New Evidence Shows the Governor’s Hypocrisy in the Appointment Process for the Derrick Evans Seat

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:

The Supreme Court issues Order and Rule to Show Cause in Delegate Appointment Case

Here is an order we just received a few moments ago from the West Virginia Supreme Court of Appeals granting our motion for expedited relief in the Delegate District 19 Case and ordering the Governor to show cause as to why our Writ of Mandamus should not be granted. The Court set the matter for oral arguments on February 9, 2021 at 2:00 p.m., in person. They also ordered the Governor to respond by February 1 and ordered that:

The issuance of this rule to show cause stays any and all legislative action by any person appointed by the respondent to the West Virginia House of Delegates to fill the vacancy created by the resignation of the delegate from the 19th Delegate District until final resolution of this matter.

I’ll note that February 9 is the day prior to the House of Delegates beginning their 2021 session. The oral arguments have already been placed on the Court’s docket:

The order also noted that, “Justice Wooton, considering the action moot, would not grant the motion for expedited relief or issue a rule to show cause setting the matter for oral argument.”

We sue the Governor at the Supreme Court over his failure to follow State law in filling the current legislative vacancy

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.

Media Reports:

https://wchstv.com/news/local/petition-challenges-process-gov-justice-using-to-fill-vacant-wayne-county-delegates-seat

https://www.wvgazettemail.com/news/politics/wayne-county-chairman-files-petition-says-justice-violating-law-with-new-delegate-nomination-list/article_6e26da0e-e319-56c5-bdd4-a5fdc129b9ec.html

https://www.newsandsentinel.com/news/local-news/2021/01/controversy-erupts-over-selection-process-for-new-delegate/

https://www.herald-dispatch.com/elections/amid-challenge-from-wayne-committee-justice-selects-booth-as-district-19-appointee/article_d89eb457-01ea-550b-a673-2364184d7437.html

https://www.wvnews.com/news/wvnews/west-virginia-gov-justice-appoints-joshua-booth-to-fill-wayne-county-house-seat/article_17a43714-ddc7-5b2b-9854-f594bbac87f3.html

Jefferson County Schools Superintendent Violates First Amendment Rights of Two Employees and We Sue

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:

Here’s a live video filmed just after we filed the lawsuit, going over the Complaint:

Also, I’ll be on the Tom Roton Morning Show Tuesday morning at around 7:30 a.m. It’s always a good discussion on hit show…..

Here’s where the school administrators leaked the false allegations against my clients to the TV News, despite it supposedly being a “personnel matter”:

Here’s an article from the WV Metro News, discussing the letter she released today, at about the same time we filed suit.

And here’s the letter itself, doubling down, essentially:

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.

Federal Lockdown Tyranny Challenge: The Governor files a Motion to Dismiss and Here’s our Response

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:

Here’s our response we filed yesterday evening:

West Virginia Joins Amicus Brief Supporting Texas v. Pennsylvania at the Supreme Court

Here is the actual filing with the SCOTUS that West Virginia signed onto, along with 15 other states, which was submitted by the Attorney General of Missouri:

This is extremely interesting – not because of the election fraud aspect of it, but because the basis of the entire petition to the Supreme Court is the principle of separation of powers with respect to the powers of state legislatures. This has been the same basis upon which we challenged the West Virginia Governor’s executive orders pursuant to his declaration of a state of emergency. The exact same issue. Additionally, West Virginia also changed election laws without going through the legislature, in which case there could be issues of validity pertaining to the West Virginia election in 2020. In other words, if the popular votes in PA, MI, GA and WI should be invalidated based upon changes in state election laws by their executive branches, instead of their legislative branches, then so should the COVID mandates in those states – as well as in West Virginia – also be unconstitutional for the same reasons.

Here are some excerpts from the arguments in this amicus brief, supporting the Texas lawsuit:

Encroachments on the authority of state Legislatures by other state actors violate the separation of powers and threaten individual liberty. The unconstitutional encroachments on the authority of state Legislatures in this case raise particularly grave concerns…..

In every other context, this Court recognizes that the Constitution’s separation-of-powers provisions are designed to preserve liberty. “It is the proud boast of our democracy that we have ‘a government of laws, and not of men.’” Morrison v. Olson, 487 U.S. 654, 697 (1988) (Scalia, J., dissenting). “The Framers of the Federal Constitution . . . viewed the principle of separation of powers as the absolutely central guarantee of a just Government.” Id. “Without a secure structure of separated powers, our Bill of Rights would be worthless, as are the bills of rights of many nations of the world that have adopted, or even improved upon, the mere words of ours.” Id. “The purpose of the separation and equilibration of powers in general . . . was not merely to assure effective government but to preserve individual freedom.” Id. at 727….

It is no accident that the Constitution allocates such authority to state Legislatures, rather than executive officers such as Secretaries of State, or judicial officers such as state Supreme Courts. The Constitutional Convention’s delegates frequently recognized that the Legislature is the branch most responsive to the People and most democratically accountable. See, e.g., Robert G. Natelson, The Original Scope of the Congressional Power to Regulate Elections, 13 U. PA. J. CONST. L. 1, 31 (2010) (collecting ratification documents expressing that state legislatures were most likely to be in sympathy with the interests of the people); Federal Farmer, No. 12 (1788), reprinted in 2 THE FOUNDERS’ CONSTITUTION (Philip B. Kurland & Ralph Lerner eds., 1987) (arguing that electoral regulations “ought to be left to the state legislatures, they coming far nearest to the people themselves”); THE FEDERALIST NO. 57, at 350 (C. Rossiter, ed. 2003) (Madison, J.) (stating that the “House of Representatives is so constituted as to support in its members an habitual recollection of their dependence on the people”); id. (stating that the “vigilant and manly spirit that actuates the people of America” is greatest restraint on the House of Representatives). 

Democratic accountability in the method of selecting the President of the United States is a powerful bulwark safeguarding individual liberty. By identifying the “Legislature thereof” in each State as the regulator of elections for federal officers, the Electors Clause of Article II, § 1 prohibits the very arrogation of power over Presidential elections by non-legislative officials that the Defendant States perpetrated in this case. By violating the Constitution’s separation of powers, these non- legislative actors undermined the liberty of all Americans, including the voters in amici States. 


BRIEF OF STATE OF MISSOURI AND 16 OTHER STATES AS AMICI CURIAE IN SUPPORT OF PLAINTIFF’S MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

One could apply these same arguments to point out that West Virginia has been living under a state of government by executive orders, issued by the governor pursuant to his indefinite declaration of a State of Emergency, including orders altering state election law. If PA, GA, WI and MI violated state separation of powers doctrines in changing their state election laws, they – and we – have also done so by changing other state laws through executive COVID mandates. You can’t pick and choose which causes are important enough to violate the separations of powers. If the 2020 election changes required the legislatures approval, then so did the 9 months worth of mask mandates and lockdown orders.

UPDATE: Pennsylvania House Leaders File Brief to Support Texas in Supreme Court Lawsuit Against Pennsylvania

BREAKING: 106 House Republicans Announce Support For Texas Lawsuit Against GA, MI, PA, WIhttps://www.dailywire.com/news/106-house-republicans-announce-support-for-texas-lawsuit

Six States Formally Join Texas’ Election Lawsuit Against GA, MI, PA, WI

“Missouri, Arkansas, Louisiana, Mississippi, South Carolina and Utah have formally joined Texas in its Supreme Court suit against Georgia, Michigan, Pennsylvania, and Wisconsin—four battleground states who ran illegal and unconstitutional elections,” the state of Texas said in a statement. “The joining states agree with Texas: the defendant states exploited the COVID-19 pandemic to justify unlawfully enacting last-minute changes and ignoring both federal and state election laws, thus skewing the results of the 2020 General Election. ”

https://www.dailywire.com/news/breaking-six-states-formally-join-texas-election-lawsuit-against-ga-mi-pa-wi

Constitutional Mayhem: Freedom is Scary LIVE Tonight at 6:30

As promised, tonight – Monday evening – at 6:30pm eastern, don’t miss my live cast video, an episode of Freedom is Scary. Available at this link, on Youtube, and on our Facebook page as well. Join the live chat and bring your comments/questions.

