Short version. The West Virginia Constitution requires that the Governor, along with certain other elected officials, “reside” in Charleston during their terms in office. Gov. Justice is indisputably not doing that. He is living at his home in Lewisburg about an hour away, working from home most days, and arguably not in his office as much as he should be.
A member of the House of Delegates has asked a circuit judge to compel the Governor to live in Charleston. For the reasons in the linked article, I think it is a non justiciable political question. If the Legislature cares so much about it, impeach and remove him from office.
If a court would get involved it could cause a constitutional crises and a separation of powers issue. What say you?
Obviously a law that was written long before the 21st century, intended to make it so the Governor and other important executive officers would be close by and available, a notion that is essentially obsolete today. There is little to no practical reason the Governor needs to be physically in the state capital city. As long as he’s still somewhere within the state of West Virginia, I don’t really see any real problem.
I suspect there’s some other beef going on, and this is just where Sponaugle knows he can score some easy points, however pointless they may be.
But still it is part of the Constitution ,even if obsolete, and the Governor has sworn to uphold it.
The judge made some good points, though. How many nights does he have to sleep in Charleston per week? Can he go home, er, to Lewisburg on weekends or must he never leave Charleston? What if he sleeps in Charleston but keeps a second office in Lewisburg?
There is simply no way to police this other than if the Legislature thinks it is an issue, the impeachment or censure.
I was thinking along those lines, too. Unless the constitution makes it clear, it’s should be up to the legislature to define what “reside” means. Unless the legislature does that, I don’t consider it the judiciary’s responsibility to tell the governor how many nights he has to sleep in Charleston. The Governor has a compelling reason to travel around the state anyway.
And what would the remedy be if the Governor refuses? Is the judiciary going to remove him from office? Fine him? Throw him in jail? Would the jail have to be in Charleston?
Agreed. Further, the common definition of “reside” has nothing to do with how many nights your head hits the pillow at your house. I can live in Baltimore, but travel for work 40 out of 52 weeks per year. Nobody would suggest that I “resided” in all of those hotels; my residence would be Baltimore.
I took a week’s vacation in Paris in February. Would any English speaker say that I resided in West Virginia from January 1 to mid-February, then moved to Paris for a week, and then moved back to West Virginia where I have resided since? Of course not.
This isn’t a political question, in my view. It’s common enough for cities to impose residency requirements upon public employees, like police officers. This would be just an ordinary interpretation of constitutional terms despite involving another branch of government, like in Powell v. McCormack (which construed the US Constitution’s requirements for House membership). If they have to resort to maxims of construction and general principles of state law governing “residence” in other contexts, they can. This isn’t irremediably vague.
Courts also enforce affirmative requirements of conduct against executive agencies all the time. Produce these documents. Clean up this site. Thin out this prison. Courts take over whole agencies if they have to. If the executive doesn’t comply, it can be held in contempt, and the enforcement mechanism is a fine.
The problem, it seems to me, is standing. The doctrine of legislative standing is unclear, and especially murky in a state-law context, but I am hard-pressed to see how either the legislature or any particular legislator is harmed here. Maybe West Virginia’s rules are different.
Not a lawyer, so this is purely meant as a factual question. From the article linked in the OP:
which makes it seem like it’s not a question of standing as a legislator but rather of standing as a private citizen. Do I understand correctly? Does it make a difference?
Right. Standing is not a question or at least has not been questioned. The suit is brought in his capacity as a citizen demanding that the Governor comply with the Constitution.
I simply disagree with Tom Tildrum. I see no manageable standards. How would someone write this Order? He must sleep so many nights in Charleston? What if he has a sleepless night? What if his friend calls him and said that his wife just left him and he needs him to come down for a couple of days?
And as John Mace said, what if the Governor violates whatever Order entered? A fine is only one remedy, but what if he repeats it? Jail?
The difference between most statutes and most constitutional provisions is that statutes typically have detailed explanations/definitions of what constitutes a violation. They also typically explicitly list what the penalty is for violation.
If a government agency engages in behavior that infringes on the free speech of citizens, the courts can order the agency to stop that behavior. What, specifically, does the court order the governor to do in this case? Don’t own a home that is outside the city limits of Charleston? If you own such a residence, you can’t sleep there?
My guess is that the language was inserted into the Constitution because the final capitol location was not determined in 1872 when the second Constitution was approved. They had just moved to Charleston from Wheeling and the legislature pretty much unanimously agreed that Charleston sucked and almost immediately began plans to move it back to Wheeling. There was likely a fear that the Capitol would be officially moved, but the governor would choose to stay in Charleston and lead to a crisis in where the ‘true’ Capitol was. They likely inserted the ‘reside’ requirement to force the governor to move when the legislature decided to pack up (Which they did in 1875, back to Wheeling, but for only two years since it was eventually put to a vote and Charleston ended up beating Clarksburg and Martinsburg in a popular vote to be the ‘permanent’ capital.)
