Three-judge panel named to hear Plants case

By Chris Dickerson | Aug 19, 2014

CHARLESTON -- Three circuit judges have been named to hear the petition to remove Kanawha County Prosecuting Attorney Mark Plants from office.

West Virginia Supreme Court Chief Justice Robin Jean Davis on Monday said Preston Circuit Judge Lawrance Miller, Berkeley Circuit Judge Christopher Wilkes and Doddridge Circuit Judge Timothy Sweeney will be the three-judge panel overseeing the case. A hearing is scheduled for Sept. 22-23 in Charleston, according to a Supreme Court order.

Wilkes and Miller are Republicans, and Sweeney is a Democrat.

"We are happy with the speed at which the process is moving," said Melissa Foster Bird, the attorney representing the Kanawha County Commission in its move to ouster Plants. "The citizens of Kanawha County deserve resolution to this ongoing problem.

"I am familiar with the Judges by reputation only but am confident that they will be thorough and fair."

The commission's petition, which was filed Friday, says “Plants must be removed” immediately from office because of his misconduct, malfeasance, neglect of duties and violation of court orders.

“Any attorney holding a public office is held to the highest possible standard of conduct,” the petition states. It goes on to say Plants “has repeatedly engaged in wrongful conduct that betrays this higher standard.”

In the petition, the commission says Plants’ removal is necessary.

“Mark Plants has committed neglect of duty because he has agreed to an indefinite disqualification that precludes him from performing indispensable and statutorily required duties of an elected prosecutor,” the petition states. “To that end, Mr. Plants’s disqualification has, as of the date of this petition, cost Kanawha County in excess of $300,000.

“The Kanawha County Commission has determined that such ongoing and irreparable financial harm to the taxpayers of Kanawha County must not be allowed to continue.”

Kanawha County Commission President Kent Carper said he is happy with the petition, which was written by Huntington attorney Melissa Foster Bird with the firm of Nelson Mullins.

“Due process is for everyone to have their day in court, including the taxpayers of Kanawha County," Carper said last week.

The petition says law requires Plants to perform all duties of the job while he remains in office.

“Plants has agreed to disqualify himself from doing his full job as the prosecutor of Kanawha County by the apparent conflict created by his response to the criminal charges against him,” it states. “Plants has repeatedly violated the orders of a court of the State of West Virginia.

“Plants has violated the Rules of Professional Conduct by publicly undermining the credibility, professionalism and independence of the Special Prosecutor, who was appointed because of Mr. Plants’s agreed disqualification.”

In March, Plants was charged with domestic battery for punishing his son with a belt and leaving a bruise on the boy’s thigh. He later was charged with violating a protective order after he approached his ex-wife’s car outside a Charleston pharmacy in which his sons were sitting alone. In June, Plants agreed to attend the batterer’s program in Putnam County.

So far, Kanawha County has had to pay two special prosecutors. Sid Bell is prosecuting misdemeanor domestic charges against Plants, and Don Morris is handling cases involving child abuse because Plants and his office are disqualified from doing so. Officials expect to spend about $300,000 more while Plants attends a 32-week Batterer’s Intervention and Prevention Program in Putnam County.

The petition details the timeline of events starting in late February when his ex-wife contacted the State Police complaining that Plants had injured their son.

“Removal of a public officer from office is a drastic remedy and the statutory provision regarding removal is given strict construction,” the petition states.

The petition states Plants has committed malfeasance and misconduct because his actions have “affected, interrupted and interfered with his official duty as prosecutor.”

It also notes Plants has violated an Emergency Protective Order.

Bird and Nelson Mullins is providing the work on the case for free through the firm’s pro bono program.

“Once you put all of the documents together from all of the various courts and all of the various matters going on, the charges are supported by the documents and the law,” Bird said. “It all came together in a picture that supports, without question, filing the petition to have him removed.

“The way I read the law, there is no in between. He either stays, or he goes.”

Last month, the Kanawha County Commission unanimously voted to draft the petition, citing “irreparable financial harm” to the county if Plants were to stay in office. County attorneys asked to seek outside counsel in the matter.

Also on Monday, Plants' attorney Jim Cagle asked again that a magistrate set a trial date. Friday, Mercer County Magistrate Mike Flanigan denied Cagle's first such request, saying Plants needed to hold up his promise to attend a 32-week batterer’s intervention program in Putnam County as a condition of his bond.

Cagle argues that Plants’ constitutional right to a trial supercedes any promise to attend the program. In a motion filed Monday, Cagle’s also notes that the agreement made with special prosecutor Sid Bell doesn’t contain any provision about a trial. Cagle writes that Plants “did not wish to enter the [batterer’s program] to the exclusion of his trial rights."

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