On Monday, the West Virginia Democratic Party filed another petition in the Supreme Court of Appeals of West Virginia seeking the court’s intervention in the appointment of a new lawmaker to the West Virginia House of Delegates.
This is the second petition in a protracted legal battle with state Republican leadership. House Speaker Roger Hanshaw stayed the first petition filed Jan. 14, arguing that state code allows for the ruling to be delayed until after this year’s legislative session.
The Democrats’ decision to file a new petition comes just over two weeks before the new legislative session begins at the State Capitol. Elected officials on both sides of the aisle have taken steps to ensure their parties play a role in appointing a new delegate to the seat.
On Friday, Gov. Patrick Morrisey appointed Ian Masters, a Republican lawyer and gun lobbyist from Gerrardstown, to the seat. The new petition lists Morrisey as its sole defendant, and seeks to override the governor’s decision and place a Democrat in office ahead of session.
The 91st district was initially won by then-Republican Joseph de Soto in November. But de Soto was charged by West Virginia State Police in December for allegedly threatening to kill several state legislators and is now under house arrest. Earlier this month, the House voted to vacate the seat, which represents Berkeley County.
The House resolution to vacate specified that the governor should appoint a Republican to take the office, representing the party de Soto won his election under.
However, de Soto swapped political affiliations before his arrest and registered as a Democrat. The state’s Democratic Party argues that, under a state law changed in 2018, de Soto should have been formally expelled from office, instead of lawmakers vacating the House seat that he won. That process would allow his party upon removal — the Democratic Party — to nominate a replacement delegate.
The Democratic Party and its chairman, Del. Mike Pushkin, D-Kanawha, filed an initial petition earlier this month asking the court to nullify the move to vacate the Berkeley County seat.
But before the state’s supreme court issued a decision, House Speaker Roger Hanshaw, R-Clay — one of two respondents listed — filed a stay of the petition, arguing that awaiting the court’s answer would conflict with the upcoming legislative session, which begins Feb. 12. The governor then appointed a replacement delegate Jan. 24.
Legal counsel for the Democratic Party previously told West Virginia Public Broadcasting that they submitted a motion to dissolve Hanshaw’s stay, and would proceed with an amended petition that removed Hanshaw as a respondent to expedite the hearing process.
The petition filed by the party Monday did just that, while also adding a new, third petitioner: Jill Michaels, who is listed as a “resident and registered voter living in West Virginia’s 91st delegate district in Berkeley County,” according to the petition.
In the petition, Democrats ask the court for an “expedited hearing and resolution,” and a declaration that de Soto is “lawfully elected.”
Then, if lawmakers choose to expel him from office, the petition asks the court to grant the Berkeley County Democratic Executive Committee a role in nominating three Democratic district residents to the seat, per state law. In November’s general election, the party did not nominate a Democratic candidate to run against de Soto.
Robert Bastress, legal counsel for the petitioners, told WVPB through email Wednesday that the court “ordered a response to the petition be made by Feb. 5.”