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State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140
October 19, 2020

Cathy S. Gatson
Kanawha County Circuit Clerk
111 Court Street
Charleston, West Virginia 25301
Ms. Gatson:
Please find enclosed a motion to dismiss, motion to exceed page limit, response to request
for preliminary injunction, and combined witness/exhibit disclosure for filing in West Virginia
Education Association v. Justice, 20-P-280. The required appendices to the motion to dismiss and
response to request for preliminary injunction have been provided to Judge Webster and Mr. Katz
but are not being filed.
If you have any questions, please do not hesitate to contact me.

Sincerely,

Brent W. Wolfingbarger
Senior Deputy Attorney General

cc:

Honorable Carrie Webster
Andrew J. Katz, Esquire

State Capitol Building 1, Room E-26, 1900 Kanawha Boulevard East, Charleston, WV 25305

 IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA
WEST VIRGINIA EDUCATION ASSOCIATION,
DALE LEE and HOLLY RHINEHART,
Petitioners,

Civil Action No. 20-P-280
The Honorable Carrie Webster

v.

THE HONORABLE JAMES JUSTICE,
GOVERNOR OF THE STATE OF WEST VIRGINIA
Respondent.

MOTION TO DISMISS PETITION FOR INJUNCTIVE RELIEF
Respondent Governor James Justice (hereinafter the Governor) respectfully moves this
Court to dismiss this Petition for Injunctive Relief including a Temporary Restraining Order and
to Enforce the West Virginia Open Meetings Act (hereinafter, the "Petition") pursuant to Rules
12(b)(6) and 12(b)(1) of the West Virginia Rules of Civil Procedure because the Petitioners fail to
state a claim upon which relief may be granted and the Petition is jurisdictionally barred. Pursuant
to W.Va. Code § 55-17-3(a)(1), the Petitioners were required to provide the Governor and Attorney
General Patrick Morrisey with notice of their alleged claims and the relief desired at least thirty
(30) days prior to initiating this civil action. The Petitioners failed to provide such notice and their
claims do not fit within the narrow notice exception set forth in that Code section. Moreover, the
Petitioners lack standing because they failed to allege a concrete or imminent injury. Thus,
dismissal of this action is mandated by the plain meaning of the statute and precedential case law.
Additionally, because the Court does not have jurisdiction to review the Governor's discretionary
acts taken during a state of emergency, Count I of the Petition must be dismissed because it seeks

1

 to litigate a non-justiciable political question. Count I also must be dismissed because it fails to
identify any specific right, rule or statute the Governor's actions allegedly violated; it fails to
demonstrate that the Petitioners have been treated differently than those similarly situated, and it
fails to articulate any cognizable cause of action upon which relief can be granted. Lastly, Count
II must be dismissed because the Open Governmental Proceedings Act is plainly inapplicable here.
BACKGROUND
On March 4, 2020, the Governor proclaimed a State of Preparedness to enable state
officials to respond appropriately to the potential threats created by an outbreak of a novel
coronavirus (hereinafter, "COVID-19"). MTD Ex. A, at 1.1 Nine days later, the Governor
announced the physical closure of all pre-kindergarten through twelfth grade schools (hereinafter
"pre-K-12 schools") in West Virginia; and on March 16, 2020, he declared a State of Emergency
related to COVID-19. MTD Ex. B. Soon afterwards, he issued an executive order limiting the
operation of non-essential businesses and directing individuals to stay at home unless performing
an essential activity. Exec. Order No. 9-20 (Mar. 23, 2020). By April, the Governor initiated a
phased plan to lift a number of these restrictions. Exec. Order No. 32-20 (April 13, 2020).
As part of that phased reopening, the Governor issued an executive order on July 21, 2020,
establishing September 8, 2020 as the anticipated date that in-person instruction for pre-K-12
schools would resume. Exec. Order 56-20, at 3 (July 24, 2020). To effectuate this reopening date,
the Governor also implemented a County Alert System with the advice of public health experts

' The proclamations and executive orders of the Governor of West Virginia are publically available in the
Executive Journal maintained online by the West Virginia Secretary of State, see W. VA. SECRETARY OF
STATE, EXECUTIVE JOURNAL: PROCLAMATIONS, available at
http://apps.sos.wv.gov/adlaw/executivejoumal/searchproclamations.aspx; W. VA. SECRETARY OF STATE,
EXECUTIVE JOURNAL: EXECUTIVE ORDERS, available at
http://apps.sos.wv.goviadlaw/executivejournal/searchproclamations.aspx, and subject to judicial notice.
W. Va. R. Evid. 202. For this Court's convenience, each cited proclamation and executive order is
enclosed with the Governor's Motion to Dismiss as Exhibit A.
2

 that provided a "county-by-county color-coded system and map to monitor COVID-19 case rates."
Exec. Order 68-20, at 3 (Sept. 4, 2020). That order also indicated that as "COVID-19 case rates
may change from time to time," the "limitations placed on in-person instruction and athletic and
extracurricular activities" could also change. Id. at 3. The Governor also created the COVID-19
Data Review Panel (hereinafter, the "Panel"), Pet. ¶ 23, which included various public health
officials to review these changing case rates and to verify the accuracy of reported data.2 The
County Alert System originally assigned each county one of four colors — green, yellow, orange,
or red — at the beginning of each week based on the incidence of COVID-19 within the county's
borders. Pet. ¶ 12. On September 15, 2020, the Governor added a fifth color (gold) to the system.
Exec. Order 70-20, at 3 (Sept. 15, 2020).3 Each color corresponds to certain restrictions on inperson instruction, extra-curricular activities, and athletic events for pre-K-12 schools. Id.
On October 5, 2020, the Petitioner filed their Petition.4 The Petitioners did not indicate
they gave the Governor or the Attorney General pre-suit notice of this action as required by W.Va.
Code § 55-17-3(a)(1) and the mail logs of both officers reflect neither official received such notice.
The Petition contains two counts. In Count I, the Petitioners appear to argue that the
Governor's County Alert System must precisely correspond to parameters and recommendations
set forth in a color-coded map created by the Harvard Global Health Initiative (hereinafter, the

W. VA. DEP'T HEALTH & HUMAN RES., "COVED-19 Data Review Panel Examines State's Data" (Sept.
5, 2020), available at http://dhhr.wv.gov/News/2020/Pages/COVID-19-Data-Review-Panel-ExaminesState's-Data.aspx.
3 See W. VA. DEP'T OF ED., School Alert System: Saturday Education Map (updated Oct. 17, 2020),
available at http://wyde.us/school-reentry-metrics-protocols/.
4 When a complaint names "more than one individual plaintiff," the Rules of Civil Procedures provide that
"each plaintiff . . . be assigned a separate civil action number and . . . be charged a separate fee" for filing
their suit. W. Va. R. Civ. Pro. 3(a). Despite joining three petitioners to this suit, it appears form the
Petitioner's Civil Case Information Statement that they paid a single filing fee for all three petitioners. In
such circumstances, "the circuit judge to whom the case has been assigned must determine whether the
requirements" of Rule 3(a) "are met such that additional filing fees should be assessed." State ex rel. J.C.
v. Mazzone, 233 W. Va. 457, 466, 759 S.E.2d 200, 209 (2014) (quoting Syl. Pt. 4, Cable v. Hatfield, 202
W. Va. 638, 639, 505 S.E.2d 701, 702 (1998)).

2

3

 "Harvard Map"). Pet. ¶ 13. They also appear to argue the Governor should "spend tens of millions
of dollars" the State received through Title V, Section 5001 of the Coronavirus Aid, Relief, and
Economic Security Act of 2020 (hereinafter, the "CARES Act"), Pub. L. No. 116-136, 134 Stat.
281 (Mar. 27, 2020), to purchase additional school safety equipment. Pet. 1120. In Count II, the
Petitioners argue the Governor must comply with the Open Governmental Proceedings Act, W.
Va. Code §§ 6-9A-1 et seq. (hereinafter, "Sunshine Act") when he meets with the Panel to review
and discuss current COVID-19 test information before updating the County Alert System each
week. Pet. at 1123-27. They also argue the Governor must comply with the Sunshine Act when he
with `health experts' to help him formulate the State's COVID-19 responses. Pet. 1125-27.
In Count I, the Petitioners request a temporary restraining order ("TRO") and permanent
injunction ordering the Governor to "strictly follow the criteria of the Harvard Map," to modify
certain testing criteria, and to "release additional" CARES Act money for the safety of students,
education personnel, and their families. Pet. at 7-8. In Count II, the Petitioners request a TRO and
permanent injunction ordering the Governor to comply with Sunshine Act requirements including
public notice and publication of minutes. Id. at 9.
BURDEN
A circuit court must "address[] problems regarding subject-matter jurisdiction" with
"urgency" because where jurisdiction is lacking, any action it takes is void. State ex rel. Univ.
Underwriters Ins. Co. v. Wilson, 239 W. Va. 338, 346, 801 S.E.2d 216, 224 (2017). The Petitioners
bear the burden of establishing jurisdiction in this matter. Evans v. B.F. Perkins Co., 166 F.3d 642,
647 (4th Cir. 1999); cf Syl. Pt. 3, State ex. rel. TermNet Merchant Serv., Inc. v. Jordan, 217 W.
Va. 696, 697, 619 S.E.2d 209, 211 (2005). And whenever jurisdiction is lacking in a case, the court
"must take no further action in the case other than to dismiss it from the docket." Cf Syl. Pt. 1,
Hinkle v. Bauer Lumber & Home Bldg. Center, Inc., 158 W. Va. 492, 211 S.E.2d 705 (1975).
4

 The Petition must also be dismissed under Rule 12(b)(6) of the Rules of Civil Procedure if
the Petitioners failed to "allege[] sufficient facts" to "outline the essential elements" of their claims,
Brown v. City of Montgomery, 233 W. Va. 119, 127, 755 S.E.2d 653, 661 (2014) (quoting
FRANKLIN D. CLECKLEY, ROBIN J. DAVIS, & LOUIS J. PALMER, JR., LITIGATION HANDBOOK ON
WEST VIRGINIA RULES OF CIVIL PROCEDURE, § 12(b)(6)[2], at 384-88 (4th ed. 2012)), or if it
appears that they can prove no set of facts to support their requested relief. Syl. Pt. 3, Bowden v.
Monroe Cnty. Comm 'n, 232 W. Va. 47, 47, 750 S.E.2d 263, 264 (2013). For the purposes of this
motion, the factual allegations of the Petition must be taken as true. Syl. Pt. 2, Bowden, 232 W.
Va. at 47, 232 S.E.2d at 264.
ARGUMENT
I.

THE PETITION IS JURISDICTIONALLY DEFECTIVE AND MUST BE
DISMISSED.
The Petition is jurisdictionally defective in its entirety and must be dismissed because the

Petitioners failed to provide the Governor and the Attorney General pre-suit notice as required and
because they failed to allege a concrete or imminent injury. Count I also must be dismissed because
the Court does not have jurisdiction to review the Governor's discretionary acts taken during a
state of emergency despite the Petitioners' efforts to litigate a non-justiciable political question.
a. The Petitioners' failure to provide pre-suit notice requires dismissal.
No less than thirty days before the Petitioners filed this civil action, W.Va. Code § 55-173(a)(1) required them to provide the Governor and the Attorney General with "written notice, by
certified mail, return receipt requested, of (their) alleged claim and the relief desired." Id. Failure
to comply with this notice requirement has clear and mandatory consequences. The Supreme Court
of Appeals has concluded that pre-suit notice is a "jurisdictional pre-requisite" for filing suit
against the State. Syl. Pt. 3, Motto v. CSX Transp., Inc., 220 W.Va. 412, 413, 647 S.E.2d 848, 849

5

 (2007). It also has repeatedly affirmed that a party's "failure to comply" with this requirement
"mandate[s]" dismissal. Id. at 419, 647 S.E.2d at 855; Melissa C. v. W. Va. Dep't of Health &
Human Res., No. 15-0863, 2016 WL 2970887, *2 (W.Va. May 20, 2016) (memorandum decision).
The Petitioners' pleadings in this case do not allege that they gave either the Governor or
the Attorney General the required pre-suit notice. And because such allegations are a pre-requisite
to this Court's jurisdiction, it is their burden to do so. Syl. Pt. 3, Motto, 220 W. Va. at 413, 647
S.E.2d at 849. But this is not simply a failure of pleading. Upon information and belief, neither
State officer received pre-suit notice. The Petitioners have simply failed to provide the notice
mandated by West Virginia Code § 55-17-3(a)(1).
W.Va. Code § 55-17-3(a)(1) provides an exception to the pre-suit notice requirement, but
the Petitioners do not meet its requirements. This exception applies where (1) the complaining
parties "seek injunctive relief' and (2) the court finds "that irreparable harm would have occurred
if the institution of the action was delayed" by the pre-suit notice requirement. Id.
The exception's "irreparable harm" requirement echoes part of the test for determining
when a temporary restraining order (hereinafter "TRO") and a preliminary injunction is
appropriate. W. Va. R. Civ. P. 65(b); Morrisey v. W. Va. AFL-CIO, 239 W. Va. 633, 639, 804
S.E.2d 883, 889 (2017). A TRO may only be granted where "it clearly appears . . . that immediate
and irreparable injury, loss, or damage will result" if the TRO is not immediately granted. W. Va.
R. Civ. P. 65(b)(1). And to meet this burden, the requesting party must present "specific facts" to
the court "by affidavit or by verified complaint." Id. To grant a preliminary injunction, "irreparable
harm" must be likely. Camden-Clark Mem'l Hosp. Corp. v. Turner, 212 W. Va. 752, 760, 575
S.E.2d 362, 370 (2002). And "the party seeking the injunction . . . bear[s] the burden of
demonstrating" this factor. Id.

6

 Similarly, the Petitioners bear the burden of showing that an exception to pre-suit notice
exists here. Cf. Evans, 166 F.3d at 647. Admittedly, the Petitioners seek a TRO and permanent
injunctive relief, but this alone is insufficient to fall within the exception's plain language. See
Gomez v. State Athletic Comm 'n, No. 16-0103, 2016 WL 5348350, at *3 (W.Va. Sept. 23, 2016)
(memorandum decision) (dismissing suit for permanent injunction for failure to provide pre-suit
notice). They must also make a sufficient showing to enable this Court to find that "irreparable
harm would have occurred if the institution of the action was delayed" by the notice. W. Va.
Code § 55-17-3(a)(1) (emphasis added). And they have failed to meet this burden.
The Petitioners have alleged the Governor's actions "increase the risk of exposure to
COVID-19" for West Virginians and that this allegedly increased risk of exposure constitutes
irreparable harm. Pet. ¶ 22. But they have not filed an affidavit or verified complaint which makes
the "specific facts" of this alleged harm "clear," nor have they shown that this harm is likely.
W.Va. R. Civ. Pro. 65(b)(1); see also Camden-Clark, 212 W. Va. at 760, 575 S.E.2d at 370. They
also have not shown that this harm "would have occurred" if they had provided notice and waited
thirty days before filing suit. W. Va. Code § 55-17-3(a)(1). In fact, they have not even made such
allegations. They simply have made no attempt to show an exception to pre-suit notice exists here.
b. The Petitioners' failure to allege a concrete or imminent injury requires
dismissal.
As a threshold matter, litigants must always satisfy "the irreducible constitutional
minimum of standing" to invoke this Court's jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992). Standing is composed of three elements:
First, the party attempting to establish must have suffered an "injury-in-fact" — an
invasion of a legally protected interest which is (a) concrete and particularized and
(b) actual or imminent and not conjectural or hypothetical. Second, there must also
be a causal connection between the injury and the conduct forming the basis of the
lawsuit. Third, it must be likely that the injury will be redressed through a favorable
decision of the court.
7

