West Virginia files motion to dismiss Capitol mural lawsuit
This photo provided by the West Virginia Legislature shows Gov. Jim Justice's English bulldog, Babydog, depicted in this zoomed-in shot of a new mural unveiled at the West Virginia Capitol in Charleston. (Perry Bennett/West Virginia Legislature via AP)
CHARLESTON — An attorney representing the West Virginia Department of Arts, Culture and History said a lawsuit filed in August to stop a mural project at the State Capitol Building is meritless and political. Michael Hissam, an attorney with Hissam Forman Donovan Ritchie PLLC, filed a motion Thursday seeking dismissal of a lawsuit brought by Harvey Peyton, an attorney representing West Virginia residents Gregory Morris and Tom Acosta. Morris and Acosta filed suit in August in Kanawha County Circuit Court asking the court to declare a contract for murals for the State Capitol Building’s upper rotunda between West Virginia Department of Arts, Culture and History and Connecticut-based John Canning and Co. null and void. Peyton is seeking an order directing the Department of Administration’s General Services Division to remove the murals and prohibit any further work, prohibit any further payments to Canning and require Arts, Culture and History Secretary Randall Reid-Smith and Canning to repay the state, as well as any attorney fees. “This case … is nothing more than an attention-seeking lawsuit by individuals alleging only speculative harm who now want to drag the Judiciary into a self-created political circus,” Hissam wrote. “Lest this Court become the forum for political quarreling over the details of public art already installed at the State Capitol – for which this Court would be the arbiter of what art is appropriate – this Court should dismiss the Complaint and leave that debate for the People’s representatives in the Legislature and the Executive branch,” Hissam continued. Workers with John Canning are finishing work on the remaining four murals and an eight-mural project first publicly announced by the Governor’s Office in April. The first four murals, completed in time for West Virginia Day on June 20, came under scrutiny due to the last-minute decision by a handful of cabinet officials and staff of Gov. Jim Justice to include a dog in one of the murals similar to Justice’s famed English bulldog, Babydog. Peyton filed a 30-day notice of intent to sue the state in July on behalf of Morris and Acosta, who filed their lawsuit on Aug. 30. Dave Hardy, Justice’s former Department of Revenue cabinet secretary before being appointed by Justice as a circuit judge in Kanawha County last year, is the judge on the case. The lawsuit names Reid-Smith in his roles as cabinet secretary and chairman of the Capitol Building Commission, which approves major changes to the grounds and buildings that make up the State Capitol Complex. The lawsuit also includes members of an informal committee that signed off on the final renditions of the murals, contractor John Canning and Co., acting Department of Administration Secretary Jon McHugh and state Treasurer Riley Moore. The first four murals in the half-moon lunettes in the upper rotunda depict historic Harper’s Ferry and the John Brown fort; the battle of Philippi during the Civil War; an allegorical scene based on the state seal; and artists, musicians and wildlife at the base of Seneca Rocks. The murals are supposed to be based on ideas and concepts that famed Capitol architect Cass Gilbert had wanted to include in the building but was unable to due to costs during the start of the Great Depression. “The Great Depression scuttled Gilbert’s artistic vision when funds were unavailable to complete the artworks and other elements in his design,” Hissam wrote. “Gilbert nevertheless left a written record that these features should be completed when funds allowed. Sadly, our Capitol’s rotunda has been bereft for nearly a century of the beautiful artworks Gilbert intended, containing instead only blank painted panels.” The artist selection process for the murals was first approved on April 14, 2010, by the Capitol Building Commission. Multiple companies participated in the pre-bid process at the time, including Canning, but the project was scrapped due to lack of funding. Reid-Smith revived the project as early as 2019, using the 2010 vote by the Capitol Building Commission to move forward. At no time did the Capitol Building Commission vote between 2019 and the time scaffolding went up in April 2024 to re-start the project, and the commission was not consulted on the look of the murals previously. However, the Capitol Building Commission did vote 4-1 on Oct. 16 to approve the ratification of the Capitol mural project after the fact. The project is slated to cost more than $509,000, according to the purchase order agreement. According to the state Purchasing Division, the project was not put out for competitive bid, citing Section 9 of the Purchasing Division Procedures Handbook’s “impossible-to-bid list,” which includes artwork and historical items. Peyton alleged that when the project was revived in 2019, Reid-Smith and John Canning engaged in a “civil conspiracy” to avoid doing a new bid process. But Hissam argued that Morris and Acosta have no standing to bring a lawsuit against the project and can’t claim a civil conspiracy. Hissam also argued that the lawsuit was moot now that the Capitol Building Commission has approved of the project and the lawsuit should have raised issues sooner with the selection of Canning as the project vendor. “Like all other citizens with no particularized legal stake in this political quarrel over what should be displayed as public art, Plaintiffs should make their criticisms using the First Amendment – not drag the Judiciary into the business of deciding the content of public art in the State Capitol,” Hissam wrote. “They slumbered on their rights, waiting until the media attention arose following the completion and public display of the State Capitol murals,” Hissam continued. “It would be the height of prejudice to (Reid-Smith) and other Defendants to require them to scrape away the murals and redo the entire project after Plaintiffs rested on their rights instead of seeking to enforce them.” Steven Allen Adams can be reached at sadams@newsandsentinel.com.