Photo by Steven Allen Adams Gov. Jim Justice said he disappointed that the special session nearly ended yesterday without a bill providing funding for state human services programs.

CHARLESTON – A class action lawsuit filed last August against Gov. Jim Justice and the head of the department that oversees the Division of Corrections and Rehabilitation over the conditions of jails and prisons in West Virginia was dismissed Tuesday.

U.S. District Court Judge Irene Berger granted motions Tuesday afternoon to dismiss a case brought by several inmates against Justice and Department of Homeland Security Cabinet Secretary Mark Sorsaia.

In her memorandum opinion and order, Berger said that the inmates – represented by Stephen New of Beckley-based New Taylor and Associates – should have filed suit against the Division of Corrections and Rehabilitation (DCR) regarding their complaints about jail and prison conditions. She also said the West Virginia Legislature should have been sued, as they have the responsibility of passing the general revenue budget that funds DCR.

“The Plaintiffs point to the Governor’s pardon and budget powers as evidence of his direct control over West Virginia’s correctional facilities,” Berger wrote. “However, neither is sufficient to establish a ‘causal connection’ between his conduct and the injuries alleged, nor can either ensure that an order against the Governor is likely to remedy the alleged unconstitutional conditions of confinement.

“…the text of the Complaint suggests that the Plaintiffs’ injuries are traceable to and redressable by the independent action of the state Legislature and Commissioner of DCR, neither of which are parties to this matter,” Berger continued. “Thus, to the extent the Plaintiffs rely on Governor Justice’s general law enforcement powers and duties as governor, they have not established the requisite ‘causal connection’ between the Governor’s official conduct and their alleged injuries…”

A class action lawsuit by several inmates was filed last August in the U.S. District Court for the Southern District of West Virginia against Justice and Sorsaia accusing the state of understaffing, overcrowding and delays of deferred maintenance for the state’s 11 prisons, 10 regional jails, 10 juvenile centers and three work-release sites.

The inmates accuse the state of violating their Eighth Amendment constitutional rights against cruel and unusual punishment. They are seeking a ruling in their favor and an order to require the state to spend no less than $330 million on staffing and maintenance for the state’s entire correctional system with available funds or by submitting appropriations bills.

Justice has been fighting attempts by attorneys for the inmates to require him and Chief of Staff Brian Abraham to sit for depositions. Attorneys for Justice filed a reply Monday in support of a renewed motion for a protective order to keep the governor and Abraham from dispositions and compelling written discovery. The renewed motion was filed June 10.

“Plaintiffs have fallen far short of their burden to demonstrate the extraordinary circumstances necessary to force the deposition of the Governor of the State of West Virginia,” wrote Michael Hissam, an attorney for Justice. “Considerations of federalism, separation of powers, and state sovereign immunity stand firmly against a federal court compelling the deposition of a governor of a sovereign state about his policy decisions.”

Some of the information being sought by the inmates include documents and testimony regarding decisions by Justice and state officials for using the $1.25 billion the state received as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act in 2020.

According to the State Auditor’s Office, CARES Act funds were used to reimburse departments and agencies – such DCR – for COVID-19 testing costs, personal protective equipment, and payroll expenses. The Governor’s Office argues that all information regarding CARES Act expenditures and other expenditure decisions are public and that the governor’s testimony is not necessary.

“…Spending decisions are matters of public record,” Hissam wrote. “The mental processes of the Governor that led to those decisions, on the other hand, are not only irrelevant to Plaintiffs’ claims of unconstitutional conditions of confinement, but they are also completely non-discoverable under the deliberative process (or executive) privilege. So even if that information was tangentially relevant, it is hardly ‘necessary’ or ‘essential’…”

At issue is the use of CARES Act dollars for Marshall University’s baseball field. The state had $28.4 million in remaining CARES Act dollars. According to the State Auditor’s Office, that money was transferred to the Governor’s Office Gifts, Grants, and Donations Fund, a special revenue fund.

Of that $28 million, $10 million of the remaining CARES Act funding transferred to that fund was used in combination with a $3.8 million economic enhancement grant from the state Water Development Authority for Marshall University’s baseball stadium project. During committee testimony, an official with the Governor’s Office said the state had directly reimbursed DCR $28.4 million for COVID expenses, freeing up the $28.4 million in CARES Act funds to be transferred to the Gifts, Grants, and Donations Fund.

“Without any allegation that DCR was not properly reimbursed for its COVID-related expenses, as required under the CARES Act (and there are none), communications regarding CARES Act funds (or any other federal funds) are irrelevant to Plaintiffs’ claims and otherwise not discoverable under the deliberative process privilege,” Hissam wrote.

A request for comment from the attorneys for the inmates regarding Berger’s dismissal of their lawsuit was not returned Tuesday.