As the attorney for the pending lawsuit against the West Virginia Governor which challenges his executive actions in response to COVID-19, people have asked for my reaction to today’s new mandatory requirement that the peasants of West Virginia are now required to wear masks in public and private buildings.
Here’s the executive order itself.
So it requires masks to be worn in any building outside one’s home, whether publicly or privately owned, unless you’re under the age of 9, have some medical reason which excepts you, or if you’re eating food, or drinking a beverage, or if you are able to “socially distance.” It even seems to allow a Halloween mask to qualify as appropriate under the order. I’m sure he’ll cancel Halloween, so that might be one diamond in a sea of rough (that we can at least use the masks – not that he’ll rob us of Halloween, even though we never needed his permission any of the past Halloweens). It seems to be a situation where the exception is swallowing most of the rule. How do you even enforce such a mandate without definitions of the terms?
I’d love to sue over this, but I highly doubt anyone gets arrested. As such, our currently pending lawsuit probably sufficiently covers this. Even though it’s not an exciting argument, it’s a very clear and simple violation of our State Constitution. We have a tri-cameral form of Republican government. The legislature enacts laws. The governor signs, or vetoes, the laws they enact, and the judicial branch reviews both of their actions to keep them within the confines of the Constitution.
Here, the Governor has unilaterally enacted a new law. You can’t go in a store or any structure other than your own home, unless you’re wearing a mask – even if the mask is useless and pointless. In the end, what’s going to happen here? What’s the point? The Governor gets to do his mask thing, like some of the other governors, and also create some news, appease the numerous Karens on Facebook, who are absolutely terrified to death over everything. And who is going to bear the brunt of attempting to enforce it? I can almost guarantee the police are not going to do a darned thing here. At least I wouldn’t. It will be small businesses across the State who will be forced to decide what to do with this.
Do I close my store? Do I make someone leave if they’re not wearing a mask? What if they say they have a medical reason not to wear one? Is the liability and hassle even worth it? As a shopper, do I just give up on shopping locally and just go back to ordering online? Hell, you can order entire meals now, delivered in a box. As with the other illegal laws he enacted without the legislature, it’s the small businesses that will suffer. And the cherry on the cupcake is the fact that they’ve had no representation. They can’t complain to their elected representatives, because they’ve been powerless – themselves excluded from the entire process.
But, you ask, why is this such a big deal? Do you complain about wearing a seatbelt in your car? Do you know obey the posted speed limits? Do you not use a child safety restraint in your car? Here’s my answer to that. For instance, W. Va. Code Section 17C-15-46, entitled “Child Passenger Safety Devices Required; Child Safety Seats and Booster Seats, is a part of the huge set of written laws by which we’re all bound here in West Virginia, called the “West Virginia Code.” This is the mountain of rules created by our legislature, and signed by past governors. This is what makes it illegal to not drive a little kid around without a children’s car seat. There are many others, requiring the use of seatbelts, helmets on motorcycles, and so on.
Here is the law itself:
W. Va. Code §17C-15-46 provides that:
Every driver who transports a child under the age of eight years in a passenger automobile, van or pickup truck other than one operated for hire shall, while the motor vehicle is in motion and operated on a street or highway of this state, provide for the protection of the child by properly placing, maintaining and securing the child in a child passenger safety device system meeting applicable federal motor vehicle safety standards: Provided, That if a child is under the age of eight years and at least four feet nine inches tall, a safety belt shall be sufficient to meet the requirements of this section.
Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $10 nor more than $20….
So, who decided that child safety seats were necessary, and that children under the age of 8 required one? After all, maybe it should be age 10 and under… or maybe age 7….. The answer is, your elected representatives in the legislature. That’s who. Our legislators are supposed to debate things, right? And then vote on it. Contrast the child safety seat law with today’s new mask law: ages 10 and over have to wear one. Because, safety.
I’m not seeing the difference. The State Constitution provides that the Governor can call the legislature into session if he thinks some new immediate legislation needs to be considered. Our State legislature has not met one time, nor considered one fact or piece of legislation, since the whole COVID crisis began. The Governor has had months and months to do so. But he hasn’t. Why? Because what King in history has ever given up power unnecessarily?
Whatever happened to “The Comeback.” We were “West Virginia Strong” (which he stole from the 2016 flood relief response) and also at some point heading down some confusing and nonsensical phase of “The Comeback,” but now we have to wear masks? The last executive order was opening the State to fairs and festivals…. What the heck? As Zoolander would say, “West Virginia Strong? More like West Virginia weak!” Or, “Montani Semper Liberi? More like Montani Semper Servus.”
Is it a coincidence that, of all the days the Governor does this that Time Magazine reports that Governor Justice’s businesses have received millions of dollars of COVID relief packages?
Billionaire West Virginia Gov. Jim Justice’s family companies received at least $6.3 million from a federal rescue package meant to keep small businesses afloat during the coronavirus pandemic, according to data released by the Treasury Department on Monday.https://time.com/5863410/west-virginia-governor-companies-coronavirus-loans/
Read it for yourself, here: https://time.com/5863410/west-virginia-governor-companies-coronavirus-loans/
Justice acknowledged last week that his private companies received money from the program but said he did not know specific dollar amounts. A representative for the governor’s family companies did not immediately return an email seeking comment.https://time.com/5863410/west-virginia-governor-companies-coronavirus-loans/
This rings a bell for me. I represented at least one casino-business creditor, who had long been owed money for services already performed by the governor’s casino. We sent a letter threatening to sue. The money just happened to finally come in right about the time the PPP loan cash arrived. I’m not saying it’s aliens, but . . . .
So he’s both making the laws all by himself, and also cashing in on the laws he’s making. No wonder he’s not interested in calling the legislature in. Our case challenging his prior executive orders, which were incorporated into this one in the prefatory clauses, remains pending before the West Virginia Supreme Court. We could still win that case, as they haven’t ruled yet.
If you want to review our case, as well as the Governor’s response, here’s the link, though it’s just a few posts down: