CHARLESTON – The state Supreme Court has denied a petition by the chairman of the Wayne County Republican Executive Committee, allowing the man recently appointed by Gov. Jim Justice to fill a House of Delegates seat to serve as the session begins Wednesday.
“The court has thoroughly reviewed the arguments set forth in the briefs and appendices,” states the order, which was released less than two hours after oral arguments took place in the matter February 8. “After careful consideration of all filings and oral argument by the parties, the court is of the opinion that the writ shall be, and it hereby is, denied.”
The court also lifted the stay it had put into place preventing newly appointed Delegate Joshua Booth from performing any legislative duties. The two-page order said the court also will file a more detailed opinion at a later date.
Petitioner Jeff Maynard, the chairman of the Wayne County Republican Executive Committee, maintained Justice was mandated to fill the vacancy in the 19th House of Delegates District with one of the three names presented to him in a January 14 letter from Maynard and the Wayne County GOP Executive Committee.
Justice, however, chose to pick a name from a second list submitted to him January 21 by the state Republican Party, which maintains the first list was invalid because the state party wasn’t involved in the process.
Attorney John Bryan, who is representing Maynard, was disappointed by the ruling.
"The governor has been able to get around the law whenever he pleases for the past year now," Bryan told The West Virginia Record. "When the full opinion is issued, I suppose we'll find out how he did it this time. ... State laws throughout the country were not followed in the 2020 election, and not a court in the land seems to care."
In Mayard's reply brief, Bryan stated his case.
“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 reply states. “Despite the decision of the governor to make an appointment from the list submitted to him on January 21, 2021, such appointment is invalid. Since the Delegate District 19 members provided their list of three qualified candidates to the governor with 15 days of the vacancy, no appointment of a third party can be made …
“Though an erroneous appointment was made, the appointment has not been seated and sworn into the office by the Legislature. Therefore, an unlawful appointment of a third party cannot moot this petition.”
Bryan says the state party’s claims of being able to control the legislative vacancy process through making new bylaws is flawed.
“Doing so is entirely inconsistent with state code, which gives the local committees exclusive authority to nominate seat vacancies,” Bryan wrote in a post on his website. “You can’t get around that by changing the internal rules in the bylaws. That seems obvious, but apparently they did it anyway.
“Everyone from the top down seems to be confused.”
There are 100 legislative districts in the House of Delegates, each representing about 18,000 voters. Of those 100, 43 are contained wholly within a single county. Bryan says that means the vacancy nominations for those 43 single-county districts go to the county political executive committee.
“The state committee has no authority under the law to inject a veto or control the process,” Bryan wrote. “If the state GOP is allowed to do so, that would equal roughly 774,000 voters who lose their representation in vacancy nomination decisions. Note: the Democrat Party has not attempted to inject their state committee into the local legislative vacancy process.”
Bryan also says he believes there is a massive power grab happening in front of the entire state with this case.
“The governor, the Attorney General (Patrick Morrisey, whose office is representing the governor in the case) and the state GOP are either intentionally, or mistakenly, operating under the premise that a county party executive committee in West Virginia is somehow a subcommittee and subservient to the state party executive committee (or as the state GOP terms it, ‘subordinate’),” Bryan wrote. “What’s being lost in the mix – perhaps by design – is that a county party executive committee, or even a delegate or senatorial district committee, is a separate organization – a separate committee – from that of the state party.
“It is not a subcommittee of the state executive committee. Nor is it subservient to the state executive committee. …
“Why doesn’t the state party just go ahead and substitute themselves in for individual voters in general – at least for the primaries. They know best, right? The voters don’t understand what’s best for the party. It’s about the big picture.”
On February 1, the governor’s office and the state GOP submitted responses to the petition filed January 25 by Maynard, who says Justice did not follow law in how he chose a candidate to fill the seat vacated by Derrick Evans, the lawmaker who took part in the January 6 storming of the U.S. Capitol.
Maynard is asking 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.
Oral arguments are scheduled for February 9, which is the day before the 60-day legislative session begins. In its January 28 order, the court also ordered a stay on any legislative activities by Booth, who was appointed January 27 by Justice to fill the seat vacated by Evans. Evans resigned earlier this month after he was charged with taking part in U.S. Capitol event.
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.
The governor’s response claims Maynard’s petition misreads the governing statute: A district executive committee is statutorily empowered to provide the list of candidates to fill a House of Delegates vacancy, but a county executive committee is not.
Bryan also said he disputes the notion that the first list submitted to the governor was unsigned.
“Another thing that is concerning about the attorney general’s response on behalf of the governor is that they argue that the first letter from Wayne County was ‘unsigned,’ Bryan wrote. “It actually wasn’t. It was signed by the Wayne County chair.
“I wonder why the governor didn’t show the AG the actual letter he received? Did the Governor’s Office never show the attorney general the first letter?”
Earlier, Bryan explained Maynard’s reasoning for filing the petition.
“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.
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.”
“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.”
Justice was represented by Solicitor General Lindsay See, Deputy AG Curtis Capehart, Chief Deputy AG Douglas P. Bluffington II and Assistant Solicitor General Virginia M. Payne. The GOP was represented by J. Zak Ritchie and Andrew C. Robey of Hissam Forman Donovan Ritchie in Charleston.
West Virginia Supreme Court of Appeals case number 21-0051