Darrell McGraw
CHARLESTON - A New York-based company and a Georgia-based company have filed a pair of lawsuits against Darrell McGraw, West Virginia's Attorney General, saying he overstepped his boundaries when he appointed two Weirton attorneys to the position of Special Assistant Attorneys General.
Leviton Manufacturing Company of New York and Cooper Wiring Devices of Georgia say they will not obey subpoenas served to them because they were served by Weirton attorneys M. Eric Frankovitch and Michael G. Simon, who previously had been representing a group of people suing each company, in lawsuits filed March 17 and March 22 in Kanawha Circuit Court.
When McGraw appointed the two, Frankovitch and Simon served a subpoena on Feb. 11 demanding to see specific Leviton records regarding product testing. Leviton is asking for a Declaratory Judgment, meaning the company wants to see the Kanawha Circuit Court declare McGraw's act was unconstitutional, thereby making the subpoena void and Leviton not subject to obeying it.
Cooper's subpoena arrived three days later, and the company makes the same argument and demands in its case.
"The Attorney General's powers are limited to those authorized by statute and the West Virginia Constitution," Cooper's complaint says. "The Attorney General is not authorized to delegate his powers and duties under the (West Virginia Credit and Consumer Protection Act) to private lawyers.
"The Attorney General is authorized only to delegate such powers and duties to personnel in the Office of the Attorney General, individuals commonly regarded as 'employees.'"
Leviton claims McGraw lacks the power and authority to appoint Frankovitch and Simon, who are representing a civil action against the companies still pending in Marshall Circuit Court. Several owners of Quick Connect receptacles, the product the companies are involved in making, claimed the objects were fire hazards.
"The appointment of Messrs. Frankovitch and Simon, at a minimum, creates an untenable conflict of interests," the Cooper complaint says.
Frankovitch and Simon, acting as Special Assistant Attorneys General, demanded to see product-testing records by April 15 in the subpoenas.
Leviton hopes that the court will "quash the subpoena issued to Leviton by the Attorney General and signed by attorneys Frankovitch and Simon ... or alternatively that this court enter a temporary protective order holding the subpoena returnable beyond its current return date of April 15, 2006, to such a date as would allow sufficient time for this court to fully hear and determine this action on its merits."
The lawsuit adds that, "The Attorney General lacks any constitutional or statutory authority to issue to appoint Frankovitch and Simon as Special Assistant Attorneys General in relation to the Consumer Credit and Protection Act as he attempted to do."
Judge Charlie King has been assigned the Leviton case, and Judge Tod Kaufman has been assigned the Cooper case.
A Leviton spokesperson denied to comment on the case. A phone call to Charles L. Woody of Spilman, Thomas and Battle, counsel for Cooper was not returned. Frankovitch did not want to comment yet.
Kanawha Circuit Court case numbers 06-C-500 and 06-C-536