Legislative leaders are seeking an advisory opinion from Attorney General Patrick Morrisey regarding COVID-19 mandates. (Photo by Steven Allen Adams)

CHARLESTON — As COVID-19 cases and hospitalizations increase in West Virginia, some are calling for a special session to ban vaccine mandates and vaccine passports, and legislative leaders are seeking guidance from the state’s top attorney, a mandate skeptic.

House Speaker Roger Hanshaw, R-Clay, and Senate President Craig Blair, R-Berkeley, sent a letter to Attorney General Patrick Morrisey on Aug. 27 seeking an advisory opinion regarding several kinds of mandates in place in other states to mitigate the spread of COVID-19 and its more-contagious delta variant.

“As you know, there has been an increasing amount of public discussion of late regarding the policies of mandatory vaccinations and vaccination passports,” Blair and Hanshaw wrote. “Your timely written opinion as to the applicability of these policies, the interplay between the West Virginia Constitution and other relevant provisions of state law, would be greatly appreciated.”

Blair and Hanshaw asked Morrisey to determine whether the state Constitution prohibits mandating public employees get vaccinated, whether the Constitution or state law prohibits requiring “vaccine passports” or proof of vaccination to enter public or private establishments and whether the Constitution or state law prohibits private organizations and businesses from implementing vaccine mandates or whether the state had the legal authority to prevent organizations and businesses from requiring these mandates.

“Other jurisdictions have taken various approaches to these issues,” Blair and Hanshaw wrote. “With the quickening spread of the COVID-19 delta variant, it would be extremely helpful to better understand how such policies may implicate the West Virginia Constitution and W.Va. Code 15-5-6, which as you know provide extremely broad latitude to the executive branch during a declared state of emergency.”

Curtis Johnson, a spokesperson for Morrisey, said the Attorney General’s Office is in receipt of the letter and is carefully reviewing it.

But public statements on Morrisey’s Facebook page show that Morrisey is publicly against the idea of vaccine passports and other mandates, publicly challenging the Legislature to meet to block mandates.

“I’m counting heads as to who opposes my proposal to prohibit requiring imposition of a vaccine passport on West Virginians,” Morrisey wrote last Thursday on his Facebook page. “I’ve been told this is being bottled up by leadership. I am asking that leadership to show itself and speak out on this issue. Let’s get to the bottom of this and come clean on this issue. I serve as the chief legal officer of West Virginia and advocate for freedom. Can we not get every Delegate and Senate behind us now? Who stands with us?”

“Calling on the West Virginia Legislature to act and come together to fight as these mandates arise,” Morrisey said in a separate post the same day. “We need to act based upon science and not bureaucratic fiats. Calling on the West Virginia Senate and the West Virginia House to act and ensure that the correct public health and constitutional instincts prevail.”

House Minority Whip Shawn Fluharty, D-Ohio, praised Blair and Hanshaw for asking for the advisory opinion after being called out by Morrisey. He also praised Gov. Jim Justice, calling the three the “adults in the room.”

“Hanshaw, Blair, and Justice are being the adults in the room, versus Morrisey and the fringe pocket,” Fluharty said. “When you see our Attorney General and the fringe that follow him with their late-night Twitter thumbs and conspiracy theories that are, quite honestly, costing people’s lives in the State of West Virginia, the response by our Senate president and our speaker was the right response in essentially calling the bluff of our Attorney General.”

Some lawmakers have openly called for either Gov. Jim Justice to call a special session or for lawmakers to call themselves into special session. Delegate Roger Conley, R-Wood, and Sen. Mike Azinger, R-Wood, held a rally in Parkersburg on Monday calling for a special session to pass bans on vaccine and mask mandates.

Other lawmakers have written letters calling for a special session. According to a spokesperson, the Governor’s Office has received seven letters from Republican lawmakers to date, while representatives of the House and Senate clerks’ offices confirmed receiving three letters. Letter writers include House Majority Leader Amy Summers, R-Taylor; Delegate Evan Worrell, R-Cabell; Delegate Joe Jeffries, R-Putnam; Conley; Delegate Phil Mallow, R-Marion; Delegate Marty Gearheart, R-Mercer; Delegate Margitta Mazzocchi, R-Logan; and Sen. Randy Smith, R-Tucker.

It takes three-fifths of members in both the House and Senate to call themselves into special session, or 60 members of the House and 20 members of the Senate. With a supermajority of 23 out of 34 senators and 78 out of 100 House members, Republicans have the numbers to call themselves into special session. When asked Monday, Justice did not indicate a desire for heeding calls for a special session, saying lawmakers could call themselves in if they choose.

Fluharty doesn’t believe enough Republicans will support a special session, accusing those who are loudly calling for a special session of spreading misinformation to please extreme members of the base.

“They’re willing to peddle misinformation and spread it faster than COVID spreads in this state, and they do it for political gain,” Fluharty said. “I don’t think we’ll see a special session, and these politicians know full well that is not going to happen. They have a supermajority, so let’s go in there and have a special session, but we know at the end of the day the adults in the room who are the real leaders of the party are going to have the final say.”

“The facts are clear,” Fluharty continued. “Our medical professionals are clear. I stand with our medical professionals, our doctors, our nurses on the frontlines who are saying ‘get the vaccine and save lives.'”

Steven Allen Adams can be reached at sadams@newsandsentinel.com.