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CHARLESTON -- Gov. Jim Justice's pick to replace a former a Wayne County Republican lawmaker was upheld Tuesday by the West Virginia Supreme Court of Appeals.
In an order released Tuesday evening, the state Supreme Court denied the mandamus case filed by Wayne County Republican Executive Committee Chairman Jeff Maynard asking the high court to order Justice to appoint a replacement for former Republican 19th District House of Delegates member Derrick Evans from a list of three nominees submitted by the county on Jan. 14.
The order paves the way for Kenova resident Joshua Booth, co-owner of a traffic control company that does business with the Division of Highways, to be sworn in for today's first day of the 2021 legislative session.
During oral arguments before the five justices Tuesday afternoon, Wayne County REC attorney John Bryan argued that Justice ignored state code requiring the governor to select from a list of three qualified individual submitted to him within 15 days of the vacancy by the party executive committee of the delegate district where the vacancy occurred. The Wayne County REC submitted the names of Mark Ross, Chad Shaffer and Jay Marcum.
"A governor may not call for a do-over," Bryan said. "The undisputed facts are … the governor was presented with a list of three nominees from the Wayne County Republican Executive Committee from those members in District 19 where the vacancy lied, and the governor failed to make a choice within the five-day period after receiving that list of nominees."
The Governor's Office, represented by Solicitor General Lindsay See, said a second list submitted Jan. 23 by the West Virginia Republican Executive Committee was the valid list, which included Ross and Shaffer, but replaced Marcum with Booth.
"Did the governor have a non-discretionary duty to choose Derrick Evans's replacement from the list submitted by the Wayne County Executive Committee? He did not," See said. "What the Governor did was he received a first letter that was facially invalid, and then he acted on a second letter that came from the entity that is specifically described in statute."
J. Zac Ritchie, representing the West Virginia Republican Party, argued that the first list of nominees submitted by the Wayne County REC did not follow state party bylaws that govern how vacancies are to be filled before being submitted to the governor, resulting in the second list submitted by the state GOP. That second list conformed to bylaw requirements, including having the signatures of the state party chair, the delegate district chair and secretary, and the state party's letterhead.
"(Maynard) didn't raise complaints at the time. He participated in that process and signed his name," Ritchie said. "One thing is clear from their affidavits that they do not dispute, which is the three names that were on the letter that made it to the Governor were the names that were selected by the delegate district committee on the night of January 21."
Bryan accused Justice and Roman Stauffer, the acting chairman of the state Republican Party and Justice's campaign manager for his successful re-election campaign last year, of taking power away from Wayne County to appoint a Justice friend and donor. Campaign finance records from the West Virginia Secretary of State's Office show Booth donated $1,000 to Justice's 2016 race for the Democratic nomination for governor.
"This is one political party committee that is elected by Wayne County voters being engaged in a power grab or attempted control by the state executive committee that has no direct connection to the local Wayne County voters," Bryan said. "The whole point is that they ended up not with somebody that they voted for, or necessarily even knew that's now sitting in the seat, but they ended up with somebody that according to the records donated to Governor Justice."
Evans, who was elected to the House last November, resigned Jan. 9 after being charged with allegedly filming himself on Jan. 6 breaking into the U.S. Capitol with hundreds of Trump supporters trying to stop the counting of Electoral College ballots that gave the presidency to Joe Biden.
The 35-year-old Evans was charged Jan. 8 by the U.S. Attorney for the District of Columbia with one count of knowingly entering or remaining in any restricted building or grounds without lawful authority; and one count of violent entry and disorderly conduct on Capitol Grounds.