Loughry says W.Va. SC should deny motion to intervene

By Jessica M. Karmasek | Aug 14, 2012



CHARLESTON - West Virginia Supreme Court candidate Allen Loughry says the plaintiff in a federal case over the state's Public Campaign Financing Pilot Program has "no constitutional rights" to intervene in a separate but related lawsuit filed in the state's high court.

Supreme Court candidate Allen Loughry filed his 13-page response to Charleston attorney Michael Callaghan's motion to intervene late Tuesday.

Callaghan, the plaintiff in a federal case filed last month over the pilot program and former chairman of the state Democratic Party, filed his motion with the West Virginia Supreme Court of Appeals Thursday.

In it, he notes 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 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.

"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 in his response.

"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 points 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.

Loughry argues that the Court should deny Callaghan's motion to intervene.

"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."

In an order filed Friday, the Supreme Court has scheduled the case for consideration and oral argument at 10 a.m. Sept. 4.

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