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.
I was obviously freshly perturbed when I gave this interview:
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.”
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:
Here is the petition for Writ of Mandamus we filed this morning with the West Virginia Supreme Court of Appeals, asking them to force the West Virginia Governor to follow West Virginia law in choosing between the three qualified candidates presented to him by the Wayne County Republican Executive Committee to fill the vacancy in the legislature left by the resignation of Del. Derrick Evans:
Basically, the State Republican party has usurped the powers and authority of the Wayne County Republican voters, by attempting to take away their authority to choose a list of three qualified candidates to present to the Governor to fill the empty seat in the House of Delegates following the January 9 resignation of Del. Derrick Evans.
The Governor was presented with a list of three qualified candidates on January 14. He had five days to choose from the list. Instead the new Acting Chair of the West Virginia Republican Executive Committee took over the process, and created a new list – this time removing one of the three names and inserting a new name. This disenfranchises the Republican voters of the 19th Delegate District in Wayne County. The law is clear however, and places this power solely on the Wayne County Republican committee members – all duly elected by voters in their precinct.
Why is this important? Wayne County hasn’t had a Republican delegate in 100 years. Now that they’ve got one, the Governor is seeking to replace the choices of the voters with his own guy – who is an unvetted, unknown entity, since he didn’t run in the November campaign. Even more importantly, West Virginia law is clear and unambiguous that the local party (and this applies to all parties) gets to make the decision on the list of three to present to the Governor. This was put in place for a reason. To allow it to be thrown to the wayside is to allow a transfer of power from the people at the local level to some smoke-filled back room full of politicians and politicos.
The first of my two clients in the federal civil rights lawsuit filed yesterday against the superintendent of Jefferson County Schools had her disciplinary hearing today, where the “evidence” was presented of her alleged involvement in the violence at the U.S. Capitol last Wednesday. Apparently the only evidence presented was a conspicuously-absent anonymous “report.” According to the attorney at the scene, Bondy Gibson, the superintendent who leveled the accusations, refused to provide a copy of the allegations, the name of the person making the allegation, or any of the social media posts the individual referenced.
Apparently, what actually happened, is that the Board office reviewed Pam McDonald’s social media page and came to the same conclusion that all have, which is that Pam did nothing wrong and broke no laws. Unfortunately, however, the damage has already been done, and our lawsuit will continue. For instance, here’s a screenshot of a TV news story from this morning about my two clients:
Here’s another disgusting media report from WVDM, which was the direct recipient of the leak from the Jefferson County Schools smearing my clients. It announced that my clients “participated in riots in Washington D.C.” Can you imagine, your friendly school bus drivers may have rioted through the Capitol?
In case anyone misunderstood, in the WDVM article above, this was the exact quote:
The statement details that Superintendent Bondy Shay Gibson was made aware on Friday of the staff members’ participation that left the Capitol Building in shambles.
It turns out that no such evidence exists, apparently. But what about the smear letter the superintendent wrote yesterday which was provided to WV Metro News, where she said this:
On Friday, January 8, 2021, I received such a report that two employees had posted threatening and inflammatory posts on their Facebook pages, had been present at the Electoral protest march on Wednesday that erupted in violence, and had violated our leave policy.
Wait, first . . . about the leave policy…. how would one go about reporting whether one of your employees violated your leave policy? Do random people have access to your employee personnel files? Or was this “person” who made the report “a friend” of yours. Sort of like the “friend” prefaced in embarrassing Dear Abby letters? Does this friend happen an office in the school administration building with a sign on the door saying something like, “Superintendent?”
Secondly, about the “threatening and inflammatory posts” my clients supposedly made….. Where are they? I’m sure they were just misplaced….. They must exist, right?
If the goal was to drag these ladies through the mud, merely for their political affiliation and viewpoints, I guess it was a job well-done. They received all sorts of well-wishes from the tolerant and compassionate commenters among us. If only someone saved some sort of record of the ugly comments which were directed at my two innocent clients in the comments section of these defamatory pieces….. That would be a great way, not only to document the ugliness of the situation, but also to hold accountable the nasty individuals behind the keyboards who so recklessly and maliciously love to destroy the lives of their fellow human beings, based only on political disagreement.
It would be a shame if some of them ended up getting sued and held accountable for their online bullying….. Just a thought.
You may have seen in the national news, and on social media, that the Superintendent of Jefferson County Schools, in Jefferson County, West Virginia, decided to come after school employees who attended the Trump Rally on January 6, 2020. At least two employees, both long-time school bus drivers, who attended the rally, and who never entered any prohibited areas near the Capitol, never witnessed violence, never participated in violence, destruction of property, trespassing, etc., were suspended on January 8, 2020, and remain suspended as of this time.
This afternoon we filed a federal Section 1983 civil rights lawsuit against the Superintendent, individually, for money damages. Here’s the filing:
This is a blatant attack on the core of the First Amendment: the right to assemble and protest in a traditional forum of public speech, such as the U.S. Capitol. These clients did not pass into any prohibited area that day. They committed no crime while in Washington D.C. They’re exercise of free speech had absolutely nothing to do with their employment as school bus drivers for Jefferson County Schools. They just so happened to have a political activist superintendent.
Update on the Federal Covid Tyranny Challenge: The Governor filed a motion to dismiss our lawsuit, and we responded yesterday. I think Samuel Adams said it best on October 14, 1771:
“The liberties of our country, the freedom of our civil constitution, are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or be cheated out of them by the artifices of false and designing men.”
Here’s the Governor’s motion to dismiss our federal lawsuit on behalf of the Bridge Cafe & Bistro Restaurant, challenging the Stay at Home Order and the Mask Mandate:
Police officers with the Chicago PD traumatize a nude woman, who was just minding her own business in her home, which is caught on Video via bodycams. Her lawyer then dismisses her case because he misunderstood the law. Oops. You may have seen this case in the news, but I go behind the headlines and examine the incompetence not reported in the news, and explain what the law is for civil rights lawsuits following search warrant cases where there’s a wrong address and plain ‘ole incompetence.
You have to either allege that the warrant was invalid, or if that can’t be done, you have to attack the affidavit supporting the warrant. To succeed, Plaintiffs must prove Defendants “deliberately or with a ‘reckless disregard for the truth’ made material false statements in [their] affidavit” which were necessary to the magistrate’s finding of probable cause. Miller, 475 F.3d at 627 (quotingFranks v. Delaware, 438 U.S. 154, 155–56 (1978). Or, Plaintiffs must show Defendants omitted “material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.’” Id.
“To determine materiality, a court must excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Id. (internal quotations removed). “If the ‘corrected’ warrant affidavit establishes probable cause, no civil liability lies against the officer.”
“Reckless disregard can be established by evidence that an officer acted with a high degree of awareness of a statement’s probable falsity,” meaning an officer had “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. (internal quotations removed). For omissions, “reckless disregard can be established by evidence that a police officer failed to inform the judicial officer of facts [he] knew would negate probable cause.” Id. (internal quotations removed). However, negligence or innocent mistake “will not provide a basis for a constitutional violation.” Id. (quoting Franks, 438 U.S. at 171).