Read Trump’s Georgia Lawsuit:

Trump’s Pennsylvania Lawsuit, headed to the Supreme Court:

Here’s the link for The European Union Election Observation Handbook.

National Gun Control Group’s Challenge to WV’s Parking Lot Bill Passes the AG’s Motion to Dismiss

In 2018, West Virginia passed a wonderful pro-2nd Amendment piece of legislation, titled HB 4187, a.k.a. the “Parking Lot Bill,” which took effect on June 8, 2018. The bill prohibited businesses from banning firearms from vehicles in their parking lots. It also prohibited the hiring and firing of employees based on their possession of firearms.

About a year later, a national gun control group, which is really “Everytown for Gun Safety,” financed by Michael Bloomberg, using the b.s. name, “Coalition Against Domestic Violence.” Ironically, this group would forcibly disarm the very group they’re supposed to be advocating for. Victims of domestic violence would not have the option of defending themselves with firearms, from their would-be attackers, because they would have their employers enact policies (which corporations generally do) requiring that no firearms can be kept, even in their employees’ parked cars. Here’s the original lawsuit, in its entirety:

West Virginia Attorney General Patrick Morrissey is the named defendant in the suit. His lawyers filed a motion to dismiss.

Last week, U.S. District Judge John Copenhaver denied the motion. I had to read it for myself, since many were instantly outraged. Judge Copenhaver is as good as it gets. He was first appointed by President Ford, and is a workaholic, even in his 90s. I had the honor of trying a jury trial in front of him a few years back. Here is his ruling:

Keep in mind, that this is a ruling in a motion to dismiss – not a ruling on the merits of the challenge. It’s an easy standard for plaintiffs to pass in most cases. So, what were the grounds for allowing the lawsuit to proceed? Even though the gun control group is advocating for the restriction of the individual rights of West Virginia citizens, they’ve disguised their claims as seeking constitutional protections for a collection of domestic violence advocacy groups who are apparently horrified of armed attackers hiding guns in parking lots.

The motion was actually only seeking dismissal on grounds of “standing” and “ripeness,” which are both technical arguments not quite reaching the constitutionality issues. The Court rightly held that groups should be able to challenge the constitutionality of state statutes in federal court, and that they should be able to do so prior to any enforcement actions – not just afterwards. So this is a bit of a nothing-burger. At some point there will need to be a ruling on the constitutional issues.

One of the claims which will need to be decided, isn that the Parking Lot Bill violates the First Amendment – that there’s a free speech component to the being able to prohibit firearms on your business or organization property, if you don’t like guns. It will be interesting to see what happens with that, because it’s not all that different fro the claim we made in the same federal court last week in our challenge of the Governor’s mask mandate. Many laughed when I argued that compliance (or noncompliance) with a mask mandate was protected free speech. So let’s see if this similar argument gets any traction.

Governor’s Response to our Federal Mask Mandate Challenge

Here is the Governor’s response to our Emergency Motion for Temporary Restraining Order and Preliminary Injunction, which is set for hearing in federal court on Monday morning. It was just filed last night, and I’m working on filing a reply, which is due by this afternoon.

You’ll notice that they argue that the Governor’s words are meaningless – that only his actual written executive orders should be reviewed, according to his lawyers. Throughout the response they mention that the Governor is utilizing some vague concept of executive emergency power. However, there is no such thing. They essentially argue that there is nothing the federal judiciary can do to stop him. We’ll see……

This is the federal lawsuit filed on behalf of the restaurant in Putnam County, West Virginia. We are still working on filing a larger lawsuit in state court.

ETA: Here’s our Reply to the Governor’s Response: