CHARLESTON – The West Virginia Supreme Court of Appeals has granted Attorney General Darrell McGraw’s motion to intervene in a lawsuit over the state’s Public Campaign Financing Pilot Program.
The state’s high court issued a brief, two-page order granting McGraw’s controversial motion late Tuesday.
“The Court is of opinion to and doth hereby grant the motion to intervene,” it wrote.
“It is therefore ordered that the Attorney General Darrell V. McGraw Jr. be, and he hereby is, made a party in this matter.”
Managing Deputy Attorney General Barbara Allen, writing for McGraw, explained in the motion filed with the Court late Friday that the petitioner in the state case — Supreme Court candidate Allen Loughry — and the respondents — Secretary of State Natalie Tennant, Gary A. Collias, William N. Renzelli and Robert Rupp — all argue that the matching funds provision is constitutional.
However, the other two named respondents, State Auditor Glen Gainer and State Treasurer John Perdue, take no position.
“Thus, the case is in an unusual procedural position: the only individual or entity taking a position adversarial to the petitioner’s position is not a party to the litigation,” Allen wrote in the three-page filing.
“In the event this Court rules in favor of the petitioner, there will be no party with standing to seek review in the United States Supreme Court; and in the event this Court rules against the petitioner, there will be no adversarial party in certiorari proceedings (should the petitioner elect to file such proceedings).”
Allen said the attorney general’s only interest in the litigation — and his only purpose for filing the motion — is to ensure that the arguments in the case “may be tested at every level through adversarial proceedings, the foundation of our system of justice.”
Loughry, in a response filed earlier Tuesday, called McGraw’s motion “inappropriate.”
Loughry, a Republican, is the only candidate in this year’s Court race to opt into the pilot program, which state lawmakers passed in an attempt to reduce the influence of special interest money.
“This move clearly indicates that McGraw opposes the pilot program and plans to fight it despite his clients’ position that the law is constitutional,” he said, adding that the attorney general’s legal maneuvering “reeks of old style politics.”
The state Supreme Court law clerk wasn’t the only one to criticize McGraw’s move.
Patrick Morrisey, McGraw’s GOP opponent in the state’s Nov. 6 general election, said in a statement Tuesday that the attorney general appears to be taking two legally distinct positions in the case.
Morrisey demanded that McGraw explain his actions — particularly how he is not acting in violation of Rule 1.7 of the Model Rules of Professional Conduct.
Under Rule 1.7, a lawyer — including an attorney within a governmental organization — cannot engage in a “concurrent conflict of interest.”
Morrisey contends McGraw is representing the State in support of Tennant’s position in the public finance case, yet also his own office so that it may preserve the right to oppose her legal position should she prevail.
“The attorney general’s legal gymnastics in this case are truly unbelievable. First, the office rules that certain public financing provisions are unconstitutional, then they defend the Secretary of State’s position to award the money, and now they are on both sides of this issue.
“This is breathtaking,” he said.
Meanwhile, Tennant’s office said it was “not concerned” about the attorney general’s motion.
Spokesman Jake Glance said Tuesday that Tennant and the SEC discussed the “possible conflict” with their attorney before accepting his representation.
“They have complete confidence that (Senior Deputy Attorney General) Silas Taylor will present all compelling and relative arguments on their behalf. Any attorney, by training and experience, is prepared to effectively argue either side of a legal issue,” he said in an email.
Justices Robin Jean Davis, Brent Benjamin and Margaret Workman have disqualified themselves from the case.
Judge Christopher C. Wilkes of the Twenty-Third Judicial Circuit, which includes Berkeley, Jefferson and Morgan counties; Judge James P. Mazzone of the First Judicial Circuit, which serves Brooke, Hancock and Ohio counties; and Judge J. Lewis Marks Jr. of the Fifteenth Judicial Circuit, which serves Harrison County, were appointed earlier this month as the justices’ replacements.
The Court will hear oral arguments in the case at 10 a.m. Tuesday.