CHARLESTON – The state Supreme Court has dismissed a petition by the state Democratic Party regarding a vacant House of Delegates seat.
In a March 13 order, the court said the West Virginia Democratic Party failed to satisfy the 30-day notice requirement because the petition at issue is against a government agency. The court also rejects the Democrats’ assertion that the pre-suit notice requirement doesn’t apply to this case.
On January 28, the state Democratic Party, Chairman Mike Pushkin and Jill Michaels, a resident of the 91st District, filed a petition for a writ of mandamus against Gov. Patrick Morrisey regarding the vacant seat in the House.
Pushkin
| File photo
Joseph A. de Soto was elected to a House seat in November as a Republican from the 91st District in Berkeley County, but he switched his party affiliation to Democrat the same week he was arrested in December and charged with making threats of terrorist acts to several delegates. He currently is on home confident and is listed as a pre-trial felon.
On January 8, the House passed a resolution the Democrats say improperly vacated de Soto’s seat and referred the vacancy to the Berkeley County Republican Executive Committee. House Speaker Roger Hanshaw (R-Clay) introduced House Resolution 4 to declare de Soto’s seat vacant, which would have allowed a new representative to be selected before the start of the regular session on February 12.
The Democratic Party said that resolution directly conflicts with West Virginia Code §§ 3-10-5(a) and 6-5-1, which stipulate that a vacancy in the House of Delegates must be filled by appointment from a list of three nominees submitted by the party executive committee of the same political party with which the person holding the office immediately preceding the vacancy was affiliated at the time the vacancy occurred.
“At the time the House declared the 91st District seat vacant, Delegate de Soto was registered as a Democrat,” Pushkin said in January. “Therefore, under West Virginia law, the vacancy must be filled by appointment from a list of nominees submitted by the Berkeley County Democratic Executive Committee.”
On January 14, the Berkeley County Democratic Executive Committee submitted a list of three persons to the respondent to fill the vacancy in the House. Four days later, the Berkeley County Republican Executive Committee also submitted a list of three persons to the respondent to fill the vacancy. Morrisey selected Ian Masters from the list submitted by the GOP committee.
That’s when the Democratic Party filed its petition to have the court declare de Soto was a lawfully elected and qualified delegate from the 91st House District and was entitled to his seat upon his appearance in the House Chambers for the administration of his oath, and if the resolution proclaiming his seat vacant is sustained, issue a writ of mandamus requiring the respondent to choose a Democrat to fill the seat.
“To the extent the petitioners (Democrats) are seeking relief in the form of a declaration of rights, this court is without original jurisdiction to afford the petitioners relief,” the Supreme Court order states. “The respondent (Morrisey) contends that the Court should not grant the petition because the petitioners failed to comply with the thirty-day pre-suit notice requirement set forth in West Virginia Code. …
“In addition to this procedural ground, the respondent also argues that the petition must be denied on other grounds, including lack of standing and that the House has the power to decide whether Mr. de Soto was qualified, and this court does not have the authority to review that decision.”
The court also rejected the Democrats’ assertion that the pre-suit notice requirement does not apply to this action.
“While the petitioners are correct that there is an exception to the pre-suit notice requirement for actions seeking injunctive relief where irreparable harm will occur, the action pending before this court by the petitioners seeks a writ of mandamus and does not seek injunctive relief,” the order states. “Because we lack jurisdiction to review the merits of this action, we do not address other issues, which may also be jurisdictional, including whether these petitioners have standing to bring this action, whether a writ of mandamus directed against this respondent can remedy the injuries alleged, whether the Court can review the House’s qualification decision, or any other issue.”
The petitioners were represented by Robert M. Bastress Jr., and Morrisey was represented by Solicitor General Michael R. Williams and Deputy Attorney General David E. Gilbert.
West Virginia Supreme Court of Appeals case number 25-65