About johnbryanlaw

John H. Bryan is a West Virginia criminal defense and civil rights attorney practicing out of Union, and Lewisburg, West Virginia. For more information, visit his website at www.johnbryanlaw.com.

If you love FREEDOM, should you be using CRYPTOCURRENCY? I talk with co-Founder of TUSC

If you love life, liberty, property, the Second Amendment, the Fourth Amendment and basically all civil rights, you should understand the potential lifeline of freedom that is made possible due to cryptocurrency. The easiest way to destroy the Second Amendment is to make it impossible for the firearms industry to transact business through corporate suppression of free speech and free enterprise. Even worse, the mainstream corporate financial institutions have a history of partnering with the federal government to share your private data for use in criminal prosecutions and other activities against your consent and constitutional rights.

As suggested by John Crump of the GOA (Gun Owners of America) from FIS Episode No. 45, I’m talking tonight with the co-Founder of TUSC (The Universal Settlement Coin), a decentralized, non-ICO cryptocurrency project that is focused supporting the retail firearms industry with their payments issues. Rob McNealy is a serial entrepreneur, podcaster, cryptocurrency advocate, self-defense activist and recovering corporate MBA.

Join me tonight on Freedom is Scary Live, Episode No. 46. Tonight at 6:30 p.m. Eastern:

TUSC, The Universal Settlement Coin, is an open source, pure payments cryptocurrency project built on a delegated proof of stake (DPOS) blockchain. TUSC is a decentralized, non-ICO, community project with on-chain governance. TUSC was purpose built for retailer adoption using a unique marketing model with an elected and term limited third-party vendor called the Marketing Partner, whose role is to support the onboarding of retailers and to promote TUSC through aggressive marketing and sales strategies to vertical markets and industries with recognized problems with existing payment systems.

More about Rob McNealy and TUSC: Rob McNealy: Podcast Website: https://robmcnealy.com​ Twitter: https://twitter.com/robmcnealy​ (365,000+ followers) IMDB: https://www.imdb.com/name/nm11393442​ LBRY: https://lbry.tv/$/invite/@robmcnealy:e​ Minds: https://www.minds.com/robmcnealy​ Rarible:https://app.rarible.com/robmcnealy​ LinkedIn: https://www.linkedin.com/in/robmcnealy​ Instagram: https://www.instagram.com/robmcnealya…​ YouTube: https://www.youtube.com/robmcnealy​ Everipedia: https://everipedia.org/wiki/lang_en/r…​ Parler: https://parler.com/robmcnealy​ Medium: https://robmcnealy.medium.com​ TUSC: Twitter: https://twitter.com/tuscnetwork​ TUSC Website: https://tusc.network​ TUSC Marketing Partner Website: https://tuscmp.one​ LinkedIn: https://www.linkedin.com/company/tusc…​ LBRY: https://lbry.tv/$/invite/@TUSC:a​ Instagram: https://www.instagram.com/tuscnetwork​ LinkedIn: https://www.linkedin.com/company/tusc…​ YouTube: https://www.youtube.com/tuscnetwork​ Facebook Group: https://www.facebook.com/groups/23371…​ Facebook Page: https://www.facebook.com/TUSCNetwork​ Recent media: https://freebeacon.com/guns/cryptocur…https://www.thetruthaboutguns.com/gun…

Update on the Battle for the Second Amendment – as of February of 2021

Here’s a live video I did last night on Youtube with John Crump, from the gun rights advocacy organization, Gun Owners of America.

The big danger right now is our very own Senator Manchin siding with the anti-gun lobby in ending the filibuster. If that happens, there’s nothing stopping Biden and the Democrat Congress from doing what John Crump believes they will pass by federal legislation:

  1. An outright ban on AR-15 style rifles; and
  2. A federal NFA registry of all existing AR-15 style rifles (even where legal in any particular state).

Check out all of the recent articles by John Crump at Ammoland News, some of which we discussed.

Check out all of the recent articles regarding gun rights at Ammoland News.

Here’s the payment host discussed by John in the video (TUSC) which offers a method of buying and selling firearms and firearms accessories, ammunition, etc., in the era of Big Tech censorship and suppression:

Information on Caniglia v. Strom, currently pending at the SCOTUS, where the Court will be deciding whether law enforcement can enter and search your home without a warrant based on the so-called “community caretaking exception”:

Gun Owners of America:

Can a Family Court Judge Search a Litigant’s Home?? The Question is Briefed to the Judicial Hearing Board

By now everyone knows about the case of the Family Court Judge searching my client’s house. Despite being formally charged before the WV Supreme Court, and despite agreeing to the recommended discipline, she is now trying to back out of it, with the assistance of another Family Court Judge, who happens to be on the Judicial Hearing Board. It’s apparently headed to the WV Supreme Court on the issue of whether it’s legal for a family court judge to search a litigant’s home. The briefs are in. Here’s what’s going on. It’s crazy.

