Judge tells group to change arguments against W.Va. campaign law

John O'Brien Oct. 2, 2008, 10:14am


BLUEFIELD, W.Va. (Legal Newsline) - The amendment of a few West Virginia campaign laws has negated a nonprofit group's attack on the originals, a federal judge recently decided.

U.S. District Judge David Faber decided Monday to lift the injunction he placed in April on laws that required groups that spend a certain amount of money on campaigns to disclose their financial backers. The Center for Individual Freedom argued this violated its right to free speech.

A bill passed over the summer amending six parts of state law. The CFIF had filed suit against Secretary of State Betty Ireland, and three then-candidates for the Supreme Court, all Democrats, intervened.

"Distilled to their essence, the various motions submitted by the parties ask but one question: Does the preliminary injunction entered by the court on April 22, 2008, extend to the newly enacted statutes and, therefore, enjoin their enforcement? The court must answer this question in the negative," Faber wrote in his memorandum opinion.

"First, Plaintiff has not cited one case for the rather extraordinary proposition it espouses herein- - i.e., that a court can enter a preliminary injunction prohibiting enforcement of statutes which thereafter undergo substantial amendment and that, without a new hearing or second motion for preliminary injunction, the preliminary injunction enjoins enforcement of the newly amended statutes.

" In fact, common sense and what little case law exists on the subject suggest otherwise."

Faber wrote that he is not giving the thumbs up to the new amendments, and "an inquiry is inappropriate herein and better left to such a time as Plaintiff files a second motion for preliminary injunction (if it chooses to do so) or when the court renders a final decision on the merits."

Instead, the CFIF has asked for a stay pending an appeal to the Court of Appeals for the Fourth Circuit.

Faber says the doctrine of mootness does not apply to the case because CFIF has also filed an amended complaint challenging the changes.

"Plaintiff wishes to engage in public discussion of issues of public policy while West Virginians are focused on such matters by the impending state elections, while candidates in those elections usefully illustrate Plaintiff's points and while grassroots activity is most effective," CFIF's complaint says.

"Plaintiff is being deterred from speaking, however, by threatened civil and criminal penalties."

CFIF is a nonprofit organization that says its mission is to protect the U.S. Constitution. It also argued that the campaign laws were vague.

Menis Ketchum, Margaret Workman and Bob Bastress all intervened early on in the case. Ketchum and Workman defeated Bastress and Chief Justice Spike Maynard in May's primary, and are seeking to fill the two open spots on the court, as is Republican Beth Walker.

The CFIF has infuriated Attorney General Darrell McGraw, who said he is filing a complaint against the group over its advertisement against him. He says the statements made in the commercial, which criticizes a 2004 settlement over the prescription painkiller OxyContin, are untrue.

State legal reform group Citizens Against Lawsuit Abuse criticized the bill that passed this summer and its champion, Del. Carrie Webster, D-Kanawha, in July.

Webster works for the Charleston law firm Bucci Bailey & Javins, which was hired by McGraw to pursue a lawsuit against VISA and MasterCard. The firm is one of four to represent the State, with both in-state firms (the other is Wheeling's Wexler Toriseva Wallace) featuring McGraw contributors.

The four firms could collect nearly $4 million in attorneys fees in a settlement that would provide discounts on "Energy Star" home appliances during scheduled sales.

Cohen also noted that Webster's husband, Greg Skinner, is a member of McGraw's staff.

The vice president of the West Virginia Association for Justice (formerly the state's Trial Lawyers Association) supported the law.

"An out-of-state special interest group should not be allowed to spend whatever they want to influence the outcome of a West Virginia election without disclosing who they are and who they represent," Michael Romano said.

McGraw, who is running for re-election against Republican challenger Dan Greear, said he plans to file complaints with the Internal Revenue Service and the Federal Communications Commission over the CFIF's ads, a Charleston Gazette report says.

The ads criticize McGraw's controversial 2004 settlement with Purdue Pharma over allegations that its prescription painkiller OxyContin was creating addicts and harming the state's Medicaid program. Purdue Pharma settled for $10 million, with more than $3 million going to outside counsel hired by McGraw to pursue the case.

The rest is being spent by McGraw, whose top aide admitted the settlement was structured in a way that prevented the federal Centers for Medicaid and Medicare Services from claiming its share. The CMS provides nearly 75 cents of every dollar spent on Medicaid in West Virginia.

The CMS is planning to withhold millions of dollars from its next Medicaid appropriation to the state.

The ad says McGraw is "spending $10 million from a settlement meant to help workers and the elderly, instead divvying it up between his trial lawyer buddies and a fund only controlled by McGraw."

The ad compares McGraw to an old dog who can't learn new tricks. It does not mention McGraw's opponent or the November election, instead urging viewers to "Call Darrell McGraw -- tell him to return the people's money."

In the Gazette report, Chief Deputy Attorney General Fran Hughes said, "Everyone has the constitutional right to face their accusers. We don't get the opportunity to face these people who are spending hundreds of thousands of dollars trying to influence an election.

"We are not going to allow false statements to be used by people who won't reveal who is behind them."

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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