 Syl. Pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
The Petitioners clearly fail on the first and third prongs because they have failed to allege
a concrete injury or one that is imminent, and this Court cannot offer redress for their vague claims.
At best, the alleged harm is speculative, hypothetical, and far from concrete or particularized.
c. Count I of the Petition is barred by the political question doctrine.
The State Constitution and laws "vest in [the Governor] certain powers and duties, and he
is necessarily clothed with the right to determine what his duties are in any emergency; and, so
long as he acts within the limits of his constitutional powers and privileges, his official conduct is
not subject to review in any other manner than that provided by the Constitution which created his
high office." Hatfield v. Graham, 73 W.Va. 759, 81 S.E. 533 (1914). Because the Petitioners have
failed to identify any constitutional or statutory provisions that the Governor has allegedly violated
in this matter, this Court lacks jurisdiction to consider their attempt to micromanage the Governor's
executive action during a state of emergency via litigation. Thus, the Petition should be dismissed
pursuant to Rules 12(b)(1) and 12(b)(6) for lack of jurisdiction and failure to state a claim.
Count I must also be dismissed as barred by the political question doctrine. Petitioners ask
this Court to umpire a political dispute — whether the Governor's actions on re-opening schools is
wise. Although courts can "call[] balls and strikes" for legal disputes, West v. Ky. Horse Racing
Comm 'n, 972 F.3d 881, 889 (6th Cir. 2020) (citation omitted), they cannot do the same for political
disputes. See Bds. ofEduc. of Ctys. ofBarbour v. Pub. Employees Ins. Agency, 2011 WL 9373981,
*5 (W. Va. Nov. 10, 2011) (memorandum decision). Rather, courts lack subject-matter jurisdiction
over non-justiciable political questions. See, e.g., State ex rel. Erie Fire Ins. Co. v. Madden, 204
W. Va. 606, 610 n.6, 515 S.E.2d 351, 355 n.6 (1998) (citing E. v. Doe, 159 W.Va. 200, 208, 220
S.E.2d 672, 678 (1975)).

8

 The political question doctrine bars suits under two circumstances that are relevant here. It
applies first, where there is "a textually demonstrable constitutional commitment of the issue to a
coordinate political department," Baker v. Carr, 369 U.S. 186, 216 (1962); and second, where
there is "a lack of judicially discoverable and manageable standards for resolving" the question.
Id. Both circumstances apply here.
First, the issues raised in Count I are demonstrably committed to the Governor. For over
100 years, the Supreme Court of Appeals has recognized that questions regarding the wisdom of
the Governor's emergency actions are political and non-justiciable. In the Hatfield case cited
above, the Governor declared a state of insurrection in portions of the State. See Hatfield, supra.
During this state of insurrection, the Governor prevented the Socialist Printing Company from
encouraging insurrection, and this action was challenged in court. Id. at 81 S.E. 536. But the
Supreme Court of Appeals granted a writ of prohibition for want of jurisdiction, explaining that
"[t]he office of Governor is political, and the discretion vested in the chief executive by the
Constitution and laws of the state respecting his official duties is not subject to control or review
by the courts." Syl. Pt. 1, Hatfield, 73 W. Va. 759, 81 S.E. 533. During states of emergency, "the
courts have been very careful to observe the line of demarcation separating the jurisdiction of the
executive from the judiciary." Hatfield, at 81 S.E. 538.
The facts of Hatfield closely resemble this case, where the Governor has declared a state
of emergency, and exercised his statutory and constitutional authority to develop metrics for reopening public schools. MTD Ex. B; see also Exec. Orders 68-20, 70-20. This Court should
conclude — as did the court in Hatfield — that the exercise of the Governor's discretion here "is not
subject to control or review by the courts." Syl. Pt. 1, Hatfield, 73 W. Va. 759, 81 S.E. 533.

9

 More recently, the court confirmed that political questions should be addressed by
legislators and voters. In State ex rel. League of Women Voters of W. Virginia v. Tomblin, the court
held that whether to follow "suggestions contained in the budget digest . . . is a matter with which
the executive branch, not this Court, must deal." 209 W. Va. 565, 574, 550 S.E.2d 355, 364 (2001).
Even if the decision to follow or ignore those suggestions was unwise, the court held "there is no
legal impediment to that decision." Id.
Persuasive federal precedent similarly indicates that Count I raises non-justiciable political
questions. In Mi Familia Vota v. Abbott, plaintiffs challenged COVID-19 related election
procedures. 2020 WL 5366291 (W.D. Tex. Sept. 7, 2020). The court dismissed the case for lack
of subject-matter jurisdiction after holding that the claims were non-justiciable political questions,
explaining that "[a]nalysis of the causes of action asserted necessarily requires determination of
the danger to the public health of the current election procedures, and disparate impact, if any, on
protected classes of citizens to devise and determine proper procedures to reduce this public health
risk." Id. at *6. As making public health decisions falls to the political branches and not the judicial
branch, the court held it lacked jurisdiction over the plaintiffs' claims. Id.
This conclusion is also consistent with the decision issued by the Supreme Court of the
United States two weeks ago in Andino v. Middleton, 2020 WL 5887393 (U.S. Oct. 5, 2020) (per
curiam). There, the Fourth Circuit enjoined South Carolina's response to COVID-19. Id. at *1.
But the Court granted in part South Carolina's request for a stay. Id. This conclusion was justified
because "the Constitution principally entrusts the safety and the health of the people to the
politically accountable officials of the States. When those officials undertake[ ] to act in areas
fraught with medical and scientific uncertainties, their latitude must be especially broad." Id.
(Kavanaugh, J., concurring) (quotations and internal citations omitted). Similarly, if this Court

10

 second-guesses the Governor's decision-making on re-opening public school — as the Petitioners
request — it would interfere with an area left by statute and constitution to his discretion. The
political question doctrine bars the requested exercise of judicial power.
Second, there is no judicially manageable standard for determining what COVID-19
reopening metrics are legal. As the Supreme Court of the United States explained, for a claim to
be justiciable there must be a "standard for resolving such claims" that is "grounded in a limited
and precise rationale" while also being "clear, manageable, and politically neutral." Rucho v.
Common Cause, 139 S. Ct. 2484, 2498 (2019) (quotation omitted).
In Rucho, the Court held there is no such limited and clear rationale for resolving partisan
gerrymandering cases: "Deciding" political gerrymandering cases requires choosing "among"
several "different visions of fairness" which poses basic political — not legal — questions. Rucho,
139 S. Ct. at 2500. Petitioners ask this Court to engage in a similar process and decide among
several different visions of what constitutes an appropriate school re-opening plan. Pet. ¶ 15.
The mere fact that Petitioners offer the Harvard Map as an alternate metric is irrelevant. In
Rucho, plaintiffs offered a metric to calculate the amount of "wasted" votes to determine whether
politically gerrymandered maps were constitutional. See Rucho, 139 S. Ct. at 2518 n.4. Yet the
Court still held the case raised a non-justiciable political question because it required the Court to
decide between competing metrics. Petitioners ask this Court to choose between two different
metrics: One crafted by an outside group at Harvard that was not specifically tailored to address
West Virginia's unique circumstances and one crafted by the Governor. But they have presented
no appropriate standards for selecting one metric over the other. The choice between the competing
plans for re-opening public schools is simply political and not subject to this Court's jurisdiction.

11

 But that does not mean that the Governor's authority is unbridled. Rather, he "must . . .
defend [his actions], both to the [Legislature] and to the public, in whose best interests we must
assume [he] intended to act." League of Women Voters, 209 W. Va. at 574, 550 S.E.2d at 364.
Here, the Legislature could choose to call itself into special session and end the declared state of
emergency. Or it could pass legislation divesting the Governor of the authority to make these
decisions unilaterally. To date, it has chosen not to exercise these political checks.
In three weeks, the citizens of this State will go to the polls to elect a governor to serve for
the next four years. The Governor is standing for re-election and his response to the COVID-19
pandemic — including his school re-opening plan — is at the center of the campaign. "[W]herever,
within the sphere of his duties, the executive has a discretion, he is amenable for refusing to
perform, not to the court, but to the Senate on an impeachment, or to the people at the polls."
Hatfield, 81 S.E. at 538 (quoting Mauran v. Smith, 8 R.I. 192, 5 Am. Rep. 546 (1865)). The
Constitution and precedent appropriately divests courts of subject-matter jurisdiction over nonjusticiable political questions. Thus, Count I must be dismissed for lack of jurisdiction.
II.

THE PETITION MUST BE DISMISSED ON THE MERITS.
a. Count I fails to set forth any basis for relief.
Count I fails to articulate any cognizable causes of action. There are no allegations that the

Governor has violated any constitutional or statutory provision. Nor is there any allegation that
the Governor is violating a common law duty. Instead, Count I just makes factual averments and
argues that this Court should enjoin the Governor's actions simply because the Petitioners disagree
with his approach. This is insufficient to state a claim for relief; therefore, dismissal is warranted.
To state a claim for relief, a plaintiff must "set forth what specific right, rule, or statute was
violated or created a duty on [a defendant's] part that was breached." Andy E. v. Doe, 2015 WL
2381320, *2 (W.Va. May 18, 2015) (memorandum decision). When the plaintiff fails to do so, it
12

 "fails to state a claim upon which relief can be granted." Id.; see also Nasious v. Two Unknown
B.I. C.E. Agents, at Arapahoe Cty. Justice Ctr., 492 F.3d 1158, 1163 (10th Cir. 2007) ("After all,
these are, very basically put, the elements that enable the legal system to get weaving — permitting
the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to
adjudicate the merits.").
This is not a heavy burden. All that is required is "a short and plain statement" that gives
"the defendant fair notice of' the claim "and the grounds upon which it rests." Brown, 233 W. Va.
at 127, 755 S.E.2d at 661. But Petitioners here have plainly failed to meet even this basic
requirement. Count I does not allege that the Governor violated any constitutional right, statutory
right, or common law duty, and it cites no legal authority for its requested relief. Such a pleading
is plainly inadequate and must be dismissed.
b. Any claims Petitioners theoretically could plead are inapplicable.
But even if this Court engages in speculation regarding the Petitioners' intended causes of
action, such potential causes are inapplicable and would fail to state a claim for relief if asserted.
i.

The Governor has statutory authority to implement his County Alert
System.

Any claim that the Governor lacks statutory authority to implement his County Alert
System is clearly without merit. A state of emergency may be "proclaimed by the Governor or by
concurrent resolution of the Legislature" if the Governor or Legislature finds that "an emergency
exists or may be imminent due to a large-scale threat beyond local control, and that the safety and
welfare of the inhabitants of this state require an invocation of the provisions of this section."
W.Va. Code § 15-5-6(a). On March 16, 2020, the Governor declared a state of emergency in
response to the COVID-19 pandemic, thus authorizing his exercise of such emergency authority.
The state of emergency continues and therefore the Governor's emergency authority continues.

13

 The Governor's emergency powers include the discretion to "implement a comprehensive
plan and program" in response to a state of emergency. W. Va. Code § 15-5-5(2). He is also
authorized "[t]o control. . . the occupancy of premises" where a state of emergency exists. W.Va.
Code § 15-5-6(c)(6). Currently, the declared emergency covers the entire State, MTD Ex. B, so
the Governor can control the occupancy of buildings in the state. The Governor has exercised this
authority at times by barring occupancy of casinos, gyms, and other businesses.
But the statute is not limited to just private businesses. The Governor also has the authority
to control the occupancy of public buildings such as schools. However, the methods used to
determine whether and how to limit the occupancy of such buildings are left to the Governor's
discretion, and he chose to use certain metrics — published periodically — in making those decisions
pursuant to his statutory authority arising from W.Va. Code § 15-5-6(c)(6).
The Governor similarly has statutory authority to promulgate those metrics under West
Virginia Code § 15-5-6(c)(11). During a state of emergency, the Governor may "perform and
exercise other functions, powers and duties that are necessary to promote and secure the safety and
protection of the civilian population." The Governor determined that allowing in-person public
schooling would promote the safety of the State's civilian population only when certain metrics
are satisfied. If Count I was intended to allege that the Governor lacked statutory authority to
promulgate the metrics, that allegation fails to state a claim upon which relief may be granted.
ii.

The Governor's actions satisfy rational-basis review.

The Governor's creation and implementation of the County Alert System also satisfy
rational-basis review for constitutional Due Process and Equal Protection purposes.
Our Constitution provides that "[n]o person shall be deprived of life, liberty, or property,
without due process of law, and the judgment of his peers." W. Va. Const. art. III, § 10; see also
id. § 3, U.S. Const. amend XIV § 1. The operative question here is whether there is a non-arbitrary
14

 basis for the Governor's executive actions. See FCC v. Beach Commc'ns, Inc., 508 U.S. 307, 313
(1993). And the burden rests "on [the] one complaining of a due process violation to establish
that" the challenged action is "arbitrary and irrational." Wampler Foods, Inc. v. Workers' Comp.
Div., 216 W. Va. 129, 145, 602 S.E.2d 805, 821 (2004) (quotation marks and citation omitted).
Because the County Alert System does not implicate fundamental rights or suspect
classifications, it "cannot run afoul of the Equal Protection Clause if there is a rational relationship
between the disparity of treatment and some legitimate governmental purpose." Heller v. Doe,
509 U.S. 312, 319 (1993). So if the County Alert System is rational, it satisfies the state and federal
constitutional requirements for Due Process and Equal Protection purposes.
By criticizing the Governor's decision to incorporate the Harvard Map as part of the basis
for the County Alert System, the Petitioners appear to be asserting that the only rational way to
decide whether to allow in-person instruction in pre-K-12 schools is strict adherence to every
aspect of the Harvard Map. Unfortunately, that position cannot withstand scrutiny. Experts across
the State, the Nation, and the world disagree on whether and when in-person schooling can be
safely resumed, ranging from allowing it regardless of the number of COVID-19 diagnoses to
barring in-person instruction until a vaccine is approved. In between these two extremes, experts
have developed various metrics for deciding when in-person instruction can be safely resumed,
and the County Alert System constitutes one of many rational plans to do so.
The State of West Virginia faces unique challenges not accounted for by the Harvard Map.
For example, West Virginia has many small counties. Our most populous county has less residents
than suburbs of some large cities. This means that a few cases can significantly affect rate numbers.
Based on these factors and others, the Governor consulted with his public health advisors
about an appropriate metric for resuming in-person instruction at public schools. Relying on the

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 advice of doctors, epidemiologists, educators, and others the Governor modified the Harvard Map
in some respects. As the Governor continued gathering more information, he understood he could
improve the County Alert System to protect citizens and to ensure that students in pre-K-12 schools
could resume in-person instruction when it was reasonably safe to do so. The Governor therefore
modified the County Alert System after it was first announced to account for this added
information. This decision is clearly rational. See Texas Democratic Party v. Abbott, 961 F.3d 389,
393 (5th Cir. 2020) ("Local officials are working tirelessly to shape their response to changing
facts on the ground." (brackets and quotation omitted)).
Petitioners essentially ask this Court to overrule the Governor's rational actions and impose
its own vision regarding what constitutes the "best" metrics for deciding whether and when to
resume in-person instruction in our State's pre-K-12 schools. However, neither the federal nor the
state constitution permit this Court to substitute its own opinion regarding the "best" metrics to do
so. Instead, the Governor's actions survive constitutional scrutiny because they reflect rational
decisions. Thus, the Petition fails to state a claim for Due Process or Equal Protection violations.
iii.

The Governor's actions are not arbitrary or capricious.

The Governor's actions also do not violate West Virginia's Administrative Procedures Act,
W. Va. Code. § 29A-1-1 et seq. (hereinafter, the "APA"). First, the APA provides that it does "not
apply in any respect whatever to executive orders of the governor, which orders to the extent
otherwise lawful shall be effective according to their terms." W. Va. Code § 29A-1-3(a). This
statutory provision is clear and unambiguous. And its application exempts the Governor's
reopening metrics from the APA.
Second, the APA specifically does not apply to "executive orders or proclamations by the
Governor issued solely in the exercise of executive power, including executive orders issued in
the event of a public disaster or emergency." W. Va. Code. § 29A-1-2(e) (emphasis added).
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 Currently, the State is under a declared state of emergency because of the COVID-19 pandemic.
Any proclamation or executive order the Governor issues under that emergency declaration are
exempt from the APA, including the County Alert System. Exec. Orders, 68-20, 70-20.
Accordingly, the metrics selected by the Governor to help him determine whether and when to
resume in-person instruction in the State's pre-K-12 schools are exempt from the APA.
Third, even if the APA normally applied to the Governor's actions, the Governor's
emergency powers include the ability "No suspend the provisions of any regulatory statute
prescribing the procedures for conduct of state business." W. Va. Code § 15-5-6(c)(7). Thus, the
Governor could have suspended the APA if necessary to promulgate the County Alert System.
Yet even if the APA applies, the Governor's actions can be invalidated only if they are
"arbitrary or capricious." W. Va. Code § 29A-4-2(b). However, the Governor's actions here are
far from arbitrary or capricious. Rather, as discussed above, they are rationally based on the advice
he received from his public health, medical, and education experts. The Governor has not chosen
to decide which public schools may open based on the first letter of a county's name or by throwing
darts at the wall. He has relied on statistics and expert advice in making his decisions. The mere
fact that Petitioners might utilize different statistics in making school re-opening decisions does
not render the Governor's actions arbitrary or capricious. Count I failed to state a claim arising
under the APA upon which relief may be granted. Thus, Count I must be dismissed.
c. Count II fails to state violations of the Sunshine Act.
The Petition also alleged that the Governor violates the Sunshine Act when he meets with
the Panel of public health officials prior to the weekly updates of the County Alert System. Count
II also alleged that the Governor "regularly meets with `health experts' without complying with
the Sunshine Act. Specifically, it asserts that these meetings are not properly noticed, that no
agenda is provided, and that no minutes of these meetings are created. But these allegations fail to
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 state a claim for relief because the Sunshine Act's procedures simply do not apply to the
Governor's exercise of his lawful emergency powers.
The Sunshine Act requires that "all meetings of any governing body shall be open to the
public." W. Va. Code § 6-9A-3(a). A "governing body" must also notify the public of their
meetings by filing a notice with the Secretary of State "at least five business days prior to the date
of the meeting." Id. § 6-9A-3(e), (e)(2). After any meeting, a "governing body" must make the
minutes of its meetings available to the public. Id. § 6-9A-5.
But the Governor is not a "governing body" under the Sunshine Act; and so its
requirements are plainly inapplicable. By statute, a "governing body" is defined as "the members
of a public agency" that "consists of two or more members." W.Va. Code § 6-9A-2(4). The Office
of the Governor does not "consist of two or more members," nor does his exercise of his emergency
powers require the presence of a "quorum." W.Va. Code § 6-9A-2(4), (5). Rather, the authority of
the Governor rests in a single individual who is elected by the citizens of the State. W.Va. Const.
art. VII, §1, §5. His Office does not fall within the definition of a "governing body" and he does
not have to hold a meeting to make a decision or deliberate toward one. W.Va. Code § 6-9A-2(5).
The Panel similarly is not a "governing body" subject to the Sunshine Act because it is not
"authorized by law to exercise some portion of executive . . . power." W. Va. Code § 6-9A-2(4),
(7). When the Governor meets with this Panel, it is the Governor — not the Panel — that is
"authorized by law to exercise . . . executive . . . power." W. Va. Code § 6-9A-2(7) (emphasis
added). The Panel's sole purpose is to review the reported COVID-19 case data and advise the
Governor "[iin performing his duties" W. Va. Code § 15-5-5 (emphasis added).
Likewise, when the Governor meets with health experts, he is not required to comply with
the Sunshine Act because that informal group does not exercise any portion of executive power,

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 and no quorum of these public health officials is necessary for it to function. Experts and public
health officials may provide advice to the Governor individually or collectively, but executive and
emergency power remains solely with the Governor by law, and any decisions he makes are his
own, even if guided by expert advice. W.Va. Const. art. VII, § 5; W.Va. Code §§ 15-5-5, 15-5-6.
West Virginia has little precedent in this area. See, e.g., McComas v. Bd. ofEduc. ofFayette
Cnty., 197 W. Va. 188, 194, 475 S.E.2d 280, 286 (1996) (finding that there "is no question that
the members of' a county board of education "constitute a `governing body' subject to" the
Sunshine Act). But persuasive federal precedent supports the plain inapplicability of the Sunshine
Act here. For example, in Rushford v. Council of Economic Advisors, a litigant sued a council that
advised the President regarding economic development issues to enforce compliance with the
federal Sunshine Act. 762 F.2d 1038, 1038, 1042 (D.C. Cir. 1985). But on appeal, the D.C. Circuit
determined that the Council was not an "agency" that was subject to the federal Sunshine Act. Id.
at 1043. In part, this conclusion was based on the fact that the Council's "sole function" was "to
advise and assist the President" and that it "has no independent authority." Id. at 1042.
Applied here, the Panel and the various health experts who advise the Governor are not
subject to the Sunshine Act. Neither the Panel nor the various health experts exercise "independent
authority" from the Governor. Rushford, 762 F.2d at 1042. Their "sole function" is to review
current COVID-19 data and they simply "advise and assist" the Governor in the exercise of his
executive and emergency powers. As the Legislature noted when it enacted the Sunshine Act:
The Legislature finds, however, that openness, public access to information and a
desire to improve the operation of government do not require nor permit every
meeting to be a public meeting. The Legislature finds that it would be unrealistic,
if not impossible, to carry on the business of government should every meeting,
every contact and every discussion seeking advice and counsel in order to acquire
the necessary information, data or intelligence needed by a governing body were
required to be a public meeting. It is the intent of the Legislature to balance these

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 interests in order to allow government to function and the public to participate in a
meaningful manner in public agency decisionmaking.
See W.Va. Code § 6-9A-1 (emphasis added). Thus, Count II fails to state a claim for relief under
the Sunshine Act, and it must be dismissed accordingly.
CONCLUSION
For the foregoing reasons, the Petition for Injunctive Relief including a Temporary
Restraining Order and to Enforce the West Virginia Open Meetings Act must be dismissed. The
Petitioners failed to comply with the jurisdictional prerequisite notice mandated by West Virginia
Code § 55-17-3(a)(1) and they failed to allege a concrete or imminent injury. Count I must also be
dismissed because it raises a non-justiciable political question. And even if the Petition survives
these jurisdictional hurdles, dismissal under Rule 12(b)(6) of the Rules of Civil Procedures is
warranted because the Petition fails to state a claim upon which relief can be granted.
Respectfully submitted,
THE HONORABLE JAMES JUSTICE,
GOVERNOR OF THE STATE OF WEST
VIRGINIA,
By counsel,
PATRICK MORRISEY
ATTORNEY GENERAL

/

BRENT WOLFINGBARGER (WVSB #6402)
SENIOR DEPUTY ATTORNEY GENERAL
JOHN M. MASSLON, II (WVSB #13650)
ASSISTANT SOLICITOR GENERAL
SEAN M. WHELAN (WVSB #12067)
ASSISTANT ATTORNEYS GENERAL
1900 Kanawha Boulevard, East
Building 1, Room E-26
Charleston, West Virginia 25305
Tel: 304-558-2021

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 IN THE CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA
WEST VIRGINIA EDUCATION ASSOCIATION,
DALE LEE and HOLLY RHINEHART,
Petitioners,

v.

Civil Action No. 20-P-280
The Honorable Carrie Webster

THE HONORABLE JAMES JUSTICE,
GOVERNOR OF THE STATE OF WEST VIRGINIA
Respondent.

CERTIFICATE OF SERVICE
Undersigned counsel certifies that a copy of the Motion to Dismiss, was served on the
following individuals by the method(s) indicated below on October 19, 2020:

Andrew J. Katz
1558 Quarrier St.
Charleston, WV 25301
Via first-class mail
Honorable Carrie Webster
111 Court Street
Charleston, WV 25301
April.Conner@courtswv.gov
Via hand delivery and email

Brent Wolfingbarger

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