West Virginia Record

Friday, January 24, 2020

Supreme Court says writ of prohibition not needed in prosecuting attorney's case over alleged conflict of interest

State Court

By Kyla Asbury | Dec 12, 2019

Wvschero

CHARLESTON – The West Virginia Supreme Court of Appeals sided with the West Virginia Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board on an appeal regarding a writ of prohibition of a prosecuting attorney.

Harrison County Prosecuting Attorney Rachel E. Romano sought to invoke the Supreme Court’s original jurisdiction in prohibition to prevent the ODC and LDB from taking disciplinary action against her based upon a purported conflict of interest arising from her marital relationship with a Harrison County deputy sheriff.

The respondents contend that prohibition is not proper and would result in an advisory opinion, the Nov. 20 memorandum decision states.

"Upon consideration of the parties’ briefs, their oral arguments, and the appendix record, this court concludes that Ms. Romano lacks standing to seek the requested writ of prohibition" the decision states.

The Supreme Court noted that the facts presented in connection with the proceeding were not disputed.

While serving as an assistant prosecuting attorney in Harrison County, Romano married Corey Heater, who was employed as a Harrison County deputy sheriff, in January 2015.

Romano was appointed by the Harrison County Commission to serve as the prosecuting attorney for the county shortly after her marriage. She continued to serve as the appointed prosecuting attorney for Harrison County until November 2016, when she was duly elected to the position for a four-year term.

Romano’s husband has remained a Harrison County deputy sheriff throughout the time she has served as either the appointed or elected prosecuting attorney for Harrison County.

Nearly three years after Romano first began serving as the prosecuting attorney, she received an informal complaint from the ODC dated Jan. 17, 2018.

"The 'informal complaint' was accompanied by copies of two indictments returned by the Harrison County Grand Jury from its May 2017 term, for which Ms. Romano’s husband, as the investigating officer, had provided the only testimony before the grand jury upon which the indictments were founded," the decision stated.

Romano sent a letter in reply and explained procedures she performed, such as routine disclosure of her relationship to Heater for purposes of allowing any defendant to cross-examine him regarding his marital relationship with Romano.

"In this regard, Ms. Romano expressed her belief that, as a result of this routine disclosure, her marital relationship with Deputy Heater was commonly known by members of the criminal defense bar," the decision stated. "In addition, Ms. Romano related that she excluded herself from personally participating in any matter in which Deputy Heater would likely be called as a witness, even though she believed she was fully permitted to participate in such actions pursuant to the (State v.) Ladd decision."

The Supreme Court ruled that in the absence of formal charges filed pursuant to Rule 2.10 of the West Virginia Rules of Lawyer Disciplinary Procedure, there is no quasi-judicial activity to warrant a writ of prohibition.

"In the instant matter, the ODC has issued only an 'informal complaint.' Although Ms. Romano would have us treat this document as a formal charge, we decline to do so," the decision stated.

The court noted that Romano's writ petition raises important issues that must be resolved.

"Insofar as we are unable to address the merits of the proper interpretation of Rule 1.7(a)(2) in the context herein presented without rendering an advisory opinion, we will endeavor to address the same in our rule making capacity, and we will proceed in that manner accordingly," the court wrote.

West Virginia Supreme Court of Appeals case number 19-0448

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