Loughry files response to federal suit, files another in W.Va. SC

By Jessica M. Karmasek | Jul 31, 2012

Loughry CHARLESTON - West Virginia Supreme Court candidate Allen Loughry this week filed a response to a federal lawsuit, filed earlier this month to block funding to his campaign.





CHARLESTON - West Virginia Supreme Court candidate Allen Loughry this week filed a response to a federal lawsuit, filed earlier this month to block funding to his campaign.

In addition, Loughry filed a separate legal action in the West Virginia Supreme Court of Appeals, seeking to force the State Election Commission to follow the existing laws and provide his campaign with the additional funding.

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.

In recent weeks, he has been critical of the Secretary of State's Office and SEC for their handling of the pilot program and contends that the SEC has been in direct violation of West Virginia law since at least the middle of July.

"The SEC's refusal to abide by the law is not only a violation of its constitutional duties, it also is a slap in the face to the state legislators who passed the law, as well as to then-Gov. Joe Manchin who pushed for and later signed the law," Loughry, a law clerk for the Court, said in a statement Monday.

"This unprecedented decision not to follow this law has the potential of single-handedly destroying the pilot project in addition to negatively impacting the entire Supreme Court election. The SEC is not permitted to simply disregard laws any more than a private citizen could decide he or she won't follow a law."

Loughry is represented in both suits by The Brennan Center for Justice at New York University's School of Law and West Virginia attorney Marc Williams.

The Brennan Center is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Williams is a managing partner at the Huntington law firm of Nelson Mullins Riley and Scarborough LLP.

Loughry and circuit judge John Yoder received the GOP's nominations in an uncontested primary.

Loughry said Monday he is anxious to take on the fight on behalf of those West Virginians who want fair judicial elections.


On Tuesday, Loughry filed a motion to intervene in a lawsuit filed by attorney Michael Callaghan earlier this month.

Callaghan, also the former chairman of the state Democratic Party, filed a 17-page complaint in the U.S. District Court for the Southern District of West Virginia July 18.

West Virginia Secretary of State Natalie 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.

In his motion Tuesday, Loughry asks the federal court for permission to intervene as a defendant in the case.

"Mr. Loughry seeks to intervene to ensure a vigorous and zealous constitutional defense of the pilot program; to ensure that he has the funding to wage a campaign of the caliber his supporters contemplated when they made qualifying donations to his campaign; to help protect the impartiality of the Supreme Court of Appeals of West Virginia -- and the appearance of impartiality -- through the complete and full use of the public financing program; and to vindicate the compelling state interests cited by the Legislature in adopting the pilot program," his lawyers wrote in the 12-page memorandum in support of the motion.


In Loughry's 26-page petition for writ of mandamus, filed with the state's high court late Monday, 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."

As a result, Loughry argues that he has been and continues to be injured by the commission's failure to act, "and his ability to wage a campaign of the caliber his supporters contemplated when they made qualifying donations to his campaign has been severely undermined."

He contends the SEC relied on an "unpersuasive" advisory opinion -- issued by Attorney General Darrell McGraw -- "to evade a clear statutory duty."

Loughry is asking that the Court find the program constitutional, issue a writ of mandamus and award him attorney fees as it "finds appropriate."


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 in the pilot program receive $350,000 for a contested general election.

In addition, the program 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.

"This program was set up so that the voters would have a fair opportunity to know the candidates in the Supreme Court race in order to make an informed decision about the qualifications of the candidates and not just the ones with the most money," Loughry said Monday.

"The idea is that this program will eliminate the perception that Supreme Court seats are being bought by other attorneys who practice before the court, by wealthy individuals, or by large corporations, who spend thousands, and sometimes millions, of dollars to elect certain judicial candidates."

Loughry added that unlike any other campaign for the state's high court, the maximum contribution limit to his campaign was $100, that every contribution came from West Virginia registered voters and that he did not receive a single dime in PAC money.

"It will be impossible for someone to argue with a straight face that a $5 contribution from my fourth-grade teacher will impact the impartiality of decisions I make as a justice on the Supreme Court," he said.

Loughry said Callaghan's lawsuit is "nothing more than an attempt to protect the system of buying elections and keeping average citizens from participating in the political system."


Callaghan, a partner at Charleston law firm Neely and Callaghan, claims in his suit 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.

"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 wrote.

Callaghan, who noted in his complaint that he opposes the use of taxpayer money to finance elections, said he wishes to make contributions to the two non-participating candidates nominated by the Democratic Party -- in this case, current Justice Robin Jean Davis and Letitia "Tish" Chafin.

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 alleged.

As for relief, he is seeking to have the provisions declared unconstitutional and to have enforcement of them 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 wrote.

Loughry said of the suit Monday, "You should not be able to buy a seat on the Supreme Court like you buy a candy bar at a convenience store.

"This should be about fair judicial elections for all West Virginians."

Loughry's filings this week come after the SEC held an emergency meeting July 17, in which it voted 2-2 on a motion to disburse funds to Loughry. Collias and Renzelli voted no, while Tennant and Rupp voted to disburse the money.

Loughry contends the state law is "clear" that the SEC is required to provide the additional funding once certain conditions are met.


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.

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.

Then the 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.

Loughry said Monday that the SEC's actions are exactly why average citizens are frustrated with many public officials.

"The SEC is sending the message to the nearly 700 people who contributed to my campaign, to the state Legislature that passed the law, and to all of the state's registered voters, that their voices don't matter," he said.

"People just want their elected officials and governing boards to strictly follow the Constitution and to represent them with honor, integrity, and high ethical standards.

"Just like all West Virginians, I expect no less from any of our elected officials or governing boards in this state."

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