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W.Va. Supreme Court weighs public funding for Supreme Court race

CHARLESTON, W.Va. -- The West Virginia Supreme Court spent two hours hearing a case Tuesday that could help decide the fate of the court for the foreseeable future.

The case involves a one-year experiment to give public money to Supreme Court candidates to try to reduce the appearance court seats can be bought. With two of the court's five seats on the ballot this year, Republican Allen Loughry is the only candidate participating in the program.

Loughry has already received $400,000 in public money for his campaign. The public financing law, as it stands, would allow Loughry to collect up to $700,000 more in public "rescue" money if his opponents begin to outspend him.

But the state Election Commission has refused to give Loughry the rescue money. The commission cites a U.S. Supreme Court ruling last summer that struck down a similar part of an Arizona law.

Loughry sued the commission to make them release the money.

But, because of the Arizona ruling and other U.S. Supreme Court cases, Justice Thomas McHugh told Loughry's attorneys Tuesday they have to clear a "very high hurdle" before the state Supreme Court would order the release of the rescue funds.

"It seems the threat throughout all these U.S. Supreme Court opinions is, 'We're not going to allow matching funds, no matter what it is," McHugh said.

The nation's high court said attempting to offset private donations with public money unfairly penalizes private donors. The court has also consistently ruled campaign spending is a form of free speech.

One of Loughry's attorneys, Adam Skaggs, argued judicial elections are a different animal than the legislative and executive branch elections dealt with in the other cases. He said judicial elections deserve special considerations to make sure judges unbiased.

"The Supreme Court has not said that is foreclosed," he said.

The Election Commission itself argues it should release the money but is not doing so until it's clear that it legally can do so. That put the commission in the odd position of defending a law it is being sued for not following.

State Senior Deputy Attorney General Silas Taylor is representing the election commission.

On Tuesday, Taylor faced a colleague from Attorney General Darrell McGraw's Office, Managing Deputy Attorney General Barbra Allen.

Allen wrote an advisory opinion last summer that said the West Virginia law was unconstitutional because of the U.S. Supreme Court's ruling. But state lawmakers failed to act on that assessment to do anything to change the law and now, two months before the election, the fate of the Supreme Court race is in the hands of two courts.

Allen said Tuesday the U.S. Supreme Court had left "no glimmer of light" for the state court to allow Loughry to receive matching funds.

Chief Justice Menis Ketchum asked several times if the public financing program was accomplishing its intended goals.

Democrats designed the program as a response to coal operator Don Blankenship's spending in the 2004 Supreme Court race cost Justice Warren McGraw to lose his seat on the court to Republican Brent Benjamin. The Democrat-controlled Legislature passed the program over the objection of Republican lawmakers.

But the tables have turned this year and it would be Democrats who could suffer from the public financing program.

That's because incumbent Justice Robin Davis and Democrat Tish Chafin are spending hundreds of thousands of dollars on their own campaigns. Most of their campaign money comes from their own personal wealth -- just over 80 percent so far for Chafin and nearly 60 percent for Davis -- but they each have received donations from lawyers and others who might have business before the court.

Another incumbent, McHugh, is not running for re-election.

Republicans have accused Democrats of trying to "muzzle" Loughry.

Facing the possibility of striking down a well-intentioned law seemed to worry McHugh.

McHugh said "this case does not deal with what this court thinks, obviously," he said, citing necessary deference to the U.S. Supreme Court. Later he said he was "sympathetic" to Loughry's argument.

Allen, who called herself a friend of Loughry's, said she was in a "terrible situation" to be opposite of Loughry in the case and she repeatedly threw up her hands when asked to justify the U.S. Supreme Court's logic -- the same logic she was relying on to make her case.

A federal court is also considering another lawsuit from a former Democratic Party chairman that seeks to strike down the rescue funds provision. Even if the state Supreme Court sided with Loughry, he could face further obstacles because of the federal case.

Ketchum wondered how reducing the appearance of bias for Loughry did anything to change the way the public would view Chafin, Davis and Republican Circuit Court Judge John Yoder, a fourth candidate in the race.

"How does giving the state money to Mr. Loughry eliminate the appearance of bias in this election?" Ketchum asked Skaggs.

Ketchum answered his question with another question just a few moments later.

"No matter how much money the state gives Mr. Loughry, isn't there still the appearance of bias on those three candidates who have raised hundreds of thousands of dollars?" Ketchum said.

Skaggs argued back that candidates who sought private donations relied on "favor-seeking money" to finance their campaigns, something Loughry doesn't have to do.

The same argument surfaced a bit later in an exchange between Allen and Berkeley County Circuit Court Judge Christopher Wilkes, who was sitting on the high court by special assignment.

Allen argued the public financing program now makes it look like those who participate in it are clean candidates and that those who do not are corrupt. If Loughry won, she argued, the public would view the other non-publicly financed candidate suspiciously.

"I think you've actually made the problem worse," she said.

"Or 50 percent better," Wilkes said.

The court's justices informally settle upon a justice to lead questioning and that justice can end up writing the majority opinion. On Tuesday, McHugh seemed to lead questioning, though Ketchum just as frequently got into exchanges with lawyers.

The length of the hearing was unusual, as was the composition of the court.

Davis, Benjamin and Justice Margaret Workman all recused themselves from the case, citing conflicts of interest. Davis, of course, is running. Loughry works for Workman as a clerk. Benjamin said he and Loughry discussed the public financing law several months ago.

Wilkes, Harrison County Circuit Court Judge J. Lewis Marks Jr and Ohio County Circuit Court Judge James P. Mazzone temporarily replaced the three justices on the court.

Loughry is being represented by Huntington-based law firm Nelson Mullins and lawyers from the New York-based Brennan Center, a group that supports efforts to reform the campaign finance system.

Loughry also sued Treasurer John Perdue and Auditor Glen Gainer, arguing they should release his money. Lawyers for both briefly got up Tuesday to tell justices they had no stake in the case and have no opinion on its outcome. The Supreme Court justices did not ask them any questions. Contact writer Ry Rivard at or 304-348-1796. Follow him at



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