CHARLESTON — The two-year-old case of whether Gov. Jim Justice is violating the West Virginia Constitution by not residing or working full time in Charleston was the subject of a roughly 45-minute hearing before the state Supreme Court on Wednesday morning.
The arguments remained clear between George Terwilliger, one of Gov. Justice’s attorneys, and state Del. Isaac Sponaugle, an attorney by trade, but questioning from the justices shone some light as to how they were considering the case in which Sponaugle says Justice is violating the state Constitution by not residing in Charleston.
In July 2019, Kanawha Circuit Judge Charles King rejected a motion from the governor’s attorneys to dismiss the case. In the same order, King ordered Justice’s attorneys to send questions to the state Supreme Court to help define the legal meaning of “residence.”
Per King’s order, West Virginia’s highest court heard an appeal from Terwilliger, of Washington, D.C.-based McGuire Woods. Terwilliger previously served as a U.S. attorney, appointed by President Ronald Reagan, and later served as U.S. deputy attorney general and acting attorney general for President George H.W. Bush. Justice also is represented by Michael Carey and David Pogue of Carey, Scott, Douglas & Kessler in Charleston.
Sponaugle is a Democrat who has represented eastern Pendleton and Hardy counties since 2013, but he said throughout proceedings in the case, including Wednesday, that he brought the lawsuit against the Republican governor as a private citizen.
Justice Evan Jenkins acted as chief justice in the case after Chief Justice Tim Armstead recused himself from the case. Berkeley Circuit Judge Bridget Cohee was appointed to hear the case in Armstead’s absence.
Terwilliger told the court the section of the constitution in question, Article 7 Section 1, was more about establishing a seat of government and less about the mode in which elected executive officials perform their duties, including where they perform them.
“I really cannot believe this court wants the circuit courts getting into telling the governor where he should sleep,” Terwilliger said. “The whole point of the constitutional provision is to establish the seat of government here.”
Based on his arguments, the justices’ questions to Terwilliger centered around phrasing in the constitution that the governor and all other elected executive officials “shall” reside in the seat of government, which is Charleston. Jenkins later told Terwilliger he was “troubled” by Terwilliger’s focus on the constitutional phrasing instead of arguing his own definition of “residence” and why the court should support it.
In legal terms, the verb “shall” tends to imply that something described in law and other legal documents must be done, as opposed to the word “may,” which implies there’s discretion for the person who “may” decide on their own whether to do something.
Terwilliger further argued that no court should consider the case because the case presents a political question. They have said it is up to the governor or the Legislature to determine residency by amending state law or the state Constitution. They have said it would be a violation of the separation of powers among the executive, judicial and legislative branches for the court to make a determination in the case.
Justice’s attorneys also have argued that if the court issues a ruling on what it means for the governor to “reside” in Charleston, it would put the courts in a position of dictating how the chief executive acts while in office.
Sponaugle told the court that this appeal was nothing more than an attempt to get the case against Justice dismissed and that Judge King had not abused his discretion when he decided not to dismiss the case or ask the court to define “residence.”
When asked by Jenkins if he thought the words in the constitution had a fixed meaning or whether they changed over time, Sponaugle called himself an originalist.
“I believe shall means shall,” Sponaugle said.
Sponaugle said there is a common accepted understanding of what it means when someone says they reside in a certain place. He said that understanding should turn into the definition of what the constitution means when it says executive officers have to “reside” in the seat of government.
He and Jenkins discussed an example in which if Jenkins had a house in Huntington, which is Jenkins’ hometown and where his family lives, and a house in Greenbrier County, which one would be Jenkins’ residence?
Sponaugle said he would consider the Huntington house to be Jenkins’ residence.
He said the governor should be held to the same standard.
“I understand he’s the governor, and I understand he’s a person of power,” Sponaugle said. “He should be treated like everybody else.”
Sponaugle is one of many lawmakers who have publicly called out Justice in his gubernatorial term for not working in Charleston full time, saying Justice repeatedly has admitted to doing state work, including taking meetings, in his Greenbrier County home and only coming to Charleston when it is convenient for him.
On Wednesday, Sponaugle said the governor has started working more from Charleston since the COVID-19 pandemic began, as evidenced by his thrice-weekly news conferences.
Justice’s absences from Charleston have led to scandals, mismanagement of public money, no communication with cabinet secretaries and a decrease in the productivity of state government, Sponaugle has argued.
The hearing Wednesday morning took place 15 hours after a debate between Republican Gov. Justice and Kanawha County Commissioner Ben Salango, a Democrat who is challenging Justice for the governor’s office this election cycle.
During the debate, Justice noted he split his time between Charleston and his home in Lewisburg, between a 2- and 2 1/2-hour drive, asking debate moderator Hoppy Kercheval, “What in the world does that have anything to do with anything?”