West Virginia Court: AG Can't Prosecute Criminal Cases

by | October 17, 2014

By Eric Eyre

The West Virginia Supreme Court has denied Attorney General Patrick Morrisey's bid to prosecute criminal cases.

Morrisey's plan had sparked strong opposition from county prosecutors, who alleged Morrisey was trying to usurp their authority.

In a 54-page decision issued Wednesday, the Supreme Court ruled that Morrisey has no legal authority to assist county prosecutors and put criminals behind bars, even if prosecutors request the attorney general's help.

The West Virginia Prosecuting Attorneys Association opposed Morrisey's bid to prosecute cases.

"I'm pleased that the court's opinion supported [our] position that local prosecutions should be performed by local prosecutors not state officials," said Brandon Sims, an assistant prosecutor in Jefferson County.

Morrisey had asked the Supreme Court to override a state Lawyer Disciplinary Board advisory opinion that says the West Virginia Constitution and state law prohibit the attorney general and his assistants from prosecuting criminal cases in counties. The court agreed with the disciplinary board.

Justices also ruled that Morrisey had no basis to ask the Supreme Court to block the board from enforcing its opinion. "The attorney general lacks standing," wrote Chief Justice Robin Davis, who delivered Wednesday's decision.

Morrisey spokesman Beth Ryan said her office was disappointed by the Supreme Court's decision.

"Unfortunately, the Supreme Court has determined that county prosecutors who desire this office's help may not ask for assistance," Ryan said in a prepared statement. "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."

Morrisey argued his office could help counties prosecute cases under West Virginia common law -- a history of legal decisions.

But the Supreme Court wrote in its opinion that Morrisey misinterpreted some of those cases and used "isolated language" from others to make his arguments that he has prosecutorial powers.

"As a result of the ratification of the West Virginia constitution and the Legislature's enactment of [a law in 1971], the common law criminal prosecutorial authority of the attorney general was abolished.

Last year, Morrisey asked the disciplinary board whether one of his lawyers could serve as Mingo County prosecutor shortly before Mingo Prosecuting Attorney Michael Sparks resigned amid a courthouse corruption scandal. The disciplinary office advised Morrisey that his proposal was "rife with potential conflict."

Later, Morrisey offered to help Preston County Prosecuting Attorney Mel Snyder, who had a backlog of public corruption, sexual assault and drug cases.

Morrisey used Snyder's request to challenge the Lawyer Disciplinary Board's advisory opinion. He asked the Supreme Court to prohibit the disciplinary board from enforcing the opinion, predicting the board would discipline his assistant lawyers if he sent them to counties to prosecute criminal cases.

Morrisey wanted to appoint his assistants as special prosecutors in individual counties. Though they would work under county prosecutors, Morrisey's lawyers would continue to be paid through the attorney general's office, according to Morrisey's filings with the court.

The Supreme Court said Wednesday that Morrisey's office only has a right to provide legal advice to county prosecutors -- not to prosecute criminal cases.

The court noted that Morrisey also tried to make his case by citing decisions in other states that allow attorneys general to prosecute criminals.

"The decisions in those states are not controlling and have no impact on how we resolve the issue under our unique laws," Davis wrote Wednesday.

Four of West Virginia's five justices backed the decision, while Justice Brent Benjamin said he agreed with parts of the opinion and disagreed with other sections. He reserved the right to file a separate opinion.

Staff writer Kate White contributed to this report.

(c)2014 The Charleston Gazette (Charleston, W.Va.)