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Justice Hutchison weighs in with dissenting opinion on Governor residency lawsuit

The West Virginia Governor’s Mansion in Charleston experiences the first snow of the season. (Photo by Steven Allen Adams)

CHARLESTON — While the majority of the West Virginia Supreme Court of Appeals ruled against a motion to dismiss a case accusing Gov. Jim Justice of violating the state constitution by not living in Charleston, a justice appointed by the governor had differing opinions.

Justice John Hutchison, appointed by Justice nearly two years ago to replace the federally convicted justice Allen Loughry, penned a dissent Nov. 24 to the opinion of the majority of the court issued Nov. 20.

The opinion, written by incoming chief justice Evan Jenkins, denied a motion for a writ of prohibition sought by Justice attorneys Mike Carey and George Terwilliger after a Kanawha County judge ruled against a motion to dismiss a writ of mandamus case brought by Del. Isaac Sponaugle, D-Pendleton, asking the court to require Justice to follow the Constitution and live in Charleston.

Taking issue with the majority opinion, Hutchison said the court needs to consider the time when the state constitution was written, which states that the governor and other elected members of the Board of Public Works “shall reside at the seat of government during their terms of office …”

“The majority opinion is a well-written exposition on the 1863 and 1872 Constitutional debates. The founders of West Virginia believed every governor ‘must remove to the seat of government’ and ‘live … at the capital so we may at least find him,'” Hutchison wrote.

“But the statements made in those debates must be taken with a grain of salt,” Hutchison continued. “In the same passages of the debates quoted by the majority opinion, the founders debated whether the governor should be furnished with ‘a horse and buggy[.]’ I doubt the founders conceived of the notion that a governor would someday be able to travel to all four corners of the state in a single day by car or plane.”

Hutchison joined Justice Margaret Workman, who wrote a concurring opinion, in criticizing the majority for attempting to define the term “reside.” Jenkins wrote the “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.”

“The majority opinion does a great job concluding that the word ‘reside’ means ‘reside,’ and then dumps the case back on the circuit judge to figure out what ‘reside’ really means on the facts of this case,” Hutchison wrote. “I dissent because, for all the sound and fury and righteous indignation embodied within the majority opinion, I cannot foresee a satisfactory end result forthcoming from the circuit court. The question I had running through my mind when I read the opinion is simple: How does this end?”

At the heart of Hutchison’s dissent was concern over the separation of powers between the executive and legislative branches. Specifically, Hutchison is concerned how a circuit court would be able to monitor the governor to determine whether he is in compliance with the state constitution.

“The possibilities for the circuit court are both endless and absurd,” Hutchison wrote. “What if the governor announces that he will reside in the Governor’s Mansion, the ‘official residence’ in Charleston? Then he keeps two suits and two pairs of underwear there and loudly declares his intent to return to the Mansion because ‘it is my residence.’ Is that sufficient? Can the circuit judge say, no, the Governor needs at least four suits and four pairs of underwear stored at the Mansion to show he is residing there at least four days a week?”

While he called Sponaugle’s lawsuit against Justice “well-intentioned,” Hutchison said Sponaugle is trying to use the courts to make a political point instead of a legal point.

“… We aren’t in a political arena; we are in a courtroom. And the point Mr. Sponaugle is trying to score is purely a political one,” Hutchison wrote. “His challenge is not to the Governor’s residency; it is to the decisions the Governor has made about how he runs his office. Mr. Sponaugle’s argument conflates residency with efficient executive management.”

Hutchison was appointed by Justice Dec. 12, 2018, to fill the seat vacated by Loughry, who was convicted in federal court of 11 counts, including mail fraud, wire fraud, witness tampering and making false statements to investigators. A former Raleigh County Circuit Court judge, Hutchison was first appointed to the circuit court bench in 1995 by former governor Gaston Caperton, winning election in 1996.

During the June 9 primary election, Hutchison won a three-person race to fill the remainder of Loughry’s 12-year term. Hutchison carried 39.2 percent of the vote, or 141,176 votes. Hutchison will be up for a full 12-year term in 2024.

Hutchison was selected by his fellow justices to be chief justice in 2022 following Jenkin’s term. The chief justice position rotates annually between each justice. Hutchison, incoming chief justice Jenkins, and outgoing Chief Justice Tim Armstead were all appointed by Justice. Armstead recused himself from the Justice residency case, replaced by Berkeley County Circuit Judge Bridget Cohee.

The residency case will return to Kanawha County Circuit Judge Charles King.

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