Loughry: Motion to expedite 'inaccurate,' result of 'dawdling'
Jessica M. Karmasek Aug. 27, 2012, 7:30am
CHARLESTON - West Virginia Supreme Court candidate Allen Loughry argues in a federal court filing that Charleston attorney Michael Callaghan's recent motion to expedite is "replete with inaccurate and unsupported" facts and the result of his own "dawdling."
Late Friday, Loughry filed an eight-page response to Callaghan's motion to expedite briefing, which was filed in the U.S. District Court for the Southern District of West Virginia Thursday.
Callaghan's motion was in response to the West Virginia Supreme Court of Appeals' order earlier this month denying his motion to intervene in the state case over West Virginia's Public Campaign Financing Pilot Program.
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.
Loughry -- who Judge Joseph R. Goodwin allowed to intervene -- points out in his response that despite having filed his complaint in the federal case more than a month ago, Callaghan is just now seeking to expedite its consideration.
"Given his delay in seeking expedited consideration -- and, indeed, in requesting any injunctive relief -- plaintiff's motion should be denied," the Supreme Court law clerk wrote.
"The mandamus proceeding currently pending before the Supreme Court of Appeals of West Virginia does not provide any reason to expedite briefing on plaintiff's motion here.
"As the Supreme Court of Appeals recognized when it denied plaintiff's request to intervene in that action, even if the Supreme Court of Appeals were to grant the precise relief sought in the mandamus petition, plaintiff could suffer no constitutional injury."
Loughry goes on to argue that Callaghan's motion to expedite is not only unnecessary but "replete with inaccurate and unsupported statements of purported fact, particularly regarding the substance of communications between counsel."
In his filing Thursday, Callaghan alleges that on Aug. 3 -- days after Loughry filed a separate but related suit in the state Supreme Court -- he and his attorney, Anthony Majestro of Charleston firm Powell and Majestro PLLC, each received a call from a senior member of the 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.
In an interview Friday, Supreme Court Clerk Rory Perry said he would not comment on the allegations in Callaghan's motion, given that the matter is pending before the Court.
However, Callaghan says he then contacted the attorneys for the parties in the state case.
"All of the counsel, including Loughry's counsel, assured the undersigned that they would not object to the proposed intervention," he wrote in his 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."
Loughry, in his response, also argues that attempting to resolve the matter according to the schedule Callaghan has proposed would impose "unnecessary and onerous burdens" on himself, the other defendants and the federal court itself.
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.
Callaghan -- the former state Democratic Party chairman -- says he believes it would be better for the federal court to order a briefing schedule on his motion and/or set a hearing for next week.
"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," he wrote in his motion last week.
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.
"It would be inequitable to impose these burdens as the sole result of plaintiff's own tactical decisions. Moreover, contrary to plaintiff's assertions, there is no need to expedite briefing because of the ongoing proceedings in the Supreme Court of Appeals of West Virginia, as plaintiff does not have any cognizable stake in the outcome of the mandamus action," Loughry wrote in response.
"Having sat on his rights, plaintiff cannot now demand an expedited briefing schedule."
Simply put, Loughry contends Callaghan and his attorneys have "dawdled."
"It would prejudice intervenor-defendant and defendants to require them to brief the matter before this court on an unreasonable schedule while simultaneously preparing briefing and oral argument on the schedule established by the Supreme Court of Appeals of West Virginia," Loughry continued.
"Any emergency is of plaintiff's own making."
And even if it wasn't, Loughry contends there still would be no need to expedite briefing of Callaghan's preliminary injunction motion.
"Plaintiff misrepresents the nature of the proceeding before the Supreme Court of Appeals," Loughry explained. "In that proceeding, intervenor-defendant Loughry seeks to compel state officials to comply with their statutory obligation to release campaign funds based on the
expenditures of nonparticipating candidates for the Supreme Court of Appeals.
"Because plaintiff lacks a cognizable constitutional interest in that statutory duty, the Supreme Court of Appeals denied his request to intervene in the mandamus proceeding."
Loughry added, "Plaintiff is not a candidate for a seat on the Supreme Court of Appeals of West Virginia, and as such, no actions plaintiff has taken or could take implicate the specific statutory provision at issue in the mandamus action."
In his response, Loughry asks that the federal court allow him to respond to Callaghan's motion for preliminary injunction by Sept. 10.
Callaghan filed a separate response to Loughry's response with the federal court Monday.
In it, he argues that the court should give Loughry a choice -- either brief on an expedited basis or agree to preserve the status quo by agreeing not to accept the funds prior to the court having an opportunity to rule on Callaghan's challenge.
"Callaghan proposed to the parties that they agree to preserve the status quo pending resolution of Callaghan's motion by this court. If the Supreme Court of Appeals grants the mandamus petition in the proceeding in which Callaghan has been precluded from participating, nothing requires Loughry to accept the additional funds prior to this court ruling," Callaghan wrote in his eight-page filing.
"One would think that a candidate for the Supreme Court of Appeals would not want to accept taxpayer funds alleged to be in violation of the First Amendment while a federal court challenge remains pending."
Callaghan says he proposed the expedited briefing schedule because he believes it a "preferable" and "a more orderly" alternative to his seeking an emergency temporary restraining order.
NEW SUPREME COURT FILINGS
Also Friday, Callaghan filed an amicus brief in the state case.
Like his federal court complaint, he contends the pilot program's matching funds provision is unconstitutional.
He argues that the state's high court should deny Loughry's petition for writ of mandamus, filed last month.
Loughry sued in the state Supreme Court following Callaghan's filing in the federal court, seeking to force the SEC to follow the existing laws and provide his campaign with the additional funding.
In his 26-page petition, 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 is set to hear oral arguments in the case at 10 a.m. Sept. 4.
Also filing an amicus brief in the state case Friday was West Virginia Attorney General Darrell McGraw's office.
Following the U.S. Supreme Court's 2011 decision in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett -- the ruling Callaghan cites in his federal complaint and amicus brief -- 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.
It was soon after that Tennant announced she intended to follow McGraw's opinion and not implement the matching funds provision.
"For all of the reasons set for in the attorney general's opinion of July 28, 2011, and in this amicus curiae brief, the petition for writ of mandamus should be denied, as the petitioner has no 'clear legal right' to the relief he seeks," Managing Deputy Attorney General Barbara Allen wrote for McGraw.
Pointing to three separate U.S. Supreme Court decisions, Allen says there is "simply no doubt" that the matching funds provision violates the First Amendment.
"The matching fund provisions fail the strict scrutiny test, as the petitioner has failed to present any compelling interest not already rejected by the Supreme Court and has also failed to demonstrate the absence of another narrowly tailored remedy for the problem sought to be addressed," she wrote.
The attorney general's office notes in its brief that it does not support or oppose any party in the litigation. Its sole purpose in filing a brief is to present the Court with a "legal argument on the issue presented in the case."
ATTORNEY GENERAL'S MOTION
In addition to its brief, McGraw's office also filed a motion to intervene in the state Supreme Court case.
Allen, again writing for McGraw, notes that the petitioner -- Loughry -- and the respondents -- Tennant, Collias, Renzelli and 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 motion.
"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 notes that 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."
All responses to McGraw's motion to intervene are due by noon Tuesday, according to a one-page order filed by the Court late Friday.