The saga of the Family Court Judges attempting to sway justice in the case of the Family Court Judge Search Case continues. As I already posted about, I sent a FOIA request to the Family Court Judicial Association to ascertain, among other things, who actually voted to engage in this conduct. Their lawyer responded, as I expected, denying that they are accountable to the public via FOIA:
So this is like saying that any group of government officials can just form their own “voluntary association” and then conduct business pertaining to their official jobs, and even use their government employees, emails, and so on, and yet avoid FOIA accountability. We’ll have to see about that.
Here are some of the recent filings flying back and forth in their efforts at intervening in the pending disciplinary matter involving Judge Goldston:
Today I served a Freedom of Information Act (FOIA) request on the attorney who is representing West Virginia’s “Family Judicial Association” in their attempt at preventing judicial discipline against the WV Family Court judge who was caught on video searching my client’s home.
Why did I do this? A few days ago, the association filed notice that they want to file an amicus brief in the pending disciplinary matter against Judge Louise Goldston, which is what I had previously done on behalf of her victim, Matthew Gibson. Here is the filing they submitted:
The Brief notes the irony that the Association’s actions here are likely violations of the rules in the Code of Judicial Conduct:
First and most importantly, any comment by the WV Family Court Association on the Goldston case pending before the Court would be a violation of Rule 2.10 of the Code of Judicial Conduct for the judges who voted in favor of filing the amicus whether it be members of the executive committee or the members as a whole.
The “Family Judicial Association” apparently consists of the 47 elected Family Court judges from around the State of West Virginia. In our FOIA, we are requesting disclosure of the identity of every member who voted to attempt to interfere with a pending case by demanding the firing of the prosecutors, and also who voted to attempt to interfere with a pending case by attempting to insert themselves into pending disciplinary litigation, in which they’re not involved (other than wanting to preserve what they view as their power to search people’s homes, apparently).
Today my colleague from Kentucky, Chris Wiest, received an awesome ruling from the Circuit Court of Boone County declaring that all of Governor Andy Bashear’s emergency orders and actions are unconstitutional and void. The ruling was in the state-court challenge to the governor’s emergency powers executive orders, filed by Wiest on behalf of Beans Cafe’ & Bakery.
Dr. Stephen Petty, an actual expert in masks, testified at the trial about their uselessness under the circumstances in which they’re being idolized. Here’s an excerpt from the order pertaining to Dr. Petty. For those bureaucrats and social media tyrants who would censor this, this is from an actual court order issued today. Not that you care:
Stephen E. Petty, P.E., CIH, testified as an expert and was accepted as such without objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained Ohio’s risk assessors.
Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.
The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.”
According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being.
Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed.
Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others.
He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?”
Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.”62 According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .”
Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better.
The judge summarizes the situation nicely:
It is obvious from even a cursory review that the orders issued over the past fifteen months “attempt to control” and seek “to form and determine future rights and duties” of Kentucky citizens. These included ordering the closure of all businesses, except those the Governor deemed essential. He ordered churches closed, prohibited social gatherings, including at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from receiving scheduled surgeries and access to medical care. And then there is the order that everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.
At the hearing, Defendants took exception to the Attorney General’s characterization of the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact on those who lost their businesses as a result, or those in nursing homes condemned to spend their final hours alone, deprived of the comfort from loved ones (or even any real contact with humanity), or those citizens who the Governor prohibited from celebrating their wedding day with more than ten persons, or those he forced to bury their dead alone, without the consoling presence of family and friends (and who likewise were deprived of paying their final respects), or those persons who were barred from entering church to worship Almighty God during Holy Week, and even Easter Sunday, or those persons who were denied access to health care, including cancer-screenings, or those denied entry into government buildings (which they pay for with their taxes) in order to obtain a necessary license, and who were forced to wait outside for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.
What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker—“is something this Court never expected to see outside the pages of a dystopian novel.” Yet, Defendants contend that the Governor’s rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d’état against it.
