The Register-Herald, Beckley, West Virginia

State News

August 28, 2012

Lawsuits heat up Supreme Court race

CHARLESTON — The race is on for a ruling in dueling legal challenges over whether publicly financed West Virginia Supreme Court candidate Allen Loughry can receive “rescue” funding.

With two seats up this year, the Republican hopeful awaits a Sept. 4 hearing for his Supreme Court petition seeking the release of additional money. The funding is meant to help him keep pace after one of his Democratic opponents, Justice Robin Davis, spent more than $494,000 following the May primary.

Davis and two other justices have recused themselves from the case filed by Loughry, a longtime Supreme Court law clerk.

U.S. District Judge Joseph R. Goodwin, meanwhile, requires responses the following day to a request by Mike Callaghan, a former state official and Democratic Party chairman, to block the rescue funds pending his lawsuit arguing they are unconstitutional.

Citing federal rulings against rescue funds in Arizona and North Carolina, Callaghan alleges their potential release to Loughry chills his right to contribute to Davis and her fellow Democratic nominee, Tish Chafin.

But Goodwin on Monday denied Callaghan’s bid to move up that deadline to Friday. Goodwin’s order noted Callaghan could file for a temporary restraining order, while others in the federal case could ask the judge to abstain from hearing Calla-ghan’s challenge.

Monday’s order follows the Supreme Court’s Aug. 15 refusal to let Callaghan become a party to Loughry’s case there. That denial prompted Callaghan to cry foul.

A federal filing by Calla-ghan’s lawyers said a senior Supreme Court staffer, left unidentified, asked Callaghan to intervene in Loughry’s petition “as no party in the case would be arguing against the constitutionality” of the rescue funding. The filing also alleged Loughry’s lawyers would not object to Callaghan joining the case but later did in a 13-page response to the Supreme Court.

Supreme Court spokeswoman Jennifer Bundy noted Monday that the court does not comment on pending cases. Loughry’s lawyers called Callaghan’s allegations “replete with inaccurate and unsupported statements of purported fact” while urging Goodwin to deny a speeded-up timetable for his preliminary injunction request.

Loughry had earlier successfully intervened in Calla-ghan’s federal case. The state attorney general’s office, meanwhile, has petitioned to join Loughry’s Supreme Court case. The office had previously told Secretary of State Natalie Tennant, as West Virginia’s elections chief, that the federal rulings against Arizona and North Carolina appeared to doom West Virginia’s rescue funding provision. With three circuit judges hearing Loughry’s petition in place of Davis and the other recused justices, the Supreme Court seeks replies by today to the attorney general’s bid to intervene.

Loughry is the sole participant in a pilot program created in response to concerns over the perceived influence of traditional campaign cash on elected judicial officials. It also followed a 2009 U.S. Supreme Court decision that cited the resulting specter of bias. That 5-4 opinion barred West Virginia Justice Brent Benjamin — who has also recused himself from Loughry’s case — from hearing appeals involving a coal company after its then-chief executive spent more than $3 million to help get Benjamin elected in 2004.

Both Loughry’s case and Callaghan’s target Tennant and her fellow State Election Commission members, who oversee the public financing pilot. While the commission has decided to defend the rescue funding, it has so far withheld the money from Loughry.

Loughry’s legal team includes the Brennan Center for Justice at New York University School of Law. The nonpartisan center has championed public financing programs while raising awareness over the increasing amounts raised and spent by judicial candidates and independent groups that weigh in on their races. Callaghan’s lawyers include Anthony Majestro, who has argued several campaign finance-related cases and has also advised the campaign of Chafin, a former State Bar president. Loughry is running on the Republican ticket along with Jefferson County Circuit Judge John Yoder.

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