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West Virginia Supreme Court dismisses lawsuit over 91st House district seat

This photo provided by the West Virginia Divisions of Corrections and Rehabilitation, shows Joseph de Soto, was elected to serve in the West Virginia state House of Delegates as a Republican in November, following his arrest on at least one felony charge for making terroristic threats on Thursday, Dec. 12, 2024 in Martinsburg, W.Va. (West Virginia Divisions of Corrections and Rehabilitation via AP)

CHARLESTON — A second attempt by the West Virginia Democratic Party to get a Democrat appointed to the House of Delegates seat vacated by former Delegate-elect Joseph de Soto has been dismissed, though the first lawsuit is still pending.

In an order released by the West Virginia Supreme Court of Appeals Thursday afternoon, the high court dismissed a second lawsuit filed at the end of January by Del. Mike Pushkin, the chairman of the West Virginia Democratic Party, and Berkeley County resident Jill Michaels.

Pushkin, D-Kanawha, and Michaels were asking the Supreme Court to grant a writ of mandamus asking the justices to declare that de Soto – a Republican-turned Democrat who won the GOP primary and general election last year for the 91st District – was the lawfully elected delegate and is entitled to the seat after the House declared the seat forfeited during a Jan. 8 organizational session.

The House adopted House Resolution 4 after de Soto was unable to take his oath of office in the House chamber as required by the state Constitution after he was charged in December with making terroristic threats against fellow Republican House members, resulting in de Soto being on home confinement. 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 Gov. Patrick Morrisey appointing a Republican.

Had the Supreme Court upheld the validity of HR 4, the Democratic Party also asked the court to order Morrisey to rescind his appointment of Republican Ian Masters to the 91st District vacancy and choose from a list of three Democrats submitted by the Berkeley County Democratic Executive Committee.

But the Supreme Court dismissed the case entirely, agreeing with a filing by the state Attorney General’s Office on Morrisey’s behalf that the plaintiff did not file a timely notice of the second lawsuit. State Code that requires a 30-day notice be sent to state government entities when a lawsuit is being considered. The court, in its order, said that the Democratic Party’s motion for a writ of mandamus did not fall within exceptions.

“The Court rejects the petitioners’ assertion that the pre-suit notice requirement does not apply to this action,” the court wrote. “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 House adopted HR 4 after de Soto was unable to take his oath of office in the House chamber as required by the state Constitution. De Soto was charged in December with making terroristic threats against fellow Republican House members, resulting in de Soto being on home confinement pending the outcome of the case.

De Soto was arrested by the West Virginia State Police following an investigation into threats made by de Soto to another person regarding several lawmakers 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. Two Republican House members also have orders of protection against de Soto that bar him from the Capitol until 10 days following the end of the 2025 legislative session on April 12.

The Democratic Party argued that there is no evidence that de Soto refused to take the oath of office, one of two charges listed in the state Constitution that can be used to declare a seat forfeited. Instead, the proper method of removing de Soto was expulsion. Having switched parties, the Democratic Party further argued that the 91st District seat is now a Democratic seat. But the state argued that de Soto does not meet the legal definitions of being a qualified delegate, meaning the seat remains a Republican seat.

The Democratic Party originally filed a lawsuit against Morrisey and House Speaker Roger Hanshaw, R-Clay, but an attorney for Hanshaw filed a notice of automatic stay, which delays lawsuits against lawmakers and legislative officials during a regular or special session. The original case is stayed until after May 12, which is 30 days after adjournment of the legislative session on April 12.

Steven Allen Adams can be reached at sadams@newsandsentinel.com

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