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Court hears arguments in Justice residency suit

Photo by Steven Allen Adams The Governor’s Mansion on the grounds of the State Capitol Complex in Charleston.

CHARLESTON — Oral arguments were made Wednesday before the West Virginia Supreme Court on whether a lawsuit accusing Gov. Jim Justice of violating the state Constitution over where he lives moves forward.

The court heard arguments in a rule 20 hearing on a writ of prohibition filed by attorneys for Justice seeking to dismiss a lawsuit filed by Delegate Isaac Sponaugle, D-Pendleton. A Rule 20 hearing involves cases of first impression, public importance, constitutional issues and a conflict in rulings by lower courts.

Justice, represented by former acting U.S. attorney general George Terwilliger, argued the separation of powers between the three branches of government prevent the court from enforcing the residency requirement. They also argue any ruling in favor of requiring Justice to reside in Charleston would put the court in the position of overseeing the executive branch.

“I really cannot believe that this court wants the circuit courts to get 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. The term ‘reside’ is slippery as an eel, I think is the expression that this court has used in past decisions. We would say for example, that the power to pass laws resides with the Legislature. Reside has a very, very broad meaning and ‘reside’ clearly does not equal domicile.”

“What I’m hearing you say is there’s no bone of contention about the constitutional provision, which is clear, that the governor shall reside at seat of government,” said Justice Beth Walker. “But what you’re saying is…at least not the court can tell the governor anything further. Where does, in your argument, enforcing the constitution or upholding the Constitution stop and the governor’s discretion start? Where’s the line?”

“The line is in the mode of performing that duty under the jurisprudence of this court,” Terwilliger responded. “Unless the court is prepared to say, ‘Well, the governor has to sleep in the Capitol. He has to be here 24 hours, seven days a week, and he can’t leave the Capitol during his term of office,’ then there’s obviously discretion in how he meets them.”

Sponaugle, who filed the lawsuit as a private citizen, alleges Justice is in violation of the state Constitution, which requires constitutional officers to reside at the seat of government in Charleston. The suit, filed in Kanawha County Circuit Court, asks the court to require Justice to follow the Constitution and live in Charleston.

Sponaugle argued before the Supreme Court that Kanawha County Circuit Judge Charles King should get to hear evidence in the residency case and make a decision before having the Supreme Court hear the case. King denied Terwilliger’s motion to dismiss the case.

“(King) needs additional discovery and evidence, so there needs to be a record to make a determination of residence which is fact-based and intention-based,” Sponaugle said. “In any test you’re going to pluck out of any case, facts matter on the residency case.”

Sponaugle pointed to instances when Justice said he lived in Lewisburg in Greenbrier County, including during Tuesday’s gubernatorial debate between Justice and Democratic opponent Ben Salango. Terwilliger pointed to Justice’s near-daily coronavirus briefings as an example of Justice doing his job in Charleston.

Sponaugle disagreed.

“I don’t believe he resides at the seat of government,” Sponaugle said. “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 an 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 turn there.”

At least 20 states have residency requirements either in their constitutions or in statute, Justice Evan Jenkins said. He asked Sponaugle about the differences in definitions between the terms “reside” and domicile.”

“There’s lots of different definitions of residency, some tied to domicile,” Jenkins said. “There have been, again, court opinions that say that you can maintain two residences at the same time.”

All justices participated in the hearing except Chief Justice Tim Armstead disqualified himself from hearing the case. Circuit Judge Bridget Cohee, serving Berkeley, Jefferson and Morgan counties, was assigned to hear the case.

Armstead, a former Republican House speaker, was appointed to the court by Justice in August 2018 after former justice Menis Ketchum resigned. Armstead won a special election in November 2018 to serve the remainder of Ketchum’s term and won election to a full term in May.

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