Here’s the Post Hearing Order from the Judicial Hearing Board, following what was supposed to be a routine hearing to receive and recommend the joint settlement agreement between the parties, which provided for a $5,000.00 fine and a censure. It posed a number of questions to the parties, requesting briefing on the posed questions, which from my understanding is pretty un-heard-of:

Here is Judge Goldston’s brief, which now apparently makes a 180 pivot, and argues that she did nothing wrong.

Here is the Judicial Disciplinary Counsel’s brief, which explains in detail what she did wrong:

Since my client is a “complainant,” rather than a party, we filed an amicus curiae brief, which is just sort of advisory guidance to the Judicial Hearing Board. Note that once they make their decision, their recommendation goes to the WV Supreme Court for a final decision.

Tonight’s live video on the topic:

You can listen to William Jennings Bryan give the greatest political speech in American History

William Jennings Bryan’s family lived in Mason County, (West) Virginia in the early and mid 1800s, as did my family of Bryans. His grandfather is buried in what is now Cabell County, West Virginia. William Jennings Bryan is perhaps the greatest orator in American history. Many consider the “Cross of Gold” speech, given by him before the Democratic National Convention in 1896, to be the greatest political speech of all time. While we can’t hear that actual speech, since the technology didn’t yet exist to record the entire convention, we can listen to Bryan repeating it in a recording studio a few decades later.

The circumstances, combined with the text of the speech, combined with the manner in which it was given, was epic. Politics and policy aside, it’s a poetic masterpiece. Historical accounts of the crowd’s reaction indicate that it must have been masterfully delivered.

He concluded the speech with this line:

Having behind us the producing masses of this nation and the world, supported by the commercial interests, the laboring interests, and the toilers everywhere, we will answer their demand for a gold standard by saying to them: “You shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.”

The reaction of the crowd:

As Bryan spoke his final sentence, recalling the Crucifixion of Jesus, he placed his hands to his temples, fingers extended; with the final words, he extended his arms to his sides straight out to his body and held that pose for about five seconds as if offering himself as sacrifice for the cause, as the audience watched in dead silence. He then lowered them, descended from the podium, and began to head back to his seat as the stillness held.

The immediate aftermath:

Bryan later described the silence as “really painful” and momentarily thought he had failed. As he moved towards his seat, the Coliseum burst into pandemonium. Delegates threw hats, coats, and handkerchiefs into the air. Others took up the standards with the state names on them with each delegation, and planted them by Nebraska’s. Two alert police officers had joined Bryan as he left the podium, anticipating the crush. The policemen were swept away by the flood of delegates, who raised Bryan to their shoulders and carried him around the floor. The Washington Post newspaper recorded, “bedlam broke loose, delirium reigned supreme.”

It took about 25 minutes to restore order, and according to Bensel, “somewhere in the mass demonstration that was convulsing the convention hall, the transfer of sentiment from silver as a policy to Bryan as a presidential candidate took place”. Newspaper accounts of the convention leave little doubt but that, had a vote been taken at that moment (as many were shouting to do), Bryan would have been nominated.

The following day, William Jennings Bryan was nominated as the Democrat Nominee for President by the delegates at the convention. At age 36, Bryan was the youngest presidential nominee in American history, only one year older than the constitutional minimum. He ended up losing the election to William McKinley. Later in life, Bryan repeated the speech numerous times for crowds who wanted to hear it, as well as in the recording studio which recorded the speech for posterity.

You can read the entire speech at this link. These are some of my favorite excerpts:

I would be presumptuous, indeed, to present myself against the distinguished gentlemen to whom you have listened if this were but a measuring of ability; but this is not a contest among persons. The humblest citizen in all the land when clad in the armor of a righteous cause is stronger than all the whole hosts of error that they can bring. I come to speak to you in defense of a cause as holy as the cause of liberty—the cause of humanity. When this debate is concluded, a motion will be made to lay upon the table the resolution offered in commendation of the administration and also the resolution in condemnation of the administration. I shall object to bringing this question down to a level of persons. The individual is but an atom; he is born, he acts, he dies; but principles are eternal; and this has been a contest of principle…..

