CHARLESTON - The West Virginia Supreme Court on Wednesday refused to hear an appeal of an order involving the use of private counsel as Special Assistant Attorneys General.

In a 4-1 vote, the Justices turned down the request of Johnson & Johnson, Janssen Pharmaceutica Products and Janssen Pharmaceutica. The drug companies had appealed an order by Brooke Circuit Judge Martin Gaughan, who had dismissed their counterclaim against state Attorney General Darrell McGraw's office over the use of outside counsel.

Justice Brent Benjamin was the lone Justice to vote to hear the appeal.

Chief Deputy Attorney General Fran Hughes noted that the issue went before the state Supreme Court in the Capital One case in 2005 on a writ of prohibition. The Justices refused 5-0 to hear the case.

"We keep saying that we don't enter into contingency contracts," she said. "People have FOIA'd us, and we've never signed a contract. The lawyers have to petition the court to receive their money. They may not get money, but they usually do."

Janssen and Johnson & Johnson originally had filed the appeal in July in Brooke Circuit Court. The petition for appeal to the state Supreme Court stemmed from a March order by Gaughan granting McGraw's motion to dismiss their counterclaim against him.

The case (Brooke Circuit Court case number 04-C-156) was filed in 2004 by Wheeling attorneys Barry Hill and Teresa Clark Toriseva, who the two companies said "purport to represent the Attorney General in pursuing claims against petitioners under the West Virginia Consumer Credit and Protection Act."

The original suit filed by McGraw's office claims Janssen and Johnson & Johnson deceptively marketed two prescription drugs -- Risperdal and Duragesic -- to West Virginia residents and seeks statutory penalties under the WVCCPA for each prescription written in the state that allegedly was prompted by such deceptive marketing.

While the drug companies' appeal was refused by the Supreme Court, the state's original case against them continued in Brooke Circuit Court.

The companies' appeal mentioned that McGraw's office has "on several occasions in the past" retained private counsel to bring WVCCPA actions against companies doing business in the state "pursuant to contingency fee agreements." It also says that practice has been criticized as violating the WVCCPA, other state laws and constitutional requirements.

"Private counsel are not salaried government employees, but private plaintiffs' lawyers whose standard compensation method is contingency fee," the appeal states.

McGraw has drawn criticism over the practice of hiring outside attorneys to work on cases for his office. Others have complained that these attorneys he's appointed to serve as Special Assistant AGs have made significant contributions to his political campaigns.

During last year's legislative session, a House of Delegates bill that would have tightened the belt on the state Attorney General office's contracts with outside attorneys died on the Rules Committee table.

And last April, McGraw's office terminated the January appointments of Weirton attorneys M. Eric Frankovitch and Michael Simon as special assistant Attorneys General in a case they already were working as private attorneys.

Their terminations came after Cooper Wiring Devices and Leviton Manufacturing both filed complaints in March stating that subpoenas issued by Frankovitch and Simon in February requesting safety testing records regarding an electrical outlet the companies produced were without power.

In their appeal, Janssen and Johnson & Johnson wrote that they filed their counterclaim because it appeared "that the Attorney General's delegation of authority and retention agreement with private counsel in this case was in violation of these statues and constitutional requirements."

The companies also said this contingency fee agreement "impedes the role of the state Legislature" and is contrary to state laws about how public officials spend state monies.

"By promising future state funds to private counsel in lieu of an appropriation by the Legislature for their payment, the Attorney General proposes to usurp the appropriations power of the Legislature and thus violate the separation of powers principle that is at the core of the West Virginia Constitution," the appeal states.

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