W.Va. SC denies Callaghan's motion to intervene

Callaghan

Loughry

McGraw

Tennant

CHARLESTON - The West Virginia Supreme Court of Appeals has denied Charleston attorney Michael Callaghan's motion to intervene in a lawsuit over the state's Public Campaign Financing Pilot Program.

The Court filed its two-page decision Wednesday.

"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."

Callaghan, the plaintiff in a federal case filed last month over the pilot program, filed his motion with the state's high court last week.

In it, he noted that no party in the state case will stand in defense of his constitutional rights.

"Accordingly, the representation of Callaghan's interests by existing parties is not only inadequate, it is non-existent," wrote his attorney, Anthony Majestro of Charleston firm Powell and Majestro PLLC. Majestro also serves as state Supreme Court candidate Tish Chafin's campaign attorney.

Callaghan's motion came nearly a week after Supreme Court candidate Allen Loughry filed his own motion to intervene in the federal lawsuit over the pilot program, which was established in 2010 for candidates seeking a seat on the state's high court.

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 a statement Wednesday, Loughry said the Court's decision will allow his lawsuit to proceed "without interference" and will allow the Court to "more expeditiously decide" the merits of the case.

"The pilot project was established so that West Virginians could vote for the best candidate and not the one with the most money," he said, adding his suit was about a "fair and honest election for all West Virginians."

Loughry had argued, in a response to Callaghan's motion filed late Tuesday, that the former chairman of the state Democratic Party has "no constitutional rights" to intervene in the state case.

"This mandamus proceeding involves a straightforward, narrow question: whether Petitioner is entitled to public campaign funds because a non-participating candidate has met the statutory conditions that prompt the disbursement of such funds under the West Virginia Supreme Court of Appeals Public Campaign Financing Pilot Program," Loughry wrote.

"Movant claims a right to intervene because, he asserts, no existing party 'will stand in defense of (his) constitutional rights.' But Movant has no constitutional rights that could be affected here."

The GOP candidate pointed out that Callaghan is not a candidate for a seat on the state Supreme Court.

"No candidate purporting to be unconstitutionally burdened by the statute seeks to intervene here. Nor, on Petitioner's information and belief, has any such candidate expressed the intent to do so," Loughry wrote.

"Movant lacks the peculiarized, substantial interest in this proceeding that is necessary to warrant intervention," he wrote, adding that Callaghan has "at most" a "collateral or incidental interest" in the matter.

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.

In an order earlier this month, Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia granted Loughry's motion to intervene.

Meanwhile, Loughry sued in the state Supreme Court, seeking to force the SEC to follow the existing laws and provide his campaign with the additional funding.

In Loughry's 26-page petition for writ of mandamus, filed with the state's high court July 30, he 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 has scheduled the case for consideration and oral argument at 10 a.m. Sept. 4.

Also Wednesday, the Court invited Managing Deputy Attorney General Barbara Allen to file a response to Loughry's petition as amicus curiae and to participate in oral argument in support of the opinion Attorney General Darrell McGraw issued in July 2011.

Following the U.S. Supreme Court's 2011 decision in Bennett, the SEC sought an opinion by McGraw regarding the constitutionality of the matching funds provision.

In his July 28, 2011 response, the attorney general concluded that the provision could not survive the strict scrutiny analysis mandated by Bennett.

Soon after, Tennant announced she intended to follow McGraw's opinion and not implement the matching funds provision.

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