A lot of this sounds familiar, though not on this level of prose…. Urban vs. rural; Red vs. Blue….

But we stand here representing people who are the equals before the law of the largest cities in the state of Massachusetts. When you come before us and tell us that we shall disturb your business interests, we reply that you have disturbed our business interests by your action. We say to you that you have made too limited in its application the definition of a businessman. The man who is employed for wages is as much a businessman as his employer. The attorney in a country town is as much a businessman as the corporation counsel in a great metropolis. The merchant at the crossroads store is as much a businessman as the merchant of New York. The farmer who goes forth in the morning and toils all day, begins in the spring and toils all summer, and by the application of brain and muscle to the natural resources of this country creates wealth, is as much a businessman as the man who goes upon the Board of Trade and bets upon the price of grain. The miners who go 1,000 feet into the earth or climb 2,000 feet upon the cliffs and bring forth from their hiding places the precious metals to be poured in the channels of trade are as much businessmen as the few financial magnates who in a backroom corner the money of the world.

How far our public discourse has fallen. This debate, mind you, was taking place at one party’s convention. There was actual substantive debate taking place, with the purpose of utilizing oration to persuade the listeners – party delegates – to choose one policy path over others.

You come to us and tell us that the great cities are in favor of the gold standard. I tell you that the great cities rest upon these broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic. But destroy our farms and the grass will grow in the streets of every city in the country. 

My friends, we shall declare that this nation is able to legislate for its own people on every question without waiting for the aid or consent of any other nation on earth, and upon that issue we expect to carry every single state in the Union.

I shall not slander the fair state of Massachusetts nor the state of New York by saying that when citizens are confronted with the proposition, “Is this nation able to attend to its own business?”—I will not slander either one by saying that the people of those states will declare our helpless impotency as a nation to attend to our own business. It is the issue of 1776 over again. Our ancestors, when but 3 million, had the courage to declare their political independence of every other nation upon earth. Shall we, their descendants, when we have grown to 70 million, declare that we are less independent than our forefathers? No, my friends, it will never be the judgment of this people. Therefore, we care not upon what lines the battle is fought. If they say bimetallism is good but we cannot have it till some nation helps us, we reply that, instead of having a gold standard because England has, we shall restore bimetallism, and then let England have bimetallism because the United States have.

If they dare to come out in the open field and defend the gold standard as a good thing, we shall fight them to the uttermost, having behind us the producing masses of the nation and the world. Having behind us the commercial interests and the laboring interests and all the toiling masses, we shall answer their demands for a gold standard by saying to them, you shall not press down upon the brow of labor this crown of thorns. You shall not crucify mankind upon a cross of gold.

Now we’ve degraded ourselves to an extremely base level of tribalism, extreme partisanship, and some sort of self-loathing as a country. It’s not about the policies themselves, it’s about the lack of interest or debate in the policies, and the resulting vacuum of political debate and exchange of ideas. That’s where we’re at.

The WVCDL’s Proposed Legislation for Nonparticipation in Enforcement of Federal Firearms Restrictions

We know it’s coming. It’s time to flex West Virginia’s state sovereignty, and it begins with our Legislature. Take a look at the West Virginia Citizen’s Defense League’s flagship proposed legislation for the 2021 legislative session, and make sure that your representatives know that they’re expected to enact it into law. This is about more than just the “sanctuary” b.s. This bill asserts the state’s prerogative to enforce its own laws, and no one else’s. They’re already shutting down your oil and gas jobs, as well as forcing transgender athletes into women’s sports in West Virginia. You know what’s next. Let’s be proactive.

The WVCDL is your best source of solid, objective, educational information, and bill tracking when it comes to firearms and 2A (WV 3-22) related legislation. We’ll keep you posted on the good, the bad, and the neutral. Some bills sound great but in reality, don’t accomplish tangible benefits for the law abiding gun owners of WV. Some bills have unintended consequences and as subject matter experts, we do our best to help bring those concerns to the attention of legislators.All of this takes the entire membership. Absolutely no one in the WVCDL is paid to any of the work we do. We are 100% volunteer and we absolutely need YOU to help for the most successful session possible. Do not make the mistake of thinking someone else will pick up your slack. WE NEED YOU. We are a grassroots organization and it is YOU when you all come together to advocate with your legislators for change…..

Q: Who are my reps?

A: Find them via district maps here: Senate, https://www.wvlegislature.gov/Districts/maps.cfm, House: https://www.wvlegislature.gov/Districts/maps.cfm#HD01

You can follow WVCDL Legislative Tracking here, https://www.wvcdl.org/forums/2021-legislative-tracking/Bookmark it!As always, the Board of Directors appreciates everything all of you do and we are excited to see this session get underway!

