This photo provided by the West Virginia Legislature shows Gov. Jim Justice’s English bulldog, Babydog, depicted in this enlarged photo of a new mural unveiled at the West Virginia Capitol in Charleston. (Perry Bennett/West Virginia Legislature via AP)

CHARLESTON — An attorney representing the West Virginia Department of Arts, Culture and History said a lawsuit filed in August to stop a mural project at the state capitol building is meritless and political. Michael Hissam, an attorney with Hissam Forman Donovan Ritchie PLLC, filed a motion Thursday to dismiss a lawsuit filed by Harvey Peyton, an attorney representing West Virginia residents Gregory Morris and Tom Acosta. Morris and Acosta filed a lawsuit in August in Kanawha County Circuit Court asking the court to declare null and void a contract for murals for the upper rotunda of the State Capitol Building between the West Virginia Department of Arts, Culture and History and John Canning and Co., of Connecticut. . Peyton is seeking an order directing the Department of Administration’s General Services Division to remove the murals and prohibit any further work, prohibit any further payments to Canning, and require Arts, Culture and History Secretary Randall Reid-Smith and Canning to reimburse the state as well as any attorney’s fees.
“This case … is nothing more than an attention-seeking lawsuit by individuals claiming only speculative injuries who now want to drag justice into a self-created political circus,” Hisham wrote.
“To prevent this Court from becoming the forum for political wrangling over the details of public art already installed at the State Capitol—for which this Court would be the arbiter of what is appropriate art—this Court should dismiss the complaint and let that debate on behalf of the people. representatives in the Legislature and the Executive.” Hissam continued. John Canning workers are finishing work on the other four murals and a project of eight murals first publicly announced by the Governor’s Office in April. The first four murals, completed in time for West Virginia Day on June 20, came under scrutiny because of a last-minute decision by cabinet officials and staff of Gov. Jim Justice to include a dog in one of the murals similar to the Famous English bulldog of justice, Babydog. Peyton filed a 30-day notice of intent to sue the state in July on behalf of Morris and Acosta, who filed their lawsuit on Aug. 30. Dave Hardy, the former Justice Department Revenue Department cabinet secretary before being appointed by the Justice Department as a circuit judge in Kanawha County last year, is the judge in the case. The suit names Reid-Smith in her role as cabinet secretary and chairman of the Capitol Building Commission, which approves major changes to the grounds and buildings that make up the State Capitol Complex. The lawsuit also includes members of an informal committee that signed off on the final handovers of the murals, contractor John Canning and Co., acting Department of Administration Secretary Jon McHugh and state Treasurer Riley Moore. The first four murals in the half-moon lunettes in the upper rotunda depict historic Harper’s Ferry and Fort John Brown; the Battle of Philippi during the Civil War; an allegorical scene based on the state seal; and artists, musicians and wildlife at the base of Seneca Rocks. The murals are supposed to be based on ideas and concepts that famed Capitol architect Cass Gilbert wanted to include in the building but was unable to because of costs at the start of the Great Depression.
“The Great Depression crushed Gilbert’s artistic vision when funds were not available to complete the artwork and other elements of his design.” Hisham wrote. “Gilbert, however, left a written record that these functions should be completed when funds allow. Unfortunately, the rotunda of our Capitol has been devoid for nearly a century of the beautiful works of art that Gilbert proposed, containing instead only empty painted panels.”
The artist selection process for the murals was first approved on April 14, 2010, by the Capitol Building Commission. Several companies participated in the pre-bid process at the time, including Canning, but the project was abandoned due to lack of funding. Reid-Smith revived the project back in 2019, using the 2010 Capitol Building Commission vote to move forward. At no point did the Capitol Building Commission vote between 2019 and April 2024 when the time frames were raised to restart the project, and the commission was not previously consulted on the appearance of the murals. However, the Capitol Building Commission voted 4-1 on October 16 to approve ratification of the Capitol mural project after the fact. The project is estimated to cost more than $509,000, according to the procurement contract. According to the State Procurement Directorate, the project was not put out for competitive bidding, citing Section 9 of the Procurement Directorate’s Manual of Procedures. “impossible to bid list”, which includes works of art and historical objects. Peyton claimed that when the project was revived in 2019, Reid-Smith and John Canning engaged in a “civil conspiracy” to avoid conducting a new bidding process. But Hissam argued that Morris and Acosta do not have standing to file a lawsuit against the project and cannot allege civil conspiracy. Hissam also argued that the lawsuit was moot now that the Capitol Building Commission had approved the project, and the lawsuit should have raised issues earlier with Canning’s selection as the project’s vendor.
“Like all other citizens who have no specific legal stake in this political wrangle over what should be displayed as public art, the plaintiffs should make their criticisms using the First Amendment — don’t drag justice into the business to decide the content of public art in the state. Capitol,” Hisham wrote.
“They fell asleep on their rights, waiting until the media attention came after the completion and public display of the State Capitol murals,” Hissam continued. “It would be the height of prejudice to (Reid-Smith) and other defendants to require them to scrape up the murals and redo the entire project after the plaintiffs relied on their rights instead of seeking to enforce them.”
Steven Allen Adams can be reached at [email protected].