Funeral owner told to stop selling preneed contracts in AG v. challenger case

John O'Brien Nov. 8, 2007, 10:57am



NEW MARTINSVILLE, W. Va. - The man whose funeral home has become the subject of a courtroom battle between candidates for the West Virginia Attorney General's office has been ordered to stop selling preneed funeral contracts by a state judge.

Wetzel County Circuit Judge John T. Madden made his ruling Nov. 2 despite the fact defendant John Iams is no longer licensed to sell the contracts.

He also rejected Iams' argument that because he recently filed for bankruptcy, he should also receive a stay from transferring the preneed funeral contracts he has already sold.

"The Judge's decision protects consumers' legal right to transfer their contracts from a funeral home that has continuously refused to abide by the law," Attorney General Darrell McGraw said.

Republican challenger Hiram Lewis represented Iams, owner of Iams Funeral Home, at the hearing. Iams will have to transfer $318,000 in preneed contracts. Preneed funeral contracts are regulated by a division of McGraw's office, and McGraw did not argue at the hearing.

Lewis could not be reached for comment, but has said the suit is "retaliation for questioning the practices of the Attorney General's office." He also said Madden's order to enjoin Iams from selling preneed contracts doesn't matter, since he has not sold one since 2005.

At the hearing, Madden said he did not want to get into the merits of the case, only to determine if his court, or a federal bankruptcy court, had jurisdiction over the issue.

"No matter how I decide it, the bankruptcy court is probably going to be asked to make the decision and will probably be in a far better position than me to make that decision, but I'm persuaded that the Attorney General is exempt because it's involved with the consumer protection and safety, police regulatory laws," Madden said.

"And I assume the matter can be taken to the bankruptcy court, but from all I've been able to see in the very limited time I have, I believe that this consumer protection takes precedence over the usual type of claim that is stopped by the filing of a bankruptcy petition."

Lewis also argued that he was not given notice of the hearing or a copy of McGraw's amended complaint, and had to stay up until 4 a.m. the previous night to work on two pleadings.

"This is absolutely volative of due process rights under the Constitution, not only because of the failure for the state Attorney General to have administrative hearings, but also for the failure of the attorney General to properly notice the -- the counsel on the other side," Lewis said.

Lewis and McGraw have already fought for the office in 2004, resulting in the closest Attorney General's vote in state history. Both received 50 percent of the vote, with McGraw grabbing 5,307 more of the nearly 703,000 votes.

A fair amount of mutual hostility was displayed during the campaign. McGraw would not sit next to Lewis or respond to his questions during a meeting with the Charleston Gazette's editorial board, and Lewis publicly debated a man in a chicken suit because McGraw refused to participate.

McGraw is seeking his fifth term as Attorney General. Lewis is a 36-year-old Morgantown attorney and former Army Ranger. McGraw also served in the Army.

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