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Delegate S. Marshall Wilson (right), I-Berkeley, discusses the filing of a petition seeking a writ of mandamus against Gov. Jim Justice Friday outside the state Supreme Court. Attorney John Bryan (left) filed the petition on behalf of five state lawmakers, including Wilson.

Five state lawmakers are asking the Supreme Court to rule whether Gov. Jim Justice has unlawfully held the Legislature out-of-session during the pandemic period.

According to the petition seeking a writ of mandamus, filed Friday with the state Supreme Court, Justice has unilaterally used the emergency powers clause in state Code to issue de facto laws during the pandemic, like ordering businesses closed, but has not brought the Legislature into the fold.

“The core argument is separation of powers,” said John Bryan, the attorney representing the lawmakers. “[Justice is] creating and enacting his own laws — under which process we don’t know, because the people haven’t been involved — and then he’s carrying out and executing his own laws. The West Virginia Constitution says you can’t do that.”

Delegate S. Marshall Wilson, I-Berkeley, lead petitioner on the suit, said outside the Supreme Court building Friday that more than two months have passed since Justice issued the statewide state of emergency on March 16, and it’s now past time for the Legislature to convene and help navigate the state’s reopening.

“I’m not saying that he shouldn’t have taken immediate [action] once he determined that there was a need for a state of [emergency]. It’s the executive’s job. But once he took those actions, he should have called us in and let us do our job,” he said. “We should be here speaking for the people and appropriating money — their money — that’s not the governor’s job. He has basically cut the people out of the decision-making process.”

Thirty-eight states have called their legislatures back into session during the pandemic period, according to the suit, including the five states bordering West Virginia.

Justice’s plan to phase in the reopening of state businesses was “devised wholly in absence of West Virginia’s legislative branch,” the lawsuit reads.

The suit also cites the recent Wisconsin Supreme Court ruling striking down that state’s extended stay-at-home order and ban on all non-essential travel, noting the orders were made solely by the executive branch.

The goal is for more local control, Wilson said; it’s vital to have delegates from each pocket of the state at the table when making reopening decisions.

Delegates Tom Bibby, R-Berkeley, and Jim Butler, R-Mason, joined Bryan and Wilson outside of the Supreme Court. Sen. Mike Azinger, R-Wood, and Delegate Tony Paynter, R-Wyoming, were not present Friday, but have also signed onto the lawsuit.

“The initial state of emergency seems to have passed,” Butler said. “Now we’re getting into actually making new rules and making new de facto laws without any input from the Legislature.”

“Justice is doing things now ... that are beyond just executive orders. He’s actually making law,” Bibby added.

The lawmakers said they are concerned about the idea Justice floated during his Thursday news briefing, that people in Berkeley and Jefferson counties might be mandated to wear masks. Bryan said without legislative approval, any orders from the Governor’s Office come with questions regarding their legality.

“How can the governor create a whole new class of laws ... and you violate [one], now you’ve committed a misdemeanor? Well, there’s a problem there because there’s been no [due] process. People have had no say through their representatives,” he said.

The Governor’s Office did not respond to an email seeking comment.

Reach Joe Severino at

joe.severino@wvgazettemail.com, 304-348-4814 or follow

@jj_severino on Twitter.