Tell the Governor to take a nap and relax – the COVID death rate in West Virginia is one of the lowest

Why do we have a hysterical governor trying to shut down our economy again, which he’s not allowed to do in the first place? Look at the current death rate statistics by state of COVID-19: West Virginia is way down at the bottom, along with Wyoming, Montana and Alaska. Of course diagnoses will rise with the exponential increase in testing going on. But show me the death rate. Look at the restrictions in New York, New Jersey, or Michigan, who have required masks and every other restriction you can think of, and their death rates are sky-high. I thought we had a vulnerable population? That’s what the Governor said before he issued his unconstitutional “Stay at Home Order.” So if we’ve gotten so many cases, and we’re so vulnerable, why are we at the bottom of the list (along with the other low population rural states) for death rate per 100,000 people?

Read for yourself: https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-us-by-state/

Our Dear Leader appointed a doctor from WVU as our COVID Czar during this so-called State of Emergency. You’ve seen the same types on the cable news. We didn’t elect doctors from WVU, or anywhere else, to authorize them to control our lives, or take our property without due process. Who do you think stands to gain from all this, in research grants, employment opportunities, profit, and so on? What’s in it for them? Can they just cause the governor to go all hysterical and tyrannical with no questions being asked? With no representation on our behalf? Where are all of our legislators? We are now living in a perpetual “State of Emergency.” Just how many months does a State of Emergency last before the legislature does its job?

Me in court this morning on a criminal case, wearing a mask, while talking to my client, who was inside the television, also wearing a mask.

Our legislators should be asking questions. The medical industry is going to make a fortune off of COVID-19. This is the same bunch, coupled with their benefactors in government, who charge us astronomical prices for common drugs. They require diabetics, who need insulin to live, to keep having to pay to see a doctor avery few months in order keep renewing their prescriptions. Why? Why in the hell should a diabetic need to renew their prescription for insulin just so some doctor can get their cut every few months? You think the lawyers are bad? The medical system is way worse than the legal system, as far as corruption and conflicts of interest go. Remember our very own Sen. Manchin’s daughter increasing the price of the epipen so high that most people could no longer afford it?

The governor is relying on WVU doctors to tell us what rights we get to have? This is the same WVU that prescribed my wife physical therapy for her shoulder, instead of a necessary surgery which could have saved her shoulder function. When we decided to leave the State medical system and go to UVA, they were flabbergasted at the incompetence of the purported best shoulder surgeon at WVU. The shoulder specialist at UVA took an MRI and was astounded. Immediately, being a teaching hospital, he gathered all the students to look at the MRI film. They’d never seen such a bad tear of anyone’s shoulder. Even the specialist had to bring in a sub-specialist to do the surgery. The shoulder was torn in three places. Her bicep was practically hanging by a thread. That was a Thursday, and she was in surgery on Monday. Yet at WVU, the snotty orthopedic surgeon basically told her to toughen up and quit complaining. He spent maybe 5 minutes with her in total, as opposed to the UVA surgeons, who spent probably hours with her.


We didn’t elect them. Maybe they’re right; maybe they’re not. But we didn’t elect them. And even if we did, the executive branch doesn’t enact laws. Our representatives do. Who need to either do their job, or resign. How many more months are we going to allow one governor to rule our state under a State of Emergency? Our State Constitution specifically provides that it will never been suspended – even in a time of war. So why is it suspended?

I know, I know, I’m not allowed to have an opinion because I’m not an epidemiologist, virologist, or other profession which is about to increase in funding levels…. If medical professionals are never wrong, then why are medical mistakes, made by medical professionals, the third leading cause of death in the U.S., causing at least a quarter million deaths per year?


“People don’t just die from heart attacks and bacteria, they die from system-wide failings and poorly coordinated care,” says the study’s lead author, Dr. Martin Makary, a professor of surgery and health policy at Johns Hopkins University School of Medicine. “It’s medical care gone awry.”

The magnitude of the death toll – roughly 10 percent of U.S. deaths annually – is striking coming, as it does, in an era dominated by efforts to reform the health system to ensure safe, high quality, high-value medical care. Patient safety efforts have failed to gain much traction, Makary says, because there’s no systematic effort to study medical errors or to put effective safeguards in place.

“Throughout the world, medical error leading to patient death is an under-recognized epidemic,” Makary and his co-author, Dr. Michael Daniel, also of Johns Hopkins, write in Tuesday’s British Medical Journal. They define medical errors as lapses in judgment, skill or coordination of care; mistaken diagnoses; system failures that lead to patient deaths or the failure to rescue dying patients; and preventable complications of care.

https://www.usnews.com/news/articles/2016-05-03/medical-errors-are-third-leading-cause-of-death-in-the-us

See Medical Errors Are Third Leading Cause of Death in the U.S., US News Magazine, May 3, 2016. Are doctors infallible? Do doctors even know what the hell they’re talking about yet, based on actual empirical evidence about the COVID-19? No. For all we know, they could be guessing, or playing politics.

I’m not trying to knock doctors. I don’t do medical malpractice. My own father is an orthopedic surgeon, who has spent his life wearing masks, and also bathing in people’s blood (figuratively speaking, lol). But those were always new masks every time. He wasn’t walking around with one constantly, or driving around with one on. Nor organizing his life around it. Tell him about the new cases daily, and he’ll say: show me the death rate. The more you test, the more cases you’ll have.

If it’s really an epidemic, we’ll all get it at some point. Who among us has never had the flu? The most important part of the entire ordeal is, but yeah, did we die? Some will. But I also heard a story while in court this morning, about a guy who got his penis disintegrated in an electrical accident. Shit happens. We move on with our life. None of this is a reason (nor could there ever be a sufficient reason) to end the great experiment in freedom that is America. People have never been safer from death, nor more prosperous, in the entire history of the Earth.

In an obese, unhealthy state, as West Virginia is, why isn’t the Governor concerned with the almost 5,000 deaths per year in our state alone due to heart disease? I’m sure he could think of all sorts of executive orders which actually could help that problem, assuming it were legal for him to do so. He could be like Michael Bloomberg: No 32 ounce sodas (or “pop” as West Virginians generally call it); No more Mountain Dew (the pop, not the sweet nectar of mountain life) because it rots your teeth worse than the meth. Pepperoni rolls could have a mandatory minimum jail sentence. Would these restrictions save lives? Yes. We could have all Michelle Obama school lunches and Michael Bloomberg dinners, and it would no doubt save lives, in the context of heart disease prevention and treatment.

At some point, we’re going to have to say that enough is enough. I’m told that people are about to start getting fired, as well as getting arrested, based on the choice to not wear a mask. All based on the decision of the Governor. We’ll see what happens . . . .

Today’s New West Virginia Mandatory Mask “Law”

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:

https://thecivilrightslawyer.com/2020/07/01/update-on-the-lawsuit-against-the-west-virginia-governors-covid-executive-orders/

Update on the lawsuit against the West Virginia Governor’s COVID executive orders

The West Virginia Governor finally submitted his response to our Petition for Writ of Mandamus currently pending before the West Virginia Supreme Court, which challenges his COVID-19 executive orders, closing the state’s economy, among other things. Here’s our petition, if you haven’t read it:

Here is the response brief submitted on behalf of Gov. Justice:

At this point, the Court can now rule on the petition by issuing a written opinion, or can schedule oral arguments. Here’s my initial thoughts on the response. It was written by the Solicitor General under the West Virginia Attorney General, rather than by anyone actually in the Governor’s office, or hired by him. Thus, I think the takeaway from what I see here is a lackluster argument about procedure, rather than a position on the constitutional issues presented. It seems to me that what’s more important, is what went un-said, rather than what was said.

The Governor’s response doesn’t really contest the allegations that he’s acted beyond his constitutional limitations, but rather argues that it should be up to the legislature to stop him, rather than the judicial branch. If that’s the case, then what’s the point of having a judicial branch? It is exactly the purpose of the West Virginia Supreme Court to review questions regarding the extent of the Governor’s executive powers. While they argue that it should be submitted to a circuit court judge first, it would still go right back to the Supreme Court to be decided. It would just cause delay.

Again, reading between the lines here, my takeaway from their filing is, they sent an implicit message to the Court that, so long as they sufficiently address and decide the procedural questions, the Attorney General’s position is that there’s no substantive defense to the constitutional issues. Therefore, if the Court desires the case to go before a circuit court judge first, for some reason, then we can do that, and at some point the constitutional powers issues must still be addressed. I’d be more worried if I saw a convincing substantive argument about emergency powers and its interaction with the state constitution. But I didn’t see one.

As far as the procedural questions go, the response brief focuses on the legislature’s ability to use a supermajority to call itself into session. However, this is a red-herring. Whether or not the legislature is willing, or able, to do its job, or to reign in an out-of-control governor, is besides the point. Maybe they could do it if they had a supermajority. But that doesn’t have any bearing on the issue of the extent of the Governor’s executive powers. He either has the constitutional ability to do what he’s been doing; or he doesn’t. That’s like saying that President Trump can be dictator until Congress steps in to stop him. No. He can’t be a dictator, regardless of whatever Congress does, or doesn’t do. These two things are being conflated.

But all in all, I see the response as implicitly supportive on the underlying constitutional arguments. That being said, we’ll just have to wait and see what the Court does. The issues aren’t going away. If they want us to go to circuit court, we’ll go to circuit court. If they want us to serve pre-suit notice, even though it’s not required, we’ll do that and return. If we have to go to federal court to find relief….. we’ll go there. We will obtain judicial review.

From the day we filed:

A word of caution from a suspicious lawyer on PPP Loans

A word of caution from a suspicious lawyer . . . .So instead of downsizing our massive behemoth of government bureaucracy, Congress passed the CARES Act, establishing the so-called Paycheck Protection Program (PPP), which allows the SBA to guarantee 350 BILLION in loans to help small businesses. As of April 16, 2020, a total of 1,661,397 loans have been made through 4,975 lenders nationwide, eating up all the available money thus far.

Many businesses and investors believe they’re not going to have to pay back these loans. If you believe that, you don’t know government. But there’s way more at stake here than just being required to pay back a low interest loan. Way more. Expect the DOJ to turn their attention to small businesses in the very near future. They’re gonna “help” small business all right….

Take a look at the bill. It’s “Yuge.”

It’s gonna take more government officials to run this thing than would be necessary to run 10 or 12 third world countries. I’m skeptical about who’s paychecks are being protected here. But it’s not just the size of the program that gives me concern. More importantly, these loans have been rushed through, under the hysterics created by the government itself, as well as the media. What does one facing the apocalypse – basically, the scenario of riding motorcycles with spiked shoulder pads – represent on an emergency rushed bank loan application? Therein lies the question of the very near future.

Due to widespread shutdowns, we’re headed into an epic economic depression. That will be a depression for those of us in the private sector. At least at first. They can always take out more debt and print money. But that will collapse too without the forecast of an income stream of real money. The government will want its money from these PPP loans. The government always wants its money. Several quotes come to mind:

  • 1. “I’m from the government. I’m here to help.”
  • 2. “F*ck you, pay me.”
  • 3. “There’s no such thing as a free lunch.”

The False Claims Act (FCA) is a federal law which imposes liability on persons and companies (see “small businesses“) who defraud governmental programs. This law includes a qui tam provision that allows people who are non-government employees (see lawyers and law firms) called “relators” to file lawsuits on behalf of the government. There’s another name for this: “whistleblowers.” Under the FCA, the relators / whistleblowers receive a portion of any recovered damages – generally 15 to 30 percent. This is the basis or all these pharmaceutical lawyer commercials you see on TV. Those lawyers are gonna jump all over this. We need only look to the last “bailout” from Obama’s TARP program in 2008. Just in 2015 alone, the DOJ recovered over 3.5 BILLION in damages under the FCA. And that was the “fourth consecutive year” for such large damages recoveries, as the DOJ proudly announced. It’s an annual expected component of the budget at this point.

Legal experts who practice in the area of the FCA are already warning other lawyers to expect a heightened focus on individuals and small businesses now that these new loans have been made on such a rushed basis. The DOJ recently restated its “commitment to use the False Claims Act and other civil remedies to deter and redress fraud by individuals as well as corporations.”

And it’s not just the private lawyers. Do you think the mountain of lawyers and investigators at the DOJ are going to sit idly by and do nothing? No, they’re ready to get back to work. Remotely of course. In fact, they’ll need even more resources and employees in order to combat the coming fraud crisis you’ll hear about. “With a new national crises at hand, and an even bigger commitment of federal assistance to combat it, expect a plethora of federal and state agencies to join the effort to police recovery spending. Indeed, oversight mechanisms in the act go beyond establishing the special inspector general and include establishing a Pandemic Response Accountability Committee, which is also charged with oversight.” Id.  

Now that’s an acronym that ought to scare the hell out of anyone involved in the application of these loans. I can see that on the side of a van pulling up next to front doors in a Polish ghetto, looking for whatever is deemed verboten.It’s not just the applicants, but the bankers as well, and anyone else connected to the process, or the business. The FCA lawyers and the DOJ, using a theory of mere “false certification” of application information, can go after individuals, small businesses, and the lenders who participated in the program. All it takes is to show false information included in the laundry list of certifications in the applications, including, but not limited to:

  • the recipients must use the funds to retain 90% of their workforce;
  • the recipients must remain neutral in union-organizing efforts;
  • the uncertainty of economic conditions as of the date of the application makes the loan necessary to support ongoing business operations;
  • the recipient INTENDS to restore not less than 90% of its workforce and to restore all benefits to workers no later than 4 months after the termination of the health emergency;
  • the recipient is not a debtor in a bankruptcy proceeding;
  • the recipient will not pay dividends to stockholders.

What is “necessary” and who gets to determine what was “necessary?” And who gets to determine what the recipient “intended?” If the FBI can make General Flynn into a convicted felon just by asking their questions in a certain tricky way, what can they do to you? Not only that, but these applicants are also certifying to all other information provided in these applications. Just take a look:

Government doesn’t word things in such a way as to be concise and clear so that everybody’s on the same page. They word things in such a way so that, if they want to get you, they’ll get you:

Who’s angus is on the line? It’s not just the person who signs the application, but many other potential individuals within a “small business”:

Lastly, to go after you civilly, rather than criminally, under the FCA, the DOJ doesn’t have the usual constraints of the Bill of Rights and the standard of beyond a reasonable doubt. Instead, they only need to prove the civil standards of “deliberate indifference” and “reckless disregard.” You know, like what happens many times when you rush through an emergency apocalypse relief application. It’s just paperwork….

“If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.” – James Madison

New issues are presented on whether jail and prison inmates in (or from) West Virginia can/should be released due to COVID-19

We’ve been working hard in multiple cases to try to obtain the release of some non-violent jail and prison inmates who are currently stuck in their cells, having completed the bulk of their sentences for nonviolent offenses. Many of the facilities have stopped all academics and facility programming and just leaving people quarantined in their cells. (Update 4/30/20: Success! First one is out!)

Many of these same individuals have the ability to be self-sufficient in the outside world – even during this crises – rather than requiring prison staff to interact with them, feed them, and so on. Not to mention the requirement of we the taxpayers to fund the whole thing. Yet even with this global pandemic, West Virginia’s correctional facilities are still overcrowded, with more inmates incarcerated than there are “beds available.”

As of April 1, 2020, there were still 270 more prisoners incarcerated than available beds. Many of these prisoners, such as the ones we’ve been trying to help, are nonviolent offenders who’ve already served most of their sentence, who pose no real risk to public safety, and who could be assisting their own families at this time. Some of these individuals have underlying health issues which makes them especially vulnerable.

The West Virginia Division of Corrections has come up with a comprehensive plan to mitigate the likelihood of an outbreak in these facilities, but we’ve all heard about the issues at nursing homes in West Virginia, where our outbreak first started. Vulnerable individuals in institutions such as these are at “grave risk of severe illness or death from COVID-19,” and this includes vulnerable prisoners. See Joe Severino, Charleston Gazette-Mail, A WV Nursing Home Had 29 COVID-19 Cases. Here’s How they Contained the Spread (Mar. 31, 2020).

West Virginia recently passed legislation which was intended to address overcrowding, but which also would be perfectly suited to the COVID-19 threat. However, it doesn’t go in effect until June 5, 2020. In that legislation, the DOC is authorized to develop and approve home plans for certain qualifying inmates. This would help, but June is still some time away. In the meantime, inmates are most likely required to go back to their sentencing judge in the court/county in which they were sentenced. That’s what we’ve been doing.

In federal court, there’s a provision for an inmate to petition for what’s called a “compassionate release,” which would apply well to prisoners with an underlying health vulnerability. However, there’s a problem there as well. By law, they’re required to make an administrative request to the federal Bureau of Prisons first, prior to going to the sentencing judge.

Unfortunately, West Virginia doesn’t have an option for “compassionate release” just yet. But something needs to be done. So far, we’ve filed motions for reconsideration of a sentence under Rule 35(b) of the West Virginia Rules of Criminal Procedure. There’s a time limit of 120 days generally to file this, so most inmates are going to be beyond this number. However, there is an exception which allows a sentencing judge to waive the time limitation so long as it doesn’t “usurp the role of the parole board,” whatever that means. See, e.g., State v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). 

We finally have our first hearing coming up this week on a Rule 35 COVID motion. We do know that certain sentencing judges around the state have allowed some of their inmates an early release on bond or home confinement due to COVID-19, but at this point it’s entirely up to the discretion of the court, which means that everything is on a case-by-case basis.

In the federal system, there is a mechanism for release, and there’s a number of set factors for the court to address – also a case by case analysis. But again, there’s that requirement to exhaust administrative remedies from within the BOP first before filing.

So far the ACLU and Mountain State Justice have tried to take action on a multi-client basis and have been denied. Again, these are case-by-case fact-heavy situations which require going to the sentencing judge. In New Jersey, there’s already been a case up to the U.S. Court of Appeals for the Third Circuit on a “compassionate release” petition. (USA v. Raia) However, because they didn’t make the petition to the sentencing judge, and also because the inmate didn’t ask the BOP administratively first, it got sent back with no real decision.

On its own, the West Virginia DOC has already released about 70 parolees who were serving short terms for parole-related violations, and about 70 other work-release inmates on “extended furlough.” Who knows where we go from here, but as they say, “no asky, no gety….”

If you need help with an inmate who you believe is vulnerable medically, or who is a nonviolent offender who has served a substantial portion of their sentence, we would be happy to help. Give us a call. (304) 772-4999. We’re still working, though we’re having all consults via telephone or teleconference.