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W.Va. attorney general offers help, draws fire

PARKERSBURG, W.Va. — West Virginia Attorney General Patrick Morrisey believes legislators have not taken advantage of his office’s services, and a recent series of flawed laws passed by the West Virginia Legislature show the consequences.

Morrisey said this past legislative session had several instances where legislation was drafted and passed without legal consultation, creating unintentional problems, which officials have either have had to address or must do so now.

Examples include:

* A change that disallowed judges from giving juvenile offenders life sentences resulted in seven inmates qualifying for parole hearings, even though legislators said that was not the intent of the change.

* A portion of the Water Resource Protection Act, which governs aboveground storage tanks, has received heavy criticism after officials realized the rule now required registration and inspection of nearly 80,000 storage tanks statewide, some of which contain only water or non-toxic products or which are located in remote areas of the state.

* The new minimum wage law had to be amended an Eastern Panhandle attorney pointed out a number of flaws in the legislation.

“Part of the reason we are talking about the storage tank issue is because the Legislature rushed a lot to put things together and they made mistakes,” Morrisey said. “Let’s take the time and do it the right way.”

Morrisey said his office is available to review bills and make legal suggestions, but last year legislators did not make use of the department’s services.

“They could work with the attorney general’s office to see that there aren’t going to be any ‘oops’ moments,” he said. “We ultimately are going to have to defend these laws and it’s much better if we have some visibility into the process early on so that we can help defend the legislators’ prerogative.”

State legislators “don’t take the time to draft (legislation) the right way. People make unintentional errors and we don’t fault people for that, they are people of good conscience trying to get things done. But work with the people who are going to be charged with enforcing the laws or interpreting them,” Morrisey said. “Don’t just rush it through without proper consultation.”

State Senate President Jeff Kessler, D-Marshall, has an issue with Morrisey’s position. He termed the attorney general’s comments “inappropriate” and said Morrisey has overstepped himself and his office.

“His job is to act as the state’s attorney in matters when they arise, not to be on the front lines of creating legislation,” Kessler said. “His role is to enforce the law once it is enacted, not to play a role in its passage.”

Kessler also said the Legislature has a full legal counsel that looks at bills as they are vetted, and often those pieces of legislation are reviewed by multiple committees before heading to the floor of the state House or Senate for discussion and a vote.

“I’m not inclined to let the attorney general become the legal adviser to the Legislature. In fact there is no way on Earth I would let him become the legal adviser to the Legislature,” Kessler said. “If he has enough excess capacity in his staff to be advising the Legislature, perhaps we should be shifting some of those resources to beef up the Legislature’s legal staff.”

Kessler said while he did not want to criticize Morrisey personally, he believes the attorney general has expanded the reach of his office into areas outside of his role as attorney general, such as speaking on topics of economic development and filing lawsuits for what Kessler calls political reasons, such as a recent lawsuit targeting President Barack Obama’s Affordable Care Act, rather than at the request of state agencies.

“It is clear to me he is overstepping his bounds,” Kessler said.

House Speaker Tim Miley, D-Harrison, was even more blunt about the Republican attorney general.

“I’m not at all surprised by Morrisey’s partisan comments,” Miley said. “Everyone knows he has his own partisan agenda.”

Miley said he has seen multiple instances where opinions and legal actions by the Attorney General’s office have been wrong or challenged in court and believes the public will see more rulings go against Morrisey in the coming year.

“The attorney general is not a policy maker,” Miley said. “I rely on legislative counsel’s legal opinion. I would never rely on the legal opinion of Patrick Morrisey.

“This is just part of his continuing campaign of self-promotion.”

Morrisey pointed to the False Claims Act, which was defeated in the House this past February, as an example of legislation being created without proper consultation. The act was intended to give additional protections and incentives to whistleblowers by allowing them to bring lawsuits against companies alleged to have filed false claims with the state.

Legislators “drafted that without any consultation from our office, yet they had a requirement that we had to review all the complaints that came in,” Morrisey said. “We calculated it would cost over $600,000 of our resources, and we didn’t have the right to dismiss any of the claims. We took issue with that.

“If you don’t consult with people before you draft, you are going to produce product that is subpar.”

Morrisey said getting legislators to work with his office on bills requires “changing the culture of the Legislature so they are acting with more deliberation and that there are stronger leaders down there.”

But Kessler said Morrisey “needs to be mindful of his constitutional role. … If the Attorney General wants to legislate, he ought to run for the Legislature.”

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