Montani semper liberi.

Amber Perry, WVCDL Vice President & Registered Lobbyist

http://www.wvcdl.org/forums/

The Supreme Court Rules Against us After Oral Arguments in the Wayne County Case

I realized that I never posted about oral arguments in the Wayne County case, nor the Supreme Court decision which was handed down while we were driving home. On Tuesday, oral arguments were held, for around an hour, which seemed to me to go very well. I honestly was surprised to find out that they had ruled against us. Here’s the debrief video I made that evening, which includes an excerpt of my rebuttal arguments during the oral arguments hearing:

If I had to guess, I would speculate that they found a procedural means to rule against us, such as standing, or perhaps the existence of the so-called “second signature,” where my client unknowingly signed the letter presented to the Governor by the State GOP. At least I hope so, because otherwise the Court will have modified legislation from the bench – because the law was very clearly on our side.

Here are some of the media reports from the day:

For about an hour earlier this afternoon, lawyers for Governor Justice and the West Virginia Republican Party presented arguments against a lawyer for the chairman of the Wayne County Republican Executive Committee.

A few weeks ago, the governor picked Booth, whose family runs a highway safety contracting business, to fill the vacancy. But Booth’s name had not appeared on a list originally submitted by Wayne County political leaders.

The argument before justices focused on who has the authority to submit names to fill such vacancies and the proper procedure for doing so.

“This is one political party committee that is elected by Wayne County voters engaged in a power grab or attempted control by the state executive committee that has no direct connection to the local Wayne County voters,” said John Bryan, counsel for the Wayne County GOP chairman.

“That is the whole point: that they ended up with somebody they voted for or necessarily even knew but they ended up with somebody that, according to the records, donated to Governor Justice when he ran for office in 2016 as a Democrat.”

He was referring to records showing Booth as a $1,000 maximum-amount donor to Justice’s first run, when he won as a Democrat before changing parties after a few months.

https://wvmetronews.com/2021/02/09/supreme-court-swiftly-rules-the-governor-gets-his-pick-for-state-delegate/

I was obviously freshly perturbed when I gave this interview:

https://wvrecord.com/stories/573982025-supreme-court-denies-wayne-co-vacancy-petition-appointed-delegate-can-begin-session-wednesdaycan-begin-session-wednesday

Attorney John Bryan, who is representing Maynard, was disappointed by the ruling.

“The governor has been able to get around the law whenever he pleases for the past year now,” Bryan told The West Virginia Record. “When the full opinion is issued, I suppose we’ll find out how he did it this time. … State laws throughout the country were not followed in the 2020 election, and not a court in the land seems to care.”

https://wvrecord.com/stories/573982025-supreme-court-denies-wayne-co-vacancy-petition-appointed-delegate-can-begin-session-wednesday
https://wchstv.com/news/local/west-virginia-supreme-court-declines-to-halt-delegate-nomination-pick-by-governor
https://www.wowktv.com/news/west-virginia/wv-supreme-court-rules-in-favor-of-gov-justices-delegate-appointment/

The “Community Caretaking” Exception Heads to the SCOTUS

The SCOTUS is taking up the so-called “community caretaking exception” to decide whether it is an applicable exception to the warrant requirement for the home, rather than just vehicles.

There is a vigorous debate about whether the community care exception can apply to searches of a person’s home as well as of their car. Vehicles have always had less 4th Amendment protection than homes, which are considered a person’s most private sphere. Federal courts have been divided on this question and the Supreme Court has not ruled on it until now.

https://www.forbes.com/sites/evangerstmann/2021/02/05/supreme-court-will-decide-whether-police-can-enter-a-home-to-seize-guns-without-a-warrant/?fbclid=IwAR3LLcehUSPLJDjT0_rVTkrNxp-eRBVc7uzFxVvEB8N3mFC-bubUwj8kVK4&sh=4d99c7b55bb4

This is actually the same “doctrine” Putnam County is asserting in the Michael Walker open carry case, which is being heard at the 4th Circuit in early March. Violate the 4th Amendment? No biggie, just claim you were looking out for the community…..

We Reply to the State GOP in the Lawsuit Against the Governor

This morning we submitted a Reply to the WV Supreme Court to the brief submitted by the State GOP in the lawsuit we filed against the Governor in the District 19 legislative vacancy dispute. Here is the filing, which hopefully clears up the confusion and uncertainty between the legal structure and authorities of state political party committees and local political party committees. As discussed in the last post on the topic, everyone from the top down seems to be confused. Hopefully this clears things up.