Since we obviously don’t have a Capitol controversy today, it’s just an anachronism that will likely never be fixed. The lawsuit did its job though. It was just to bring attention to the fact that Justice is absent from the Capitol and by implication his duties for long periods of time and thus the electorate should know that he doesn’t care about the state and should vote against him - at least that’s what Sponaugle hopes they gather from this.
Texas does not have a state income tax. Some people have therefore claimed to have Texas as their primary residence for tax purposes even if they also reside in another state. My understanding is that all that is legally required to claim residence in a state is that you have a legal address there even if you physically are most often present in another state. So people will rent a cheap apartment in Texas even if they never plan on stepping inside it and this qualifies them as Texas residents.
I would assume a similar law applies here. Governor Justice can probably comply with the state Constitution by establishing a legal address in Charleston even if he continues to physically spend most of his time in Lewisburg.
I don’t know about TX, but that doesn’t work in CA. You have to physically be in the other state for 6 months plus 1 day, else you can get tapped for CA income tax. I know people who do this, and they meticulously stay out of state in order to satisfy the requirement.
The US does not have the concept of mandamus? Or a statutory equivalent remedy? Since that is exactly what that is designed for, I’ll ignore the question of standing.
Yes, and that is exactly what this action is. However, the problem is the remedy.
If you are a judge and you agree that the Petitioner is correct, how would your Order read? What specifically are you going to order the Governor to do?
Simply ordering that he reside in Charleston will not do. What does it mean to reside in Charleston? Let’s say that the judge says that the Governor must spend 50% or more of his time in Charleston.
That’s not consistent with other definitions of residency. Truck drivers, for example, are on the road an overwhelming majority of the time, but nobody disputes that they reside at their home.
As the judge said, what if the Governor sleeps every night in Charleston but then drives to Lewisburg where he keeps an office? What if while working late in Lewisburg he falls asleep on the couch?
It just seems so unmanageable and calls into question the separation of powers as to be a non justiciable political question.
I don’t see that “reside” is any less susceptible to construction than “cruel and unusual” or “due process of law.” You’re making this way too hard.
Think of it this way: Why is my residence legally discernible, while the governor’s is not? Where I reside determines lots of things big and small – where I vote, where my kids go to school, where I register my car, where I license my dog. My state taxes ask what locality I reside in. The governor is not a rootless ghost; there are a long list of factors that could be applied to determine where he resides, and the appropriate weighing of them based on history, current understanding, etc., is a familiar task for a court.
And again, courts order public official to undertake some affirmative course of conduct (i.e., to do something) in any number of situations. Reunite those families. Admit those travelers. And so on. How does any court enforce any order, if the party being ordered chooses to defy it? Through the contempt power, used over and over as appropriate.
Private citizen standing seems like a non-starter, though. There’s no unique injury to any particular person.
Fascinating. Looking it up I see WV does have a Governor’s Mansion, so technically it could be a matter of saying “you have to live at the Mansion during the workweek except when travelling on state business/vacation/campaign.” But the linked news report sounds as if the plaintiff is somewhat annoyingly refusing to plead to the court for what specific remedy would satisfy his grievance i.e. how much time does he have to be physically in Charleston to be in compliance? Normally plaintiffs propose *what *is it that should be ordered.
As to why the requirement has never been amended, sure, one reason may be because they felt it was obvious that the spirit was “someone looking for you should expect to find you in Charleston most days” and there was too much inertia about proposing a whole constitutional amendment for that. But ISTM another would be indeed about “Well, what if some putz shows up who says he’ll just telecommute from Martinsburg and give the State of the State via YouTube?” and IMO that could be addressed by an amendment that these officials, rather than reside, shall keep regular office hours at the spaces provided for that purpose in the Capital and shall do so in person unless prevented by force majeure or the needs of the service. (Back home all it says is that the Guv “shall keep his office at the capital city”)
The Constitution does not say that he must reside at the Governor’s mansion, just that he reside in Charleston. Such an order would be overstepping the court’s authority and in a sense confining him to a particular place. That has some serious separation of powers concerns.
The Plaintiff is likely unable to give the court any specifics because of the problems addressed in this thread. I doubt it would suffice for the Plaintiff if the Governor simply changed the address on his driver’s license, got his mail in Charleston, but was in Lewisburg all of the time.
I agree that the intent was that he should be found in Charleston most days, but that is not what “reside” means in any other context.
If the real problem is that the Plaintiff believes that the Governor is neglecting his duties and has a poor work ethic, that sounds like good grounds for impeachment instead of a court order to make him work harder.
Could the court just say that the governor must satisfy the residence requirements needed in order to vote in a “city of Charleston election”, if there is such a thing? And then add: Pending any further instructions on the issue from the legislature. IOW, this will do for now, but the legislature can change things explicitly should they choose to do so.
But we’re still left with the issue of what to do if the governor just says “no”. But that can happen with any judicial order, no?
Just playing devil’s advocate against my own, earlier argument.
