McGraw's office seeks more money for budget

By Lawrence Smith | Jan 28, 2010



CHARLESTON - The need for extra staff to handle appeals before a proposed intermediate appellate court notwithstanding, the state Attorney General's Office says it needs more resources for a burgeoning caseload.

Chief Deputy Attorney General Fran Hughes, Managing Deputy Attorney General Barbara Allen and Joe Clay, the office's comptroller and chief financial officer, appeared before the House Finance Committee on Thursday Jan. 21, to brief delegates on the AG's budget request for fiscal year 2010-2011. Topping the agency's wish list was money to pursue violations of the federal Health Insurance Portability and Accountability Act, and prosecute cyber crimes.

Starting Feb. 1, Hughes said all the state attorneys general have the responsibility of filing civil suits against violations of HIPAA, a 1996 law designed to protect unwanted disclosure of a person's personal identifiable medical information. Unfortunately, Hughes said the responsibility does not come with accompanying federal funds.

Litigating HIPAA violations without guidelines as to what constitutes a violation concerned Del. Larry Border, R-Wood. A pharmacist by profession, Border asked Hughes if looking through a patient's entire medical history could land him in trouble.

When Hughes said it would, Border said that is problematic because it would create barriers to pharmacists, as well as physicians, to check for possible volatile drug interactions, thus creating for them additional liability.

"You almost have to know all that to protect the individual," Border said. "It's going to be a most difficult area to get into."
Hughes concurred by saying in the months ahead "We're going to be pioneers" regarding HIPAA complaints.

Prosecuting Internet scams

In 2009, Clay said the number of consumer protection complaints the attorney general's office received was 9,242, an increase of 4.3 percent from 2008. Hughes added the bulk of those complaints came from senior citizens alleging they were victimized by a scam via the Internet.

Because the attorney general has no prosecutorial powers, the responsibility for filing criminal charges falls to the county prosecutors. However, Hughes said because the office has developed an expertise in tracking the source of the scams, and shutting them down, it would be wise to centralize prosecution of cyber crimes to them.

"We're already maintaining action involving this kind of activity, but not criminally," Hughes said.

"I think the cases were we're involved, particularly when there's a consumer violation, and we're addressing it civilly, those people need to be prosecuted criminally."

"If you are hacking into somebody's computer, and causing all kinds of economic havoc, you ought to be punished," she added.

Thinking through additional court

Something that is not factored into the budget request was additional staff to the attorney general's appellate division should an intermediate appellate court be created. Both Hughes and Allen said if criminal defendants are guaranteed an automatic right of appeal, then that would at least double the appellate division.

"If they let in every criminal case, double is a conservative estimate," Hughes said. "Because we subsidize entirely the appellate work all across the state."

Allen clarified Hughes' statement saying that the attorney general handles criminal appeals for at least 50 of the state's 55 counties because they "don't have the money or the staff or the expertise or the desire or the willingness to handle a criminal appeal."

According to Allen, the state Supreme Court, which currently is the only appellate court in West Virginia, agrees to hear seven percent of criminal cases appealed from the state's 31 circuit courts. If every criminal defendant is given the right to have his or her case heard before a new intermediate appellate court, she estimated the caseload on the appellate division will increase 10-fold.

"We have about 2 ½ people who are extremely overworked as it is because we not only do all the appellate work in state court, we do all the habeas corpus work in state court, and in federal court," Allen said.

"We would have to hire another four or five people, and that's an expensive proposition."

Hughes added the estimated increase of staff only factors in criminal appeals. If a right of appeal is granted in civil cases with a certain threshold dollar amount, then certainly more people would need to be hired.

"That could impact a lot of state agencies," Hughes said. "Are we going to have to defend all those actions in the Supreme Court?"

"So there's a lot to think about by just the philosophy of whether you think it's a good idea as there's a lot of economic considerations for the state," Hughes added.

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