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W.Va. high court limits attorney general’s role


CHARLESTON, W.Va. — The West Virginia Supreme Court of Appeals has denied the state attorney general’s request to help in the prosecution of county-level cases.

Attorney General Patrick Morrisey last month filed a request for a writ of prohibition seeking to prevent the Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board, collectively known as “ODC,” from enforcing an informal advisory opinion that it issued. The ODC’s informal advisory opinion determined that the attorney general did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted in state code.

Morrisey had sought to have his staff aid in the prosecution of cases in Mingo County at the request of a Mingo County commissioner. This was met with resistance from prosecutors throughout the state who felt the attorney general was overstepping his authority.

In the majority opinion issued Wednesday, Chief Justice Robin Davis wrote the writ was denied because Morrisey “lacked standing” in requesting the writ, meaning it was not the proper legal action and that the ODC’s denial of Morrisey’s request did no damage to the attorney general.

“The writ of prohibition is not designed to accord relief to a person who merely receives a requested advisory opinion with which he or she disagrees,” Davis said in the opinion.

But Davis also said “in support of his request for the writ of prohibition, the Attorney General contends that county prosecutors have authority to request the Attorney General to assist with criminal prosecutions, and that the office of Attorney General has independent common law authority to prosecute criminal cases.

“We do believe that an important issue was presented by the parties regarding whether the Attorney General has criminal prosecutorial authority under the circumstances he presented to ODC,” Davis wrote in the opinion. “We believe that resolution of this singular issue has immense importance to our criminal justice system.”

The court ultimately decided county prosecutors do not have the authority to appoint the attorney general to prosecute criminal cases. Davis wrote the state Legislature already has given the attorney general limited prosecutorial authority.

“The appointment authority granted to prosecutors under the statute cannot be invoked unless a circuit court judge or justice from this court find that ‘extraordinary circumstances’ exist at a state correctional institution, and the prosecutor’s office cannot fully prosecute cases because of budget constraints,” Davis wrote. “If the Legislature had intended for prosecutors to have absolute discretionary authority to appoint the Attorney General to assist in prosecuting crimes in general, there would have been no need for setting out the limited appointment authority under West Virginia code.”

The court also found the attorney general’s common law authority to prosecute criminal cases had previously been abolished by the courts.

Beth Ryan, communications director, said the Attorney General’s Office was disappointed by the ruling and believed it has hampered the office’s ability to help county prosecutors who request aid.

“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,” Ryan said Wednesday in a written statement. “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.”

Wednesday’s ruling was not unanimous. Justice Brent Benjamin consented on part of the ruling and dissented on another, reserving the right to file a separate opinion at a later date.

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