State of West Virginia Office of the Attorney General 1900 Kanawha Boulevard, East Building 1, Suite 400-West Charleston, WV 25305 Patrick Morrisey (304) 558-6593 Attorney General Fax (304) 558-4509 April 13, 2020 Via Hand Delivery Edythe Nash Gaiser, Clerk Supreme Court of Appeals of West Virginia State Capitol Building, Room F-317 1900 Kanawha Blvd., | Charleston, WV 25305 Re: Donald Miller, ef al. v. Betsy Jividen, ef al, No. 20-0259 Dear Ms. Gaiser: Enclosed please find an original and five (5) copies of Respondents’ Response to Petitioners’ Motion for Expedited Consideration and Relief in the above-captioned matter Thank you for your attention in this matter. If you or your office have any questions or comments, please advise Very truly yours, ANaS. Marino Briana J. Marino BIM/ Enclosures ce: Loree Stark, Fsq Lora Greer Walker. Fsq,No, 20-0259 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DONALD MILLER, et al, Petitioners, v BETSY JIVIDEN, et al, Respondents. RESPONDENTS’ RESPONSE TO PETITIONERS’ MOTION FOR EXPEDITED CONSIDERATION AND RELIEF NOW COME the Respondents Betsy Jividen, Commissioner of the West Virginia Division of Corrections and Rehabilitation (“DCR”), Jeff Sandy, Cabinet Secretary of West Virginia Department of Military Affairs and Public Safety, and Ralph Miller, Acting Chairperson of the West Virginia Parole Board, and pursuant to Rule 29(c), West Virginia Rules of Appellate Procedure, file their Response to Petitioners’ Motion for Expedited Consideration and Relief (“Motion”) and state as follows: 1, On April 8, 2020, thirty-nine (39) Petitioners filed their Petition for Writ of Habeas, Corpus, on behalf of themselves, and apparently others similarly situated." This Response is filed to advise the Court that ten Petitioners, approximately twenty-five percent, have already been "The thirty-nine (39) Petitioners contend that they fall into one of five categories that dictate their release due to the coronavirus (COVID-19) in this case: (1) Petitioners eligible for release on personal recognizance; (2) Petitioners eligible for release on reduced bail; (3) Petitioners eligible for release on parole; (4) Petitioners eligible for compassionate release; and, (5) Petitioners who should be eligible for release due to extraordinary circumstances. The only place where others similarly situated Petitioners are discussed is on page 33 of the Petition, wherein an alternative request in the Prayer for Relief appears, requesting the appointment of a Special Master with specified proposed duties. No discussion of this Court's legal authority to appoint a Special Master or any restrictions on that ability is discussed in the Petition.released. The ten were released for a variety of reasons including in the due course of bond/bail modification proceedings as a result of this Court’s March 2020 Memorandum.” Further, one Petitioner, Jeremy Kiser, was offered release on home confinement and he declined because he had no residence to be released to. Respondents intend to move to dismiss the claims of the nine Petitioners who have already been released, as it is clear that their claims are now moot. Cline v. Mirandy, 234 W. Va. 427, 765 S.E.2d 583 (2014). 2, At the outset, Respondents note that they are laser focused on the COVID-19 pandemic and its impact on the Regional Jails and Prisons in West Virginia. Respondents employ 2,800 correctional officers and civilians to maintain approximately 10,000 inmates in Regional Jails and Prisons. Respondents have further contracted with PrimeCare Medical, Inc. to provide healthcare at nine Regional Jails and Wexford Health Sources, Inc. to provide healthcare at the ten Prisons and the combined facility at Northern. Respondent Commissioner Betsy Jividen has extensive corrections managerial expertise to address COVID-19 with her contractors and she has will continue to implement appropriate policy directives that meet national standards to address the pandemic.’ As of the date of this Response, there are still no positive cases of COVID-19 for staff members or inmates at any of the Regional Jails ot Prisons and it is a testament to the quick response and hard work that has been done by DCR employees to meet this pandemic. 2 The ten inmates from the Petition that have been released are: Albert Matthew Moore, Crystal Ashton, Charles Mills, Donald Miller, Eric Wayne Robinson, Nelson Cortes, Dalton Cain, Briana Blankenship, John Miller, and Larry Joseph. > Attached hereto is Commissioner Jividen’s March 20, 2020 Policy Directive related to COVID-19 and her updated memorandum dated March 26 adopting the CDC’s Interim Guidance on Management of Coronavirus 2019 (COVID-19) in Correctional and Detention Facilities (Exhibits 1 and 2). It is noted that these redacted documents were originally filed under scal in the federal court action Baxley v. Jividen, et al,, Civil Action No. 3:18-cv-01526, but were recently publicly released by the Commissioner. 23. This Response specifically addresses the Motion and it also discusses issues raised by the Petition so that this Court may decide how it may best be addressed. The Respondents have ro objection to handling this case on an expedited basis if the Court is so inclined. Counsel for the Respondents have already advised the Clerk’s office that a detailed Answer to the Petition can be filed ten business days after of the entry of any scheduling order. For reasons discussed more fully herein, the Respondents would respectfully request that the Court not try to move too quickly in this matter due to complex nature of both the virus and Petitioners’ requested relief. 4. The Petition also requests at page 28, that this Court dispense with oral argument and issue a memorandum decision. The Petition finally requests at page 33 that this Court quickly appoint a special master “[iJn the altemative or in conjunction with the aforementioned request for relief, Petitioners request this Court within three to five business days upon review of this Petition appoint a special master to iplement a collaborative and efficient process that will address the issues raised in the petitions and facilitate a resolution and provide a workable framework for similar matters going forward with respect to those similarly situated to the Petitioners.” 5. Respondents, as more fully discussed herein, oppose each of these requests. It is respectfully submitted that the constitutional issues raised are of public interest* and this Court should consider setting this case for oral argument under Rule 20, West Virginia Rules of Appellate Procedure, Further, the suggestion of a Special Master with duties proposed by the Petitioners is contrary to this Court’s past utilization of Special Masters, and as proposed, would be in violation of the separation of powers clause in Article V, § 1 of the West Virginia Constitution. “The issues raised herein include both constitutional and practical issues that are within the public interest; however, to fully address some of issues raised by Petitioners in their brief, Respondents will be required to file certain documents under seal to protect the security and safe operations of regional jail and prison facilities as more fully discussed beginning in Paragraph 8 below. 36. The Respondents need adequate time to properly prepare an Answer to the Petition, As discussed more fully herein, scant details regarding the Petitioners have been provided to the Court and the Court does not have an adequate basis to make a decision on the basis of the summary information currently before the Court. Respondents have already determined that much of the information is incorrect, and further investigation is ongoing at this time. It is clear that Rule 2, Rules Governing Post-Conviction Habeas Corpus Proceedings applies to this Petition. That Rule requires a “summary of the facts supporting each of the grounds specified” must be included in the Petition. Respondents would contend that Rule 2 has not been met in this instance because the summaries are inadequate and factually inaccurate for each of the remaining thirty Petitioners. Respondents intend to move to dismiss the Petition under Rule 2. 7. ‘At page 28 of the Petition, it is stated that it is filed under W.Va. Code § 53-4A-1. Respondents intend to further research whether this Petition, that relates to conditions of confinement and not the underlying conviction, may invoke that statutory provision.* To the extent that code section does apply, W.Va. Code § 53-4A-2 requires detailed information, including “{a}ffidavits, exhibits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition unless there is a recital therein as to why they are not attached.” Respondents would contend that W.Va. Code § 53-4A-2 has not been met in this instance because, while an appendix was attached, no affidavits, exhibits, records or other documentary evidence has been provided fora single Petitioner. Rather only “stock” declarations from the ACLU, that have been filed in multiple cases around the country seeking the release of 5 In footnote 2 of Mitchem v Melton, 167 W. Va. 21, 277 S.E.2d 895 (1981), Justice Miller observed “While the order awarding the writ treated it as proceeding under W. Va. Code, 53-4A-l, et seq, it appears the appellant was not actually seeking to attack his conviction but was using habeas corpus to challenge the ions of his confinement.”inmates from various other state penal institutions, have been provided proclaiming the dangers of COVID-19 to those confined to correctional institutions. Respondents intend to move to dismiss the Petition under W.Va. Code § 53-4A-2, to the extent itis applicable to this Petition. 8. The Respondents also intend to move to dismiss the Petition for the failure to exhaust administrative remedies as required by the West Virginia Prisoner Litigation Reform Act, W.Va. Code § 25-1A-I, et seq. None of the Petitioners have filed a grievance W.Va. Code § 25- 1-2 challenging their medical treatment or conditions of confinement due to the COVID-19, nor have they suggested that they are entitled to be released for the reasons stated in the Petition. W.Va. Code § 25-1A-I(a) clearly applies to extraordinary writs such as habeas corpus and this Court upheld the Circuit Court's dismissal of a habeas corpus petition for failure to exhaust administrative remedies for issues related to medical treatment in Goodman v Rubenstein, 2017 W. Va, LEXIS 803 (W.Va. 2017)(Memorandum decision), see also, Waybright v. Ballard, 2014 W. Va, LEXIS 206 (W.Va. 2014)(Memorandum decision). 9. Further, this Court should be advised that Commissioner Jividen just recently spent the past several weeks litigating very detailed claims arising from an “Emergency Motion for Preliminary Injunction Regarding Defendants’ Prevention, Management, and Treatment of COVID-19,” seeking the Commissioner to promulgate adequate plans to address COVID-19 and the release of inmates, in addition to other relief, in the Southern District of West Virginia, before the Honorable Robert Chambers in a case styled Barley v. Jividen, et al., Civil Action No. 3:18- ev-01526. On April 8, 2020, Judge Chambers issued his Memorandum Opinion and Order denying, the Emergency Motion and it is attached hereto as Exhibit 3.° As will be discussed het , Judge S tis noted that Judge Chambers issued a bench ruling denying the Emergency Motion on Monday, April 6, 2020, the date of the hearing on that Motion. The Petitioners in this case should have been aware of that ruling, but no mention of it is made in their Petition in this case. 5Chambers made several findings and considered several issues, that are directly related to the instant Petition and the Constitutional Eighth and Fourteenth Amendment issues raised herein. 10. Of significance is Judge Chambers’ conclusion that the inmates in Baxley were not entitled to a preliminary injunction because they were unlikely to prevail on the merits of their Eighth and Fourteenth Amendment claims. He initially recognized that “Defendants have demonstrated actual knowledge of the risk of COVID-19, and regard it with the seriousness it deserves.” Slip Op. at p. 14. Judge Chambers then went on to note that as of the hearing date, April 6, there were no positive cases of COVID-19 in the Regional Jails or Prisons in West Virginia. 11, The Memorandum Opinion and Order then discussed the plans implemented by ‘Commissioner Jividen to address COVID-19: “as Plaintiffs now recognize that Defendants have adopted a COVID-19 response plan drawn from the same source as their own proposed response plan. Instead of focusing on the adequacy of the plan, Plaintiffs argue that its implementation has been ineffective and that an indeterminate number of prisoners and detainees must be released to provide for increased social distancing within prisons and jail facilities. With respect tothe first contention, the Courtis mindful that—even apart from questions ofits own authority—it cannot act as an administrator of state prison facilities to ensure that every clement of Defendants’ plan is implemented to the letter.” Slip Op. at pp. 14-15. 12, Judge Chambers then concluded, “at present, it is impossible to conclude that Defendants have acted with the sort of deliberate indifference that could give rise to a constitutional violation under the Eighth and Fourteenth Amendments. As such, the Court finds that Plaintiffs have not demonstrated a substantial likelihood of success on the merits of their claims.” Slip Op. at pp. 15- 16.13. Inso holding, Judge Chambers at footnote 16 also rejected the Plaintiffs request for the appointment of a Special Master in Baxley, concluding: At the hearing, Plaintifis suggested the appointment of a Special Master or an order directing the parties to engage in mediation as ‘potential means for increasing the administrability of any injunction. ‘The Court does not believe either option deals effectively with the problems inherent in making case-by-case determinations regarding the furlough or release of inmates. 14, Extensive briefing took place before the District Court rendered its decision, exhibits were filed with briefs and prior to the hearing and nine additional exhibits were filed under seal per the direction of Judge Chambers. Respondents propose that the entire record relating to the Emergency Injunction filing and Memorandum Opinion and Order in District Court be permitted to be filed with this Court, including the nine exhibits filed under seal, and that those documents be permitted to be filed under seal with this Court, either under Rule 40(c) or (4), West ‘Virginia Rules of Appellate Procedure, as the Court deems appropriate.” A transcript of the April 6 hearing has been ordered and can be provided to the Court upon receipt. 15. “Habeas corpus lies to secure relief from conditions of imprisonment which constitute cruel and unusual punishment in violation of the provisions of Article III, Section 5, of the Constitution of West Virginia and of the Eighth Amendment to the Constitution of the United States.” Syl. Pt, 1, State ex rel. Pingley v. Coiner, 155 W.Va. 591, 186 8.E.2d 220 (1972). Where there is no violation of the Eighth Amendment or Article III, Section 5 of the West Virginia Constitution, a Writ of Habeas Corpus cannot be issued. Respondents will be addressing the 7 As previously noted in footnote two herein, Commissioner Jividen recently decided to make two of the nine exhibits public, her March 20 Policy Directive on COVID-19 and the March 26 memorandum regarding CDC Guidance. Therefore, the Respondents are only requesting the filing of seven of the nine exhibits from the Baxley case under sea.Constitutional issues under the Eighth and Fourteenth Amendments and be moving to dismiss based on the decision of Judge Chambers in the Baxley case. 16. With regard to Petition categories (1) Petitioners eligible for release on personal recognizance; (2) Petitioners eligible for release on reduced bail; (4) Petitioners eligible for compassionate release; and, (5) Petitioners who should be eligible for release due to extraordinary circumstances, listed in Paragraphs 1-3 and 10-39, the Respondents advise the Court:* a. That Respondents have confirmed thus far that seven of the Petitioners have pending plea offers awaiting decision by the individual Petitioner, or Petitioner is awaiting court approval and/or sentencing on an accepted plea offer. At least three of these Petitioners are anticipated to be released on a form of supervised release (probation, home confinement, etc.) if the plea offer is accepted approved by the appropriate court. b. That eighteen Petitioners have failed prior terms of release or alternative sentencing, including parole, probation, home confinement, supervised release, substance abuse rehabilitation programs, bond/bail, and Anthony Center placement. In each of the eighteen cases, Petitioners were re-incarcerated due to violations of the terms of his/her release within short periods of time for violations that included, but are not limited to, failure to register as a sex offender, possession of controlled substances, and absconding from parole/fugitive from justice. c. That seven Petitioners have already had their bond/bail reduced by the applicable court pursuant to agreements with the Prosecuting Attomeys and/or as a result of this Court’s March 2020 memorandum encouraging each county to examine their * At this time, cesearch by the Respondents into the circumstances and crimes of the individual Petitioners is ongoing.criminal dockets to determine if any individual defendant may qualify for reduced bond given the extraordinary circumstances the coronavirus presents. 4. That Petitioners must be evaluated for reduced bond and/or release based upon a highly-individualized examination of each Petitioner's current charges, past criminal history, behavior exhibited while incarcerated, degree of rehabilitation, remaining length of sentence (if applicable), and circumstances awaiting them if released (such as housing, medical care, food, clothing, exposure to minor children, etc.) For example, seven Petitioners have more than ten separate bookings into a Regional Jail Facility and one Petitioner has more than twenty; eight Petitioners have current or former charges for violent crimes, including six of those charges being for domestic violence; and one Petitioner has pending charges of child neglect. 17. With regard to Petition category (3), Petitioners eligible for release on parole, the Respondents advise the Court that six of the Petitioners listed at paragraphs 4 to 9 of the Petition claim to be eligible for parole. One of the Petitioners, Nelson Cortes, was released pre-petition on ‘April 1, 2020, and his claim is now moot. Counsel for Petitioners assert that these six Petitioners ‘will automatically be eligible for release upon the effective date of new legislation (Senate Bill 620) that authorizes the Commissioner of WVDCR to establish a “nonviolent offense parole program" under a new code section, W.Va. Code § 62-12-13c. The effective date of this new code section is May 19, 2020 and Petitioners argue that in effect, this Court should unilaterally move up the effective date by six weeks and order a release of these Petitioners. These claims are extremely misleading and based upon misrepresentations of both fact and law.18. First, while W.Va. Code § 62-12-13c takes effect on May 19, 2020, it specifically states that the new program created thereby does not “commence” until July 1, 2021. Jd. at subsection (a). Thus, Petitioners are not just asking this Court to move up the effective date of the legislation by six weeks, they are also asking this Court to move up the commencement date for the program established by the legislation by more than a year. The implementation of this program will require infrastructure, personnel, and equipment deployment across the State of West ‘Virginia that is not currently in place, 19. Secondly, even if this new code section were in effect today and the “nonviolent offense parole program” had already commenced, it would not help five of these six Petitioners in their goal of obtaining an early release. W.Va. Code § 62-12-13c helps certain individuals who meet objective factors obtain parole without going through a parole board hearing. However, to take advantage of the statute, the individual must first and foremost be “eligible for parole.” Id. at subsection (b). Only one of the five remaining Petitioners in this category is currently eligible for parole (Levi Amold) and the others have future parole eligibility dates as follows: Kevin Johnson, December 3, 2020; Kenneth Cyrus, July 31, 2020; Roy Ailiff, September 15, 2020; and Benny Horn, June 2020. Because only one of these Petitioners is currently eligible for parole, this new legislation is essentially irrelevant and the Petition should be denied regarding these five individuals, 20. Finally, the Respondents address the request for this Court to expeditiously appoint a Special Master, within three to five days of the Petition being filed and they request the Special ‘Master to have the following authority. (1) Ensure that appropriate agencies consult and coordinate with relevant public defense agencies, defense counsel, as well as counsel for Petitioners to represent all interests in this matter: 10(2) Enlist, as appropriate or necessary, subject matter experts, to act as panel and advise and consult with the special master in facilitating the process; (3) Report to this Court every 48 hours on progress, including the numbers of individuals released; (4)Report immediately to this court any recalcitrant or unreasonable conduct by any participant in the process. 21. ‘The Respondents strenuously object to this proposal for several reasons. First, it is not permitted for this Court, under the Separation of Powers clause, to interfere on a daily basis in an executive function, such as the running of the Regional Jails and Prisons. In State ex rel. Berry v. MeBride, 218 W. Va. 579, 586 n.6, 625 S.E.2d 341, 348 (2005), this Court recognized: “Of course it is true that prison officials, who operate with enormous responsibilities and clearly inadequate resources under strongly competing and conflicting pressures, must have large amounts of discretion in controlling many aspects of inmates’ lives — for the soundest of reasons.” 22, This Court should recognize that addressing COVID-19 is an executive function, not a judicial function, and this Court should not interfere with Commissioner Jividen’s exercise of discretion in addressing that pandemic. 23, Second, while this Court has authority under Rule 16(1), West Virginia Rules of Appellate Procedure, to appoint a Special Master, this Court has historically primarily used Special Masters in a quasi-judicial capacity as fact finders, to make a record and report back to the Court recommendations for a judicial decision.’ See e.g. State ex rel. Berry v. McBride, supra, wherein ® Rule 16()), provides: “In an original jurisdiction proceeding, the Supreme Court, on its own motion or ‘upon written motion of the parties, may determine that because of the complexity of the factual issues involved, the proceeding should be referred to a special master or commissioner for the purpose of supervising the taking of depositions and to make such findings of fact as the Supreme Court may direct Any such findings of fact made by the special master or commissioner shall be in writing and the parties ‘shall have the right to file written objections thereto before the findings are considered by the Supreme Court.” (Emphasis added). WJudge Swope from Mercer County, West Virginia served as a Special Master and he issued a recommended decision for the Court to review. This is in keeping with the role of a Special Master to serving a judicial and not a legislative fumetion. See also, State ex rel. Regional Jail & Correctional Facility Authority v. County Commission of Cabell County, 222 W. Va. 1, 5-6, 657 S.E.2d 176, 180-81 (2007)(Referral of Rule to Show Cause under former Rule 14(f) to the Circuit Court of Cabell County). 24, Finally, as discussed above, Judge Chambers properly declined to appoint a Special Master concluding at footnote 16 of his opinion that there were “problems inherent in making case- by-case determinations regarding the furlough or release of inmates.” So too in this case, when ‘one examines the myriad of categories that the Petitioners fall into and are requesting relief, not only from the DCR, but also from the Parole Board, this Court should recognize that a Special Master would not have the expertise to address such matters. On this basis, this Court should enter an Order now denying relief of the appointment of a Special Master as requested by the Petitioners. 25. Finally, the Respondents respectfully request that this Court enter an Order allowing the parties to serve any pleadings in this case by email and regular mail to counsel of record and the Clerk’s office. Most counsel are operating from home and permitting the emailing of pleadings, particularly with the Clerk’s office should be allowed to further the expeditious treatment of this case. WHEREFORE, for cach and all of the foregoing reasons, Respondents request the Court that they be allowed at least ten working days from the entry of any scheduling order to file their Answer or Motion to Dismiss the Petition, that this matter be set on the Court’s docket for oral argument, that the Respondents be allowed to file the record from Baxley v. Jividen, et al., Civil Action No. 3:18-cv-01526, including those portions under seal, that should be allowed to be filed 12under seal with this Court, that this Court order that a Special Master is not appropriate in this case, that an order be entered permitting the parties to serve pleadings through email, and for such other relief as this Court deems just and proper. Respectfully submitted on behalf of all Respondents by: PATRICK MORRISEY ATTORNEY GENERAL /s/ Briana J. Marino Briana J. Marino, State Bar #11060 Assistant Attorney General 1900 Kanawha Bivd., East Building 1, Suite W-400 Charleston, WV 25305 Telephone: (304) 558-6593 Facsimile: (304) 558-4509 Email: Briana.J.Marino@wvago.gov Assistant Attorney General Representing the West Virginia Division of Corrections and Rehabilitation And Department of Military Affairs and Public Safety Js/ Keith D. Fisher Keith D. Fisher, State Bar #11346 Assistant Attomey General Office of the West Virginia Attorney General 812 Quartier Street, Second Floor Charleston, WV 25301 Telephone: (304) 558-8989 Facsimile: (304) 558-4509 Email: Keith.D Fisher@wvago.gov Assistant Attorney General Representing ‘The West Virginia Parole Board LEWIS GLASSER PLLC /s/ Webster J. Arceneaux, III Webster J. Arceneaux, Il, State Bar #155 Richard L. Gottlieb, State Bar #1447 James C. Stebbins, State Bar #6674 1BValerie H. Raupp, State Bar #10476 Post Office Box 1746 Charleston, WV 25326 Telephone: (304) 345-2000 Facsimile: (304) 343-7999 Email: wiarceneaux@lewisglasser.com Special Assistant Attorneys General 4No, 20-0259 IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA DONALD MILLER, et al, Petitioners, v SY JIVIDEN, ef al, Respondents. CERTIFICATE OF SERVICE 1, the undersigned counsel, hereby certify that on April 13, 2020, I caused the foregoing RESPONDENT'S RESPONSE TO PETITIONERS’ MOTION FOR EXPEDITED CONSIDERATION ANID RELIEF to be served on the following by placing a true copy thereof in a properly addressed, postage-prepaid envelope and depositing same in the United States Mail at the last known address as follows: Loree Stark, Esq ACLU of West Virginia Foundation Post Office Box 395 Charleston, West Virginia 25339-3952 Lora Greer Walker, Esq. Public Defender Services Habeas Corpus Division One Player's Club Drive, Suite 301 Charleston, West Virginia 25311 4 Hang.) Mauno Briana J, Marino