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Case challenging Gov. Justice’s residency kicked back to circuit court

CHARLESTON — A lawsuit accusing Gov. Jim Justice of ignoring the West Virginia Constitution by not living in the capital city is still alive after the state Supreme Court denied a motion by Justice’s attorneys to dismiss the case.

In a 4-1 decision, the state Supreme Court denied a motion for a writ of prohibition sought by Justice attorneys Mike Carey and George Terwilliger.

Justice Evan Jenkins, who will be the incoming chief justice in 2021, penned the opinion of the court, while Justice John Hutchison, selected by his fellow justices to serve as chief justice in 2022, dissented. Outgoing Chief Justice Tim Armstead recused himself from the case, with Berkeley County Circuit Judge Bridget Cohee sitting in his place.

The Supreme Court heard oral arguments in the case originally brought by Delegate Isaac Sponaugle, D-Pendleton, on Oct. 14. Sponaugle alleged Justice is in violation of the state Constitution, which requires constitutional officers to reside at the seat of government in Charleston.

Sponaugle’s writ of mandamus, first filed in Kanawha County Circuit Court at the end of 2018, asks the court to require Justice to follow the Constitution and live in Charleston. Speaking by phone Friday afternoon, Sponaugle said the ruling was a win for the Constitution

“I’m very pleased with the decision,” Sponaugle said. “The Supreme Court has found that as a citizen and a taxpayer you have the right to have the Constitution followed by all elected officials, including the governor.”

A representative of the governor’s office said attorneys were still reading the decision and that Justice had not been briefed on the decision and could offer no comment at this time.

Justice’s attorneys issued a motion to dismiss the case on Feb. 19, 2019. Circuit Judge Charles King denied that motion on July 17, 2019. After King granted a motion by Justice’s attorneys on Oct. 21, 2019, to stay further proceedings and explain his decision not to grant to motion to dismiss, Justice’s attorneys filed for a writ of prohibition with the Supreme Court.

“We conclude that the Circuit Court of Kanawha County had jurisdiction, did not exceed its legitimate powers, and did not clearly err when it denied Governor Justice’s motion to dismiss Mr. Sponaugle’s petition for writ of mandamus,” Jenkins wrote in his opinion.

At issue was whether the courts could enforce a writ of mandamus to force Justice to reside in Charleston. Jenkins did not weigh in one way or the other, but said the issue should be litigated by the courts, allowing both sides to present evidence and allowing the judge to render a decision.

“We acknowledge that the enforcement of a writ of mandamus against a governor is not commonplace,” Jenkins wrote. “However … the rarity of this legal action and the speculative nature of the enforcement of remedies that may result does not mean that courts should not, or are without authority to, issue writs of mandamus against public officials.

“The public has a reasonable expectation that its elected officials will uphold the duties of their offices/positions and follow the law, and writs of mandamus to compel compliance with these obligations will be issued when deemed necessary by the courts,” Jenkins continued.

Justice Margaret Workman wrote a concurring opinion agreeing with the majority of the court’s decision. However, Workman also chastised her fellow justices for going beyond the issues of the motion and attempting to define the word “reside,” which has been one of the sticking points in the case.

Jenkins, speaking for the majority, defined “reside” as “to live, primarily, at the seat of government; and requires that the executive official’s principal place of physical presence is the seat of government for the duration of his or her term of office.”

“Residency, once established, is not lost through temporary absence,” Jenkins wrote. “Rather, the controlling factor of residency is the intent to return to that principal place of physical presence.”

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