Justices says AG can't help with county prosecutors

By Chris Dickerson | Oct 15, 2014

CHARLESTON – The West Virginia Supreme Court of Appeals has denied a writ from the state Attorney General's office asking if it has legal authority to assistant county prosecuting attorneys who request the help.

Last month, 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 opposed granting such power to the AG’s office.

According to court documents in the case, Morrisey had 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.

"The Attorney General lacked standing to have this court determine the enforceability of an informal advisory opinion issued by the ODC," Chief Justice Robin Jean Davis wrote in the opinion issued Wednesday. "We also have determined that this court could not address the merits of the informal advisory opinion because to do so would result in this court issuing an advisory opinion."

Davis wrote that the court took an "extraordinary measure" of addressing the collateral issue regarding the AG's authority to prosecute criminal offenses.

"We have determined that county prosecutors do not have authority ... to appoint the Attorney General as a special prosecutor. We further conclude that under (the) West Virginia Constitution ... the common law criminal prosecutorial authority of the Attorney General was abolished."

Morrisey spokeswoman Beth Ryan said the office was disappointed in Wednesday's opinion.

“Our office received a request from the Preston County Prosecuting Attorney for assistance in fighting sexual abuse, drug crimes, and public corruption, which we had hoped the Supreme Court would allow us to provide," she said Wednesday afternoon. "Unfortunately, the Supreme Court has determined that county prosecutors who desire this Office’s help may not ask for assistance.

"While we do not believe the Supreme Court has correctly decided the question of whether this office may assist prosecutors when asked, we will abide by the court’s opinion.”

As soon as last month's oral arguments began, 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 argued that 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 said 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 during oral arguments. “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.

Benjamin agreed in part and dissented in part with Wednesday's opinion. He reserved the right to file a separate 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.

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