Since I mentioned it numerous times during the Tom Roton Show this morning (https://www.iheart.com/podcast/512-tom-roten-morning-show-28270078/episode/civil-right-attorney-says-wv-ag-69145900), here is a copy of our 40 page brief explaining why the Governor’s executive orders are unconstitutional under our State Constitution, before you even get to the lack of due process and so forth. I’ll post a link to the interview when it’s up on the inter-webs.

Yesterday the Attorney General went on the show to explain why he’s not challenging the Governor’s executive orders, and why he believes our lawsuit was required to fail. So I responded. He stated, “The Governor does possess broader powers here to take action than in other places…. but Executive Action must be checked…. so you look to see what is the compelling interest of the Government (strict scrutiny)?”

No, actually the Governor of W. Va. does not have broader powers here as compared to other states. There may be a problematic lack of time constraints, as there should have been in the statutory language, but the actual statutory text itself is pretty narrow, and more restrictive than many other states, as the W. Va. Supreme Court has noted in a previous case interpreting those powers.See State ex rel. Dodrill v. Scott, 352 S.E.2d 741, 177 W.Va. 452 (W. Va. 1986) (“We note that the New Jersey Disaster Control Act defined “disaster” to include “any unusual incident.” Although we express no opinion on the merits of the Worthington cases, we are of the opinion that the term “any unusual incident” is substantially more expansive than either “natural or manmade disaster of major proportions” or “disasters of unprecedented size and destructiveness.”).

Here’s our emergency statute:

§15-5-6. Emergency powers of Governor. 

inds that an attack upon the United States has occurred or is anticipated in the immediate future, or that a natural or man-made disaster of major proportions has actually occurred or is imminent within the state, or that an emergency exists or may be imminent due to a large-scale threat beyond local control, and that the safety and welfare of the inhabitants of this state require an invocation of the provisions of this section. 

The primary authorization under this statute upon which the Governor has relied in the issuance of his executive orders is:

W. Va. Code 15-5-6(c)(6).

To control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein.

This is what the Governor has cited in each of his executive orders as the statutory authorization for his orders. I don’t know about you, but I don’t see anything in there about a statewide stay at home order with no due process. I don’t see anything about mask mandates. I don’t see anything about restrictions on private businesses in counties where there has been no death in 4.5 months of a so-called “State of Emergency.”

For instance, my county – Monroe County – last I checked a few days ago had 5 active cases and 0 deaths since the beginning. Next door, Summers County had 2 total cases and 0 deaths. Gilmer County had 0 cases and 0 deaths. Clay County had 4 cases and 0 deaths. Lewis County had 4 cases and 0 deaths. Roane County had 2 cases and 0 deaths. Wirt County had 1 case and 0 deaths. Ritchie County had 0 cases and 0 deaths, and so on…..

How can any Governor claim that any of these counties were ever a disaster area requiring citizens to stay at home and mandating the closure of their private businesses? He can’t. Not according to the Constitution and the emergency powers statute, anyways.

The Attorney General implied during his interview that, regarding the so-called “mask mandate,” he might feel differently if the Governor imposed sanctions on the violation of his orders. Where has he been? I’ve been contacted already by two separate restaurants in different parts of the state who have been threatened with immediate shutdown for expressing their First Amendment speech pertaining to the mask order. But don’t take my word for it. Here’s the Governor’s own words:

And then there was the elderly barber in the eastern panhandle who was actually arrested for trying to earn a living. He must have missed that. And what about the hundreds of small businesses around our fragile state economy who were forced to close, many of which will probably never reopen? Was that not a sanction imposed without due process? Did anyone have the right to a hearing? To be heard? Did any of those supposedly “free” people even have the right to make the argument that COVID-19 hadn’t created a disaster area in their area?

The AG puts the responsibility of reigning our Governor in on the shoulders of the legislature, because under our Constitution, with a 3/5 vote, they can call themselves into session. No.

Let’s look at basic constitutional law.

The action, or inaction of a legislature cannot amend, suspend, or rescind any text of the Constitution. The Governor’s powers cannot increase by virtue of the legislature not protecting against the Governor attempting to take their constitutional powers. The Governor’s powers cannot increase by virtue of a legislature voluntarily granting the Governor it’s powers. They are not allowed to do so – they have tried.The legislature’s cowardice, bravery, or indifference in interacting with a Governor is a red herring. It’s beside the point.

Why is the Doctrine of Separation of Powers important? Why was it so important that the founding fathers of our state wrote it into our Constitution?

The accumulation of all powers, legislative, executive, and judicial, in the same hands, whether one, a few, or many, whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. – James Madison, Federalist No. 51, 1788