W.Va. Supreme Court hears arguments in clash over legislative vacancies

CHARLESTON - Even though a new election in November will determine which party holds the 91st District House of Delegates seat in Berkeley County, the West Virginia Democratic Party and Republican elected officials continue to fight over which party should hold it now.

The West Virginia Supreme Court of Appeals heard arguments Tuesday morning in a case brought last year by state Democratic Party Chairman Mike Pushkin on behalf of 91st District resident Stephen Willingham against House Speaker Roger Hanshaw, R-Clay, and Gov. Patrick Morrisey.

In the motion for a writ of mandamus filed in January 2025, attorneys for the Democratic Party asked the Supreme Court to require Morrisey to select a replacement for Joseph de Soto, the Republican who won election to the 91st District seat in the November 2024 general election and switched parties just prior to being arrested and charged with making terroristic threats to several GOP House members following a caucus meeting.

De Soto was arrested on Dec. 12, 2024, after a West Virginia State Police investigation into threats he allegedly made to another person regarding several lawmakers stemming from a closed-door meeting of the House Republican caucus on Dec. 8, where members agreed to move forward with his expulsion over allegedly false claims about his military service.

The state Constitution requires legislators to take their oath of office within the House Chamber, something de Soto is unable to do due to being on home confinement and with two protective orders from House members barring him from the State Capitol Building until 10 days following the conclusion of the 2025 regular legislative session.

During a January 2025 organizational session prior to the start of the 60-day regular session in February of that year, the House adopted House Resolution 4, declaring de Soto’s 91st District seat vacant. Ian Masters, a Gerrardstown attorney, was appointed by Morrisey to the seat after the Berkeley County Republican Executive Committee submitted three names to the governor for consideration.

Attorney Robert Bastress, representing the Democratic Party, argued that the House exceeded its state constitutional authority by not allowing de Soto to take his seat and be sworn in despite on being on home confinement at the time, and that since de Soto was a registered Democrat, he should have been replaced by a registered Democrat.

"In this case, the actions of the defendant have deprived the Democratic Party of what they perceive to be their right to have a Democratic delegate in the 91st Delegate District," Bastress said. "And of course, the petitioner, Stephen Willingham ... has a right to expect that his delegate ... will have been properly elected and placed into office. And that right was violated in this case."

State Solicitor General Michael Williams, representing both Morrisey and Hanshaw, said any ruling by the Supreme Court would violate the constitutional separation of powers between the three branches of government.

"What the petitioners are asking you to do is fundamentally reordering our separation of powers," Williams said. "This is a very aggressive play. And although the facts are unusual, I think the bottom line of what they’re doing is really trying to get this court to position itself as the overseer of very fundamental legislative functions. And I think that really is a very dangerous invitation for everyone involved."

Several of the justices appeared to be skeptical of the arguments made by the Democratic Party.

"My concern is where do I find within the (state) Constitution the authority for this court to order the speaker of the House or the House of Delegates to do anything in the operation of its proceedings?" asked Justice Charles Trump.

"The petitioners have never disputed that the House of Delegates didn’t have grounds for expelling him or didn’t have good reason for taking action against him," Bastress said earlier during Tuesday’s proceedings. "It was the procedures used, that it proceeded by majority vote on an exclusion as opposed to proceeding to an expulsion procedure where he has to have a two-thirds supermajority."

"Professor Bastress ... you’re quibbling about the procedures used, which goes to Justice Trump’s question about whether you’re asking the court to interfere with the legislative process," asked Senior Status Justice Beth Walker, a former justice who sat in place of new Justice Bill Flanigan, who recused himself from the case due to voting on HR 4 as a former Republican delegate representing Ohio County.

De Soto remains on home confinement with his next status hearing scheduled for Oct. 13. A grand jury in Berkeley County charged him earlier this year with unlicensed practice of medicine, misrepresentation of authorization to practice medicine, false indication or inducement of authorization to practice medicine, misrepresentation of past military status or military award, threats of terrorist acts and grossly inaccurate campaign finance statement.