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.SeeState 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
This is the end of the line for the petition for a writ of mandamus. It will be up to my clients, but we could seek injunctive relief from a state circuit court. Of course that will end up back at the Supreme Court either way it goes.
I’ll keep my glass half full and assume that they only denied it because they want us to take it to a trial court first, so they can rule on an appeal of a circuit court judge, rather than in the context of an original jurisdiction writ of mandamus. I’m looking at federal options as well on behalf of some private businesses who were victimized by this tyranny.
West Virginia’s Governor (who was elected as a Democrat but who switched parties during an awkward speech at a Trump rally) “shut down” our State’s economy, citing his statutory powers to declare a “State of Emergency.” In each one of his ensuing executive orders mandating that private businesses close and cease operations, he cited the only “emergency powers” his lawyers could find available to him in the West Virginia Code. This is to control ingress and egress (coming and going) from a disaster area, as well as the power to control or restrict the travel and occupancy of people within that disaster area.
Anyone with common sense knows that this ingress/egress language refers to physical disasters, such as floods, mudslides, fires, earthquakes, etc., where you may have trees in the road, flooded roads, forest fires, and so on. No sensible person would dispute that the executive agencies of the state would be best suited to direct such things. But what he’s done in response to COVID-19 is to greatly expand his interpretation of that language to allow him to fill the roll of a temporary dictator. Who could have known that it would be so easy? All he had to do was to declare the entire State a “disaster area” and just control every aspect of it, citing the ability to control “ingress and egress,” etc., within a disaster area.
Take a look at Summers County – right next door to me. Two (2) total cases since it was declared a disaster area four (4) months ago:
Or my county – Monroe County – as of today. Fourteen (14) total cases since the “State of Emergency” began four (4) months ago. Zero (0) deaths. Twelve (12) have recovered. Three (3) current active cases. So three people have it currently, that they know of; nobody’s died; yet the other fourteen thousands or so people have to get used to the “new normal” of post-apocalyptic life. We’ve already been warned by the health experts, our new czars, that we could be wearing masks for years.
There are many more counties like these. How can such a county possibly be considered a disaster area, to which the government needs to control who is coming, going, or occupying the area? To get around this flawed logic, the Governor’s lawyers have alleged that disaster in these areas is imminent or anticipated. As Bulldog from the TV show Frasier would say, “that’s BS, total BS….”
If you actually look at the real statistics provided by the State, it shows that West Virginia’s COVID-19 “disaster” is nominal compared even to nearby states. Our case fatality rate is way lower; our percentage of population which tested positive is way, way, way lower; our percentage of positive tests number is also way, way, way lower. And look at the percentage of the population tested: West Virginia has tested more of its population than the others.
Why the hysterics and the theater from the Governor? Is he scared for his own safety because his health is so bad, that he would punish the rest of us in his own fear? Given that his personal resort, The Greenbrier, which caters to wealthy out-of-staters (from “hotspots”) is currently as busy as ever with guests walking around inside without masks, and given the fact that they are having a world tennis championship there this weekend, I doubt it. It’s more likely, in my opinion, that it’s nothing more than a power grab, similar to other state governors around the country.
The people never give up their liberties but under some delusion.
– Edmund Burke
Getting back to the point, let’s say that a disaster is imminent. A hurricane is coming, for instance; or an out-of-control fire is quickly closing in. Nobody would argue that the executive branch of State government should prepare for what is to come – obviously. But fast-forward four months later and no hurricane, flood, fire, or earthquake has every materialized? In such a situation does the Governor just get to continue to claim that every county in the State is a disaster zone? Does he get to close barber shops in both the northern panhandle, where there was a viral “hotspot,” and also a barber shop in a small county at the other end of the state where there has never been a problem? What if there’s no due process involved? No way to challenge it? All in the absence of authorization or participation by the State’s elected two-house legislature, which is supposed to be the voice and representation of the people?
It’s a poignant time to remember that the entire reason our country exists is because American colonists sought economic freedom from the tyranny and oppression of the British government. The colonies grew rich during the French and Indian War. Land prices were high, and both money and credit were abundant. Following the war, however, the money supply was restricted, as England sought to recoup its debts incurred during the war. Interest rates rose and real estate mortgages skyrocketed. Instead of helping, the British government made things worse, suing the colonies to alleviate its own economic problems, instead of assisting the American colonists.
