West Virginia Supreme Court clarifies: 91st District House seat lawsuit stayed until May

In an email to media Friday afternoon, Supreme Court Communications Director Jared Hunt said the automatic stay filed on Jan. 17 by Hanshaw, R-Clay, is in effect and does not require the Supreme Court to rule for or against it.

The email comes a day after the Democratic Party said they would amend their lawsuit to remove Hanshaw as a party to their writ of mandamus lawsuit filed last week requesting the high court to order Hanshaw to seat former delegate-elect Joseph de Soto after the House adopted a resolution declaring that de Soto had forfeited the seat due to being unable to take the oath of office in the House Chamber on Jan. 8 as required by the state Constitution.

“It is my understanding that some media members have been informed that counsel for the Petitioners filed a motion to remove Speaker Hanshaw as a party as well as an amended petition naming only the Governor in this case,” Hunt wrote. “However, since counsel for Speaker Hanshaw invoked the provisions of W.Va. Code 4-1-17 the case is automatically stayed under the law.”

Attorneys for Hanshaw cited State Code 4-1-17, which protects elected lawmakers and certain legislative staff from participating in legal actions during active legislative sessions, as well as 10 days before or 30 days after the completion of a legislative session.

The House is still within the 30-day blackout period following the end of the one-day organizational session on Jan. 8, which expires on Friday, Feb. 7. But the regular 60-day legislative session begins on Wednesday, Feb. 12, within the 10-day blackout period prior to the start of a legislative session.

That means that the case is stayed until after Monday, May 12 — 30 days after the end of the regular session on Saturday, April 12. Hunt said the motion by the Democratic Party to remove Hanshaw from the lawsuit would be considered once the automatic stay is no longer in effect.

“Under the law, this is an automatic stay,” Hunt wrote. “It is effective once the notice is made. It does not require a subsequent action or order from the Court.”

The other issue pending a decision by the Supreme Court is whether to grant a request by the Democratic Party to order Morrisey to appoint one of three names submitted by the Berkeley County Democratic Executive Committee last week.

Morrisey announced the appointment Thursday of Gerrardstown attorney and West Virginia Citizens Defense League President Ian Masters to the 91st District House seat. Masters was sworn in Friday in the House Chamber by House Clerk Jeffrey Pack.

State code requires legislative vacancies to be filled by the governor from a list of three qualified individuals submitted by a political party executive committee of the same party of the office holder within 15 days of the vacancy.

Masters succeeds de Soto, who was elected as a Republican in November. De Soto switched to the Democratic Party on Dec. 11 following a closed-door meeting of the House Republican caucus on Dec. 8 after his Republican colleagues voted to move forward with his expulsion over alleged falsehoods spread by de Soto about his military record.

De Soto was arrested by the West Virginia State Police on Dec. 12 following an investigation into threats made by de Soto to another person regarding several lawmakers. He was charged with making terroristic threats against fellow Republican House members and is on home confinement while his case is being submitted to a grand jury.

The House adopted House Resolution 4 during its Jan. 8 organizational session declaring the 91st House seat forfeited after de Soto was unable to be sworn in for his two-year term due to being on home confinement. Two Republican House members also have orders of protection against de Soto that bar him from the State Capitol Building until 10 days following the end of the 2025 legislative session on April 12.

HR 4 states that due to the seat being forfeited by de Soto, the seat remains a Republican seat despite de Soto’s party switch and the vacancy must be filled by Morrisey appointing a Republican. The House Democratic caucus argued during debate in HR 4 that the state Constitution requires de Soto to refuse the oath of office in order to have his seat forfeited.

The Democratic Party filed their writ of mandamus on Jan. 14 against Hanshaw and Morrisey.