State ex rel. Justice v. King, No. 19-1132

• Decision Date: 20 November 2020
• Docket Number: No. 19-1132
• Parties: STATE OF WEST VIRGINIA EX REL. JAMES CONLEY JUSTICE, II, GOVERNOR OF THE STATE OF WEST VIRGINIA, Petitioner v. THE HONORABLE CHARLES E. KING, JR., JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA, AND G. ISAAC SPONAUGLE, III, Respondents
• Court: West Virginia Supreme Court

STATE OF WEST VIRGINIA EX REL. JAMES CONLEY JUSTICE, II,GOVERNOR OF THE STATE OF WEST VIRGINIA, Petitioner v. THE HONORABLE CHARLES E. KING, JR.,JUDGE OF THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA,AND G. ISAAC SPONAUGLE, III, Respondents

No. 19-1132

SUPREME COURT OF APPEALS OF WEST VIRGINIA

SEPTEMBER 2020 TERM

Submitted: October 14, 2020

November 20, 2020

PETITION FOR WRIT OF PROHIBITION

WRIT DENIED

Michael W. Carey

David R. Pogue

Carey, Scott, Douglas & Kessler, PLLC

Charleston, West Virginia

George J. Terwilliger, III

McGuire Woods LLP

Washington, District of Columbia

Attorneys for Petitioner

G. Isaac Sponaugle, III

SPONAUGLE & SPONAUGLE

ATTORNEYS AT LAW

Franklin, West Virginia

Attorney for Respondent ACTING CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case.

JUDGE BRIDGET COHEE, sitting by temporary assignment.

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.

JUSTICE HUTCHISON dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53-1-1." Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

2. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997).

3. "A writ of mandamus will not issue unless three elements coexist - (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus point 2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).

4. "Mandamus lies to require the discharge by a public officer of a nondiscretionary duty." Syllabus point 3, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va. 479, 153 S.E.2d 284 (1967).

5. "A non-discretionary or ministerial duty in the context of a mandamus action is one that is so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of its performance." Syllabus point 7, Nobles v. Duncil, 202 W. Va. 523, 505 S.E.2d 442 (1998).

6. For purposes of the residency provision located in Section 1 of Article VII of the West Virginia Constitution, "reside" means to live, primarily, at the seat of government; and requires that the executive official's principal place of physical presence is the seat of government for the duration of his or her term of office. Residency, once established, is not lost through temporary absence. Rather, the controlling factor of residency is the intent to return to that principal place of physical presence.

7. The duty of executive officers to reside at the seat of government, as required by Section 1 of Article VII of the West Virginia Constitution, is a mandatory, non-discretionary duty for which a writ of mandamus may lie to require compliance with that duty.Jenkins, Acting Chief Justice:

This Court is being asked to stop the Circuit Court of Kanawha County from enforcing a constitutional provision requiring the Governor of West Virginia to reside at the seat of government¹ during his or her term of office. Upon his inauguration, Petitioner, James Conley Justice, II, Governor of the State of West Virginia ("Governor Justice"), took an oath, in which he explicitly swore to "support the constitution" and to "faithfully discharge the duties of the office of Governor of the State of West Virginia." One of those duties that Governor Justice swore to uphold—a constitutional provision located at Section 1 of Article VII of the West Virginia Constitution—is a duty to "reside at the seat of government" during his term of office. However, Respondent, G. Isaac Sponaugle, III ("Mr. Sponaugle") alleges that Governor Justice is failing to uphold his constitutional duties because he refuses to comply with said provision.

This case was brought as a petition for a writ of prohibition² under the original jurisdiction of this Court by Governor Justice. Before this Court, Governor Justice challenges the circuit court's ruling,³ and contends that (1) the circuit court is withoutjurisdiction to issue a writ of mandamus⁴ compelling him to reside in Charleston under the political question doctrine and corresponding separation of powers principles; and (2) the remedy of mandamus is not available to compel the Governor of the State of West Virginia to reside in Charleston because the circuit court's order denying the motion to dismiss is clearly erroneous as a matter of law. Mr. Sponaugle asserts the circuit court does have jurisdiction and has not exceeded its legitimate powers. Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we find that the circuit court does have jurisdiction to issue a writ of mandamus, and that Governor Justice fails to meet the standard for issuance of a writ of prohibition. Therefore, we deny Governor Justice's request for prohibitory relief.

I.FACTUAL AND PROCEDURAL HISTORY

On June 18, 2018, Mr. Sponaugle⁵ filed a petition for writ of mandamus against Governor Justice asking the Circuit Court of Kanawha County to order Governor Justice to reside at the seat of government during his term of office pursuant to Section 1 of Article VII of the West Virginia Constitution. Due to Mr. Sponaugle's failure to complywith the pre-suit requirements of West Virginia Code § 55-17-3(a)(1) (eff. 2008), the petition was ultimately dismissed by the circuit court. After the dismissal of his petition by the circuit court, Mr. Sponaugle filed a petition for writ of mandamus before this Court, again seeking a writ directing Governor Justice to reside at the seat of government. This Court refused to issue a rule to show cause,⁶ and, therefore, the writ sought by Mr. Sponaugle was denied.

On December 11, 2018, Mr. Sponaugle returned to the Circuit Court of Kanawha County and once again filed a petition for writ of mandamus directing Governor Justice to reside in Charleston. In his petition, Mr. Sponaugle contended that Governor Justice has not spent more than a "handful of nights" at the Governor's Mansion or at any other residence located within the State's seat of government, i.e. Charleston, since becoming Governor of the State of West Virginia. According to Mr. Sponaugle, Governor Justice has made consistent and repeated public remarks that he has not, is not, and will not reside in Charleston. Moreover, Mr. Sponaugle claimed that Governor Justice's failure to reside in Charleston has negatively impacted the efficient operations of state government.

In response, on February 19, 2019, Governor Justice filed a motion to dismiss the petition for writ of mandamus and argued that (1) mandamus cannot be employed to prescribe the manner in which a government official shall act; (2) a writ prescribing the amount of time the governor must spend in Charleston is contrary to the political question doctrine and corresponding separation of powers principles; (3) mandamus is not available to compel a general course of conduct; and (4) other adequate and more appropriate remedies exist.

By order dated July 17, 2019, the circuit court denied Governor Justice's motion to dismiss. In doing so, the circuit court ruled that mandamus is available to compel Governor Justice to comply with the constitutional provision. However, the circuit court's order did not contain findings of fact or conclusions of law to support its decision. Thereafter, on July 29, 2019, Governor Justice filed a motion requesting that the circuit court certify questions to this Court and to stay all further proceedings. In the alternative, Governor Justice asked the circuit court to enter an order setting forth findings of fact and conclusions of law in support of its decision to deny his motion to dismiss. Governor Justice stated that if the circuit court declined to certify questions, he intended to file a petition for writ of prohibition with this Court.

On October 21, 2019, the circuit court entered an order denying the motion to certify questions and granting the motion to stay further proceedings. Additionally, in the same order, the circuit court granted Governor Justice's motion for entry of an ordercontaining findings of fact and conclusions of law in support of its denial of the motion to dismiss. However, the circuit court stopped short of making a determination as to whether the duty to reside is a discretionary or non-discretionary duty. After this order was entered, Governor Justice filed the...