SEC suit triggers Chafin's critics
Chris Dickerson Jul. 24, 2012, 7:56am
CHARLESTON – Actions and comments by state Supreme Court candidate Tish Chafin's campaign are drawing the attention of critics.
On July 19, Chafin spoke in Martinsburg to the Eastern Panhandle Business Association. During her speech, Chafin touched on the importance of the separation of the three branches of government.
"The Supreme Court, above all, needs to not legislate from the bench and respect all three different branches of government," she said, according to a story in The Journal, Martinsburg's daily newspaper. "That's hugely important for all litigants and business entities that want to come to the state so they can look and see what the law is and know the court is going to follow that law."
That comment drew the ire of the state Republican Party and West Virginia Citizens Against Lawsuit Abuse, saying Chafin's comments are hypocritical considering that her campaign's attorney filed a lawsuit last week in federal court on behalf of a former state Democratic Party chairman, suing Secretary of State Natalie Tennant and other members of the State Election Commission.
In the suit, Michael Callaghan -- the former chairman of the West Virginia Democratic Party – says the matching funds provision of the Supreme Court's public campaign financing pilot program is unconstitutional. The suit was filed by Charleston attorney Anthony Majestro, who happens to be the campaign attorney for Chafin's campaign.
Back and forth
"Tish Chafin is clearly a hypocrite," said Conrad Lucas, chairman of the state Republican Party. "She tells folks in the Eastern Panhandle that the Supreme Court should stay out of the way of the other branches, while earlier in the week instructing her own campaign counsel to sue an executive branch office."
Chafin's campaign called the GOP's allegations "completely false."
"This accusation is a failed attempt by partisan operatives to play political 'connect-the-dots' by trying to link Majestro's role in the Chafin campaign to a completely unrelated lawsuit," said Cartney McCracken, spokeswoman for Chafin's campaign. "The Election Commission voted against disbursing additional taxpayer dollars for the public financing pilot program because a majority of the Commission's members were not convinced that it was constitutional.
"This attempt by the Republican Party to besmirch Chafin's reputation is unacceptable and they owe her an immediate apology."
WV CALA Executive Director Richie Heath sided with Lucas and the Republicans.
"It's difficult to take candidate Chafin's campaign promises seriously when she is simultaneously dispatching her campaign attorney to file a lawsuit challenging a duly enacted state law, all because that law may hinder her political aspirations," Heath said in a statement. "The lawsuit filed by Ms. Chafin's campaign attorney shows little of the respect she claims is owed the different branches of state government.
"Actions speak louder than words, and the actions of Chafin's campaign staff suggest that she is more interested in preserving West Virginia's lawsuit-friendly status quo than anything else."
Callaghan stressed that neither Chafin nor her fellow Democratic Supreme Court candidate – incumbent Justice Robin Jean Davis – asked him to file his lawsuit.
"I filed this case because I did not want my support of both of them to result in West Virginia taxpayers financing a candidate I oppose," he said. "The Republican majority on the Supreme Court of the United States made it clear that these matching fund provisions are an unconstitutional infringement of the First Amendment rights of candidates and contributors.
"The West Virginia Attorney General and at least one other federal court have confirmed that these provisions are unconstitutional. As a practicing attorney, it offends me that the Republican Party is advocating for a clearly unconstitutional provision to be used to elect a Justice to our State's highest court."
Lucas also said Chafin is working against a law the Democrats sought.
"She's doing her best to destroy unchallenged state law that her own party championed as a way to make Supreme Court elections more fair," he said. "Democrats statewide pled for a public financing program, and now when it might disadvantage their cadre of trial lawyers, they sue to stop Allen Loughry from participating in the program they built.
"Allen has followed every letter of the law and Chafin's suit, if successful, would make it illegal for him to raise another penny while she spends her trial lawyer millions."
Callaghan said he doesn't understand the Republicans' logic.
"The taxpayers have already provided Mr. Loughry almost $400,000 to fund his campaign," he said. "I find it hard to understand why the party of Ronald Reagan is advocating for Mr. Loughry to be given an additional $700,000 of our scarce tax dollars.
"There are many, many, better uses for the people's money than funding election advertisements."
Majestro did not comment on the latest Republican or CALA comments, but last week he did talk about the GOP's initial reaction to the lawsuit.
"I find it amusing that the Republicans are claiming that our lawsuit violates the First Amendment," he said. "It is the Republicans who have conclusively established the legal basis for the unconstitutionality of the West Virginia act.
"Five Republican appointed justices of the Supreme Court of the United States ruled that matching funds provisions like the ones in the West Virginia law impinged upon core First Amendment rights and were therefore unconstitutional. The case (Arizona Free Enterprise Club's Freedom Club PAC v. Bennett) was brought by Arizona Republican political committees. In addition, the successful challenges to the North Carolina law that was used as the model for West Virginia were brought by conservative political action committees who were represented by the national Republican lawyer of the year."
Chafin's campaign also commented on Majestro.
"Majestro is one of the state's most qualified and respected election law attorneys," McCracken said. "He currently represents the Chafin campaign as well as many other political clients including four state constitutional officers. He has represented both Democratic and Republican members of the West Virginia Legislature as well as members of the judiciary.
"Majestro has been involved in election litigation in the nation's highest courts from the Supreme Court of Appeals to the Supreme Court of the United States."
On Tuesday, Loughry said he thinks the motive behind the lawsuit is clear.
"Any reasonable observer would conclude that this lawsuit was orchestrated for cynical and political reasons," he said. "It only furthers the frustrations that most West Virginians feel toward politics and our political system in general.
"People don't like shenanigans and back-door deals to protect the corrupt political machine. I believe they want to see politicians who say what they mean and mean what they say in spite of the political consequences."
He noted that the state Legislature created this pilot program so judicial candidates could not "buy seats on the Supreme Court like buying a candy bar in a convenience store."
"This lawsuit, however, is an attempt to protect the system of buying elections and keeping average citizens from participating in the political system," Loughry said. "This program should not be destroyed simply because a Republican qualified for it. This should be about fair judicial elections for all West Virginians."
Loughry said he has been contacted by "numerous" Democrats "outraged" at how the party has responded to this situation.
"They know that the vast majority of a Democratic Legislature as well as a Democratic governor fought hard for the passage of this law and are questioning where that same leadership is today," Loughry said.
State Democratic Party chairman Larry Puccio criticized Loughry when asked to comment on the matter.
"While Mr. Loughry spent the last year switching between the Democratic, independent, and Republican parties three times, it is no surprise that now he is running for the state Supreme Court, he is being opportunistic and does not want to comply with the U.S. Supreme Court's ruling on this issue," Puccio said Tuesday.
About the pilot program
The West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program was established in 2010 as a pilot program for candidates seeking a seat on the state's high court.
This year, voters will elect two of the Court's five justices to 12-year terms.
Candidates who choose to participate receive $350,000 for a contested general election.
In addition, the act provides that if either a non-participating candidate, a person conducting an independent expenditure or a combination thereof spend more than $420,000, the participating candidate is eligible to receive dollar-for-dollar contributions of taxpayer dollars of the sums expended in excess of $350,000 up to an additional $700,000.
Callaghan, a partner at Charleston law firm Neely and 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 Bennett.
Specifically, he argues that the matching funds provision of the act is unconstitutional.
"The Bennett Court specifically held that providing public funds to match dollar-for-dollar the campaign expenditures of privately financed candidates and third-parties conducting independent expenditures imposes a substantial burden on the speech of privately financed candidates and third-party contributors by penalizing privately financed candidates and third-parties dollar-for-dollar based on their speech," he explains.
Tennant, who serves as a member of the election commission, along with Gary A. Collias, William N. Renzelli and Robert Rupp, were named as defendants. As members of the election commission, Tennant, Collias, Renzelli and Rupp are responsible for administering the state Supreme Court of Appeals Public Campaign Financing Pilot Program and the taxpayer monies making up the fund.
In an emergency meeting July 17, the commission voted 2-2 on a motion to disburse funds to Republican candidate Allen Loughry. Collias and Renzelli voted no, while Tennant and Rupp voted to disburse the money.
Loughry is the only candidate in this year's Supreme Court race to opt into the public financing pilot program, which state lawmakers passed in an attempt to reduce the influence of special interest money.
Callaghan, who notes in his complaint that he opposes the use of taxpayer money to finance elections, says he wishes to make contributions to the two non-participating candidates nominated by the Democratic Party -- in this case, Chafin and Davis.
However, because the contributions would "trigger" matching funds to one of the opposing candidates -- Loughry -- he said he will not do so.
"As a direct and proximate result of the act's matching funds provision, plaintiff's willingness to engage in protected political speech has been chilled," Callaghan alleges.
As for relief, he is seeking to have the provision declared unconstitutional and to have enforcement of it permanently enjoined.
"This issue should be resolved promptly so that plaintiff and those similarly situated will not be chilled in their free expression and association, and instead will remain free to engage in constitutionally-protected political expression in the upcoming election," Callaghan writes.
This year's race
Eight candidates for the state Supreme Court sought nomination in the May 8 primary.
Loughry, a Supreme Court law clerk, and eastern Panhandle Circuit Judge John Yoder received the GOP's nominations in an uncontested primary.
Incumbent Davis and Chafin, the managing partner of the H. Truman Chafin Law Firm in Williamson with her husband, state Sen. Truman Chafin, received the Democratic Party's nominations after receiving the two highest vote totals of six candidates.
Loughry, the only candidate who sought to participate in the pilot program, raised $36,395 to qualify for the taxpayer subsidies provided by the program.
Once he was certified as a nominee, the election commission authorized the distribution of $350,000 in public funds to Loughry.
However, the contested Democratic primary resulted in expenditures in excess of $350,000 by the two nominees.
The SEC's role
Following the U.S. Supreme Court's 2011 decision in Bennett, the State Election Commission sought an opinion by West Virginia Attorney General Darrell McGraw regarding the constitutionality of the matching funds provision.
In his July 28, 2011, response, McGraw concluded that the provision could not survive the strict scrutiny analysis mandated by Bennett.
Soon after, Tennant announced she intended to follow the attorney general's opinion and not implement the matching funds provision.
However, in June, Loughry appeared at a regularly scheduled meeting of the commission and requested that it take a position on whether it would fully implement the matching funds provision. The commission refused to take a position.
A day later, a disclosure provision was implemented through the promulgation of a reporting form.
The non-participating candidates were notified by email of the new form and the requirement that it be filed by July 6.
The form provided to the candidates by the secretary of state's election division required disclosure only when candidates expended or committed $420,000, the trigger for the additional payments.
Earlier this month, Davis filed the form provided to the non-participating candidates. Her filing showed expenditures of $494,471.
On July 17, an emergency meeting of the commission was held.
The commission voted to acknowledge that Davis had expended sufficient sums to trigger the matching funds provisions under the act. It then proceeded to vote on a motion to authorize the release of matching funds to Loughry.
The motion failed on a tie vote of the four members.
Following the vote, Rupp, who serves as the commission's chairman, requested that Gov. Earl Ray Tomblin fill the vacancy on the commission to prevent future voting ties.
Last week, the state GOP immediately condemned Callaghan's lawsuit.
"It's not a surprise to see donors to personal injury lawyer Tish Chafin try to take away rights and deny campaign funds from an honest man like Allen Loughry," state GOP chair Conrad Lucas said in a statement. "This law exists to ensure fair elections and to allow candidates a fair shot at communicating with the voters, even when their opponents can spend millions of trial lawyer dollars.
"This is a new height of hypocrisy by the trial bar, trying to stop a bill that had the support of former Gov. Manchin, Gov. Tomblin, Chafin's millionaire state senator spouse and nearly all Democrats in the House of Delegates."
Lucas contends that Loughry is being "targeted" because he followed the law.
"It's not a surprise to see Democrat officials and candidates challenge a law they supported in the past, now that it might help a Republican," Lucas said. "Tish Chafin is free to spend as much of her millionaire husband's fortune promoting her anti-business, pro-lawsuit, pro-Obama message as she wants. But she has no business trying to muzzle and de-fund an honorable candidate like Allen Loughry."
Last week, Loughry said the question isn't whether someone agrees with the pilot program or not.
"The law already is in place," he said. "The law hasn't been challenged, and the State Election Commission has a duty to follow the law.
"The triggering amounts have been met, and the law says that they shall provide the additional funding within two days of those triggering amounts being met."
"So, right now, they're actually in violation of state law right now."
Editor's Note: Legal Newsline reporter Jessica Karmasek contributed to this report.