It should be noted that there are 100 legislative districts in the WV House of Delegates, each representing about 18,000 voters. 43 out of the 100 districts are contained wholly within a single county, and therefore vacancy nominations for those 43 single-county districts go to the county political executive committee. The state committee has no authority under the law to inject a veto or control the process. If the State GOP is allowed to do so, that would equal roughly 774,000 voters who lose their representation in vacancy nomination decisions. Note: the Democrat Party has not attempted to inject their state committee into the local legislative vacancy process.

Here’s my handy diagram on how all political party committees are structured under West Virginia law. Note that all committees have the right to elect their own officers, make their own internal rules, and contain a body of voting members elected by voters. They are limited, however, in that they cannot create internal rules that are inconsistent with state law.

Therefore, while the State GOP claims to be able to control the legislative vacancy process through making new bylaws, their argument is flawed because doing so is entirely inconsistent with State Code, which gives the local committees exclusive authority to nominate seat vacancies. You can’t get around that by changing the internal rules in the bylaws. That seems obvious, but apparently they did it anyways…..

The Supplemental Appendix (Exhibits) referenced in the Reply:

Oral arguments are currently scheduled for Tuesday at 2:00 p.m. at the WV Supreme Court. It should be available live on the Court’s website. I go over many of these details in the live video from Wednesday night. Not the most exciting topic, but important:

State GOP’s Response to the Supreme Court in the Delegate District 19 Vacancy Lawsuit

Now there’s national attention on our supposed “fracture” in the West Virginia GOP caused by our Governor and the State Party interfering with local voters’ statutory right to choose the candidates for replacement of a legislative vacancy within their county:

CHARLESTON, W.Va. (AP) — On a beach vacation in South Carolina with his family, Jay Marcum was awaiting a call from the governor of West Virginia. He was a finalist for the vacant seat of a state legislator who resigned after being charged with illegally entering the U.S. Capitol in the Jan. 6 riot. Instead, state Republican leaders ordered a redo on candidate applications and insisted Marcum return home for an in-person interview.

“I don’t really understand why we can’t do a Zoom,” he told them. Nevertheless, the 51-year-old small-business owner packed up his disappointed children and left Myrtle Beach at 6 a.m. for the nine-hour trip home.

Ultimately, his journey was for naught: Republican Gov. Jim Justice ended up appointing neither Marcum nor either of the two other candidates who had been placed on a shortlist by GOP party leaders in Wayne County, where the delegate seat is located. Justice instead appointed a political neophyte, enraging Republicans in the rural county and unleashing accusations of subterfuge and backdoor politics in the Mountain State.

If you want to understand more about this, and even compare what the Republicans have done to their own constituents this past year by attempting to usurp the process with their bylaws, you very well might be outraged at what they’ve done. You’re probably not even aware of it though, because it’s been well hidden in the swamp water.

Yesterday the State GOP responded with their brief against us, after being allowed to “intervene” as an interested party by the Supreme Court. Here’s the WV State GOP’s response brief to our Petition for Writ of Mandamus in the Delegate District 19 Case:

There’s a giant red herring in this case, disguising a massive power grab that is occurring right before our eyes.

The Governor, the Attorney General and the State GOP are either intentionally, or mistakenly, operating under the premise that a county party executive committee in West Virginia is somehow a subcommittee and subservient to the state party executive committee (or as the State GOP terms it, “subordinate”). What’s being lost in the mix – perhaps by design – is that a county party executive committee, or even a delegate or senatorial district committee, is a separate organization – a separate committee – from that of the state party. It is not a subcommittee of the state executive committee. Nor is it subservient to the state executive committee.

Don’t quite understand? Let’s get into the weeds….

The State Republican Executive Committee has its bylaws, which it can amend, revise, or modify. Likewise, the Wayne County Republican Executive Committee has its own bylaws. The state committee cannot modify the county committee’s bylaws. Nor can the county committee modify the state committee’s bylaws. Perhaps I need to make a diagram. Let’s try this (not drawn to scale, LOL):

Now…. so if Delegate Sniffy McSniffer resigns his theoretical seat in the WV House of Delegates, and his seat district lies in 2 or more counties (so “multi-county”), the executive committee that would convene and perform the process of choosing 3 qualified candidates for presentment to the Governor for his appointment, would be Sniffy McSniffer’s district executive committee, organized and created under W. Va Code §3-1-9(b) (see above handy diagram), and comprised of elected local members from those districts (in two or more different counties). Since the legislative district is multi-county, it has its own executive committee elected (because it can’t logically or technically be done in just one county executive committee).

Then…. so if Delegate Rusty Shackleford resigns his theoretical seat in the WV House of Delegates shortly after Delegate McSniffer, there’s another legislative vacancy which needs to be filled pursuant to the process outlined by state code in W. Va. Code § 3-10-5. This is the same code section, but different executive committee. Why? Because Delegate Shackleford’s legislative district lies wholly within one county. Therefore, since it’s not a multi-county district, pursuant to W. Va Code §3-1-9(c) (see handy chart above) the elected committee members (still elected by party voters at their local precincts) are all already members of the county executive committee of that particular county.

There is no separate executive committee for those districts. They are technically just subcommittees of the county executive committee (assuming all of the county members don’t reside in the vacant legislative district). Thus, Del. Shackleford’s replacement is chosen by the county executive committee, at a meeting convened of its members who reside in the vacant district. They vote, and then that executive committee conveys the nominees to the Governor for his appointment of one of those qualified individuals.

The state code for legislative vacancy replacement is clear: it’s the elected local committee members who make the nominations, whether via their own multi-county executive committee, or via the county executive committee for single-county districts. Which brings us to the real problem here: the State GOP has engaged in an attempted power grab to give itself a veto and technical control over this vacancy replacement process. This is what the State GOP inserted into their bylaws (i.e., not the bylaws of county and district committees which are separate political committees under state law):

Section 4. Vacancy in the State Legislature: Wherever else public or Party law requires the filling of an elected office by a Party Committee, the State Senate Executive Committee or House of Delegate Executive Committee, whatever the case may be, shall fulfil their obligations in accordance with state law as provided in this rule….

(c) The State Party Chairman, or their designee, shall facilitate the process of conducting interviews and filling such office by whatever means necessary, which shall include but is not limited to, facilitating and conducting the interviews, calling special meetings of the District Vacancy Committee, and certifying the results of such committee meetings to the Governor. The State Chairman shall take care to see that each candidate nominated by the Republican Party for such office is constitutionally eligible.

(d) The State Chairman and State Party Staff shall, in consultation with the elected Chair of the District Vacancy Committee, prepare a list of questions that will be asked of candidates during their interview process. The State Chairman and State Party Staff shall ensure that there is adequate public notice of such vacancy and that there are at least Seventy-two (72) hours between the time that the notice is posted publicly and the time that the application period closes.

a. The nomination of such candidates for a vacancy shall occur in the following manner:

i. If there are three (3) candidates who have applied, the Vacancy Committee need not convene, unless called to do so by the State Chair, the District Vacancy Chair, or upon the application of forty percent (40%) of the members of the District Vacancy Committee. In such cases, should there be only three candidates, and the committee is not called, the State Chairman shall certify those three names to the Governor and shall provide a copy to the Secretary of State.

ii. If there are less than three (3) candidates, the Vacancy District Committee shall convene and endeavor to fill the remaining slots from a list of eligible registered Republicans who are constitutionally eligible to hold such office and are registered to vote in and reside in the District from which the vacancy arises.

iii. If there are more than three (3) candidates who apply for such office, interviews will be conducted in person at a location in the District, unless such district is within twenty-five (25) miles of the State Party Headquarters, at which point the interviews shall be conducted at State Party Headquarters. All interviews will be uniform and no candidate shall be asked different questions, questioned by individual committee members, or be given more or less time. Upon the conclusion of the interviews, the District Vacancy Committee shall deliberate and choose three candidates to submit to the Governor. The District Vacancy Committee shall vote by blank ballot and no name shall be placed on the list submitted to the Governor unless they receive a majority of votes cast. The members of the District Vacancy Committee shall vote for up to three candidates on the first round of balloting. If any candidate receives a majority of votes cast, that candidate shall be nominated and their name shall be removed from the next round of voting. In succeeding rounds of balloting, the committee members shall only be allowed to vote for the number of slots left to nominate. In each succeeding round of balloting, the candidate receiving the fewest votes shall be eliminated for the next round of balloting, unless there are multiple candidates who receive the fewest amounts of votes. This process shall continue indefinitely until a slate of three (3) candidates is nominated.

iv. Upon the conclusion of the committee interviews and action, the State Chairman, District Vacancy Committee Chairman (or Vice Chair in the absence of the Chair), and District Vacancy Committee Secretary shall certify, by letter on State Party letterhead, the list of three (3) names for such vacancy. This letter shall be filed by the State Party Staff within twenty-four (24) hours of the letter being signed by all three officers. All letters and certification papers shall be filed with the Governor of West Virginia and the West Virginia Secretary of State.

v. 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.

Note that last subsection….They’ve gone completely power mad. But this is where they’re saying that there’s a requirement that the State Chair must be involved and certify the process, etc. It’s in their own new insane bylaws – not state code, nor in county/district bylaws!

It wasn’t always so. As of 2019 and early 2020, the State GOP bylaws (in place at the time) were mostly silent on the issue of legislative vacancy appointments. Then, in the summer of 2020, they aggressively attempted to steal their little brothers’ authority, and changed their bylaws to include all the stuff the State GOP cited in their brief. Here are the 2020 amended (State Party) bylaws. Now they’ve given themselves authority in the vacancy replacement process, which did not exist previously – as indicated by prior single-county vacancy appointments.

So, can the State GOP do that? They’ve effectively changed W. Va. Code § 3-10-5, which gives the local executive committees (whether county or multi-county local legislative district) the important authority of vetting and nominating their local candidates. W. Va. Code § 3-10-5 does not give the state executive committee that authority. Even the new aggressive State GOP bylaws recognize this authority:

ARTICLE XIII – Regulation of Subordinate Party Executive Committees

Section 1. Jurisdiction. In the interest of effective organization and party harmony, the State Executive Committee and its Chairman shall and will exercise jurisdiction, control and authority over the County, Senatorial, Delegate District, and Congressional Committees of the Republican Party in West Virginia in all matters having to do with: (i) the filling of vacancies when any such Committee is unable to do so, (ii) the election of any officer of the committee in the event of a tie vote, and (iii) of any other matter of the business of any such committee which in the opinion of the State Executive Committee or the State Chairman shall be of sufficient importance to the Republican party to require removal from local consideration and action by the State Executive Committee.

Note that the State GOP uses the word “subordinate” in their new bylaws. That word does not come from W. Va Code §3-1-9 (see chart above). However, it clearly expresses their attitude towards local elected committee members. But even in these outrageous bylaws, they are required to acknowledge that they can only possibly attempt to intervene “when any such Committee is unable to do so,” or some other situation of “sufficient importance” in the opinion of the State GOP. Again, this is authorized nowhere in the State Code, which created a state executive committee and other county and district executive committees separate and apart from each other – not “subordinate.”

Even assuming the questionable legality of these Myanmar style bylaws, there are still due process protections for the peasant local committee members (who mind you, are the only ones elected by the people of that district – unlike the state committee members from the 54 other counties):

Section 2. Temporary Exigent Jurisdiction. If, in the opinion of the Chairman of the State Executive Committee, time is of the essence in regard to the issue or issues in controversy, the Chairman may exercise discretion to resolve the issue or issues in controversy, on a temporary basis by taking such action as they may deem in the best interests of the Republican Party by filling any vacancy, naming any officer, or taking what other action may be provident and they shall notify in writing the members of any subordinate committee of their action within ten (10) days thereafter, which action shall become final and binding upon the County, Senatorial, Delegate District, or Congressional Committees of the Republican Party in West Virginia and their members, unless a notice of appeal in writing filed by no less that 50 percent of the members of any such committee is filed with the Secretary of the State Committee within ten (10) days after the date of mailing of the notice, as herein above provided for, by the said Chairman to the members of such committee. Such notice of appeal to the Secretary shall be sent by certified or registered mail. Any such action taken by the Chairman in accordance with the terms of this section shall be in full force and effect from the date of his action until any appeal therefrom is adjudicated in accordance with the provisions of section three hereof.

Section 3. When any such question or controversy arises in any such County, Senatorial, Delegate District, or Congressional Committee, which the Chairman deems not to require immediate action upon his part as provided for in section two, or if written notice of appeal has been properly filed, as herein before provided for, from any decision of the Chairman made according to the provisions of Article XII, Section 2 of these Bylaws, the Chairman of the State Executive Committee shall appoint a panel of four members who, with such Chairman, shall constitute a Board of Arbitration to hear evidence on the issue. After hearing all the evidence of any and all parties in interest, the Board shall by secret ballot decide the issue in writing and such decision shall be final and binding upon all parties concerned.

