Here is an order we just received a few moments ago from the West Virginia Supreme Court of Appeals granting our motion for expedited relief in the Delegate District 19 Case and ordering the Governor to show cause as to why our Writ of Mandamus should not be granted. The Court set the matter for oral arguments on February 9, 2021 at 2:00 p.m., in person. They also ordered the Governor to respond by February 1 and ordered that:
The issuance of this rule to show cause stays any and all legislative action by any person appointed by the respondent to the West Virginia House of Delegates to fill the vacancy created by the resignation of the delegate from the 19th Delegate District until final resolution of this matter.
The scary new world we find ourselves in is nothing new. The similarities to one of the worst periods in world history is compelling.
“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”
[Special Message to the Congress on the Internal Security of the United States, August 8, 1950]” ― Harry S. Truman
As the Nazis worked to consolidate their power and build a cohesive “national community,” suppression of dissent played a key role. In 1933, the Nazis issued a decree that required Germans to turn in anyone who spoke against the party, its leaders, or the government.
That decree, “For the Defense against Malicious Attacks against the Government,” stated:
1. Whoever purposely makes or circulates a statement of a factual nature which is untrue or grossly exaggerated or which may seriously harm the welfare of the Reich or of a state, or the reputation of the National government or of a state government or of parties or organizations supporting these governments, is to be punished, provided that no more severe punishment is decreed in other regulations, with imprisonment of up to two years and, if he makes or spreads the statement publicly, with imprisonment of not less than three months.
2. If serious damage to the Reich or a state has resulted from this deed, penal servitude may be imposed.
3. Whoever commits an act through negligence will be punished with imprisonment of up to three months, or by a fine.
In December 1934, the government replaced the decree with the “Law against Malicious Attacks on State and Party,” adding a clause that criminalized “malicious, rabble-rousing remarks or those indicating a base mentality” against the Nazi Party or high-ranking government or party officials.
While the Nazis were focusing on putting Germans back to work in the midst of the Great Depression, they also unleashed attacks on their political opposition as soon as Hitler became chancellor. On the evening of February 27, 1933, alarms suddenly rang out in the Reichstag as fire destroyed the building’s main chamber.
Within 20 minutes, Hitler was on the scene to declare: “This is a God-given signal! If this fire, as I believe, turns out to be the handiwork of Communists, then there is nothing that shall stop us now from crushing out this murderous pest with an iron fist.” Marinus van der Lubbe was the man the Nazis captured that night. He confessed to setting the building ablaze but repeatedly insisted that he had acted alone. Adolf Hitler paid no attention to the confession. He saw a chance to get rid of what he considered the Nazis’ most immediate rival—the Communists—so he ordered the arrest of anyone with ties to the Communist Party.
Within days, the Nazis had thrown 4,000 Communists and their leaders into hastily created prisons and concentration camps. By the end of March, 20,000 Communists had been arrested, and by the end of that summer more than 100,000 Communists, Social Democrats, union officials, and other “radicals” were imprisoned. Were any of them responsible for the fire? The question was irrelevant to the Nazis. They had been given an opportunity to get rid of their enemies, and they took it.
The day after the fire, February 28, 1933, President Hindenburg, at Hitler’s urging, issued two emergency decrees designed to make such arrests legal, even those that had already taken place. Their titles—“For the Defense of Nation and State” and “To Combat Treason against the German Nation and Treasonable Activities”—reveal how Hitler used the fire to further his own goals. The two decrees suspended, until further notice, every part of the constitution that protected personal freedoms. The Nazis claimed that the decrees were necessary to protect the nation from the “Communist menace.”
Still under Nazi control, the Reichstag passed a new law on March 21, 1933, that made it a crime to speak out against the new government or criticize its leaders. Known as the Malicious Practices Act, the law made even the smallest expression of dissent a crime. Those who were accused of “gossiping” or “making fun” of government officials could be arrested and sent to prison or a concentration camp.
Then, on March 24, 1933, the Reichstag passed what became known as the Enabling Act by a vote of 141 to 94. It “enabled” the chancellor of Germany to punish anyone he considered an “enemy of the state.” The act allowed “laws passed by the government” to override the constitution. Only the 94 Social Democrats voted against the law. Most of the other deputies who opposed it were in hiding, in prison, or in exile.
Then, in June, Hitler outlawed the Social Democratic Party. The German Nationalist Party, which was part of Hitler’s coalition government, dissolved after its deputies were told to resign or become the next target. By the end of the month, German concentration camps held 27,000 people.
By mid-July, the Nazi Party was the only political party allowed in the country. Other organizations were also brought into line. As historian William Sheridan Allen has put it, “Whenever two or three were gathered, the Führer would also be present.”
Here is the petition for Writ of Mandamus we filed this morning with the West Virginia Supreme Court of Appeals, asking them to force the West Virginia Governor to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the vacancy in the legislature left by the resignation of Del. Derrick Evans:
Basically, the State Republican party has usurped the powers and authority of the Wayne County Republican voters, by attempting to take away their authority to choose a list of three qualified candidates to present to the Governor to fill the empty seat in the House of Delegates following the January 9 resignation of Del. Derrick Evans.
The Governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list. Instead the new Acting Chair of the West Virginia Republican Executive Committee took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County. The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.
Why is this important? Wayne County hasn’t had a Republican delegate in 100 years. Now that they’ve got one, the Governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign. Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the Governor. This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.
You may have seen in the national news, and on social media, that the Superintendent of Jefferson County Schools, in Jefferson County, West Virginia, decided to come after school employees who attended the Trump Rally on January 6, 2020. At least two employees, both long-time school bus drivers, who attended the rally, and who never entered any prohibited areas near the Capitol, never witnessed violence, never participated in violence, destruction of property, trespassing, etc., were suspended on January 8, 2020, and remain suspended as of this time.
This afternoon we filed a federal Section 1983 civil rights lawsuit against the Superintendent, individually, for money damages. Here’s the filing:
This is a blatant attack on the core of the First Amendment: the right to assemble and protest in a traditional forum of public speech, such as the U.S. Capitol. These clients did not pass into any prohibited area that day. They committed no crime while in Washington D.C. They’re exercise of free speech had absolutely nothing to do with their employment as school bus drivers for Jefferson County Schools. They just so happened to have a political activist superintendent.
Enough of the false information about West Virginia Delegate Derrick Evans and his presence at the Capitol protest. Things aren’t always what they seem. Also, the media doesn’t always tell you the whole story. Here’s what really happened:
As promised, tonight – Monday evening – at 6:30pm eastern, don’t miss my live cast video, an episode of Freedom is Scary. Available at this link, on Youtube, and on our Facebook page as well. Join the live chat and bring your comments/questions.
Here is the Governor’s response to our Emergency Motion for Temporary Restraining Order and Preliminary Injunction, which is set for hearing in federal court on Monday morning. It was just filed last night, and I’m working on filing a reply, which is due by this afternoon.
You’ll notice that they argue that the Governor’s words are meaningless – that only his actual written executive orders should be reviewed, according to his lawyers. Throughout the response they mention that the Governor is utilizing some vague concept of executive emergency power. However, there is no such thing. They essentially argue that there is nothing the federal judiciary can do to stop him. We’ll see……
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.
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.
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.
The Civil Rights Lawyer’s analysis of the absolutely savage questioning of Andrew McCabe by Sen. Ted Cruz on Tuesday. McCabe is the former deputy director of the FBI, recently fired following an inspector general’s investigation. He completely embarrasses himself and the DOJ. Top men. Top men. Cruz, on the other hand, has a pretty good performance. It’s harder than it looks.
Join me for Episode No. 26 of FREEDOM IS SCARY, live. Constitutional law, liberty and justice, LIVE on both Youtube and Facebook, tonight at 6PM Eastern.
Post 2020 Election legal analysis, constitutional law and civil rights law Q&A, feelz, predictions , conspiracy theories, pending cases, and also why West Virginia is a great place to be. Submit your comments, questions and observations in the live chat.