West Virginia Supreme Court justices heard arguments about whether state officials followed proper procedures when they vacated the seat of a delegate who had been arrested and then replaced him.
In many ways, this is water under the bridge.
The term originally won by Joseph de Soto of Martinsburg was filled and then flew by. A new election is weeks ahead.
“There is some discussion of whether or not this case is moot, and as we sit here today, we are on the precipice of another election here in a little more than a month. Would an election moot this case? Is it moot already?” asked Chief Justice Haley Bunn.
Attorney Robert Bastress, who argued that de Soto was blocked and replaced improperly, replied that there’s still time.
“Well, first we’re not there yet. So my my first response on mootness is there’s still time left in the term, which is under dispute in this case,” Bastress said.
“Second, I would say that, particularly on the constitutional question, it is certainly capable of repetition. I mean, we’ve had cases like this in the past, and it’s easy to see that it could happen again in the future.”
At issue was a House of Delegates seat originally won by Joseph de Soto, who continues to await trial on charges that he threatened the delegates who would have been his colleagues.
He won in the November, 2024, election to represent the Martinsburg area as a state delegate. He was then arrested in December, 2024, over allegations that he threatened to harm other state lawmakers.
De Soto, who was elected as a Republican, changed his affiliation to Democrat the day before his arrest.
After de Soto did not appear at the Capitol to be sworn in at the start of the 2025 legislative session, a majority of delegates voted for his seat to be vacated.
Gov. Patrick Morrisey appointed Republican Ian Masters to take the seat. Masters has now served out most of the two-year term and has not run again for another term.
Democrats argued that the House majority’s process ran afoul of the state Constitution and also that state law and precedent say a Democrat should be named to the seat. Democrats asked the West Virginia Supreme Court for review, naming Morrisey in his official capacity.
The filing by Democrats contended the House of Delegates acted inconsistently by vacating the seat won by de Soto since he was among seven elected delegates who were not present to take the oath of office on the organizational day — but he was the only one knocked out in perpetuity.
After de Soto was not seated, the House majority then went a step farther by introducing a resolution to declare the seat vacant.
The vacancy was declared on the grounds of Article XI, Section 16 of the West Virginia Constitution. A key portion of that section says: “Any member who shall refuse to take the oath herein prescribed, shall forfeit his seat.”
Debate among some delegates then focused on whether de Soto’s failure to take the oath of office because of the arrest and home confinement constitutes refusal to do so.
That’s a point that the Democratic Party asked the state Supreme Court to resolve. A question being directed to the justices is “Whether the House of Delegates can declare vacant the seat of a duly elected, qualified, and ready-to-serve delegate for reasons related to misconduct.”
Retired Supreme Court Justice Beth Walker returned for the oral arguments. Newly elected Supreme Court Justice Bill Flanigan, who recently served as a state delegate, stepped aside from this case focused on the House of Delegates.
Walker told Bastress, “you’re quibbling about the procedures used” and then questioned “whether you’re asking the court to interfere with the legislative process.”
Bastress responded by saying “the constitutional issue in this case is whether the House simply used the wrong procedures.”
Solicitor General Michael Williams, representing defendants including Governor Morrisey, maintained that only the House can decide whether de Soto forfeited his seat, and the House got it right when it said he did for failing to take his oath: “The House is the sole judge of its members’ qualifications, and this court cannot second guess that judgment,” Williams told the justices.
Williams said the case should be considered moot at this point. But he also said de Soto was subject to extraordinary circumstances, particularly his home confinement at the time the Legislature convened after the election.
“Petitioners think a Democrat should be appointed to fill Mr. de Soto’s vacant seat. But because Mr. de Soto has never been sworn in (and never will be), he isn’t a qualified Delegate and has never held that office,” Williams wrote in a brief to the court, saying that since he was never an officeholder, the prior officeholder would be the one to consider for party affiliation.
“Hence, his party affiliation has no bearing on which party should fill the seat; a Republican was the last officeholder, so a Republican must replace him under state law. Were all that not enough, one regular legislative session has already come and gone, and the seat has been filled, so Petitioners’ case is moot, too.”