U.S. soldiers with the West Virginia National Guard patrol the National Mall in Washington on Aug. 20. (Photo Provided)

CHARLESTON — A Kanawha County judge overseeing a case to halt the deployment of the West Virginia National Guard to the nation’s capital is seeking additional information before issuing a ruling.

During a hearing Friday morning to consider a motion for a temporary restraining order being sought by the ACLU-WV and West Virginia Citizens Action Group (WV CAG), Eighth Judicial Circuit Judge Richard Lindsay asked attorneys for the plaintiffs and the state, represented by the Attorney General’s Office, to file briefs answering the question of whether Gov. Patrick Morrisey followed state law in deploying the National Guard to Washington, D.C.

“The central issue to this court is whether or not what the governor did is in compliance with West Virginia law,” Lindsay said. “I believe the issue does need to be covered.”

Lindsay asked both parties to file their briefs by the end of next week, with the hearing being continued until Monday, Nov. 2.

“I’d like the defendants to brief the issue of whether or not what Governor Morrissey did was lawful in accordance with West Virginia law, again, in the context of responding to a request by the President of the United States for the deployment of National Guard to Washington, D.C.,” Lindsay said. “Any reply and or response to defendant’s supplement (by the plaintiffs) will be filed on or before Thursday, October the 30th.”

Trump announced a federal takeover of law enforcement functions in D.C. on Aug. 11, citing instances of violent crime. Trump called up the D.C. National Guard, FBI, the Department of Homeland Security, and other federal agencies to help quell crime.

Trump also requested the assistance of states, asking them to send their own National Guard units to D.C. Trump cited United States Code Title 32 502(f), which allows the secretaries of the Army or Air Force to call up National Guard units from other states for training or other duties. This authority is used for national disasters or national security missions.

Morrisey announced on Aug. 16 that he was sending between 300 and 400 personnel with the West Virginia National Guard to D.C. To date, Louisiana, Mississippi, Ohio, South Carolina, South Dakota and Tennessee have also sent National Guard units to D.C.

The ACLU-WV and WV CAG filed a lawsuit Aug. 21 against Morrisey and Maj. Gen. James Seward, the adjutant general of the West Virginia National Guard.

The lawsuit is seeking a temporary restraining order and a permanent injunction to block the recent deployment of the National Guard to Washington and a declaratory judgement that the deployment exceeds statutory and constitutional authority.

The permanent injunction seeks to prohibit Morrisey from ordering the deployment of National Guard soldiers outside of the state and prohibit Seward from complying with unlawful directives to send National Guard units or civilian employees outside the state.

“Sending the West Virginia Guard outside of the state when they’re cloaked only with the authority of West Virginia law means that they don’t have any authority at all,” said ACLU-WV Legal Director Aubrey Sparks. “Even if that weren’t the case, West Virginia law provides a specific enumerated set of circumstances in which the West Virginia Guard can be called into service of the state. None of those are met here.

“Even if we assumed that the defendants were able to overcome these hurdles, there are glaring legal deficiencies with the Guard’s operation as out-of-state law enforcement officials,” Sparks continued.

WV CAG Executive Director Dani Parent was the only witness called to testify Friday, answering questions about the organization.

“We are reinvigorating our democracy work based on the outreach, and I would almost say outcry, of our members; folks who are really concerned about this, the deployment of the Guard and just the general transparency and accountability level of the government,” Parent said.

Assistant Attorney General Christopher Etheredge argued that WV CAG has no standing to bring the legal action, arguing the organization and its members were not injured by Morrisey’s deployment of the West Virginia National Guard to D.C.

“(WV CAG) haven’t produced any of the members,” Etheredge said. “Their director was just on the stand saying that she couldn’t tell you how many members, if any, are members of the National Guard. She couldn’t tell you how many members, if any, are family members of the National Guard, immediate or otherwise. So, for that reason alone…they can’t meet individual standing now, because they literally have not identified any injury.”