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by Erin Beck
Charleston, W.Va — West Virginia Attorney General Patrick Morrisey sent a news release Tuesday announcing his support for a court ruling that keeps in place the termination of pandemic-related unemployment benefits.
“We all want all able-bodied and healthy folks to get back to work and hope this will advance that goal,” Morrisey, a Republican, said. “The court was correct in acknowledging that it cannot act like a ‘Super Commissioner’ and impose the plaintiffs’ preferred policy."
The ruling came Monday as cases of the more contagious Delta variant continue to rise in West Virginia and across the country. West Virginia had fewer than 1,000 active COVID-19 cases as recently as early July, according to the Charleston Gazette-Mail.
The state's COVID-19 dashboard reported 7,017 cases on Tuesday.
Congress, through the CARES Act, had given workers an extra $300 per week, and made some workers, such as gig workers and independent contractors, newly eligible for unemployment benefits. Congress made workers eligible for those benefits until Sept. 6, but Governor Jim Justice ended those benefits in June, saying businesses couldn't find workers.
His spokespersons won't say if Justice also asked unemployed workers about their efforts to return to work and health concerns.
Morrisey called the ruling "a clear victory for the people of West Virginia."
“The court’s ruling correctly upholds the law and constitutes a clear victory for the people of West Virginia," he added. "Courts cannot interfere with the state’s decision on an issue that fell within its authority and discretion. Such matters must be weighed strictly based on the law.”
Represented by the nonprofit legal firm Mountain State Justice, Rebecca Urie, of Charleston, and Kimberly Griffith, of South Charleston, filed lawsuits in late July in Kanawha County, against Scott Adkins, Commissioner of Workforce West Virginia.
Monday, Kanawha County Circuit Judge Maryclaire Akers ruled against the two women.
Lawyers for the plaintiffs had argued that the law requires the Workforce West Virginia commissioner to secure "all advantages available" from the federal government for unemployed people. Plaintiffs had pointed to West Virginia code 21A-2-16, which says:
“In the administration of this chapter the commissioner shall cooperate with the United States department of labor to the fullest extent consistent with the provisions of this chapter, and shall take such action through the adoption of appropriate rules, regulations, administrative methods and standards, as may be necessary to secure to this state and its citizens all advantages available under the provisions of the ‘Social Security Act’ which relate to unemployment compensation, the ‘Federal Unemployment Tax Act,’ the ‘Wagner-Peyser Act,’ and the ‘Federal-State Extended Unemployment Compensation Act of 1970.’”
Brent Wolfingbarger, West Virginia Senior Deputy Attorney General, and Virginia Payne, Deputy Attorney General, argued that the statute mentions several other federal laws, but doesn’t specifically say the commissioner must take advantage of CARES Act funding.
Bren Pomponio, litigation director at Mountain State Justice, argued that the statute makes clear lawmakers require the commissioner to cooperate with the federal government and take advantage of all available funding sources.
West Virginia courts have said judges should not grant writs of mandamus unless “three elements coexist,” including: “(1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and, (3) the absence of another adequate remedy at law.”
In announcing her ruling, Akers said the second condition had not been met, and that the commissioner was entitled to make his own decision.
Pomponio said he’d have to review the final order, which isn’t prepared yet, before plaintiffs decide whether to appeal the decision to the West Virginia Supreme Court.
More than two dozen Republican-led states terminated their federal pandemic unemployment benefts earlier than scheduled. Lawsuits in those states have had mixed results.