Yes, life is now a dystopian novel. Let’s hope this patriot judge’s order stands up on appeal in the state appellate courts in Kentucky. And thanks to Chris Wiest and the AG of Kentucky for fighting the good fight. The order notes that the permanent injunction against the governor goes into effect on June 10, 2021 at 5:00 p.m.
This is absolutely outrageous. Apparently, there’s a secret society style organization of Family Court judges in West Virginia, who held a meeting and signed a resolution asking the West Virginia Supreme Court to fire the judicial disciplinary counsel prosecutors, who are currently engaged in the disciplinary prosecution of Judge Goldston in what has been termed the “Family Court Judge Search Case.” This was then leaked to the media by the judges, none of whom would agree to go on the record, but rather opted to work from the shadows.
Today we filed suit in the case of the “Outlaw Barber,” Winerd “Les” Jenkins, a 73 year old combat veteran and former 27-year Deputy U.S. Marshall, who was arrested for refusing to close his barbershop during the Governor’s lockdown in April of 2020. We filed a Section 1983 civil rights lawsuit in federal court, in the Northern District of West Virginia.
When Winerd “Les” Jenkins first became a barber, Neil Armstrong hadn’t yet set foot on the moon. For over five decades, Jenkins has made a living with his scissors and razor. For the past decade, he’s worked his craft from a storefront in Inwood, West Virginia. At Les’ Place Traditional Barber Shop, you can get a regular men’s haircut for $16 and a shave for $14—but come prepared to pay the old-fashioned way: in cash.
His insistence on “cash only” isn’t the only thing that’s old-school about Jenkins. He lives with his wife of 52 years on a small farm, where the couple raises rescued animals. He believes in paying his bills on time. He doesn’t use the internet, email, or text messaging. And he’s skeptical that his profession can become illegal overnight merely on the governor’s say-so.
He was ultimately arrested by two deputies from the Berkeley County Sheriff’s Office, who transported Mr. Jenkins for incarceration and charged him with “obstructing” an officer. The prosecuting attorney’s office of that county then aggressively prosecuted Mr. Jenkins for the better part of a year, until the judge finally dismissed the charge in January of 2021, finding that it would be a violation of Mr. Jenkins’s constitutional rights to prosecute him for violating the governor’s executive order.
We asserted two separate violations of Mr. Jenkins’ Fourth Amendment rights (unreasonable search and seizure and false arrest), as well as a violation of Mr. Jenkins’ First Amendment rights. It’s already been assigned a case number. Read it for yourself:
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:
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.
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!
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:
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 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:
The Governor’s office and the WV Attorney General’s Office claims that the State Republican Party Executive Committee had to be involved in the selection process for the candidates submitted to the Governor for the vacancy created by the resignation of Derrick Evans. 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. As you know, if you’ve watched West Virginia media this week, the Governor chose the new candidate added to the second list.
Was there really a problem with the first letter submitted to the Governor? Here is the letter sent to the Governor from the Wayne County Chair, which was alleged to have mistakenly left out the State party:
This first letter was marked as received by the Governor’s office on January 14, 2021. I wonder why the Governor couldn’t make a choice from this list? Take a look at another letter submitted to him in the past from a county party chair. 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 3 qualified replacements from which the Governor would be choosing. There was no mention of the state party, or the state chair.
Did the Governor send this 2018 list back for alterations, revisions, or additions? No. He made a choice and he seemed happy with it. 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…..
The Governor’s office said that the State Republican Party executive committee was responsible for directing the process of choosing the candidates (even though they apparently weren’t involved in the 2018 appointment). This was according to the party’s Acting Chair, Roman Stauffer – a lobbyist and former campaign manager for Governor Justice (just several months ago).
Look at what I found, however….. Mr. Stauffer was, at one time, the chair of the Mercer County Republican Executive Committee. 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 fact, he appears to have handled the vacancy in the exact same way as Wayne County did with Derrick Evans’ seat. The only difference being: politics.
Update: the Governor’s Chief of Staff and General Counsel was the radio today lying about the conversation he had with me, and also making other false statements. Apparently he struggles wit the truth: