Today the West Virginia Governor issued yet another Executive Order – E.O. 77-20, which has “amended” the existing “mask mandate” issued by him in July. He’s now issued hundreds of pages of executive orders since first declaring a state of emergency back in March. He now mandates that everyone wear a mask in “all public indoor places,” presumably referring to any structure inhabited by “the public,” as it now seeks to force property owners and small businesses to enforce his unconstitutional edicts, and will punish them for not doing-so.
Even worse than the order itself, are the comments the Governor made when informing the peasants about his new law.
“Beginning at midnight tonight, I will issue a mandatory requirement to wear a face covering indoors in all public buildings at all times. This is not just when social distancing cannot be maintained, this is mandatory wearing your face covering in all buildings, at all times, other than your home,” Justice said.West Virginia Gov. Justice issues tough new mandatory face mask order; pushes back winter prep sports to Jan. 11
So, while the order itself uses weaker and more ambiguous language, the Governor’s direct threats to the public said “all public buildings.” The actual order says “when individuals are able to physically isolate in a physically separate office or other space when no others are present….” As usual, the tyrant places responsibility for enforcement of his edicts on the already-suffering small businesses, as well as the employees. Although the order didn’t mention it, he says the next step is “closure” of the business for non-enforcement.
He also (apparently waiving attorney-client privilege) says that his lawyers said that if the peasants don’t follow his order, business owners are to call the police. Moreover, if someone isn’t following his order, “they’re obstructing justice,” presumably the misdemeanor criminal charge of obstructing an officer. He also threatened that business owners/operators who don’t follow and enforce his order will also be charged with misdemeanor criminal obstruction (which is punishable by up to a year in jail).
The governor also warned that if business owners don’t enforce his rules, “the next step will have to be closure.”
Justice also signaled law enforcement, citing conversations with legal counsel.
If patrons don’t follow the order, Justice told business owners to call the police. And if someone isn’t following the mask mandate, they’re obstructing justice, Justice said. The governor also said an obstruction of justice charge would apply to business owners/operators that are flaunting the rule.
West Virginia Gov. Justice issues tough new mandatory face mask order; pushes back winter prep sports to Jan. 11
By the way, there is no such thing as “obstruction of Justice” in West Virginia. I’m not convinced he wasn’t referring to himself in the third person when he said that, but in any event, “obstruction of an officer” is the crime on the books in West Virginia, and it’s a misdemeanor which carries a maximum sentence of one year in jail. Fortunately, it’s not as vague as the federal crime of “obstruction of justice,” and actually requires a court to look at what the officer who was allegedly obstructed was investigating. Generally, if it is a felony crime under investigation, you “obstruct” an officer by lying to him or failing to identify yourself, under some circumstances. If it’s a misdemeanor, you are allowed to lie, or fail to identify yourself, generally. You cannot commit “obstruction” in West Virginia by doing something you are legally allowed to do. Read all about it in the controlling West Virginia case on “obstruction” in State v. Carney. In any event, only the legislature could amend the obstruction statute.
Meanwhile, the Governor has chosen not to call a special session of the legislature, and instead, has continued to rule by executive fiat, which is unconstitutional under the West Virginia Constitution. This cannot be allowed to continue. Numerous friends and clients of mine have resolved to file suit as soon as possible. We will file a challenge in West Virginia State Courts, as well as possibly federal court. We previously filed a challenge before the State Supreme Court, but were denied the relief we requested – probably on procedural grounds. We will begin the suit in the lower Circuit Court so as to avoid any technical procedural defenses. There must be a ruling on this constitutional crisis, in both the state and federal courts.
Here’s the original lawsuit we filed, if you want to read in detail my explanation on why these executive orders are in blatant violation of our West Virginia Constitution. We do already have one federal challenge pending on behalf of the Bridge Cafe & Bistro Restaurant in Putnam County, West Virginia. That case is still pending, and you can read the federal lawsuit in full at the link, as well as the explanation of why the E.O.’s are unconstitutional on federal grounds.
So far the petitioners will be the following State legislators: S. Marshall Wilson, Michael Azinger, Jim Butler, Thomas M. Bibby, and Mark Dean. In addition, we will include a representative sample of patriotic West Virginia owned small businesses, such as restaurants, gyms, and barber shops/hair salons. We may also include churches and private schools. There will be other private plaintiffs as well, including Tabitha Simmons who has thankfully started a gofundme fundraiser to cover legal expenses. I’ve already spoken with one other experienced WV lawyer who has agreed to assist on the case, and would like to bring in more (possibly Civil Rights lawyers from other states, if we can raise the money). So if you can help Tabitha raise the funds needed, please do. 100% of the funds will go towards this litigation against the tyrannical actions of the Governor. Here is the link:
Additionally, I will be on the Tom Roton Morning Show to discuss this new tyranny, first thing Monday morning – at around 8:00 a.m., I believe. We may also be planning a protest at the State Capitol, or possibly elsewhere. So please stay tuned……
ETA 11/16/20: We are putting together a legal team to file suit as soon as possible. For those of you small business owners concerned about the Governor’s threats to close your business and have you arrested, etc.., we believe this may implicate federal 4th Amendment protections. The Governor has threatened criminal arrest and prosecution for violations of his “mask mandate.” You are within your rights to ask for a warrant and to refuse consent to any government official entering your home or business pursuant to the Governor’s executive order. That won’t stop them, necessarily. But they will make themselves defendants in lawsuits afterwards. We believe this is applicable to county health officials as well. Video footage may be crucial.
Live Video on the Fight: Monday evening, 5:30 pm, Eastern:
ETA 11/17: BREAKING: Yesterday we filed an emergency motion for a temporary restraining order and preliminary injunction in the Bridge Cafe & Bistro case, challenging the constitutionality of the Governor’s Friday statements and his new enhanced mask mandate. The Southern District of WV just now ordered the Governor to respond by 5pm this Thursday, and scheduled a hearing for November 23 at 10 am in federal court in Huntington.