From the West Virginia Record

CHARLESTON – Gov. Jim Justice maintains the first list of potential replacements from Wayne County to fill a recent House of Delegates vacancy did not meet state code, and the state Republican Party agrees.

The governor’s office, through Attorney General Patrick Morrisey’s office, submitted its response February 1 to a petition filed by Wayne County Republican Executive Committee Chairman Jeff Maynard, who says Justice did not follow law in how he chose a candidate to fill the seat vacated by Derrick Evans, the lawmaker who took part in the January 6 storming of the U.S. Capitol.

In its own response, the state Republican Party agrees with the governor’s office.

Bryan

On January 25, Jeff Maynard filed his petition with the state Supreme Court. Filed by attorney John H. Bryan, it asks the court to force Justice to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the House of Delegates vacancy left by Evans.

On January 28, the state Supreme Court issued an order and rule to show cause granting Jeff Maynard’s motion filed. The following day, the state GOP filed a motion to intervene in the case, which was granted.

Oral arguments are scheduled for February 9, which is the day before the 60-day legislative session begins. In its January 28 order, the court also ordered a stay on any legislative activities by Joshua Booth, who was appointed January 27 by Justice to fill the seat vacated by Evans. Evans resigned earlier this month after he was charged with taking part in U.S. Capitol event.

Booth was not on the first list of candidates given to Justice by the Wayne County Republican Committee. But he was on a subsequent list provided to the governor after acting state GOP Chairman Roman Stauffer conducted interviews for the vacancy.

The governor’s response claims Maynard’s petition misreads the governing statute: A district executive committee is statutorily empowered to provide the list of candidates to fill a House of Delegates vacancy, but a county executive committee is not.

“If the Legislature wished for a county executive committee, rather than a district executive committee, to furnish the list of prospective candidates to fill a vacancy in the West Virginia House of Delegates or the West Virginia Senate, it would have said so,” the governor’s response states. “Petitioner cannot get around the Legislature’s failure to include such limiting language when crafting the Statute.

“And because the County Committee Letter did not issue from the correct geographic entity, Petitioner does not have a clear right to the remedy he seeks, nor did the Governor have a non-discretionary duty to choose from the names on that letter’s list.”

It also says the first list displayed a signature block for Jeff Maynard “although there appears to be no hand-written signature.”

The GOP response echoes many of the same arguments.

“It is enough for this Court to conclude that petitioner’s sole argument of statutory interpretation is wrong in order to deny the petition,” the state party response states. “It should do so and need not proceed further. Even so, petitioner has also failed to demonstrate a ‘clear legal right’ to relief for several other independently sufficient reasons.”

Bryan says he sees flaws in the responses.

“If it was just a matter of adding the state party’s acting chair (Stauffer) signature, he could have done so at any time,” he wrote on his website. “If the state party wanted to formally deliver the list of three candidates in a separate letter, with their signature and with what they believed was appropriate letterhead, they could have done so at any time within the statutory period.

“Instead, they waited until five days expired from the governor receiving the first list, and they scrapped the entire thing and started over – ultimately culminating in the addition of only one name, who was chosen by the governor.”

Bryan said the rationale behind the situation is clear.

“It’s apparent to anyone watching that the problem for the governor and the state party was not a procedural one – but rather a substantive one,” Bryan wrote. “They didn’t want to choose any of the three candidates. They wanted someone entirely different.

“Whether they had the ultimate choice in mind, or whether they decided that later, is probably known only to them. And also irrelevant to state law.”

Bryan also said he disputes the notion that the first list submitted to the governor was unsigned.

“Another thing that is concerning about the attorney general’s response on behalf of the governor is that they argue that the first letter from Wayne County was ‘unsigned,’ Bryan wrote. “It actually wasn’t. It was signed by the Wayne County chair.

“I wonder why the governor didn’t show the AG the actual letter he received? Did the Governor’s Office never show the attorney general the first letter?”

Talking about Justice’s response to the petition, Bryan said the governor’s office is confused about the differences between multi-count delegate district and districts contained wholly in one county. The 19th District in question in this case is contained completely in Wayne County.

“Where a district resides wholly inside one county, it is the county executive committee which presides over those committee members from that county in calling a meeting and voting on new candidates to provide to the governor,” Bryan wrote in a blog entry on his website. “In fact, the State Republican Party bylaws, which they’re arguing supersede state law here, expressly provides for this:

“In any case where there is no Senate Vacancy Committee or Delegate Vacancy Committee due to the district being wholly within one county, the County Chair shall appoint a subcommittee which shall act as the vacancy committee and the process of such committee be facilitated by the County Chair and State Chair. In such case, the names of the three (3) nominated candidates shall be certified by the County Chair, County Secretary, and State Chair.”

Bryan also says state code does not get involved in the logistics of how the applicable district committee members, who are elected by the voters of their districts, vote … “just that they get to choose three candidates for the governor’s consideration.”

“It’s the county party that conducts the district committee member meeting – not the state party,” Bryan writes. “This is consistent with how it was always done in the past for these single-county districts.

“Although the state party changed their bylaws at some point to give themselves involvement in local decisions, and to require their own signature and involvement in the internal process, state law was not changed.”

Earlier, Bryan explained Maynard’s reasoning for filing the petition.

“Basically, the state Republican party has usurped the powers and authority of the Wayne County Republican voters by attempting to take away their authority to choose a list of three qualified candidates to present to the governor,” Bryan said. “The governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list.

“Instead, the new acting chairman of the West Virginia Republican Executive Committee (Stauffer) took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County.

“The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.”

Jeff Maynard said he filed the petition on behalf of the citizens of Wayne County. Jeff Maynard is a distant cousin of state Senator Mark Maynard (R-Wayne), who says he plans to introduce legislation to change how such appointments are filled.

In addition, at least two people who said they expressed an interest in the vacancy say they were not granted an interview.

“I contacted the Secretary of State’s office, party officials, legislators,” Jeff Maynard told The West Virginia Record. “We followed state code. We had a list of names compiled, then Roman contacted me and said the names had to come to him and to the governor.”

Following Booth’s appointment, Jeff Maynard declined further comment except to say “laws in West Virginia seem to just be suggestions, according to our great leading example setter.”

Bryan says part of the reason this case is important because Wayne County hasn’t had a Republican delegate in 100 years.

“Now that they’ve got one, the governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign,” Bryan said. “Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the governor.

“This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.”

According to the petition, they Wayne County Republican Executive Committee submitted the names of Mark Ross, Chad Shaffer and Jay Marcum to the governor’s office, which signed for and accepted the registered letter January 14.

“Subsequent to the governor’s receipt of the list of three qualified candidates for the vacant seat, Chairman (Jeff) Maynard received a phone call from counsel for the governor, Brian Abraham, who advised that the governor would not be choosing from the list of three qualified candidates,” the petition states, “because the acting chair of the West Virginia State Republican Executive Committee, Roman Stauffer, had not participated in the vote. Thereafter, Acting Chairman Stauffer unilaterally engaged in a second selection process, ultimately creating a new list (hereinafter ‘second list’) of three candidates.”

That second list still included Ross and Shaffer.

“However, instead of Jay Marcum – who had been a candidate for the 19th Delegate District in the 2020 Republican primary – a new name replaced him: Jeff (Joshua) Booth,” the petition continues, noting that Stauffer submitted the new list to the governor on January 22.

“The governor does not have the discretion to choose from a second and subsequent list of qualified candidates, which would usurp the statutory rights of the Wayne County Republican Executive Committee members of the 19th Delegate District, as well as their constituents,” the petition states. “State code mandates that the governor choose from among the three candidates supplied by the Wayne County Republican Executive Committee.

“He may not add to the list. Nor may any third party, such as the acting chairman of the State Republican Executive Committee, alter the list of candidates already-supplied by the petitioner within the 15-day time period prescribed by statute.”

Stauffer declined comment.

“We have no comment on any pending litigation at this time,” Stauffer told The Record.

Abraham, who recently was named Justice’s Chief of Staff, did not return several messages seeking comment.

“Roman ran an ad in the Huntington paper to find candidates,” Jeff Maynard said. “They did the interviews on the 21st at the Wayne County Courthouse. Then, he (Stauffer) compiled the second list of names.”

In a January 29 post on his website, Bryan disputed the claim that the state Republican Party Executive Committee had to be involved in the selection process.

“They told the Wayne County Republican Party Chair that he did it wrong; that they had to re-do the process and re-submit the candidates, which culminated in a new name being added to the list of three choices,” Bryan wrote, including copies of the first Wayne County letter as well as others from different county party committees in recent years that also don’t include state party involvement. “The governor chose from this list, submitted to him from Wood County, back in October of 2018. It looks pretty similar.

“This list was sent in by the Wood County Republican Executive Committee, following the death of Delegate Frank Deem, who had passed away on October 10, 2018. The news media reported the fact that the county chose the list of three qualified replacements from which the Governor would be choosing. There was no mention of the state party, or the state chair.”

Bryan questions why the governor didn’t ask for a letter that included the state party in the 2018 Wood County situation.

“He made a choice and he seemed happy with it,” Bryan wrote. “I guess he liked one of the options in Wood County’s list, as opposed to Wayne County’s list. What does Wayne County know? They’re probably a bunch of hayseeds.”

Bryan also notes that Stauffer was Justice’s campaign manager in last year’s gubernatorial race.

“Stauffer was, at one time, the chair of the Mercer County Republican Executive Committee,” Bryan wrote. “During his time serving in that capacity, guess what happened? A vacancy opened up in his county, and he was required to come up with three qualified candidates for the Governor to choose a replacement.

“It looks like Mr. Stauffer followed the exact same process that ended up being wrong now in 2021.”

In the Supreme Court petition, Bryan says the justices already reviewed such a case in the 2016 ruling in State ex rel. Biafore v. Tomblin when it ruled the governor’s duty to fill an open vacancy from the list is nondiscretionary.

At the time the Biafore case regarding an appointment was heard by the court, Bryan says Republican Attorney General Patrick Morrisey and others argued that state code mandated the governor select a vacancy replacement from a list submitted by the Republican Party’s district executive committee for a Senate seat.

Gov. Earl Ray Tomblin wanted to appoint a Democrat to a state Senate vacancy left by a Republican, but he wanted the state Supreme Court to rule on which party should get the seat. The Justices decided a Republican had to be appointed to fill the seat vacated by a Republican.

Justice and the state Republican Party both urge the Supreme Court to deny Jeff Maynard’s writ.

Justice is being represented by Solicitor General Lindsey See, Deputy AG Curtis Capehart, Chief Deputy AG Douglas P. Bluffington II and Assistant Solicitor General Virginia M. Payne. The GOP is being represented by J. Zak Ritchie and Andrew C. Robey of Hissam Forman Donovan Ritchie in Charleston.

West Virginia Supreme Court of Appeals case number 21-0051