CHARLESTON – A day after the state Supreme Court said it would hear oral arguments in the petition regarding the appointment of a new Wayne County delegate, the state Republican Party has filed a motion to intervene in the case.
Meanwhile, the attorney representing the Wayne County Republican Executive Committee says he has found evidence of hypocrisy with how Gov. Jim Justice’s office has handled the selection process to fill the seat vacated by Derrick Evans, the lawmaker who went into the U.S. Capitol with a mob.
On January 28, the state Supreme Court issued an order and rule to show cause granting a motion filed by Jeff Maynard, chairman of the Wayne County Republican Executive Committee. Justice’s office must file its response by February 1.
Stauffer
Oral arguments are scheduled for February 9, which is the day before the 60-day legislative session begins. The court also ordered a stay on any legislative activities by Joshua Booth, who was appointed January 27 to fill the seat vacated by Evans. Evans resigned earlier this month after he was charged with taking part in the January 6 events at the U.S. Capitol.
“The issuance of this rule to show cause stays any and all legislative action by any person appointed by the respondent to the West Virginia House of Delegates to fill the vacancy created by the resignation of the delegate from the 19th Delegate District until final resolution of this matter,” the court order states, also noting that Justice Bill Wooton considered the action moot and would not have granted the motion for expedited relief or issue a rule to show cause setting the matter for oral argument.
On January 28, the Supreme Court filed the order granting the state Republican Party’s motion to intervene in the case. In its motion to intervene filed earlier in the day, the state party asked to join the case because it says it can provide further detail about how the vacancy was filled.
The party also says it wants to maintain the integrity of the process established by the Legislature for the nomination of candidates to fill vacancies as well as to ensure internal party governance documents, including bylaws, are properly interpreted, respected and administered.
“This court should allow the party to intervene to defend its unique and significant interests, which are not identical to those of the respondent governor,” the party motion states. “First, the party has a direct interest in the proper interpretation ... because the statute expressly provides for the direct involvement of party executive committees in nominating candidates to fill legislative vacancies.
Second, petitioner’s claims also implicate the party’s internal bylaws, which control and define in greater detail the process by which the party executive committees fill vacancies.”
Booth was not on the first list of candidates given to Justice by the Wayne County Republican Committee. But he was on a subsequent list provided to the governor after acting state GOP Chairman Roman Stauffer conducted interviews for the vacancy.
On January 25, Jeff Maynard filed his petition with the state Supreme Court saying Gov. Justice is not following law in choosing a candidate to replace Evans.
The petition for a writ of mandamus, filed by attorney John H. Bryan, asks the court to force Justice to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the House of Delegates vacancy left by Evans.
“Basically, the state Republican party has usurped the powers and authority of the Wayne County Republican voters by attempting to take away their authority to choose a list of three qualified candidates to present to the governor,” Bryan said. “The governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list.
“Instead, the new acting chairman of the West Virginia Republican Executive Committee (Stauffer) took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County.
“The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.”
Jeff Maynard said he filed the petition on behalf of the citizens of Wayne County. Jeff Maynard is a distant cousin of state Senator Mark Maynard (R-Wayne), who says he plans to introduce legislation to change how such appointments are filled.
In addition, at least two people who said they expressed an interest in the vacancy say they were not granted an interview.
“I contacted the Secretary of State’s office, party officials, legislators,” Jeff Maynard told The West Virginia Record. “We followed state code. We had a list of names compiled, then Roman contacted me and said the names had to come to him and to the governor.”
Following Booth’s appointment, Jeff Maynard declined further comment except to say “laws in West Virginia seem to just be suggestions, according to our great leading example setter.”
Bryan said the legal case will proceed as planned following Booth’s appointment.
“This is what we anticipated would happen,” Bryan told The Record. “Had he chosen either of the two candidates on both lists, it would have mooted the petition. Since he didn’t, we’re proceeding as planned.
“I think the ball is in the governor’s court at this point. He said he would let the lawyers handle it, so we’ll have to wait and see what their reasoning is.”
Bryan says part of the reason this case is important because Wayne County hasn’t had a Republican delegate in 100 years.
“Now that they’ve got one, the governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign,” Bryan said. “Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the governor.
“This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.”
According to the petition, they Wayne County Republican Executive Committee submitted the names of Mark Ross, Chad Shaffer and Jay Marcum to the governor’s office, which signed for and accepted the registered letter January 14.
“Subsequent to the governor’s receipt of the list of three qualified candidates for the vacant seat, Chairman (Jeff) Maynard received a phone call from counsel for the governor, Brian Abraham, who advised that the governor would not be choosing from the list of three qualified candidates,” the petition states, “because the acting chair of the West Virginia State Republican Executive Committee, Roman Stauffer, had not participated in the vote. Thereafter, Acting Chairman Stauffer unilaterally engaged in a second selection process, ultimately creating a new list (hereinafter ‘second list’) of three candidates.”
That second list still included Ross and Shaffer.
“However, instead of Jay Marcum – who had been a candidate for the 19th Delegate District in the 2020 Republican primary – a new name replaced him: Jeff (Joshua) Booth,” the petition continues, noting that Stauffer submitted the new list to the governor on January 22.
“The governor does not have the discretion to choose from a second and subsequent list of qualified candidates, which would usurp the statutory rights of the Wayne County Republican Executive Committee members of the 19th Delegate District, as well as their constituents,” the petition states. “State code mandates that the governor choose from among the three candidates supplied by the Wayne County Republican Executive Committee.
“He may not add to the list. Nor may any third party, such as the acting chairman of the State Republican Executive Committee, alter the list of candidates already-supplied by the petitioner within the 15-day time period prescribed by statute.”
Stauffer declined comment.
“We have no comment on any pending litigation at this time,” Stauffer told The Record.
Abraham, who recently was named Justice’s Chief of Staff, did not return several messages seeking comment.
“Roman ran an ad in the Huntington paper to find candidates,” Jeff Maynard said. “They did the interviews on the 21st at the Wayne County Courthouse. Then, he (Stauffer) compiled the second list of names.”
In a January 29 post on his website, Bryan disputed the claim that the state Republican Party Executive Committee had to be involved in the selection process.
“They told the Wayne County Republican Party Chair that he did it wrong; that they had to re-do the process and re-submit the candidates, which culminated in a new name being added to the list of three choices,” Bryan wrote, including copies of the first Wayne County letter as well as others from different county party committees in recent years that also don’t include state party involvement. “The governor chose from this list, submitted to him from Wood County, back in October of 2018. It looks pretty similar.
“This list was sent in by the Wood County Republican Executive Committee, following the death of Delegate Frank Deem, who had passed away on October 10, 2018. The news media reported the fact that the county chose the list of three qualified replacements from which the Governor would be choosing. There was no mention of the state party, or the state chair.”
Bryan questions why the governor didn’t ask for a letter that included the state party in the 2018 Wood County situation.
“He made a choice and he seemed happy with it,” Bryan wrote. “I guess he liked one of the options in Wood County’s list, as opposed to Wayne County’s list. What does Wayne County know? They’re probably a bunch of hayseeds.”
Bryan also notes that Stauffer was Justice’s campaign manager in last year’s gubernatorial race.
“Stauffer was, at one time, the chair of the Mercer County Republican Executive Committee,” Bryan wrote. “During his time serving in that capacity, guess what happened? A vacancy opened up in his county, and he was required to come up with three qualified candidates for the Governor to choose a replacement.
“It looks like Mr. Stauffer followed the exact same process that ended up being wrong now in 2021.”
In the Supreme Court petition, Bryan says the justices already reviewed such a case in the 2016 ruling in State ex rel. Biafore v. Tomblin when it ruled the governor’s duty to fill an open vacancy from the list is nondiscretionary.
At the time the Biafore case regarding an appointment was heard by the court, Bryan says Republican Attorney General Patrick Morrisey and others argued that state code mandated the governor select a vacancy replacement from a list submitted by the Republican Party’s district executive committee for a Senate seat.
Gov. Earl Ray Tomblin wanted to appoint a Democrat to a state Senate vacancy left by a Republican, but he wanted the state Supreme Court to rule on which party should get the seat. The Justices decided a Republican had to be appointed to fill the seat vacated by a Republican.
In his case, Evans is facing federal charges for entering a restricted area and entering the U.S. Capitol. The newly elected Evans had taken his oath of office just days before, but he resigned from his seat January 9.
West Virginia Supreme Court of Appeals case number 21-0051