Key Points

  • The Supreme Court of Appeals of West Virginia denied a writ of mandamus sought by Delegate Mike Pushkin, voter Stephen Willingham, and the West Virginia Democratic Party over the 91st Delegate District seat.
  • The court held the petitioners lacked standing because their claimed injury was not redressable: Republican Ian Masters already holds the seat, and the petitioners cited no authority letting the speaker alone unseat him.
  • Joseph A. de Soto was not a party, and the court found nothing in the record showing he is willing or able to take the oath; the vacancy statute gives the speaker no duty to request nominees.
  • The court did not decide whether House Resolution 4's majority-vote vacancy declaration was valid or which party's nominees the 2022 vacancy statute required the governor to choose from.
  • Justice Wooton concurred while voicing 'a disturbing unease' about the outcome; Justice Trump, joined by Senior Status Justice Walker, concurred and urged reinstating the Holmes bar on judicial interference with the Legislature.

West Virginia's highest court on Nov. 13 refused to order that Joseph A. de Soto be seated in the House of Delegates or that his seat go to a Democrat. The court held that the state Democratic Party and two co-petitioners lacked standing because it could not undo the Republican appointment that filled the seat. De Soto won the seat as a Republican in 2024 and switched parties before his arrest on charges of threatening fellow lawmakers.

Chief Justice Bunn wrote for the Supreme Court of Appeals in denying a writ of mandamus, an order compelling an official to perform a duty the law requires. "Because this Court is unable to redress the Petitioners' claimed injuries by granting their requested relief, we find that Petitioners lack standing," Bunn wrote. Justices Wooton and Trump each filed concurrences, and Senior Status Justice Walker, sitting by temporary assignment, joined Trump's. Justice Flanigan was disqualified and did not participate.

The ruling leaves Delegate Ian Masters, a Republican appointed by Gov. Patrick Morrisey, in the 91st Delegate District seat in Berkeley County. It also leaves unanswered whether the House may declare vacant the seat of "a duly elected, qualified, and ready-to-serve delegate" for misconduct, and whether de Soto held the office before taking the oath. The court said it would "decline to address any other issues raised by Petitioners."

De Soto allegedly threatened other delegates-elect and House Speaker Roger Hanshaw on Dec. 10, 2024, and switched his party affiliation to Democratic the next day. A Berkeley County magistrate issued a warrant for his arrest for "[m]aking terroristic threats." His bail agreement barred him from coming within 1,000 feet of any state legislator, and the magistrate placed him on home confinement.

On Jan. 8, 2025, with de Soto absent, the House adopted House Resolution 4 by majority vote. The resolution declared the seat vacant because de Soto had not taken the oath in the House chamber, as the state constitution requires. It directed Hanshaw to notify the governor and the Berkeley County Republican Executive Committee.

The 2022 vacancy statute, as Justice Wooton's concurrence quoted it, required the governor to choose from nominees of the party with which the departing officeholder "was affiliated at the time the vacancy occurred." Both parties submitted three names, and the Democratic list included petitioner Stephen Willingham, a registered Democratic voter in the district. Morrisey appointed Masters, who has been seated since Jan. 24, 2025.

Bunn wrote that "a series of flawed filings" followed. Delegate Mike Pushkin, who also chairs the state Democratic Party, filed the first petition with the party on Jan. 14, 2025. Hanshaw then invoked an automatic stay under a state law that spares legislators from attending to court matters during sessions and for reasonable periods before and after. The court dismissed a second petition, naming only the governor, on March 13, 2025, because the petitioners had not given the 30 days' notice that state law requires before suing a public official.

On April 24, 2026, the court dismissed the first petition on the same ground. The same day, it denied the petitioners' motion to expedite the third petition, which they had filed Sept. 12, 2025.

Bunn's analysis rested on redressability, the requirement that a court be able to order relief that would remedy the harm claimed. Seating de Soto would require unseating Masters, Bunn wrote. The petitioners cited no authority that would let Hanshaw, "acting alone," remove Masters. A House majority, not the speaker, declared the vacancy, and the other members are not parties.

The court also faulted the petitioners for not making de Soto a party. The petition asserted his "willingness, desire, and qualifications to serve as a delegate," but Bunn wrote that "they do not point to any support for this bald assertion." By agreeing to bail conditions that kept him from the House chamber, Bunn wrote, de Soto "demonstrated by implication that he is unwilling to assume the office to which he was elected in November 2024."

The petitioners' alternative requests failed as well. The statute gives the governor the appointment power, and "no part of the statute requires or even suggests that the Speaker has a duty to request this list of nominees," Bunn wrote. With Masters seated, the court held, there is no vacancy for Morrisey to fill.

Justice Wooton agreed that only de Soto could properly press the claims. But Wooton wrote of "a disturbing unease about the majority's decision," adding that "we have failed in our duty to ensure justice was done for the people of this State." Wooton wrote that the petitioners made "a compelling argument" that the resolution was invalid, because the state constitution requires a two-thirds vote to expel a member.

Wooton noted that the Legislature amended the vacancy statute, effective April 12, 2025, to look to the officeholder's party "at the time of the previous election for that office." Had the governor followed the earlier law, Wooton wrote, the Republican supermajority would have stood at 90 to 10, but officials "sacrificed the law and the Constitution to achieve a meaningless numerical gain."

Justice Trump, joined by Walker, would have rejected the claims against Hanshaw on separation-of-powers grounds. Trump urged the court to restore its 2010 holding in State ex rel. Holmes v. Clawges that "courts have no authority—by mandamus, prohibition, contempt or otherwise—to interfere with the proceedings of either house of the Legislature." The court disapproved that holding in 2018 in State ex rel. Workman v. Carmichael, when it blocked a Senate impeachment trial of one of its own justices.

Robert M. Bastress, Jr. of Morgantown represented the petitioners. The governor and the speaker were represented by the office of Attorney General John B. McCuskey.

The denial leaves Masters in the seat and the constitutionality of House Resolution 4 undecided. The opinion says de Soto's criminal case has continued, but the record contains no information on its current status.