Just briefly going back to the questionable legality of this, since the 55 county executive committees, as well as the numerous legislative district executive committees, now have these new rules hoisted upon them, did they consent to this transfer of power? Pursuant to W. Va Code §3-1-9(g), each of these committees, like the state executive committee, has their own independent officers, organization and political divisions. Many, such as the county in dispute in this case, have their own bylaws. Now all of a sudden, the state gets to step in, and there’s an “arbitration board” just to make things really difficult?

County and local legislative district political committees are not subcommittees of the state executive committee, but rather separate political committees, independent and different than the state committee.

According to the state code which created all of these committees, pursuant to W. Va Code §3-1-11, no political committee – state included – can modify their bylaws in such a way as to be “inconsistent” with, or “in contravention” with (e.g. violation of) state code.

So now you understand the red herring here: whether on purpose or by misunderstanding, the Wayne County Republican Executive Committee was refused an appointment of their vetted and nominated list of three qualified candidates. This wasn’t just because the Governor and/or the State GOP didn’t like anyone on the list, but more importantly (and more mischievously) because as of the Summer of 2020, the State GOP has engaged in a power grab in the vacancy process, attempting to take authority from local elected committee members, who know their constituents and candidates, and placing that authority in state party political leaders from outside that constituency, and who are un-elected by that constituency.

Why doesn’t the state party just go ahead and substitute themselves in for individual voters in general – at least for the primaries. They know best, right? The voters don’t understand what’s best for the party. It’s about the big picture…. In case you’ve forgotten, by the way, the legal structure of party political committees applies to all political parties. Believe it or not, Democrat voters have not been disenfranchised in this way and strong-armed by their state executive committee. You can review the Democrat state executive committee bylaws here. They don’t contain any attempts by the state party to usurp the authority of the county or district members. In fact, this is all I could find, as far as interference:

4. Vacancies: If a County Executive Committee fails to meet its obligation to fill a vacancy on the committee within 60 days of the vacancy occurring the State Chair may appoint a replacement.

And mind you, that’s for vacancies on the county executive committees – not vacancies for the legislature. They don’t even have any provision whatsoever providing that the state committee can interfere, or even participate, with that process. After all, that would be “in contravention” of state law placing that authority at the county level, would it not?

I’m working hard on reacting to what has been submitted by the State GOP here – and mind you, so I’m told, even the Democrats agree with Wayne County here – so as a part of that process, I am presenting the affidavit of my client, detailing exactly what happened, and providing the troubling details omitted by the State GOP surrounding the execution of the second list of candidates sent to the Governor by the State GOP:

Other links from this case:

Read the Governor’s Response, submitted by the WV Attorney General:

Read our original lawsuit here:

View the Supreme Court’s order staying legislative activity and ordering the case to proceed:

View the way the exact same process was handled in the past, by some of the same individuals involved:

The Governor Responds to the Wayne County Delegate District Dispute

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Just a little while ago we received the Governor’s response to our Petition for Writ of Mandamus in the Wayne County Delegate District 19 dispute. It was drafted and submitted by the West Virginia Attorney General’s Office.

I’ll note that the response accuses us of misreading the statute. In reality, they misunderstand the differences between multi-county delegate districts and delegate districts contained wholly within a single 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.

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.

BYLAWS OF REPUBLICAN STATE EXECUTIVE COMMITTEE OF WEST VIRGINIA, Section 4(d)(a)(v).

Understand that the 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. 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.

The Wayne County Chair, Jeff Maynard, sent a copy of the list of candidates to both the Governor and to the Acting Chair of the State Party. This was after the four person delegate district committee deliberated and voted on the three candidates to send to the Governor. But the Governor didn’t choose. After the statutory five day period expired for the Governor to make a choice from the candidates, the County Chair was contacted by the Governor’s office, and told that a re-do was necessary, according to the State Party.

As you know by now, this resulted in a different name being added in place of Jay Marcum, with a vote of only two committee members, this time, rather than the original total of four members from Delegate District 19’s first meeting. As we know, that’s the name chosen by the Governor.

If it was just a matter of adding the State Party’s Acting Chair signature, he could have done so at any time. 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.

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: 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.

As reported by the West Virginia Record, in 2018, when the Governor approved from a list of three candidates from the Wood County Party to replace the vacancy following the death of Del. Deem, the Governor made a choice off that list, submitted without any signature or involvement of the State Party. The Governor was photographed by the media, smiling with his choice of appointment from the County Party’s list. However, in this case, with Wayne County, the Governor refused to make a choice until Wayne County’s list was submitted by the State Party with a different name, which he would ultimately pick:

“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.”

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.” 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?

Update 2/1/21 6:51 p.m.: the State GOP’s Response to the petition as an Intervenor: