CHARLESTON – A three-judge panel has removed Kanawha County Prosecutor Mark Plants from office.
Tuesday's ruling comes about three weeks after a two-day hearing in a case brought by the Kanawha County Commission, which wanted Plants removed from office because of his misconduct, malfeasance, neglect of duties and violation of court orders.
"Clearly, there is no winner in a difficult matter such as this," Kanawha County Commission President W. Kent Carper said Tuesday. "We're grateful to the three-judge panel for its clear, concise order. The order speaks for itself."
Carper said the Kanawha County Commission will work with Kanawha Chief Circuit Judge Charles E. King to take any necessary action, and that the commission will have an emergency meeting Wednesday to discuss the order.
"This is a sad situation, and I want to thank the three-judge court for a swift and clear resolution," Kanawha County Commissioner Hoppy Shores said.
I strongly believe that filing this petition was the right thing to do for the taxpayers of Kanawha County," Kanawha County Commissioner David Hardy said. "The cost associated with the conflict in Prosecuting Attorney's office had to be resolved, and I'm glad the court made this determination," Commissioner Hardy stated.
The three-judge panel hearing the removal testimony – Preston Circuit Judge Lawrance Miller, Berkeley Circuit Judge Christopher Wilkes and Doddridge Circuit Judge Timothy Sweeney – ruled that Plants' actions constituted wrongful conduct in admittedly hitting one of his children with a belt, leaving bruises.
"The three-judge court is not making a finding that Mark Plants did or did not intentionally cause the physical harm by proof beyond reasonable doubt," the order states. "That finding is better suited for a jury, if and when Mark Plants is tried on his criminal charges. ...
"The three-judge court is not ruling that corporal punishment of a child is impermissible as a matter of law, and this question is not before us. ... The three-judge court finds striking a child with an object with enough force to cause bruising that can be seen at least four days later is unreasonable and therefore wrongful."
To justify removing Plants from office, the judges said this wrongful conduct must "affect, interrupt or interfere with the performance of official duty."
"This three-judge court finds that Mark Plants' wrongful conduct has substantially interfered with the performance of his official duties, and has further caused him to neglect his duties as prosecuting attorney."
The judges say Plants has a conflict of interest in prosecuting domestic violence allegations because of his actions, noting "abuse and neglect cases are among the highest priorities of a circuit court's docket."
"Not only is it a significant portion of his work, it is perhaps the most important portion of a prosecutor's job," the panel writes.
The decision has been stayed for 30 days to give Plants time to appeal if he desires.
In the commission’s petition filed in August, attorney Melissa Foster Bird wrote that “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 stated. It goes on to say Plants “has repeatedly engaged in wrongful conduct that betrays this higher standard.
“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. 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.”
The petition stated that 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 stated. “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 detailed 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 stated.
The petition stated Plants has committed malfeasance and misconduct because his actions have “affected, interrupted and interfered with his official duty as prosecutor.”
It also noted that Plants has violated an Emergency Protective Order.
Bird, who works in the Huntington office of Nelson Mullins, is providing the work on the case for free through the firm’s pro bono program.
"I would like to publicly thank Melissa Foster Bird and law firm of Nelson & Mullins for taking this case free of charge," Carper said. "Ms. Bird's hard work has saved the citizens of Kanawha County thousands of dollars.
"She's not only a very fine attorney, but she really believes in hard work and doing what is right for her clients. The taxpayers of Kanawha County truly are grateful for her work. I've never seen such fine, compassionate legal work.
"I know good legal work when I see it. I've never seen anyone work so hard."
Bird said she was pleased with the ruling.
"I have been confident from the beginning of this matter that Mr. Plants committed malfeasance in office and neglect of his job," she said Tuesday afternoon. "Today, the three judge panel confirmed their agreement.
"The people of Kanawha County deserve to have faith in the justice system. This is a step in the right direction."
Carper said he believes this is first elected Kanawha County official to ever be removed from office. And, he said if Plants does he appeal, he thinks the County Commission can appoint a temporary prosecutor.
"Of course, we will have a meaningful public meeting on a replacmenet," he said. "We will accept applicants. And we'll conduct this business in public.
"I'm just one vote, but I will say that I will not vote for anyone who isn't skilled in prosecuting as well as managing an office. We've seen what can happen when someone gets their hands on the office who can't run an office."