Three W.Va. SC justices won't hear public financing case

Jessica M. Karmasek Aug. 7, 2012, 1:45pm





CHARLESTON, W.Va. (Legal Newsline) - Three West Virginia Supreme Court of Appeals justices have recused themselves from a case over the constitutionality of the state's Public Campaign Financing Pilot Program.

Court Clerk Rory Perry said Tuesday that justices Robin Jean Davis, Brent Benjamin and Margaret Workman have disqualified themselves from the case.

Judge Christopher C. Wilkes of the Twenty-Third Judicial Circuit, which includes Berkeley, Jefferson and Morgan counties; Judge James P. Mazzone of the First Judicial Circuit, which serves Brooke, Hancock and Ohio counties; and Judge J. Lewis Marks Jr. of the Fifteenth Judicial Circuit, which serves Harrison County, have been appointed as the justices' replacements, Perry said.

Last week, Supreme Court candidate Allen Loughry filed a motion to intervene in a federal lawsuit over the pilot program, which was established in 2010 for candidates seeking a seat on the state's high court.

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

In the federal lawsuit, Charleston attorney Michael Callaghan -- also the former chairman of the state Democratic Party -- claims that the pilot program violates the First and Fourteenth amendments of the U.S. Constitution by "unduly impinging upon protected political speech and association" as set forth in the U.S. Supreme Court's holding in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett.

Specifically, Callaghan argues that the matching funds provision of the act is unconstitutional.

West Virginia Secretary of State Natalie Tennant, who serves as a member of the State Election Commission, along with Gary A. Collias, William N. Renzelli and Robert Rupp, were named as defendants in Callaghan's suit.

In an order last week, Judge Joseph R. Goodwin of the U.S. District Court for the Southern District of West Virginia granted Loughry's motion to intervene.

Meanwhile, Loughry filed a separate legal action in the state Supreme Court, seeking to force the SEC to follow the existing laws and provide his campaign with the additional funding.

He is represented in both suits by The Brennan Center for Justice at New York University's School of Law and West Virginia attorney Marc Williams.

The Brennan Center is a non-partisan public policy and law institute that focuses on the fundamental issues of democracy and justice. Williams is a managing partner at the Huntington law firm of Nelson Mullins Riley and Scarborough LLP.

In Loughry's 26-page petition for writ of mandamus, filed with the state's high court July 30, he argues that the SEC "failed to carry out the unambiguous duty" imposed under the pilot program.

"Through this failure, the commission violated the statutory command of W.Va. Code 3-12-11(e), which requires the commission to authorize the release of funds once a determination has been made that the conditions for a release of supplemental funds have been met," his petition states.

"Due to the commission's failure to follow the law and perform this ministerial duty, the commission also failed to perform its duty, working with the offices of the State Treasurer and State Auditor, to cause the funds to be disbursed to Petitioner Loughry's campaign."

As a result, Loughry argues that he has been and continues to be injured by the commission's failure to act, "and his ability to wage a campaign of the caliber his supporters contemplated when they made qualifying donations to his campaign has been severely undermined."

He contends the SEC relied on an "unpersuasive" advisory opinion -- issued by Attorney General Darrell McGraw -- "to evade a clear statutory duty."

Loughry is asking that the Court find the program constitutional, issue a writ of mandamus and award him attorney fees as it "finds appropriate."

In a scheduling order last week, the respondents in the state case -- Tennant, Collias, Renzelli, Rupp, State Auditor Glen Gainer III and State Treasurer John Perdue -- were ordered to file a response to Loughry's writ of mandamus on or before Thursday.

Perry said Tuesday he could not say how quickly the case will be handled, only pointing to the Court's current scheduling order.

He noted that the Court is requiring that the responses be filed "very quickly."

"The Court is well aware that this is an election case with important timelines to observe," Perry said, adding that in the past the Court has acted "with all due speed" to make sure such cases are handled quickly.

Perry said he expects the Court, in its next scheduling order, to spell out exactly what the timeline is for the case.

From Legal Newsline: Reach Jessica Karmasek by email at

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