CHARLESTON – Charleston attorney Michael Callaghan on Thursday filed a motion to expedite briefing in a federal lawsuit over West Virginia’s Public Campaign Financing Pilot Program.
The motion was filed in the U.S. District Court for the Southern District of West Virginia in response to the West Virginia Supreme Court of Appeals’ order last week denying his motion to intervene in the state case over the pilot program.
The state’s high court filed its two-page decision Aug. 15.
“Upon careful consideration, Mr. Callaghan’s motion to intervene as a party is denied,” it wrote.
“However, Mr. Callaghan may file a response to the petition as amicus curiae, but may not participate in oral argument.”
In his filing Thursday, Callaghan alleges that on Aug. 3 — days after Supreme Court candidate Allen Loughry filed a separate but related suit in the state court — he and his attorney, Anthony Majestro Charleston firm Powell and Majestro PLLC, each received a call from a senior member of the Supreme Court staff.
Majestro also serves as state Supreme Court candidate Tish Chafin’s campaign attorney.
The staff member, Callaghan’s motion alleges, requested that he intervene in Loughry’s action as no party in the case would be arguing against the constitutionality of the pilot program.
Callaghan says he agreed to do so and was assured he could file his motion by Aug. 9 and a response to the petition by noon Aug. 10.
Supreme Court Clerk Rory Perry would not comment on Callaghan’s allegations Friday, given that the matter is pending before the Court.
In his motion in federal court, Callaghan says he then contacted the attorneys for the parties in the state court case.
“All of the counsel, including Loughry’s counsel, assured the undersigned that they would not object to the proposed intervention,” he wrote in the five-page filing.
Then, on Aug. 10, the state Supreme Court ordered the parties to respond to the motion to intervene by 5 p.m. Aug. 14.
Just before that deadline, Loughry filed his 13-page objection to the request. No other party objected.
“The objection was filed without informing Callaghan that Loughry would break his promise not to object to the motion to intervene,” Callaghan wrote.
“The Supreme Court of Appeals denied the motion to intervene the next morning prior to Callaghan having the opportunity to reply to the objection.”
Callaghan argues that, as the state court action is currently situated, there is no party who opposes the petition, which means there is no party with standing to either seek relief in the U.S. Supreme Court or oppose relief therein should Loughry seek a petition for a writ of certiorari.
“Plaintiff was content to litigate these issues before the Supreme Court of Appeals when that court and the parties therein had indicated to him that he had that opportunity,” Callaghan wrote in the federal court filing.
“That option is no longer available to him. Plaintiff now seeks relief in this court.”
Callaghan notes that if the state Supreme Court grants Loughry the relief he seeks prior to the federal court’s ruling, it will be “necessary” for him to seek emergency relief.
However, rather than proceed on an emergency basis, the former state Democratic Party chairman believes it would be better for the federal court to order a briefing schedule on his motion and/or set a hearing for Sept. 5.
“While this may force the parties to file briefs in parallel cases, plaintiff believes that the court will be in a better position to decide the issues should it be necessary for the court to rule quickly,” Callaghan wrote.
He proposes that the federal court order responses to his motion for a preliminary injunction — filed with the court Wednesday — by Aug. 31 and replies by Sept. 4. He also suggests that the federal court set a hearing Sept. 5 or 6.
“Loughry and the defendants oppose this proposed schedule and seek a filing deadline of Sept. 11, 2012 for the response, a deadline that is in excess of the time permitted by the rules,” Callaghan wrote. “Loughry and the defendants are unwilling to agree to any provisional relief preserving the status quo should the Supreme Court rule in their favor prior to that date.”
He added, “It should be noted that it was Loughry who waited a year to even request that the defendants reconsider their decision not to implement the unconstitutional additional funds provision. He then chose to file a duplicative action in state court, intervene in this action and then agree to and then oppose Callaghan’s intervention in the state proceedings.
“Any claims of prejudice should be judged in light of his actions.”
District Judge Joseph R. Goodwin, who granted Loughry’s motion to intervene in the federal lawsuit earlier this month, has given the defendants until 5 p.m. Friday to respond to Callaghan’s motion to expedite.
In the federal lawsuit, Callaghan claims that the pilot program violates the First and Fourteenth amendments of the U.S. Constitution by “unduly impinging upon protected political speech and association” as set forth in the U.S. Supreme Court’s holding in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.
Specifically, he argues that the matching funds provision of the act is unconstitutional.
West Virginia Secretary of State Natalie Tennant, who serves as a member of the State Election Commission, along with Gary A. Collias, William N. Renzelli and Robert Rupp, were named as defendants in Callaghan’s suit.
Loughry then sued in the state Supreme Court, seeking to force the SEC to follow the existing laws and provide his campaign with the additional funding.
Loughry, a Republican, is the only candidate in this year’s Court race to opt into the program, which state lawmakers passed in an attempt to reduce the influence of special interest money.
In his 26-page petition for writ of mandamus, filed with the state’s high court July 30, Loughry argues that the SEC “failed to carry out the unambiguous duty” imposed under the pilot program.
“Through this failure, the commission violated the statutory command of W.Va. Code 3-12-11(e), which requires the commission to authorize the release of funds once a determination has been made that the conditions for a release of supplemental funds have been met,” his petition states.
“Due to the commission’s failure to follow the law and perform this ministerial duty, the commission also failed to perform its duty, working with the offices of the State Treasurer and State Auditor, to cause the funds to be disbursed to Petitioner Loughry’s campaign.”
The Supreme Court will hear oral arguments in the case at 10 a.m. Sept. 4.