By james art 
photo by: WVa Legislative Photography
Employee of John Canning and Co. installs the Seneca Rocks mural, which features Babydog, Gov. Jim Justice’s English bulldog, on June 12 at the West Virginia Capitol.
CHARLESTON — An attorney representing the West Virginia Department of Arts, Culture and History says a lawsuit filed in August to stop a mural project at the state Capitol building is frivolous and political.
Michael Hissam, an attorney with Hissam Forman Donovan Ritchie PLLC, filed a complaint Thursday seeking to dismiss a lawsuit filed by Harvey Payton, an attorney representing West Virginia residents Gregory Morris and Tom Acosta.
Morris and Acosta filed a lawsuit in August in Kanawha County District Court asking the court to void a mural contract for the state Capitol’s upper rotunda between the West Virginia Department of Arts, Culture and History and Connecticut-based John Canning and Co . .
Peyton is seeking an order directing the Department of Administration’s General Services Division to remove the murals and ban any further work, ban any further payments to Canning and require Arts, Culture and History Minister Randall Reid-Smith and Canning to pay the state as well as all attorney’s fees.
“This case … is nothing more than an attention-seeking lawsuit by individuals claiming only speculative harm who now want to drag the judicial system into a self-created political circus,” Hissam wrote.
“To prevent this court from becoming a forum for political disputes over the details of public art already installed in the State Capitol – for which this court would be the arbiter of which art is appropriate – this court should dismiss the appeal and let this debate for the people’s representatives in the legislature and the executive,” Hissam continued.
Workers with John Canning are completing work on the remaining four murals and an eight-mural project first announced publicly 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 a handful of Gov. Jim Justice’s cabinet and staff to include a dog in one of the murals, similar to Justice’s famous English bulldog , 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 Aug. 30. Dave Hardy, former secretary of the Department of Justice’s Department of Revenue before being appointed by the justice to be a district judge in Kanawha County last year, is the judge in the case.
The lawsuit names Reid-Smith in his 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 case also includes members of an unofficial committee that signed off on the final deliveries of the murals, contractor John Canning and Co., Acting Secretary of Administration John McHugh and State Treasurer Riley Moore.
The first four murals in the crescent lunettes in the upper rotunda depict historic Harpers 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 the Seneca Rocks.
The murals are believed to be based on ideas and concepts that famed Capitol architect Cass Gilbert wanted to incorporate into the building but was unable to because of costs during the onset of the Great Depression.
“The Great Depression drowned Gilbert’s artistic vision when he lacked funds to complete the artwork and other elements in his designs,” Hissam writes. “Nevertheless, Gilbert left a written record that these functions were to be completed when funds permitted. Unfortunately the rotunda of our Capitol has been deprived for nearly a century of the beautiful works of art which Gilbert intended, containing instead only blank painted panels.’
The process of selecting an artist for the murals was first approved on April 14, 2010 by the Capitol Building Commission. Multiple companies were involved in the pre-bid process at the time, including Canning, but the project was rejected 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 when the scaffolding went up in April 2024 to restart the project, and the commission was not consulted on the appearance of the murals before then. 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 slated to cost more than $509,000, according to the procurement contract. According to the state purchasing department, the project was not put out for competitive bid, citing Section 9 of the “non-bidable list” of the purchasing department’s Procedures Manual, which includes works of art and historical items.
Peyton alleged that when the project was reopened in 2019, Reid-Smith and John Canning engaged in a “civil conspiracy” to avoid a new bidding process. But Hissam argued that Morris and Acosta lacked standing to sue the project and could not claim civil conspiracy. Hissam also argued that the case is moot now that the Capitol Building Commission has approved the project and the lawsuit should have raised issues earlier with Canning’s selection as the project’s supplier.
“Like all other citizens without a specific legal interest in this political squabble over what should be displayed as public art, the plaintiffs should make their criticisms using the First Amendment — not involve the court system in the work of deciding the content of public art in the state Capitol,” Hissam wrote.