IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA 51" i l. "w I STATE OF WEST VIRGINIA, ex rel, i a- G. ISAAC SPONAUGLE, 1ng JUL zq West Virginia citizen and taxpayer, .. ., --.-1 m? ecu-.1 i Petitioner, v. Civil Action Number: l8-P-442 Honorable Charles E. King, Judge JAMES CONLEY JUSTICE, 11, Governor of the State of West Virginia, Respondent. MOTION TO CERTIFY QUESTIONS AND STAY FURTHER PROCEEDINGS James Conley Justice, Governor of the State of West Virginia (hereinafter "Respondent"), by counsel, respectfully moves this Court, pursuant to W. Va. Code 58-5-2 and Rule 26(c) of the West Virginia Rules of Civil Procedure, to certify the following questions to the West Virginia Supreme Court of Appeals and stay all further proceedings in this case until such questions have been decided: I. As a matter of law, is mandamus available to compel the Governor of the State of West Virginia to ?reside? at the seat of government? 11. Is the duty to ?reside? at the seat of government suf?ciently clear, de?ned, and free from elements of discretion that it can be enforced through mandamus without improperly prescribing the manner in which the Governor shall act? Does prescribing the amount of time the Governor must spend in Charleston, and/or restraining his discretion to determine where he will be present on any given day under any given set of circumstances, involve non?justiciable issues and run afoul of the political question doctrine and corresponding separation of powers principles? ., IV. Is mandamus available to compel a general course of conduct to be performed over a long period of time, as opposed to a discrete act, especially where it would require a court to monitor and supervise the conduct of the State's Chief Executive on an ongoing basis? V. If mandamus is available to compel the Governor to ?reside? at the seat of government, what is the de?nition of ?reside? in the context of W. Va. Const. art. VII, 1 and W. Va. Code 6-5-4, and what are the speci?c parameters of the character and amount of time that the Governor must spend at the seat of government before he is deemed to be "residing" there? In support of this motion to certify the above-stated questions, Respondent states as follows: 1. Petitioner G. Isaac Sponaugle, (hereinafter ?Petitioner?) ?led the instant Petition for Writ of Mandamus against Respondent, in his of?cial capacity as Governor of the State of West Virginia, asking this Court to order Respondent to ?reside at the seat of government during his term of of?ce, and keep there the public records, books and papers pertaining to his respective 2. On February 19, 2019, Respondent ?led a motion to dismiss the Petition (together with a supporting memorandum of law), arguing that Petitioner is not entitled to a writ of mandamus as a matter of law. More speci?cally, Respondent argued that (1) mandamus cannot be employed to prescribe the manner in which a government of?cial shall act, and the duty to "reside" at the seat of government is so nebulous and laden with discretion that any writ granted in this case would necessarily involve prescribing the manner in which the Governor shall act, thereby improperly encroaching on his autonomy and violating the political question doctrine and corresponding separation of powers principals; (2) mandamus is not available to compel a general course of conduct to be performed over a long period of time (as opposed to a discrete act), especially where, as here, it would require this Court to monitor and supervise the conduct of the State?s Chief Executive on an ongoing basis; and (3) mandamus is unavailable where, as here, other adequate remedies exist. 3. By Order dated July 17, 2019, this Court denied Respondent?s motion to dismiss. In doing so, the Court implicitly ruled that mandamus is at least theoretically available to compel Respondent to ?reside? in Charleston. However, the Court?s Order did not attempt to de?ne the parameters of the duty to ?reside? in Charleston, nor the nature and/or threshold amount of time that Respondent must spend in Charleston before he is deemed to be ?residing? there. 4. This Court has statutory authority to certify the above?stated questions to the West Virginia Supreme Court of Appeals by virtue of W. Va. Code 58-5-2, which provides as follows: Any question of law, including, but not limited to, questions arising upon the suf?ciency of a summons or return of service, upon a challenge of the suf?ciency of a pleading or the venue of the circuit court, upon the suf?ciency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, may, in the discretion of the circuit court in which it arises, be certified by it to the Supreme Court of Appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certi?ed back. The procedure for processing questions certi?ed pursuant to this section shall be governed by rules of appellate procedure promulgated by the Supreme Court of Appeals. W. Va. Code 58-5-2 (emphasis added). The ?rst four of the above-stated proposed certi?ed questions go to whether mandamus is legally available to compel the State?s Chief Executive to ?reside? at the seat of government, and are plainly questions of law. Similarly, the meaning of ?reside? in this context, and the speci?c parameters of the duty to reside, are questions of law. 5. Further, the aforementioned questions arise from Respondent?s motion to dismiss. The West Virginia Supreme Court of Appeals has expressly held that question pertaining to the ruling of a circuit court upon a motion made in a civil action, pursuant to Rule 12(b) of the West Virginia Rules of Civil Procedure, to dismiss the complaint for failure to state a claim upon which relief may be granted may be certi?ed to this Court pursuant to the provisions of Code, 1931, 58?5?2, as amended.? Syl. Pt.1, Steelev v. Funkhouser, 169 701 701 (W. Va. 1969); see also Elmore v. State Farm Mut. Auto. Ins. Co., 504 893, 894 (W. Va. 1998)(recognizing the 3 propriety of certifying a question following the denial of a motion for judgment on the pleadings); Adkins v. Merow, 505 406, 408 (W. Va. questions properly certi?ed following denial of motion to dismiss). 6. Our Supreme Court of Appeals has also held that certi?ed questions will not be accepted ?unless there is a suf?ciently precise and undisputed factual record on which the legal issues can be [and] such legal issues substantially control the case.? McCammon v. Oldaker, 516 38, 41 (W. Va. 1999)(citing Syl. Pt. 5, Bass v. Coltelli, 350 (W. Va. 1994)). Here, the questions proposed by Respondent are purely questions of law which require no further factual development. Again, these questions arise from Respondent?s motion to dismiss, which contended that mandamus is not available in this case as a matter of law even if the allegations in the Petition are taken as true. The resolution of this issue is not dependent on any set of facts being proven or disproven, and no amount of factual development will change or address Respondent?s arguments on this issue. Accordingly, there is a suf?cient record on which the questions presented can be determined. See e. g. Elmore, supra (accepting certi?cation of the purely legal question of whether there is a legally cognizable cause of action by a third-party claimant against an insurance carrier for breach of ?duciary duty and/or breach of the implied covenant of good faith and fair dealing). 7. Moreover, there is no question that the above-stated questions proposed by Respondent substantially control this case. If the West Virginia Supreme Court of Appeals agrees with Respondent that the duty to ?reside? at the seat of government is too nebulous, unde?ned, and laden with discretion to be properly controlled through mandamus, or that this case presents a non- justiciable political question, or that mandamus is unavailable to control the performance of continuing duties (as opposed to discrete acts), then Petitioner?s request for a writ of mandamus ordering Respondent to ?reside? at the seat of government must be dismissed. Likewise, if the Supreme Court of Appeals determines that mandamus is theoretically available in this case to compel Respondent to ?reside? in Charleston, then the precise meaning of ?reside? (including the nature and amount of time Respondent must spend in Charleston in order to satisfy his duty to ?reside? there) will control every facet of this case going forward, from the proper scope of discovery to the parameters of any writ ultimately awarded. 8. In addition, certi?cation of the above-stated questions is consonant with the purpose of W. Va. Code 58?5?2. The West Virginia Supreme Court of Appeals has observed that ?[t]he obvious underlying reason for this statute is to permit the adjudication of certain preliminary but essential matters before vexatious costs are incurred and needless delays take place in the ultimate and complete determination of the case.? Leishman v. Bird, 129 440, 442 (W. Va. 1963). Plainly, the above-stated questions bearing on whether mandamus is legally available to enforce the duty to ?reside? in Charleston should be conclusively resolved before further vexatious costs are incurred in this litigation. 9. Indeed, the availability of mandamus to compel a state?s chief executive to ?reside? at a particular location is a novel issue and presents a question of ?rst impression. Petitioner has not cited, nor has Respondent found, a single case in which a court employed mandamus to order a state governor to ?reside? in any particular location and/or made any attempt to set speci?c criteria as to the nature and amount of time the governor must spend in that (or any) location. If, as Respondent has argued, mandamus is not legally available and Petitioner is therefore not entitled to the writ he seeks as a matter of law, then any and all time, effort, and taxpayer money spent on this litigation responding to and/or opposing Petitioner?s discovery requests, preparing for and attending hearings, arguing various motions, etc.) will have been pointless and waste?il. Accordingly, the novel, purely legal issue of whether mandamus is available to compel the Governor to ?reside? in Charleston (and the above?expressed questions of law intrinsic to the determination of that issue) should be presented to the West Virginia Supreme Court of Appeals before any further proceedings occur at the circuit court level. 10. Similarly, if mandamus is legally available to compel Respondent to ?reside? in Charleston, then the precise meaning of ?reside? in this context, and the speci?c nature and amount of time Respondent must spend in Charleston before he is deemed to be ?residing? there, would of necessity have to be determined at the outset. As discussed in greater detail in Respondent?s submissions in support of his motion to dismiss, the West Virginia Supreme Court of Appeals has observed that the word ?reside? and its corresponding noun ?residence? are ?chameleon-like expressions? and are ?like a slippery eel,? in that they have no precise, universal de?nition that applies in all contexts. See @956 E. v. Ray, 738 21, 30 (W. Va. 2013). At times the Court has used the word ?residence? interchangeably with ?domicile,? which has been de?ned as the place where a person "intends to retain as a permanent residence and go back to ultimately a?er moving away." Brooke B., 738 at 30 (citing Syl. Pt. 2, Shaw v. Shaw, 187 124 (W. Va. 1972)).' At other times, the Court has indicated that ?residence? refers to bodily presence. See Syl. Pt. 7, State ex rel. Sandv v. Johnson, 571 333, 339 (W. Va. 2002)(stating that domicile is "a However, the Supreme Court of Appeals has made clear that domicile and residence are not synonymous, and that in many instances when the Court used the word ?residence,? it was actually referring to domicile. See Lotz v. Atamaniuk, 304 20, 23 (W. Va. 1983); see also Brooke B., 738 at 30. combination of residence (or presence) and an intention of remaining." )(emphasis added). The Court has further stated that although a person has only one domicile, a person may have several ?residences.? Brooke B., 738 at 30. Thus, at present, it is entirely unclear which, if any, of these meanings attaches to the word ?reside? in the context of W. Va. Const. art. VII, 1. 11. Further, none of the Supreme Court of Appeals? previous discussions of the words ?reside? and ?residence? took place in the context of a mandamus action to compel a public of?cial to ?reside? in a given location. As a result, there is a total lack of guidance as to the nature and amount of time a public of?cial must spend in a given location in order to be in compliance with a court? 5 directive to ?reside? there. How many hours, days, and/or nights per week or per month must Respondent spend in Charleston before he is deemed to be "residing" there? Is he "residing" in Charleston if he sleeps there but departs in the morning and spends his waking hours elsewhere? Conversely, is he ?residing? in Charleston if he spends some portion of his waking hours there but sleeps elsewhere? These questions should be conclusively resolved by the West Virginia Supreme Court of Appeals before this litigation proceeds any further, as the answers to these questions are necessary to determine the proper scope of discovery, evaluate whether Respondent is or is not already ?residing? in Charleston, and de?ne the parameters of any writ ultimately issued. 12. Concordantly, Respondent respectfully submits that this Court should stay all further proceedings pending the Court?s decision on this motion to certify questions, and should ultimately stay all proceedings until the Supreme Court of Appeals has decided the certi?ed questions. 13. West Virginia Code 58-5-2 provides, in relevant part, that ?[a]ny question of law . . . may, in the discretion of the circuit court in which it arises, be certi?ed by it to the Supreme Court of Appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back." W. Va. Code 58-5-2. Our Supreme Court of Appeals has interpreted this language to mean that ?[b]arring exigent circumstances, once a question is certi?ed to this Court, all proceedings must be stayed in the circuit court pending the answer from this Court.? Young v. CR Petroleum, Inc., 423 889, 893 (W. Va. 1992). This is a clear recognition that certi?ed questions which substantially control the case should be decided before any further proceedings (which will be affected and perhaps nulli?ed by the answers to the certi?ed questions) take place. 14. While W. Va. Code 58-5?2 does not expressly require a court to stay proceedings while a motion to stay is pending and qi1estions have not yet been certi?ed, this Court nevertheless has the discretion to stay proceedings until such time as the Court rules on this motion to certify. Rule 26(c)(2) of the West Virginia Rules of Civil Procedure allows a court to order that ?discovery may be had only on speci?ed terms and conditions, including a designation of the time or place.? R. Civ. P. The West Virginia Supreme Court of Appeals has recognized that ?Rule 26(c)(2) may be used to stay discovery pending the outcome of a dispositive motion or other matter.? State ex rel. Nationwide Mut. Ins. Co. v. Kaufman,, 658 728, 735 2008)(citirig Cleckley, et al., Litigation Handbook, p. 758)(emphasis added). 15. As previously discussed, the above-stated questions substantially control this case, and, if decided in Respondent?s favor, will completely dispose of this case. However, Petitioner has served intrusive and burdensome discovery requests seeking detailed and sensitive documents and information about such matters as Respondent's sleeping habits, Respondent's movements throughout the State, and the location of Respondent's personal property. Petitioner even seeks to obtain records and copies of every single govemment-related phone call, email, and text message that Respondent has made while away from his of?ce at the West Virginia Capitol. Petitioner?s discovery requests are thus disruptive of Respondent?s enormous responsibilities as Governor of the State of West Virginia and invasive of the decision-making process of his Of?ce. 16. Respondent should not be forced to devote time and resources to opposing and/or responding to these vexatious and disruptive discovery requests during the pendency of this motion, or at any point prior to the Supreme Court of Appeals? conclusive determination of whether Petitioner?s novel petition to compel Respondent to reside at the seat of government is even legally viable. Again, the purpose of W. Va. Code 58-5-2 ?is to permit the adjudication of certain preliminary but essential matters before vexatious costs are incurred and needless delays take place in the ultimate and complete determination of the case.? Leishman, 129 at 442 (emphasis added). This purpose would be largely defeated if Respondent must respond to burdensome discovery requests and litigate discovery disputes (all of which distract from the responsibilities of the of?ce to which he was duly elected) while his motion to certify questions is pending. 17. Finally, even if the Supreme Court of Appeals answers the ?rst four proposed certi?ed questions in Petitioner?s favor, the Supreme Court of Appeals? answer to the ?fth proposed certi?ed question (regarding the meaning of "reside" and the speci?c threshold Respondent must meet in order to be ?residing? in Charleston) will guide this Court in resolving discovery disputes and determining the relevance of the documents and information sought by Petitioner. As such, it makes no sense to proceed with discovery before receiving the bene?t of the Supreme Court of Appeals? guidance. WHEREFORE, Respondent respectfully requests that this Court certify the above-stated questions to the West Virginia Supreme Court of Appeals, and to stay all further proceedings until the Supreme Court of Appeals has decided such questions. Respondent certi?es that he has in good faith conferred with Petitioner in an effort to resolve the latter request without court action. Respectfully submitted, 10 JAMES CONLEY JUSTICE, II, Governor of the State of West Virginia, By Counsel, mm; lVIichael w. Czy?y, 63' David R. Pogue, WVSB No. 10 Carey, Scott, Douglas Kessler, PLLC 901 Chase Tower 707 Virginia Street, East PO. Box 913 Charleston, WV 25323 (304) 345-1234 and George J. Terwilliger, Esq. (pro hac vice pending) McGuire Woods LLP 2001 Street, NW Suite 400 Washington, DC 20006 (202) 857-1700 IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA :3 STATE or WEST VIRGINIA, ex rel., I: ?we I: 5] G. ISAAC SPONAUGLE, we JUL West Virginia citizen and taxpayer, In {mo} 11 l" ?41.;le 5 CI (LU Petitioner, v. Civil Action Number: 18-P-442 Honorable Charles E. King, Judge JAMES CONLEY JUSTICE, II, Governor of the State of West Virginia, Respondent. CERTIFICATE OF SERVICE 1, Michael W. Carey, do hereby certify that on the 29th day of July, 2019, I have served the foregoing ?Respondent?s Motion to Certify Questions and Stay Further Proceedings,? upon the following, via email and United States Mail, postage pre-paid, addressed as follows: G. Isaac Sponaugle, George J. Terwilliger, Esq. Sponaugle Sponaugle McGuire Woods LLP Attorney?s At Law 2001 Street, NW P.O. Box 578 Suite 400 Franklin, WV 26807 Washington, DC 20006 Petitioner, Pro Se (Pro Hac Vice Admission Pending) a. Michael w. Jamey,