Amid Berkeley County House Seat Chaos, Morrisey Picks Replacement

Gov. Patrick Morrisey has named Ian Masters, a lawyer and gun lobbyist from Gerrardstown, to represent Berkeley County in the West Virginia House of Delegates 91st District seat. Masters took the oath of office on Friday.

The appointment comes after the state’s Democratic party sued for a say in naming a delegate to the seat, formally vacated by House Republicans earlier this month. Ahead of the Feb. 12 start of the legislative session, the future of that lawsuit and the seat’s representation remain in question.

A partisan dispute

Joseph de Soto won the district in November’s election. But the seat has been in flux since a contentious Republican House caucus in December, when lawmakers voiced plans to oust de Soto over false claims about his military background.

Later that week, de Soto was arrested and charged with allegedly threatening other Republican lawmakers. He is currently under home incarceration.

The House voted to vacate the seat on Jan. 8. But before his arrest, de Soto changed political affiliations from Republican to Democrat, which cast uncertainty over which party could name his successor following a 2018 state law, passed by a Republican legislative majority, requiring that lawmakers removed from office be succeeded by someone from their party upon removal.

The House resolution vacating de Soto’s seat specified that it should be filled by a Republican.

Pam Brush, chairwoman of the Berkeley County Republican Executive Committee, told West Virginia Public Broadcasting last week that the county party would set forth three Republican nominees from the district for Morrisey to choose from.

The Democratic Party also previously submitted three Berkeley county residents as options for the governor to consider. In the general election, the Democratic Party did not nominate a candidate.

Morrisey’s decision, announced Thursday, indicated that West Virginia Republicans planned to swear in a nominee from within the party. The state GOP did not respond to a request for comment by deadline.

Democrats appeal

However, the West Virginia Democratic Party filed a petition in the Supreme Court of Appeals of West Virginia on Jan. 14, asking the justices to nullify the House resolution vacating de Soto’s seat.

They argued that, under state law, de Soto began in his role Dec. 1. This would mean he had to be formally expelled from office, and that his seat could not just be vacated. Per the West Virginia Code, the expulsion process would require his successor to come from his party upon removal from office, the Democratic Party.

“The legislature, they ignored the Constitution when they created the vacancy, [and] when they passed [House Resolution 4],” state Democratic Party Chairman Mike Pushkin told WVPB Friday. “The Republicans in the legislature and the governor [are] now ignoring a law that they passed several years ago.”

House Speaker Roger Hanshaw filed a stay of the petition Jan. 17, citing a statute in state code that says legislative representatives “are not required” to await executive or judicial proceedings “when the timing of those matters may present conflicts” — in this case, the upcoming legislative session.

The Democratic Party responded, criticizing the move and filing an amended petition Jan. 23, before Morrisey announced his appointment.

The amended petition removed Hanshaw as a respondent, leaving only Morrisey to respond to the lawsuit. This change would sidestep the code allowing legislators to delay litigation, which Democrats say could resolve the case ahead of the legislative session.

Hanshaw is “using [the State Code] to prevent the legislature from doing its job,” Pushkin said. “He’s using it to punt. So we’ve amended our petition to remove the speaker from it so we can get a swift decision from the Supreme Court.”

Robert M. Bastress is the Democratic Party’s lawyer in the case, and a retired West Virginia University law professor. He said the state code itself could be considered legislative overreach.

“You could make an argument, by the way, that that statute does exceed the legislature’s authority and intrudes upon the judicial branch because it gives a legislator, essentially, authority to rule on a case,” Bastress said.

This year’s regular legislative session begins Feb. 12. If a lawsuit does not proceed in court, Masters will assume office.

But the justices will not deliver a decision in the Jan. 14 petition over which party had the authority to appoint a delegate to office until the stay has lapsed, after the legislative session has already ended.

Jared Hunt, the court’s communications director, said that the stay also applies to the amended petition. Meanwhile, the Democratic Party’s lawyer says they are awaiting communication from the court beyond receipt of the amended petition.

“The only thing I’ve heard from the court is I’ve received an email acknowledging receipt of our motion to amend and to dissolve the stay,” Bastress said.

Bastress said they would consider a new petition if the court said it was necessary. A new lawsuit could require the court to set a new timeline for reaching a decision.

The future of the seat

Masters currently serves as president of the West Virginia Citizens Defense League (WVCDL). The organization is a grassroots pro-gun lobbying group that supports the “individual right to keep and bear arms for defense of self, family, home and state, and for lawful hunting and recreational use,” according to the WVCDL website.

The WVCDL is registered as a corporation with the Secretary of State, having completed filing required for nonprofits that take in less than $50,000 a year.

Before assuming his seat, Masters must still take his oath of office.

“Ian’s experience leading the WVCDL makes him exceptionally prepared to step in and represent the people of the 91st District,” Morrisey said in a Thursday press release. “I’m confident he’ll bring experienced conservative leadership and be an effective legislator for southern Berkeley County.”

De Soto’s defense counsel, the Martinsburg-based Criminal Law Center, did not respond to multiple requests for comment on this story. He is next scheduled to appear before the Berkeley County Magistrate Court on March 19.