CHARLESTON — A legal battle over where West Virginia's governor sleeps at night inched closer to a state Supreme Court review this week.
Kanawha County Circuit Judge Charles King laid out his reasons for keeping the case alive and temporarily halted proceedings in two orders filed Monday. The orders explicitly note Gov. Jim Justice’s previously stated intent to appeal the case to the state’s highest court.
Thus, the case of a Democrat lawmaker suing a Republican governor (whose representation includes a former ranking member of the U.S. Department of Justice) for where he lives seems heading toward the state's five Supreme Court justices, three of whom were appointed by Justice.
“The ball is moving toward the West Virginia Supreme Court at the moment,” said Delegate Isaac Sponaugle, D-Pendleton, who has been representing himself in the case since summer 2018.
Although Justice's attorneys previously stated their intent to appeal King's decision not to dismiss the case, a Supreme Court spokeswoman said Friday the court had not received any appeal in the case.
In his order, King reasoned that a court can force a public official to perform duties that are both discretionary and nondiscretionary.
Justice’s attorneys have argued that a court can compel a public official to perform a specific nondiscretionary duty, but not something more subjective or discretionary, like where to live.
The West Virginia Constitution and state law require the governor to reside in Charleston, although the governor’s attorneys have argued that residency is too vague a word for a court to rule on. Justice has said publicly he lives in Lewisburg.
Even if King were to side with Justice in that residency is a discretionary duty, the judge essentially said he can require that Justice exercise that discretion if the evidence shows he isn’t already.
Part of King’s ruling denied a request from Justice to formally ask the Supreme court several questions about residency and enforcement under the state constitution.
In an interview, Sponaugle said Justice has been publicly admitting he lives in Lewisburg, while representing to the court he resides at the seat of government, as the law requires. King’s order, Sponaugle said, means the court will need to take evidence and, possibly, a deposition from Justice to determine where he lives.
If King's decision is appealed, the Supreme Court can choose whether it takes up the case. Sponaugle predicted that the justices won’t take it up until the lower court handles the document discovery process and evidentiary proceedings.
The newest justices on the court — Tim Armstead, Evan Jenkins and John Hutchison — were appointed by the governor. Armstead and Jenkins each won elections to their seat in 2018.
An undercurrent of Sponaugle’s case is an argument of Justice being an absentee governor. Several gubernatorial candidates from both parties have picked up on this depiction and campaigned on showing up for work everyday in contrast, often citing Sponaugle's lawsuit.