WEST VIRGINIA RECORD

CHARLESTON -- The West Virginia Supreme Court has ruled that embattled Kanawha County Prosecuting Attorney Mark Plants' suspension is unnecessary.

The Office of Disciplinary Counsel filed a petition in April against Plants, who had been charged with battery and violating a domestic protective order for allegedly beating his son with a belt.

"This Court finds that interim suspension pending the resolution of disciplinary proceedings is not warranted and further disqualification is unnecessary," the per curiam opinion released Wednesday afternoon states. "The ODC’s request is accordingly denied. Due to the expense of maintaining a special prosecutor during the pendency of these actions, the proceedings against the Respondent should continue toward resolution as expeditiously as possible."

Kanawha County Commission President Kent Carper praised Wednesday's opinion.

“I am very grateful to the Supreme Court for their timely and succinct judicial determination," Carper said in a statement. "The Kanawha County Commission will completely and fully abide by the opinion and direction of the Supreme Court, as we should.

"The mature and well-reasoned opinion states, ‘due to the expense of maintaining a special prosecutor during the pendency of these actions, the proceedings against the Respondent should continue toward resolution as expeditiously as possible.’  That is exactly what I intend to facilitate to the best of my skill and judgment.

"It is my intention to call a Special Meeting of the Kanawha County Commission on Tuesday, June 3, 2014 at 8:30 a.m. or at such time as the matter may be heard.”

Last week, an agreement was reached that allowed for the misdemeanor charges to be dropped if Plants complies with a pre-trial diversion agreement. The charges would be dropped after a year if the requirements are met. Mercer County Magistrate Mike Flanigan was the special magistrate for that case.

Plants apologized for the incident and has agreed he won’t use corporal punishment to discipline his children. Plants also agreed to stay away from his ex-wife and to supervised visits with his children. 

In Wednesday's opinion, the Supreme Court denied the ODC's request to have Plants' law license suspended. It also said Plants shouldn't disqualified from certain domestic cases. It said an April order appointing Donald P. Morris as Chief Special Prosecutor would provide "sufficient protection from any substantial threat of irreparable harm to the public pending the resolution of disciplinary proceedings."

On Feb. 26, Allison Plants contacted the West Virginia State Police and reported that her ex-husband had caused injury to their 11-year-old son by whipping him with a belt on Feb. 22. On Feb. 27, Allison Plants filed a domestic violence petition with the Magistrate Court of Kanawha County, and an emergency protective order was thereafter issued against Plants prohibiting contact with his children.

Mrs. Plants later said her ex-husband engaged in impermissible contact with the children by talking to them in a parking lot on March 17, and Plants was subsequently charged with violation of the protective order.

On March 31, 2014, Plants was arrested for domestic battery after a police investigation
into Mrs. Plants’ allegations. In his April 7 motion to dismiss, Plants said he “was acting as a parent to discipline his child, therefore he was acting within a constitutionally protected right to control his child” and went on to say “under West Virginia law there is no liability from the reasonable use of corporal punishment for disciplinary purposes.”

On April 11, the ODC filed the suspension petition. The City of Charleston and Charleston Police Department also filed a petition for writ of prohibition in Kanawha Circuit Court, alleging Plants should be disqualified and prohibited from prosecuting criminal matters pertaining to domestic violence between parents/guardians and minor children. Kanawha Circuit Judge Duke Bloom did disqualify Plants’ office from handling many cases of domestic violence because of the city's petition.

In Wednesday's opinion, the Court states that “the primary purpose of the ethics committee [Office of Lawyer Disciplinary Counsel] is not punishment but rather the protection of the public and the reassurance of the public as to the reliability and integrity of attorneys.”

"Rule 3.27 provides a mechanism for the temporary interim suspension of an attorney’s license to practice law, pending the resolution of disciplinary charges against him," the opinion states. "We have repeatedly emphasized that this is an extraordinary measure to be utilized only in extreme cases where a substantial threat of irreparable harm to the public exists.

"As a preliminary matter, it is imperative to identify what this case is not. It is not a typical disciplinary matter in which this Court determines the ultimate discipline to be imposed upon an attorney after a complete and thorough hearing and the submission of recommendations by the Lawyer Disciplinary Board.

"This matter has not yet been developed in that fashion."

Instead, the Court writes that the question is whether Plants "poses a substantial threat of irreparable harm to the public such that his law license must be subject to interim suspension."

"While the ODC correctly asserts that discipline is separate and distinct from disqualification, it must be recognized that we are not entertaining a question of final discipline here," the opinion states. "We are deciding whether immediate interim suspension is warranted pending an ultimate resolution of the disciplinary issue, and that inquiry must necessarily involve an evaluation of the efficacy of the framework currently in place to guard against irreparable harm to the public.

"Hence, reference to the circuit court’s disqualification order is absolutely essential to our determination of whether sufficient disqualification has already been accomplished.

"This Court is not persuaded by the ODC’s contention that the conflict of interest extends to cases beyond those identified areas. We fail to discern a substantial threat of irreparable harm to the public occasioned by the Respondent’s retention of his law license pending the resolution of disciplinary proceedings against him, even in light of the Respondent’s position of public trust and heightened standard of ethical conduct."

The opinion notes that Plants still faces criminal charges.

"Such charges will be addressed in due course, and the ODC may proceed with disciplinary charges against the Respondent as deemed necessary," the court writes. "The issues will be thoroughly presented and evaluated in future proceedings, and the Respondent will have ample opportunity to defend against these charges.

"At this time and in this proceeding, we express no opinion upon the merits or the ultimate disposition of the proceedings in either the criminal or disciplinary forums."

Justice Brent Benjamin disqualified himself from the case.

West Virginia Supreme Court of Appeals case number 14-0348