Who decides what is best for West Virginia?

By David Higgins | Nov 23, 2015

CHARLESTON – On Nov. 4, Colorado Gov. John Hickenlooper filed suit against Colorado Attorney General Cynthia Coffman in the Colorado Supreme Court for a ruling as to whether or not the Attorney General can appear on behalf of Colorado in litigation and proceedings when the governor has not asked or authorized her to do so.

According to court documents, Coffman filed three lawsuits against the federal government – one in Wyoming, one in North Dakota and one in the D.C. Circuit Court – without seeking the consent of the governor to do so.

What difference does that make you might ask? From the pleadings, it appears Hickenlooper was upset because the filing of the lawsuits disrupted and, in effect, ended negotiations that the governor’s office was having with the federal government relating to issues involved in the lawsuits. The issues included fracking rules, clean water rules and clean power rules.

A similar question was addressed in West Virginia 33 years ago. In 1982, the West Virginia Supreme Court handed down the decision styled A. James Manchin v. Chauncey H. Browning Jr.

At the time, Manchin was Secretary of State and Browning was Attorney General. The issue in the case was reapportionment; however, in its ruling the court addressed when the Attorney General can act on his or her own belief as to what constitutes the best interests of the state and its citizens and when the Attorney General must serve as lawyer alone and advocate or defend in the manner and advancing the positions held by the governor or state agencies.

The court held that the instances in which the Attorney General is allowed to determine on his or her own what constitutes the best interests of the state are “limited and finite.” As examples the court listed consumer credit and protection, antitrust litigation and criminal appeals.

Otherwise, the job of the Attorney General is to function as a lawyer who is duty bound to represent his or her client not to advance his or her own agenda. As the West Virginia Supreme Court said in that case, “The Attorney General’s role and duty is to exercise his skill as the state’s chief lawyer to zealously advocate and defend the policy position of the officer or agency in the litigation.”

In 2013, however, the West Virginia Supreme Court held in State vs. Nibert that notwithstanding the Manchin case the West Virginia Attorney General has a common law right to hire special assistant attorney generals (basically private lawyers) to pursue cases that had been filed dealing with consumer credit and protection matters. Nibert did not address or discuss the holding in Manchin that except in areas such as consumer protection and antitrust, the Attorney General must follow the directions of his or her client and cannot proceed without input and direction from the client.

After Nibert, the question in West Virginia becomes does the Attorney General have a common law right to file suits on behalf of the state in areas other than consumer protection and antitrust without the consent or approval of the Governor or a state agency?

At some point, our Supreme Court may be called upon to answer that question. The outcome of the Colorado case although not binding in West Virginia will provide one state’s answer to that question.

Higgins is a Charleston attorney who is running for Attorney General as a Democrat.

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