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Legal expert weighs in on W.Va. Governor’s mask mandate and emergency powers

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BECKLEY, W.Va. (WVVA) A controversy between West Virginia Gov. Jim Justice (R) and Attorney General Patrick Morrisey (R) raised new questions on Thursday as to whether the Governor has the authority to invoke criminal penalties as part of a statewide mask mandate.

The Governor said Wednesday West Virginians could face an Obstruction of Justice charge if caught without wearing one indoors, citing Chapter 15, Article 5 of the West Virginia Code. https://governor.wv.gov/Documents/2020%20Executive%20Orders/EO%2077-20%20Face%20Covering%20Amendment.pdf

"I'm signing an executive order requiring all West Virginians ages nine and above to wear a face covering in confined indoor places providing social distancing cannot be maintained."

But in a surprise move by Morrisey late Wednesday, the state's chief law enforcement officer said he will not enforce it -- stopping short of saying whether he thinks the decision is within the Governor's powers.

"When you have orders that might be vague or there might be challenges, you'd rather have a criminal code go through the legislative process. I want to be clear, the criminal code should be used sparingly especially when there are big constitutional questions being raised."

While Morrisey said those questions should be addressed through the code and courts, Beckley attorney Robert Dunlap thinks the mandate is a stretch.

"It is a good idea for Stay at Home orders to be followed. But the problem is those resource statues only allow him to move around money and resources to react to a pandemic, not actually incarcerate people."

Dunlap interprets the Emergency Powers to give Justice the right to protect not punish the public in a state emergency.

"Governors have the ability to take you out of jail, it's called a pardon. They don't have the ability to put you in jail."

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Annie Moore

Multimedia Journalist

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