W.Va. SC candidate calls McGraw's motion 'inappropriate'

By Jessica M. Karmasek | Aug 28, 2012





CHARLESTON - West Virginia Supreme Court candidate Allen Loughry is calling Attorney General Darrell McGraw's recent motion to intervene in a state Supreme Court case over West Virginia's Public Campaign Financing Pilot Program "inappropriate."

And he's not the only one.

McGraw's GOP opponent, Patrick Morrisey, released a statement Tuesday calling the attorney general's filing unethical.

Managing Deputy Attorney General Barbara Allen, writing for McGraw, noted in the motion, filed with the Court late Friday, that the petitioner in the state case -- Loughry -- and the respondents -- Secretary of State Natalie Tennant, Gary A. Collias, William N. Renzelli and Robert 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 filing.

"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 said 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."

Loughry, a Republican, is the only candidate in this year's Court race to opt into the pilot program, which state lawmakers passed in an attempt to reduce the influence of special interest money.

He contends McGraw's intervention is "inappropriate" because the only parties with purportedly adverse interests are "three private citizens who have chosen not to assert those interests" -- either in the state proceeding or in the federal court lawsuit involving the pilot program.

"If the nonparticipating candidates believed that the law unconstitutionally infringed upon their First Amendment rights, they of course could have come forward to contest this matter in their own names. But all have remained silent," Loughry wrote in his 10-page response, filed Tuesday.

"The attorney general's constitutional duty to represent the interests of the State does not vest him with authority to litigate on behalf of private citizens who claim no constitutional injury."

Loughry notes that the attorney general's participation might be appropriate in a case where "there were no party defending the interest West Virginia's citizens have in the enforcement of laws passed by their democratically elected representatives and signed into law by West Virginia's governor."

But that is not the case here, he argues.

"Here, the only interests that could conceivably be adversely affected by an order granting the relief sought in the petition are those of the three private citizens seeking seats on this Court who have chosen not to participate in the pilot program," Loughry wrote.

"The attorney general does not seek party status to defend a duly enacted law of the State of West Virginia when no state officer has chosen to do so. Instead, he seeks party status to argue that a duly enacted law should be struck down -- and in doing so seeks to oppose state officials who have chosen to defend a provision of state law that no affected party has complained about."

To grant McGraw's request to do so would be "as extraordinary an expansion of his powers as it would be misguided," Loughry argues.

"The fact that allowing intervention would give rise to conflicts of interest within the Attorney General's Office that implicate foundational provisions of the Rules of Professional Conduct only underscores why intervention here would be inappropriate and unprecedented," he wrote.

Loughry points out in his response that the state's high court already has made it clear, through its denial of Charleston attorney Michael Callaghan's motion to intervene, that those citizens other than the three nonparticipating candidates "do not have a sufficient interest" to intervene.

What's more, an order permitting McGraw to intervene would give rise to "significant" and "troubling" conflicts of interest, Loughry notes.

"The attorney general seeks party status so that his office may proceed to litigate in an adverse relationship with the State respondents who are represented by his office. In short, the office of the attorney general seeks permission to litigate against its own clients," he wrote.

"An order from this Court permitting the attorney general to do so would give rise to serious questions about the ability of that office to comply with the basic rules of professional responsibility."

Simply put, Loughry says he is "disappointed" that the attorney general filed the motion.

"This move clearly indicates that McGraw opposes the pilot program and plans to fight it despite his clients' position that the law is constitutional," he said, adding that McGraw's legal maneuvering "reeks of old style politics."

Morrisey agreed, saying the attorney general appears to be taking two legally distinct positions in the case.

The Eastern Panhandle attorney, who is challenging McGraw is the state's Nov. 6 general election, is asking the attorney general to explain his actions -- particularly how he is not acting in violation of Rule 1.7 of the Model Rules of Professional Conduct.

Under Rule 1.7, a lawyer -- including an attorney within a governmental organization -- cannot engage in a "concurrent conflict of interest."

Significantly, under the rules, one lawyer's actions are imputed to another lawyer operating within the same firm or government agency.

Here, Morrisey contends, McGraw is representing the State in support of Tennant's position in the public finance case, yet also his own office so that it may preserve the right to oppose her legal position should she prevail.

"The attorney general's legal gymnastics in this case are truly unbelievable. First, the office rules that certain public financing provisions are unconstitutional, then they defend the Secretary of State's position to award the money, and now they are on both sides of this issue.

"This is breathtaking," Morrisey said.

Morrisey said, as an attorney, McGraw and his office must comply with the rules or potentially face disciplinary action.

"We all know that Darrell McGraw uses his office shamelessly for political gain." he said. "But now McGraw is so desperate to help members of his fellow political party that he is arguably acting in conflict with the Model Rules of Professional Conduct.

"One of the cardinal rules for lawyers is that you cannot act in conflict with an existing client. Here, it appears McGraw has done exactly that."

He added, "It's time for McGraw to personally explain to voters why he may be making a mockery of the basic rules governing attorney conduct."

However, Tennant's office said it was "not concerned" about the attorney general's motion to intervene.

Spokesman Jake Glance said Tuesday that Tennant and the SEC discussed the "possible conflict" with their attorney before accepting his representation.

"They have complete confidence that (Senior Deputy Attorney General) Silas Taylor will present all compelling and relative arguments on their behalf. Any attorney, by training and experience, is prepared to effectively argue either side of a legal issue," he said in an email.

"The West Virginia Supreme Court also obviously believes this argument can be fairly presented since it ordered the attorney general to take a contradictory position."

Glance said it should be noted that in addition to the two arguments made by two deputies attorney general, the Court also has for its consideration several other "very compelling" presentations and arguments.

Allen, who is representing McGraw in the state case, could not immediately be reached for comment.

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