Current Status of Exemption Requests for Employer Mandates

We’re getting a huge volume of calls and emails on exemptions to employer mandates. This is the current general information we’ve been providing, which again, is general information. This is all based on federal law. State laws around the country may provide for different, possibly better, protections. We are currently on taking cases in West Virginia. If you’re in Kentucky, you should contact Attorney Chris Wiest, from whom I hijacked some of the below Q&As.

1. Exemption requests: Yes, you need to submit the requests to trigger legal protections.  The only legal exemptions are for medical or religious exemptions.  Yes, you need to make the request even if your employer says they are not taking or accepting them.  Yes you should do so even if your employer is requiring a pastor note and you cannot get one.  The buzz word is that you have a “sincerely held religious belief.”  You should document the what and why of that belief.  The employer can require you to answer questions about the request to determine if it is sincere.  Including asking questions about prior vaccines (if your request is based on aborted fetal cells, be prepared to answer the question on your having received prior vaccines — and answering it that you didn’t know when you received them but now do is an acceptable answer).

You can learn more about the basis for a religious exception, based on the Thomas More Society litigation in New York, here: https://thecivilrightslawyer.com/2021/09/25/religious-exemptions-for-vaccines-under-title-7-and-private-employers-in-the-health-care-field/

You can learn more about the issue of whether an employer gets to question your religious beliefs here: https://thecivilrightslawyer.com/2021/10/07/employers-do-not-get-to-define-religion-in-exemption-applications/


You should also document prior exposure, infection, and any antibody tests.  And send that to the employer to document the fact that giving you an exemption cannot possibly burden the employer.For medical exemptions, you need a doctors note.  It should document your particular medical condition and indicate the threat the vaccine poses to you.  These are going to be the rare exception.


2. They denied my exemption: Ask them to explain what burdens, if any, they expect to suffer from the grant of exemption.


3. What next?: As a practical matter: you are left with two choices after a denial: (a) get fired and pursue a wrongful discharge lawsuit; or (b) get the vaccine. Injunctive relief actions prior to firing may be available if your employer is a governmental entity but these are tricky unless there are blanket denials. We may be able to help in these situations.


If you are FIRED from either a private and government employer and (I) you requested a religious exemption; (II) you documented prior infection and antibodies; and (III) the employer denied the exemption, we may be able to help.


If you’re in West Virginia, the State Legislature just tentatively passed legislation created three state-law based exceptions to both public and private employer mandates. It provides for medical, religious and natural immunity exceptions. It hasn’t yet been signed by the Governor. However, since he proposed the legislation, he is expected to sign it. Unfortunately, it doesn’t become effective law until 90 days after it’s signed (because there wasn’t 2/3 majority vote).

The new law provides that:

(a) A covered employer, as defined in this section, that requires as a condition of continued employment or as a condition of hiring an individual for employment that such person receive a COVID-19 immunization or present documentation of immunization from COVID-19, shall exempt current or prospective employees from such immunization requirements upon the presentation of one of the following certifications:

(1) A certification presented to the covered employer, signed by a physician licensed pursuant to the provisions of §30-3-1 et seq. or §30-14-1 et seq. of this code or an advanced practice registered nurse licensed pursuant to the provisions of §30-7-1 et seq. of this code who has conducted an in person examination of the employee or prospective employee, stating that the physical condition of the current or prospective employee is such that a COVID-19 immunization is contraindicated, there exists a specific precaution to the mandated vaccine, or the current or prospective employee has developed COVID-19 antibodies from being exposed to the COVID-19 virus or suffered from and has recovered from the COVID-19 virus; or

(2) A notarized certification executed by the employee or prospective employee that is presented to the covered employer by the current or prospective employee that he or she has religious beliefs that prevent the current or prospective employee from taking the COVID-19 immunization.

So, in other words, the employer will not have discretion to question the religious sincerity of the employee, which is currently occurring on a wide basis. Therefore, any current religious applications being asserted might as well include a notarized certificate tracking this statutory language. E.g., “I, John Doe hereby certify that I have religious beliefs that prevent me from taking the COVID-19 immunization.” Additionally, any medical exemptions being asserted might as well include a physician’s certification that the employee has antibodies and/or has already suffered from and recovered from the virus.

Many have asked whether this will be applicable to federal employees. This new law applies to “covered employers,” who are defined as follows:

(A) The State of West Virginia, including any department, division, agency, bureau, board, commission, office or authority thereof, any political subdivision of the State of West Virginia including, but not limited to, any county, municipality or school district; or

(B) A business entity, including without limitation any individual, firm, partnership, joint venture, association, corporation, company, estate, trust, business trust, receiver, syndicate, club, society, or other group or combination acting as a unit, engaged in any business activity in this state, including for-profit or not-for-profit activity, that has employees.

So, no it doesn’t appear to apply to federal employees, which would probably be unconstitutional for a couple of reasons. I see no reason why employees of business entities who are federal contractors wouldn’t be covered, to the extent said employees are based in West Virginia and the business activity is based in West Virginia. As for independent federal contractors who are being subjected to the federal mandate, there would be no applicability if they don’t have a business entity as an employer who is engaging in business activity in West Virginia.

WV Attorney General Opinion Arguing Mandates are Unconstitutional

On September 10, the West Virginia Attorney General issued an Opinion letter ultimately concluding that vaccine mandates in West Virginia would be unconstitutional in any blanket form – whether public or private employees.

In the end, a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State’s constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of “state” government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.

Likewise, a private employer’s mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious- or disability-based objections.

He urges the Legislature to take action.

For reasons discussed further, the Legislature can undeniably act. In fact, “[t]he Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.” Syl. pt. 5, State ex rel. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012). Ultimately, “[i]t is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation.” Syl. pt. 3 (in part), State v. Dubuque, 239 W. Va. 660, 805 S.E.2d 421 (2017).

Mandate Litigation, Legislation and Political Posturing in West Virginia

While our telephones and email flood with messages from upset parents, angry about the forced masking of our children, an unlikely hero comes to the rescue. However, he completely messed up. He’s attempting to score for the opposing team. Democrat nominee for W. Va. Attorney General in the 2020 election, in the name of allegedly protecting civil rights for multiple children, filed a lawsuit against the Governor and various school entities to attempt to force a comprehensive statewide mask mandate for children. He is essentially suing to force the Governor to issue an emergency executive order.

Where do I begin? If the Supreme Court wouldn’t let me force the Governor to call the legislature into session last year, in lieu of just issuing incessant executive orders, I can’t imagine they would allow an anti-civil rights lawyer to force him to actually issuing an executive order. We can take issue with the scope of the Governor’s emergency powers, but the concept that the Governor gets to issue, or not issue, his own executive orders, seems pretty uncontroversial. Though I suppose it’s having the desired effect of convincing various county school boards to reverse their prior decisions on a local level, which several have apparently done in the past day or so.

At the same time, the Republican leadership in the W. Va. legislature sent a letter to the W. Va. Attorney General official asking him to give an opinion on whether employer vaccine mandates and vaccine passports are in violation of the West Virginia Constitution. First off, it’s the U.S. Constitution that stands any chance of going up against the mandates. Any analysis of the W. Va. Constitution is going to have to begin with the U.S. Supreme Court’s Jacobson case from 1905. Because that would be the first case cited by the W. Va. Supreme Court, should they hear the issue.

Proponents of governmental overreach in the COVID era have consistently pointed to Jacobson as justification for whatever measures the government is undertaking for the purported goals of protecting the health and safety of their citizens, which in turn is utilized by both public and private employers to attempt to mandate vaccines on their employees. Jacobson opined on the role of the U.S. Constitution in controlling state police powers, as understood in 1905, granting states and local governments an affirmative carte blanche to engage in state disease control efforts.

What that means, is that as it currently stands, SCOTUS has said that the U.S. Constitution allows vaccine mandates in the past. So if W. Va. has carte blanche to engage in disease control efforts, the ball is squarely in the State Legislature’s court. No federal court or caselaw is likely going to stop it. The only way to stop broad employer mandates right now, whether public or private, is through legislative action. That is a very real possibility right now in West Virginia, given the fact that numerous state legislators are currently calling for a special session to consider that very legislation.

Regarding Jacobson’s 1905 era values, let’s not forget that Jacobson’s legal rationale led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public policy initiative to engage in involuntary sterilization of a woman who was purported to be of low intelligence. 274 U.S. 200 (1927). This decision by the SCOTUS gave the eugenics movement added legitimacy and considerable momentum. By 1931, 28 out of 48 states had adopted eugenic sterilization laws.

Jacobson left the door open for future refinement, conceding that state or local government could exercise police powers in an arbitrary or unreasonable manner. The ensuing future refinement came in the form of 20th century civil liberties which were recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized numerous limits on health and safety regulations, including the right against involuntary restraint, decisions about marriage, contraception, procreation, family relationships, sexual relationships, child rearing and education, as well as the right to refuse life-saving treatment. Nobody is arguing that state police powers retain the ability to suppress any of these now-federally-recognized rights. But they want to leave the forced vaccine part in effect.

In addition to the rights itemized supra, the Supreme Court recognized, and continues to recognize, the right of bodily integrity, which was the category of freedom from government action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell. E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S. at 269.

West Virginia has also recognized the right to bodily integrity as a fundamental right. In the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme Court noted that “all competent patients have the right to refuse medical care,” and that such right “has been recognized by both the United States Supreme Court and by the Legislature of this State.” Id. at 168. The W. Va. Court cited the SCOTUS, at length:

[a]t common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific R. Co. v. Botsford,

141 U.S. 250, 251[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body[.]” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992) ]. The informed consent doctrine has become firmly entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).…

[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Accord Collins , 517 S.W.3d at 92 (” ‘All competent adults have a fundamental right to bodily integrity. … Included in this right is the right of competent adult patients to accept or reject medical treatment.’ ” (quoting Church v. Perales , 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia Legislature has recognized this personal right to make health care decisions: “Common law tradition and the medical profession in general have traditionally recognized the right of a capable adult to accept or reject medical or surgical intervention affecting one’s own medical condition[.]” W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).

Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).

Thus, there is some basis in West Virginia state law in which to oppose mandates. However, it’s still grounded in federal constitutional law. You would expect the legislative leadership to know and understand this. Perhaps it’s just political posturing, sending a hardball to the Attorney General, in order to force him give the ultimate opinion that there’s nothing in the West Virginia Constitution which applies the mandate issues presented. What benefit does that confer to we the people, who are opposed to mandates? I can take the liberty of answering for the Attorney General that what the West Virginia Constitution does say, is that sole legislative power is vested in the legislature. Since SCOTUS believes state police powers control mandate law at the state level, the legislature should have the final say. At least unless our anti-civil rights hero gets his way. But do they have the political will?

Kentucky Judge Invalidates All of Governor Bashear’s State of Emergency Actions

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.

Here’s the order itself:

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.

“To whom it may concern” letter detailing the fact that it is illegal under federal law to mandate COVID vaccines

Here is a “to whom it may concern” letter for those in West Virginia who are being threatened with, or subjected to, COVID vaccine mandates:

Thanks to Chris Wiest in Kentucky for the assistance in generating the substance of the letter.

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/

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: