Class action lawsuit against Justice, Sorsaia dismissed | News, Sports, Jobs

(Notes from the Capitol – Graphic Illustration/MetroCreative)

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 conditions in West Virginia prisons and jails was dismissed Tuesday. U.S. District Court Judge Irene Berger granted motions Tuesday afternoon to dismiss the case brought by several inmates against Justice and Department of Homeland Security Cabinet Secretary Mark Sorsai. In her opinion and order, Berger said the inmates — represented by Stephen New of the Beckley-based law firm New Taylor and Associates — should have sued the Division of Corrections and Rehabilitation (DCR) over complaints about conditions in prisons and jails. She also said the West Virginia Legislature should have sued because it is responsible for passing the general revenue budget that funds the DCR.
“Plaintiffs cite the Governor’s pardon and budget powers as evidence of his direct control over West Virginia’s correctional facilities.” Berger wrote. “None of these, however, are sufficient to establish a ‘causal link’ between his conduct and his alleged injuries, nor can they guarantee that an injunction against the Governor is likely to remedy the allegedly unconstitutional conditions of confinement.”
“…the text of the complaint suggests that plaintiff’s injuries are traceable and remediable through independent action by the state legislature and the DCR Commissioner, neither of whom is a party to this case,” Berger continued. “Accordingly, to the extent Plaintiffs rely on Governor Justice’s general law enforcement powers and duties as governor, they have failed to establish the requisite ‘causal connection’ between the Governor’s official conduct and their alleged injuries…”
Last August, a class action lawsuit was filed against Justice and Sorsaia in the U.S. District Court for the Southern District of West Virginia, accusing the state of understaffing, overcrowding and delays in maintaining 11 prisons, 10 county jails, 10 juvenile detention centers and three halfway houses. The inmates accuse the state of violating their constitutional rights under the Eighth Amendment against cruel and unusual punishment. They seek a judgment in their favor and an order that the state spend no less than $330 million to staff and maintain the state’s entire prison system, either from available funds or through bills for appropriations. Justice is fending off attempts by the inmates to compel him and his chief of staff, Brian Abraham, to testify. On Monday, Justice’s lawyers filed a response to a renewed request for a protective order to stop the governor and Abraham from issuing rulings and forcing written disclosure of evidence. A re-application was submitted on June 10.
“Plaintiffs have failed to meet their burden of proof to establish extraordinary circumstances necessary to compel the testimony of the Governor of West Virginia.” wrote Michael Hissam, an attorney at Justice. “Considerations of federalism, separation of powers, and state sovereignty immunity strongly militate against a federal court ordering the governor of a sovereign state to testify about his policy decisions.”
Some of the information sought by the inmates includes documents and testimony about decisions by the court and state officials about how to use $1.25 billion the state received from the Coronavirus Aid, Relief, and Economic Security (CARES) Act in 2020. According to the State Auditor’s Office, the CARES Act funds were used to reimburse departments and agencies — such as DCR — for COVID-19 testing, personal protective equipment and payroll expenses. The governor’s office says all information about CARES Act spending and other spending decisions is public and that the governor’s testimony is not necessary.
“Spending decisions are a public matter” Hissam wrote. “On the other hand, the Governor’s thought processes that led to these decisions are not only irrelevant to Plaintiffs’ claims for unconstitutional conditions of confinement, but they are also entirely indisclosed under the deliberative (or executive) privilege. So even if this information was indirectly relevant, it could hardly be considered ‘necessary’ or ‘essential’…”
The dispute involves the use of CARES Act dollars for the Marshall University baseball field. The state had $28.4 million in CARES Act dollars remaining. 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 in remaining CARES Act money transferred to that fund was used in conjunction with a $3.8 million economic recovery grant from the state Water Development Authority for the Marshall University baseball field project. During committee testimony, an official from the governor’s office said the state directly reimbursed DCR $28.4 million for COVID-related expenses, freeing up $28.4 million in CARES Act funds to be transferred to the Gifts, Grants, and Donations Fund.
“Absent any allegation that DCR was not properly reimbursed for COVID-related costs as required by the CARES Act (which it is not), the communications regarding CARES Act funds (or any other federal funds) are irrelevant to plaintiff’s claims and are otherwise not subject to disclosure under the decision-making privilege,” Hissam wrote. A request for comment from the prisoners’ lawyers on Berger’s dismissal of their lawsuit was not returned Tuesday.
Steven Allen Adams can be reached at [email protected]

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