Dems Have ‘No Standing’ To Petition For House Seat, Defense Counsel Says

Legal counsel for Gov. Patrick Morrisey has urged the state’s supreme court to dismiss a request from the West Virginia Democratic Party to reverse the vacating of a seat in the West Virginia House of Delegates.

This year’s legislative session begins Feb. 12. But the West Virginia House of Delegates has been embroiled in a debate over who should represent southern Berkeley County in the House’s 91st district seat since December.

In a petition filed last month, the West Virginia Democratic Party argued they should have a say in nominating a delegate to the office. On behalf of the governor, Attorney General JB McCuskey argued in a Wednesday response that the party’s claims have “no standing” in court.

Joseph de Soto won the race for the House’s 91st district seat in November. But his fellow Republican delegates reportedly moved to oust him from office at a December caucus over false claims he made about his professional and military service background.

After the caucus, an upset de Soto allegedly threatened to kill several lawmakers in a series of emails and text messages, per a Berkeley County Magistrate Court criminal complaint. West Virginia State Police arrested and charged de Soto on Dec. 12 for making “terroristic threats.” He is currently under home incarceration.

This confinement forced de Soto to forgo a Jan. 8 meeting at the State Capitol, where new lawmakers were sworn into office. Citing his failure to take the oath, members of the House voted to vacate his seat and allow the governor to appoint a Republican replacement.

But before his arrest, de Soto switched political affiliations to the Democratic Party.

State Democrats filed petitions in the Supreme Court of Appeals of West Virginia after the vote to reverse the decision to vacate the House seat, arguing de Soto should have instead been expelled from office. Alongside the Democratic Party, the petition filed in January lists Party Chair Del. Mike Pushkin, D-Kanawha, and Jill Michaels, a “residents and registered voter” from the 91st House district, as plaintiffs.

The expulsion process would have granted his party upon expulsion, the Democratic Party, say over who would be appointed to the seat. That is due to a 2018 state law passed by a Republican legislative majority that grants a role in nominating an ousted lawmaker’s successor to their party upon departure from office, not their party upon election.

But in a response filed Wednesday, McCuskey argues on Morrisey’s behalf that these claims fail to warrant the reversal of the House’s decision to vacate the Berkeley County seat.

The response argues that the Democrats failed to provide “pre-suit notice” within 30 days of filing their petition — notice of “the alleged claim and the relief desired,” per the West Virginia Code — and that Morrisey “didn’t cause their alleged harm, can’t fix their alleged harm and has no duty to do what petitioners want.”

Defense counsel claims that the House of Delegates has the sole authority to decide whether de Soto “forfeited his seat,” and that de Soto’s party upon forfeiture is irrelevant because he never took his oath of office.

“De Soto has yet to be sworn in (and never will be),” the petition reads. “He isn’t a qualified Delegate and has never held that office. Thus, his party affiliation is irrelevant in deciding which party should fill the seat; a Republican was the last actual officeholder, so a Republican must replace him.”

Prior to de Soto’s election, Republican Don Forsht represented southern Berkeley County in the House. No Democratic candidate ran for the 91st House seat in November’s general election.

“Petitioners have established no basis for relief,” the response read.

Pushkin told West Virginia Public Broadcasting Thursday that the response shows that Republican lawmakers refuse to contend with the meaning of a law passed by their own party.

“The law is very clear on this, and it’s a law that Republican legislators codified years ago,” Pushkin said regarding the 2018 vacancy protocol law. “When it benefited them, they followed it. Now that it does not benefit them, they want to ignore it.”

“You can’t just follow the law when it benefits you or your party,” he added.

Pushkin said the Democratic Party is awaiting a decision from the state’s supreme court, but may consider taking additional legal action in the future.

While representatives from both parties await the court’s guidance, Republicans have taken steps to seat a lawmaker from within their own party before the legislative session begins.

Morrisey appointed Ian Masters, a lawyer and gun lobbyist from Gerrardstown, to the vacant seat on Jan. 24. He took his oath of office later that day.

Morrisey and his defense counsel requested that the supreme court deny the petitioners’ request for relief. If the court does so, Masters will represent the 91st district during this year’s legislative session, and will remain in office through the 2026 general election.

View defense counsel’s response to the West Virginia Democratic Party petition here: