CHARLESTON – “How does this end?”
That’s the question state Supreme Court Justice John Hutchison raises in his dissenting opinion of the majority’s November 20 decision to allow the case regarding the residency requirements for the governor to continue in Kanawha Circuit Court.
In the majority ruling, the justices denied Gov. Jim Justice’s writ of prohibition to overturn rulings previously made by Kanawha Circuit Judge Charlie King in the case.
Sponaugle
“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. (Isaac) Sponaugle’s petition for writ of mandamus,” the majority opinion written by acting Chief Justice Evan Jenkins states.
Sponaugle is a Pendleton County delegate and attorney, but he filed the challenge as a private citizen challenging Justice’s residency. The governor lives in Lewisburg and commutes to the state Capitol in Charleston. Sponaugle contends the state Constitution requires the governor to reside in the seat of government while serving.
The case has been in limbo in Kanawha Circuit Court. Justice’s legal team had asked the Supreme Court to decide if the case should continue. The sides took part in oral arguments before the court in October. Now, the case will go into the discovery stage in King’s court.
In his dissent dated November 24, Hutchison noted the majority opinion was “a well-written exposition on the 1863 and 1872 Constitutional debates” when the state’s founders believed every governor “must remove to the seat of government” and “live … at the capital so we may at least find him.”
But, Hutchison notes, those statements need to be put in proper perspective and “taken with a grain of salt.”
“In the same passages of the debates quoted by the majority opinion, the founders debated whether the governor should be furnished with ‘a horse and buggy,’” Hutchison wrote, noting that the founders also used the derogatory “n”-word during those debates.
“I doubt the founders conceived of the notion that a governor would someday be able to travel to all four corners of the state in a single day by car or plane,” Hutchison continues. “Except for the telegraph, the founders never suspected the governor would be able to speak at length with faraway ‘strangers … parties, individuals, companies, associations or their officers’ in the four corners of the globe and give them ‘information as to the geography or resources’ of West Virginia using a cellphone or video conference technology.”
Hutchison says the majority does “a great job concluding the word ‘reside’ means ‘reside,’ and then dumps the case back on the circuit judge to figure out what ‘reside’ really means on the facts of this case.”
“For all the sound and fury and righteous indignation embodied within the majority opinion, I cannot foresee a satisfactory end result forthcoming from the circuit court,” Hutchison writes. “The question I had running through my mind when I read the opinion is simple: How does this end?”
He also says no constitution is a living document.
“It is the people and their chosen representatives who breathe life into a constitution’s words and gives them effect,” Hutchison writes. “The separation of powers clause only works, and only protects our tripartite system of checks and balances, if every officer of every branch deliberately respects the right of the other branches to function freely. … When we do not respect the guardrails written in our foundational document, we drift closer and closer to tyranny or anarchy.”
Hutchison calls Sponaugle’s lawsuit “well-intentioned” and “not some scheme aimed toward despotism.”
“My problem with Mr. Sponaugle’s lawsuit is that I cannot see how it ends or if it ends,” the justice writes, saying the majority brushes off the governor’s argument that any remedy would be impractical and unmanageable.
“I cannot foresee either a practical or constitutional manner in which the judge can bring this case to a conclusion,” Hutchison writes. “Just how tangled up are the courts going to get monitoring the governor? …
“What if the governor announces that he will reside in the governor’s mansion, the ‘official residence’ in Charleston? Then he keeps two suits and two pairs of underwear there and loudly declares his intent to return to the mansion because ‘it is my residence.’ Is that sufficient? Can the circuit judge say, no, the governor needs at least four suits and four pairs of underwear stored at the mansion to show he is residing there at least four days a week?
“Can the judge appoint a monitor to inspect the residence to see if the sheets are mussed the required number of days of the week? Can the judge require the governor to wear an ankle bracelet so his whereabouts are known at all times, and we can know for sure he has a ‘physical presence’ that is ‘primarily’ in Charleston?”
Hutchison says he drives to work every day from Raleigh County and that he primarily spends daylight hours in Charleston. He says he plans to do that until the end of his term, but that he never would say he resides in Charleston.
But, Hutchison says, if the governor is in Charleston at night, he’s probably sleeping and not conducting state business.
“If the governor sleeps here at his residence, how are we to say he is actually accomplishing the duties set forth for the executive branch in our Constitution?” Hutchison writes, adding the point Sponaugle is trying to make is “purely a political one.”
“His (Sponaugle) challenge is not to the governor’s residency; it is to the decisions the governor has made about how he runs his office,” the justice writes. “Mr. Sponaugle’s argument conflates residency with efficient executive management. The argument is that if the governor just slept in Charleston more, then the governor would probably make himself more available to one-on-one visits from members of the Legislature.
“Mr. Sponaugle clearly concludes that if a judge would simply tell the governor to spend more time in Charleston, then he would be a better, more effective leader with better relations to members of the Legislature.”
Hutchison believes this political "spat" should not involve the judiciary.
“Stated simply, the judiciary is powerless to second-guess the quality of decisions by the executive or legislative departments,” he writes. “The efficiency of the governor’s management style, the effectiveness of the efforts of the governor toward running the affairs of the state, are not justiciable questions. … If a court requires the governor to live in the executive mansion four nights a week, that really will not solve Mr. Sponaugle’s true complaint about the way the governor is managing his office.
“A court cannot issue a writ of mandamus to say the governor must do a better job or exercise discretion in a different way.”
Hutchison, who was appointed to the Supreme Court in 2018 by lifelong friend Justice, concludes his dissent by saying the courts are limited in what they can require the governor to do.
“To go any further and attempt to delineate how the governor must act so as to achieve efficient or effective governance is clearly a political question that the courts should not be asked to resolve,” he writes, saying the Legislature has the power to impeach the governor and the voters can remove him from office.
“I believe too much mischief abounds when the judicial branch is asked to monitor the day-to-day actions of a state officer and approve how the officer carries out the discretionary obligations entrusted to him by the people. How the executive or legislative branches choose to operate are discretionary political questions beyond the purview of a judge.
“I appreciate why Mr. Sponaugle started this lawsuit over the governor’s residency; I dissent because I cannot see how, or if ever, this ends.”
West Virginia Supreme Court of Appeals case number 19-1132