SER Patrick Morrisey, Attorney General v. W. Va. Ofc. of Disciplinary Counsel, etc.
764 S.E.2d 769
W. Va.2014Background
- AG sought a writ of prohibition against ODC to stop enforcing an informal advisory opinion authorizing ODC to limit AG’s prosecutorial role
- ODC issued an informal advisory opinion stating AG lacks authority to assist county prosecutors outside WV Code §5-3-2 and that Rule 8.4(d) (and possibly Rule 1.7(b)) could be violated
- Court denied the writ; addressed standing and collateral jurisdictional issues
- Factual sequence: a 2013 Preston/Mingo County request for AG prosecution help; AG queried ODC about appointment implications; ODC responded with informal advisory opinions
- ODC’s formal advisory opinion was not issued; court treated the AG matter as advisory and declined merits; collateral issue evaluated: AG’s prosecutorial authority under WV law
- Concluded that county prosecutors cannot appoint the AG as a special prosecutor under WV Code §7-7-8 and that AG’s common-law prosecutorial authority was abolished by WV Constitution Art. 9, §1 and WV Code §7-4-1
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek a writ of prohibition | AG was injured by potential ethics complaint and reputational risk | No concrete injury or justiciable controversy; advisory opinion not actionable in prohibition | AG lacked standing; writ denied |
| Whether reviewing an informal advisory opinion is proper | Relief would prevent enforcement of advisory opinion | Advisory opinions are non-binding and not proper subjects for prohibition | Merits not addressed; would yield advisory ruling; Court declines on the writ for that reason |
| County prosecutors may appoint AG as special prosecutor under §7-7-8 | Prosecutors can appoint assistants; AG could be special prosecutor | §7-7-8 read with §7-7-7 requires county consent; appointment as AG not authorized | County prosecutors do not have authority to appoint AG as a special prosecutor under §7-7-8 |
| AG common-law prosecutorial authority abolished | Inherent common-law powers survive unless legislatively curtailed | Constitution Art. VIII, §13 and WV Code §7-4-1 abolish common-law powers; legislature may define powers | Common-law prosecutorial authority abolished; AG cannot prosecute criminal cases except as limited by statute |
Key Cases Cited
- Ehrlich v. State, 65 W.Va. 700, 64 S.E. 935 (W.Va. 1909) (prosecuting attorney independent of AG; common-law powers limited by statute)
- Denham v. Robinson, 72 W.Va. 243, 77 S.E. 970 (W.Va. 1913) (prosecutorial authority reserved to prosecuting attorney; AG not proper party in civil/criminal division)
- State ex rel. Discover Financial Services, Inc. v. Nibert, 231 W.Va. 227, 744 S.E.2d 625 (W.Va. 2013) (common-law powers of AG exist unless abolished by statute or constitution)
- State v. Angell, 216 W.Va. 626, 609 S.E.2d 887 (W.Va. 2004) (Angell discusses special prosecutors and due process in limited contexts; not authority for broad AG power)
- Foster v. Luff, 164 W.Va. 413, 264 S.E.2d 477 (W.Va. 1980) (courts may address collateral issues in writs of prohibition to resolve substantial questions)
- Harshbarger v. Gainer, 184 W.Va. 656, 403 S.E.2d 399 (W.Va. 1991) (courts will not issue advisory opinions; prohibition is not for academic questions)