CHARLESTON – A federal lawsuit is challenging a West Virginia law that reserves a seat on the State Bar’s Board of Governors for a Black representative.
The Foundation Against Intolerance & Racism filed its complaint December 20 in federal court against West Virginia State Bar Executive Director Mary Jane Pickens, Board of Governors President Shannon Smith and President-Elect David Amsbary.
The lawsuit, filed by Pacific Legal Foundation attorneys Joshua P. Thompson and Samantha R. Romero, said the BOG’s racial quota violates the 14th and 15th Amendments of the U.S. Constitution and “is undermining equality and opportunity in the state” by “ignoring constitutional protections.”
In addition to the seat reserved for a Black representative, only Black lawyers can vote for this seat.
The Foundation Against Intolerance & Racism (FAIR) is a nationwide nonprofit dedicated to promoting equal protection under the law and has members who it says would be eligible for nomination to this seat if race weren’t a factor.
"Such policies perpetuate division and deny equal opportunity for all West Virginians," FAIR states.
Founded in 1947 as an administrative arm of the state Supreme Court, the West Virginia State Bar is a mandatory association for some 9,000 attorneys licensed to practice law in the state. The State Bar is led by a 26-member Board of Governors made up of active attorneys. The board positions are four-year terms, and most are filled through the nomination and election of eligible attorneys within each of the State Bar’s 16 districts.
The seat in question was created through a bylaw in 1985 and is up for election in 2025. FAIR’s complaint mentions two unnamed members who are “ready, willing and able” to be elected but are ineligible because of their race.
“An individual’s race or ethnicity should not be the determining factor for who gets the opportunity to serve the public — or who gets to vote for public servants,” FAIR said in a press release. “Treating people differently on the basis of race violates the very notion of equality before the law.
“People should be treated as individuals, not as members of a group they did not choose.”
FAIR calls these criteria for the seat “blatant racial discrimination,” “unjust, demeaning and unconstitutional.”
“Limiting an individual’s candidacy to a preferred race violates the Equal Protection Clause, while the Fifteenth Amendment prohibits the same restrictions for voters,” FAIR says. “Victory would remove this explicit, discriminatory barrier to public service opportunities.”
FAIR seeks a declaration that the bylaws in question violate the 14th and 15th Amendments to the U.S. Constitution and a permanent prohibitory injunction forbidding the defendants from enforcing the bylaws in question. It seeks a nominal $1 in damages, but it also seeks attorney fees, court costs, expenses and other relief.
Smith told The West Virginia Record the State Bar does not comment on pending litigation.
In addition to Thompson and Romero, FAIR also is being represented by Martin P. Sheehan of Sheehan and Associates in Wheeling. The case has been assigned to District Judge Thomas S. Kleeh.
U.S. District Court for the Northern District of Wheeling case number 1:24-cv-00115