Election spotlight shines on W.Va. AG race

Legal News Line Aug. 22, 2008, 8:00am



CHARLESTON, W.Va. (Legal Newsline) -- The challenger has adopted the role of ethical reformer. The incumbent claims to be the humble target of corporate retaliation.

Come November, the voters of West Virginia will decide whose story they believe while interested observers from across the country look on.

The spotlight shines bright on the state's attorney general election in which former Republican state legislator Dan Greear is trying to upset three-time incumbent Darrell McGraw, a Democrat.

A Greear victory would be a historic triumph for tort reform groups and pro-business organizations that claim McGraw is the standard for political cronyism and abuse of power.

But McGraw's supporters call the attorney general a champion of the common people whose has steadfastly held large corporations into account for their acts of fraud and abuse.

His legal settlements have poured money into the state, benefiting teachers, doctors and taxpayers, according to McGraw's campaign Web site. McGraw's supporters say big business will spend millions trying to defeat him in payback for their expensive legal defeats.

A recent Wall Street Journal opinion piece called the race "an insight into a new wave of reformist candidates across the country." For reformists, a Greear victory would be a bellwether for progress, as McGraw in many ways represents the most formidable of challenges.

Beyond partisan politics

Though West Virginia played a key role in electing President Bush in 2000 and 2004, it remains a stronghold for Democrats at the state level, with Democrats controlling the Legislature, a Democratic governor and, of course, McGraw.

But Greear said the issues he is trying to highlight in this campaign exceed partisan politics.

"I think there is recognition," Greear said, "from a lot of people on both sides of the aisle in the state that the way things are being handled in the attorney general's office isn't a political issue, but an ethical issue."

Top of the list for Greear is McGraw's use of outside counsel in million-dollar lawsuits. The lawyers McGraw contracts with are frequently large donors to his campaign. They also have earned multi-million dollar settlements in cases they worked on with the attorney general.

"These outside counsel are so often political contributors to Darrell McGraw that is it statistically impossible that it's a coincidence," Greear said.

The Wall Street Journal called McGraw "a case study of abuse in office" and a "pioneer in the practice of filing questionable lawsuits against big companies."

Greear's campaign is determined to reach voters of both parties to make his case that this election is about ethics, not politics.

"I think that's the recognition people can make even if they are hardcore Democrats," Greear said. "These are issues that go beyond partisan politics. How you represent your client shouldn't be a partisan issue, but should be how you best represent your client."

Among the abuses of office that Greear will attempt to highlight during the election is a practice of having money from lawsuit settlements sent into the account of the attorney general, rather than the state treasury, a move a West Virginia newspaper editorial called, a "disturbing philosophy."

"McGraw seems to view the money as his own personal hole card in the popularity contest that politics can be," the Wheeling Intelligencer wrote.

The Wall Street Journal cites one such example: "In January, he grandly announced that a $12 million settlement he'd negotiated with Visa and MasterCard would be going to fund statewide sales-tax holidays."

Greear said at recent public events such as the Putnam County Fair and the West Virginia State Fair, McGraw had items on display that were promoting the consumer protection division, paid for by settlement dollars. But McGraw's items have his name on them, and they were displayed right next to other political items from other candidates.

"The attorney general's office paid for these trinkets," Greear said. "They supposedly aren't campaign items, but they are passed out in the Democrat political booth.

"That's a heck of a benefit, if you don't have to pay for your materials, but the state picks up the tab."

One such item -- gun locks -- were passed out with McGraw's name on them at gun shows. Chief Deputy Attorney General Fran Hughes said the gun locks were paid for in a settlement of case, though she couldn't recall the exact case.

"It's the absolute absurdity of this office," said Republican state Rep. Vic Sprouse, a vocal critic of McGraw. "No one knows who we settled with."

Greear said these issues support his claim that this is not a partisan race, but an opportunity for reform.

"This is not a Democrat or Republican issue," Greear said. "It's just wrong. The taxpayers shouldn't pay for your re-election campaign."

Greear has promised sweeping reform if he is elected. He pledged to abide by a voluntary transparency code of ethics. His campaign platform includes changes in relationships with outside counsel, promising to use them only in "rare circumstances" and only when a competitive bidding process has taken place.

As for settlement dollars, he said anything that is used in the legitimate role of promoting the consumer protection division, won't have his name on it.

"I'm going to draw a line in the sand," Greear said. "We are going to end this abuse quickly."

For the people

The picture painted by the McGraw campaign couldn't be more different than a portrait of abuse and political paybacks.

McGraw's tenure in office is viewed as a victory for the people of West Virginia, from an award-winning attorney general who remains committed to his roots.

By any indicator, the McGraws are a West Virginia success story. Two brothers have risen to prominence and success as public servants of their home state.

Darrell's brother Warren McGraw rose through the Legislature and eventually won a seat on the state Supreme Court. Longtime family friend John Mitchell, himself a former state legislator who now serves as Darrell McGraw's campaign treasurer, said both brothers have been the target of well-financed campaigns.

The tactic, Mitchell said, worked to defeat Warren McGraw in 2004. Don Blankenship, chief executive officer of Massey Energy, put more than $3 million into a group backing Brent Benjamin, Warren McGraw's Republican rival.

"Warren McGraw was an example of how these businesses can pump thousands if not millions of dollars into the state and try to altar the campaign," Mitchell said. "Anybody can form a political action committee and give it a cozy little name and pump money into it."

Mitchell said similar tactics are targeting the attorney general in this election, funded by large businesses that have lost to McGraw in court.

"They are complaining because we have been effective," Hughes said in 2006. Requests to comment for this article were not returned.

Mitchell said McGraw's use of outside counsel is distorted.

"When you get into a big mass tort type scenario," Mitchell said, "you can't just take any attorney off the street and expect them to handle that type of claim. If you're going to the World Series, you are not going to bring up a Single A pitcher are you?"

Mitchell, who said he hasn't worked with McGraw on any of the high profile cases, said the practice makes sense, as do the paydays outside law firms have received.

"You couldn't hire these types of experts and put them on salary," Mitchell said. "McGraw was able to find very qualified firms and convince them to give it a chance, particularly before the track record of success was laid out.

"What would West Virginia have benefited if he hadn't done it? Zero. He opened the door to benefit West Virginia."

Hughes, McGraw's campaign Web site and some of the state's most prominent lawyers have challenged accusations of abuse by challenging those making the accusations.

The state's bar association has offered vocal criticism of efforts by big business to thwart accountability in West Virginia's courts.

"It is undisputed that Attorney General McGraw's office has collected more money in restitutions for the citizens of West Virginia than all previous attorneys general combined," McGraw's Web site states.

Hughes denied that campaign contributors are being awarded the contracts.

"Attorney General McGraw does not appoint special assistant attorneys general based on campaign contributions," Hughes said. "Not many attorneys have the expertise to engage in antitrust litigation."

Despite all the attacks, the attorney general is unchanged, Mitchell said.

"The reason why McGraw has done so well," Mitchell said, "is he's always been willing to fight for the little people up in the hollers. Sincerely, consistently fighting for them."

Long odds?

Though Greear is not alone as an up-and-coming state leader vowing reform -- races in Indiana, North Carolina and Missouri also have new candidates pledging change -- his looks to be the most difficult.

Amber Taylor, a Washington, D.C. lawyer active in tort reform said McGraw is entrenched.

"McGraw's friends get non-competitive contracts that reimburse them at inflated rates," she said. "McGraw cements his relationships with big donors and influential attorneys in the community.

"It would take a lot to get McGraw out of office at this point."

Greear said potential donors have been reluctant to have their name associated with his campaign, for fear of retribution from the attorney general's office if Greear loses.

Greear likens it to a rebellion of sorts.

"Like that old saying," Greear said, "people tell me 'If you are going to go after the king, you better kill him.' People want to believe that we are going to get this thing done."

Greear said the battle may not be as impossible as people think. He points to McGraw's last election in 2004 when a relatively unknown candidate waged a close battle.

"McGraw won by just 5,000 or so votes," Greear said. "And (Republican candidate) Hiram Lewis spent about $36,000 I believe. I had a lot more legal and political experience. I thought, 'Wow, this is a race that can be won.'"

He believes the public sentiment has changed toward McGraw, as voters become more educated on the issues. He thinks somewhere up ahead his campaign will reach the point where doubters become believers.

"We certainly got a ways to go, but were making progress," Greear said. "I can promise the citizens of West Virginia that my campaign will not be outworked."

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