, Gov. Justice continued to refrain from calling the Senate and the House of Delegates into session so as to enact the important life-changing, career-altering, business-ending, and community-transforming legislation which the governor found was necessary,” the petition states. “Instead, he would continue to act unilaterally via executive orders.”

Even after Justice announced the reopening of state businesses with a gradual schedule over the course of a few weeks, the petitioners say lawmakers never were included.

“Despite announcing all of the aforesaid press releases, and despite all of the activity discussed by the Governor in the months prior, the Governor still has not called the West Virginia Legislature into session, despite there being a ‘State of Emergency,’ Gov. Justice’s actions stand alone, and in stark contrast, when compared to the 38 other states who have introduced legislation in response to the COVID-19 crisis,” the petition states. “It’s apparent that Gov. Justice intends to continue to legislate via executive order, rather than in accordance with West Virginia’s Constitution.”

The petitioners say the Legislature also has been excluded from involvement in a response to the virus and the pandemic, noting that 38 states have done so.

“Many of those states have introduced multiple pieces of legislation each, in order to respond to the needs, wishes, and welfare of their constituents,” the petition states. “Missing from that list, showing zero legislative activity during this period of time, is West Virginia, which at present is being operated solely by the governor under the emergency powers … pursuant to his declaration of a ‘State of Emergency.’ Thus far, the West Virginia Legislature has been powerless to enact legislation – and will remain so until they return to session in February of 2021.

“Until that time, the Legislature can only act if called into session by the governor. … The only other option is for three-fifths of each house of the Legislature to make written request to the Governor. However, the Legislature is not in session, nor otherwise convened or organized to make such a unified request.

“As of the date of this writing, the governor has not called the legislature into session, despite the plea of numerous legislators. Nor has the Legislature, as a body, been consulted in any way by the governor.”

The petitioners say Justice has exceeded his lawful authority in declaring a perpetual and unrestricted “State of Emergency” in West Virginia and continues to assert the power of both the executive and legislative branches of state government.

“The governor has demonstrably and egregiously exceeded his lawful powers under the emergency powers statute,” the petition states. “He is vested with the responsibility and obligation to convene a special session of the Legislature, if the public safety and welfare require immediate legislation in response to an emergency, if the Legislature is out of session at the time legislation is needed.

“The Governor cannot lawfully refrain from convening the Legislature, and instead himself unilaterally issue legislation by executive order in place of the Senate and House of Delegates. The Governor may not unconstitutionally expand the power of the executive branch to the detriment of the legislative branch. If Gov. Justice has not exceeded his lawfully authority of his emergency powers … then the statute is unconstitutional and must be invalidated.”

The petitioners say Justice’s weekday press briefings and dozens of press releases describe an unprecedented safety threat to the state, but that he has done so without the Legislature.

“The Governor instead engaged in an executive power-grab, unilaterally and comprehensively encroaching onto the legislative branch’s domain,” the petition states. “In so doing, he has drastically affected and violated the rights and liberties expressly secured for the people by the West Virginia Constitution. The constitutional damage which has been inflicted is ongoing and indefinite.

“By excluding the people’s elected representatives in the Senate and House of Delegates from the COVID-19 response, Gov. Justice excluded the very people who have suffered from his unilateral decisions. In contrast to Justice’s unilateral actions, 38 other state legislatures have convened and introduced legislation in response to COVID-19, 37 of which have enacted legislation.”

The petitioners say Justice has “encroached onto the core domain of the :egislature through the exercise of his purported statutory emergency powers.”

“His unilateral issuance of numerous executive orders have drastically altered the lives, liberty and property of the free people of West Virginia,” the petition states, adding that state code “doesn’t anticipate, nor can it authorize, a governor ruling the state by executive decree in response to a worldwide pandemic which has only minimally impacted the State of West Virginia.”

“At the time the governor declared a State of Emergency, upon which he relies for his drastic executive orders, there had not been a single positive case of COVID-19 in the state,” the petition continues. “There is no war. There is no armed insurrection. There was no earthquake, fire nor hurricane. Not one life had been lost at the issuance of the declaration. No disaster had occurred. …

“It’s quite a leap to interpret the emergency powers act as authorizing a ‘closing’ of West Virginia in all 55 counties, nor an indefinite ‘State of Emergency’ style government, where the Governor rules alone and without a legislature. This is especially true where the emergency consists of a virus which, to date has claimed only 70 lives in West Virginia, with at least 32 of those - almost half - occurring in nursing homes.

“Of course it’s a tragedy to lose even one life to any cause. But there is no balancing test in the Constitution, which measures the inherent rights of a free people against the number of deaths attributable to any particular cause. Gov. Justice was not acting in accordance with his oath to defend the Constitution when he declared that ‘overreaction never hurt anyone, it may be inconvenient, but if it gives us the ability to save just one life it’s worth it.’”

The petitioners say they and their constituents have been deprived and restricted by Justice’s “unilateral decrees” and his failure to convene the Legislature.

By Justice “running away with the entire state government during the present COVID-19 crisis, the people have been disenfranchised of their rightful power,” the petition states. “They are left only with the remaining branch of government – the judicial – to put an end to what our founders described, could only be ‘subversive of good government’ and leading to ‘anarchy and despotism.’”

The petitioners say Justice has a duty to convene a special legislative session and rescind all of his executive orders. They ask the court to grand the writ of mandamus and award them courts costs, fees and other relief.

“I think it’s easy to dismiss this notion and, of course, the government has the ability to have emergency powers,” Bryan told The Record. “But, can emergency powers allow the governor to be both the Legislature and the executive? When I dig through West Virginia Constitution, there is a very strong case to the contrary.

“I would argue that he has to call the Legislature to enact new laws. He just can’t enact new laws without them.”

Bryan said the issue isn’t about the state’s response, saying it doesn’t matter that some of the things that have been done to reduce the effects of the pandemic have worked.

“If this is a state of emergency and it can go on indefinitely, why not say global warming is an emergency and we use that to operate under an executive fiat,” he said. “What separates us as a free people from the people of China or Venezuela? The only thing is our constitutional protections. We have to protect them. The Legislature has to protect its power. To be honest, I find it shocking someone hasn’t done this already.

“The hard part is explaining if you don’t protect the Constitution in every scenario, you aren’t going to have it when you need it.”

Wilson said Justice is acting dictatorially and tyrannically.

“What’s happened is that the governor has used this situation to usurp the authority of the legislative branch of the government,” Wilson told The Record. “He’s acting like a dictator.

“Listen, he had every right in the world to be worried at the beginning. But, he should have then called in the Legislature to get them involved. People in the state have lost their voice in government. The governor simply is the boss of the executive branch of the government. The people of the state are not involved in the decision-making process through their elected representatives.

“The governor works for the people, just like I do.”

Bibby agreed.

“What I’m concerned about is the separation of powers,” he told The Record. “We’re two months into this state of emergency, and the governor has yet to bring in the Legislature. He’s surrounded by himself with the executive branch.

“But, he need to listen to what the people say. Do people want to continue the state of emergency?”

West Virginia Supreme Court of Appeals case number 20-0292

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