You’ve heard the term, “no taxation without representation.” Well it was created long before the first Prius had a Washington D.C. license plate installed. It was the entire reason, in a nut shell, that the American Revolution was fought. Being a colony, despite being occupied by English citizens, the colonists had no representation in England’s Parliament. Parliament, along with King George, III, enacted legislation throughout the 18th century, which took a slice of the colonies’ profits. Being government, they took more and more until they encountered resistance.
In 1733, the Importation Act was passed, which required all colonial exports to be sent to England first, and in British ships. This deprived American businesses of the large majority of the world market for their lucrative products, and enriched the British establishment for reasons which provided no benefit to the colonies. The Act also created heavy duties on sugar, molasses, and rum. In 1750, Parliament declared that the Americans were not allowed to manufacture steel, so as to compete with British steel factories. They also tried to forbid Americans from harvesting pine trees, from what was a seemingly endless supply of wood (which was not so endless in Europe).
In 1761, Parliament passed a law authorizing customs officers to forcibly enter businesses and search for smuggled goods. A legal challenge ensued in the courts. During the trial, James Otis, a Boston patriot, stated, “Taxation without representation is tyranny.” Remember: these are British citizens/subjects. This was not a foreign country. Yet they’re receiving unfair restrictions, while at the same time being prevented from having representation in Parliament.
In 1764, King George III’s ministry declared that Parliament had the right to (1) tax the colonies directly; (2) to tax the colonies indirectly; (3) to restrict the products which the colonies could manufacture; (4) to regulate the commerce of the colonies; (5) to break into houses in search of smuggled goods; and (6) to quarter troops among the colonists without their consent.
In 1765, Parliament passed The Stamp Act, which imposed a direct tax on the American colonies, requiring that many printed materials utilize paper produced in London, which carried an embossed stamp. This included newspapers and all legal documents, among many other things. Americans responded with a boycott. The Act was repealed in 1766. But then Parliament respondent with the Declaratory Act, a new series of taxes and regulations. Its main purpose was to illustrate to the colonists, that Parliament could, and would, do as it wanted, and that the colonists would not have direct representation in their decisions.
In 1767-68, Parliament passed the Townshend Acts, which were a series of laws designed to raise revenue in the colonies, enforcing compliance with trade restrictions, punishing New York for failing to quarter troops, and otherwise asserting the absolute right to directly tax the colonies without representation. Many patriots resisted, both physically and through boycotts. In 1770, this led to the Boston Massacre.
In 1770, most of the taxes from the Townshend Acts were repealed, except for the import duty on tea, which was kept in place for the purpose of demonstrating the subservient nature of the colonies vs. the British government itself. As you’ve probably heard, this didn’t end well, leading to the Boston Tea Party in 1773, and thereafter, the “Intolerable Acts” – more laws enacted without representation, which were passed for the sole purpose of punishing Boston for the Boston Tea Party.
In the Declaration of Independence, the Americans asserted 27 grievances against England, including the creation of taxes and economic restrictions without representation in Parliament. Also included in the grievances was the fact that many of the colonies attempted to enact legislation outlawing or restricting slavery. Virginia attempted to outlaw slavery in 1763. However, every time they tried, they were vetoed by the Board of Trade, the Secretary of State, and King George, III. Also contained in the grievances were complaints about the failure to provide fair trials, a fair judicial system, the failure to allow for legitimate colonial legislatures to exist, and the quartering of British troops in American homes. You see many, if not most of these grievances find their way into the U.S. Constitution, which would be ratified 15 or so years later, after many lives were lost to gain the freedom to ratify it.
Why is it important to resist living under the rule of a one-man State government? Even if you think he’s done a good job, which many people do, the bigger picture is the absolute necessity of preserving our rights and liberty under our constitutions. Once you allow one governor a pass to play dictator, you must by circumstance allow the next. And you might not like that, nor his choices. But it would be too late.
A Constitution of Government once changed from freedom, can never be restored. Liberty once lost is lost forever.
– John Adams
Like Thomas Jefferson basically said, freedom is scary. We can’t allow our freedom to end where the fears of Karen/Ken begin.
Timid men . . . prefer the calm of despotism to the boisterous sea of liberty.
– Thomas Jefferson (April 24, 1796)
We must follow the rules. Our two respective constitutions – the U.S. and the State – are the rules. And of the two, the State Constitution is much more simple and clear on this topic. The two house of the legislature enacts laws, and the governor enforces them. There is a distinct separation of powers. If the Governor tries to enact a law by himself, that violates the separation of powers. Not even the legislature can authorize him to do so. At least not without amending the State Constitution.
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?
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?
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.
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 . . . .
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.
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.
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.
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:
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:
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.
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….
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
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.