A judge has selected a date to hear oral arguments concerning the legality of the color-coded school reopening map and the governor not reconvening the West Virginia Legislature amid the coronavirus pandemic.
Kanawha Circuit Judge Tod Kaufman ordered both sides to appear for a hearing scheduled for 8 a.m. next Friday. Counsel for the Governor’s Office, state health department and state board of education must present evidence to the court that disputes the petitioner’s claims.
Charleston attorney Alex McLaughlin filed the original petition on Sept. 4, arguing that the color-coded map discriminates against West Virginia school children in counties that turn orange or red. The map has consequences, McLaughlin said, only for children attending school, a constitutionally privileged activity, while not prohibiting any other forms of private assembly, such as drinking in bars.
Each side will have 20 minutes for arguments and 15 minutes for rebuttal, according to an order filed Wednesday in Kanawha County Circuit Court. The Bailey & Glasser law firm will represent the Governor’s Office in the case.
The order also set deadlines for the government to submit briefs on the procedures Gov. Jim Justice or the Legislature would follow to allow the Legislature to convene during the pandemic. The briefs must be submitted on or before 11 a.m. Oct. 8, and reply briefs must be entered by noon Oct. 30.
The petition argues that Justice has unlawfully kept the Legislature out of session. The West Virginia Constitution imposes an “immediate duty” on the Legislature, in the event of an emergency or disaster, to adopt measures that ensure “the continuity of governmental operations” — in this case, making sure children have access to schools.
McLaughlin argues that the Legislature should have spent the summer collecting testimony and taking action to ensure the return of children into schools in the fall and that Justice blocked the body from doing so. McLaughlin filed a motion Monday asking for an immediate ruling on the case, writing that irreparable harm is happening to his two school-aged children while they remain out of classrooms and are forced into virtual learning.
The hearing will be open to the public, but limited seating will be available, masks will be required and social distancing guidelines must be followed, according to the order. Only one or two people at a time are permitted to ride in the elevator to the sixth-floor courtroom.