West Virginia House Speaker Roger Hanshaw Seeks To Delay District 91 Vacancy Lawsuit Until After Session

photo by: W.Va. Legislative Photography
Attorneys for House Speaker Roger Hanshaw are seeking to stay a lawsuit over how the vacancy for the 91st District House of Delegates seat will be filled until May.
CHARLESTON — Citing a state law meant to protect lawmakers from participating in legal actions while a legislative session is ongoing, attorneys for House Speaker Roger Hanshaw are seeking a delay in the case that could decide whether a Republican or Democrat fills the seat forfeited by Joseph de Soto.
In a court filing Tuesday on behalf of Hanshaw, R-Clay, included a notice of automatic stay of a writ of mandamus filed last week by the West Virginia Democratic Party. Attorneys for Hanshaw are seeking an automatic stay through May 12.
The Democratic Party is requesting that the state Supreme Court of Appeals order Gov. Patrick Morrisey to select a replacement for de Soto from a three-person list submitted by the Berkeley County Democratic Executive Committee.
J. Robert Leslie, chief counsel for the House of Delegates, cited State Code 4-1-17, a law dealing with the separation of powers between the legislative and judicial branches. The law protects elected lawmakers and certain legislative staff from participating in legal actions during active legislative sessions, as well as 10 days before or 30 days after the completion of a legislative session.
“Referencing constitutional separation of powers and principles of comity, West Virginia Code 4-1-17 provides legislators and designated legislative employees protection from external interference when their duties to the legislative branch require undivided attention from matters pending before tribunals of the executive or legislative branches of government through an automatic stay,” Leslie wrote.
The 87th session of the West Virginia Legislature began Jan. 8 with a one-day organizational session to open and publish election results, swear in members and elect officers as required by the state Constitution. But the 2025 regular session of the Legislature doesn’t begin until Feb. 12.
According to the state Constitution, the Legislature adjourns and returns on the second Wednesday in February during an odd-numbered year following the election of a new governor to begin the regular 60-day legislative session.
The House adopted a resolution during its Jan. 8 organizational session declaring the 91st House seat vacant after de Soto was unable to be sworn in for his two-year term following home confinement for making terroristic threats against fellow Republican House members, and two of those House members having protective orders against de Soto that bar him from the State Capitol Building until 10 days following the end of the 2025 legislative session on April 12.
De Soto was elected in November as a Republican to represent the 91st District in Berkeley County but switched his registration to Democrat following a closed-door meeting of the House Republican caucus on Dec. 8. The caucus held a vote and agreed to move forward with expulsion of de Soto over allegedly false claims about his military service.
Following that closed-door caucus, De Soto switched political parties to Democrat on Dec. 11. De Soto was arrested the next day following a West Virginia State Police investigation into threats made by de Soto to another person regarding several lawmakers. De Soto has since been placed on home confinement after posting a $150,000 bond. A Berkeley County magistrate also submitted de Soto’s case to a grand jury.
State code requires legislative vacancies to be filled by the governor from a list of three qualified individuals submitted by a political party executive committee of the same party of the office holder within 15 days of the vacancy. The Berkeley County Democratic Executive Committee submitted its three names to succeed de Soto.
However, House Resolution 4 declared de Soto’s 91st District seat forfeited due to being unable to follow the state constitutional requirement that he take the oath of office within the House Chamber. HR 4 states that due to the seat being forfeited by de Soto, the seat remains a Republican seat despite de Soto’s party switch and the vacancy must be filled by Morrisey appointing a Republican.
The Berkeley County Republican Executive Committee has until Wednesday to submit its three names to Morrisey. But if Hanshaw’s automatic stay is granted by the Supreme Court, that could mean that the 91st District is without a delegate during the regular legislative session.
Last week, the state Supreme Court set a deadline of Jan. 27 for Hanshaw and the Governor’s Office to file a response to the Democratic Party’s writ of mandamus.