Justices hear arguments about AG's power

CHARLESTON – West Virginia Attorney General Patrick Morrisey’s office wants the state Supreme Court of Appeals to decide if he has authority to assistant county prosecuting attorneys who request the help.

On Tuesday, the Justices heard arguments from Morrisey’s office as well as the state Office of Disciplinary Counsel, the Lawyer Disciplinary Board and the West Virginia Prosecuting Attorneys Association.

The ODC, LDB and the prosecutors all oppose granting such power to the AG’s office.

As soon as the oral arguments began Tuesday, Chief Justice Robin Jean Davis addressed Solicitor General Elbert Lin, who was representing Morrisey’s office.

“Our court does not issue advisory opinions,” Davis said.

Lin said the AG’s office wasn’t seeking such an opinion. Instead, he said it’s a question the court needs to answer.

Lin also says the ODC’s opinion that state law says the AG’s office can’t send deputy and assistant AGs to counties who request such assistance “clearly erroneous.” Lin says the AG’s office can do so under common law, meaning it can do so based on looking at past court rulings and decisions.

“The board’s opinion is legally incorrect, exceeds the scope of rules and misunderstands the authority of the Attorney General’s Office,” Lin wrote in court filings with this case.

“I would emphasize the writ being requested does not seek prosecutorial authority for the AGs office,” Lin said Tuesday. “The supervision and direction and actions of whatever assistant or deputy AG would rest with the county prosecutors.”

“Can the Attorney General just loan employees to anyone?” Justice Allen Loughry asked Lin. “What if the Humane Society needs a worker for the front desk?”

Lin said the AGs office wants to offer assistance when asked by counties to help with criminal cases.

“There would no exercise of prosecutorial authority,” Lin said.

Justice Brent Benjamin noted a possible Pandora’s Box.

“We have an advisory opinion from down below (the ODC),” Benjamin said to Lin. “You’re asking us, in essence, to create an advisory opinion on an advisory opinion. Are we going to now open up this court to review all advisory opinions from down below?”

Lin disagreed, saying this is a “particular and unique” situation.

According to court filings in the case, Morrisey asked the ODC last summer if he could be appointed Mingo County’s prosecutor before Michael Sparks resigned amid corruption accusations. That question came after Mingo County Commissioner Greg "Hootie" Smith contacted Morrisey to ask him if someone from his office could help the county. The ODC told Morrisey it couldn't be done.

So, Morrisey asked if his staff lawyers could serve as assistants in Mingo County. The ODC again said that couldn’t be done.

Later, according to court documents, Morrisey asked for a formal opinion from the Lawyer Disciplinary Board on the matter. The LDB again said no.

So, Morrisey filed a suit against the ODC and LDB, asking the Supreme Court to stop the LDB from enforcing the opinion.

In June, Preston County Prosecuting Attorney Mel Snyder wrote Morrisey asking for help with criminal cases. That request is the basis for the case that prompted Tuesday’s oral arguments.