SER Patrick Morrisey, Attorney General v. W. Va. Ofc. of Disciplinary Counsel, etc.

238 sought drafter, injuries they they when dealing sustained especially when

against the medical condition and words of limitation.” treatment for serious exceptions and Weston, 466 victims severe Payne 195 W.Va. became the unfortunate v. 1, (citing Syl. pt. Accordingly, Betty West J. negligence. 166 medical S.E.2d Lambert, Virginia Adkins, Co. Baumgardner, Ins. v. L. Rayetta D. Diana (1995)). Moreover, Deal, 774 while Boerke, Bolen, Latha A. Charlotte L. “ ‘[ajmbiguous provisions ... of an insurance DeVore, Hager, Teressa D. Constance L. strictly against policy be construed Clark, should Hankins, Tammy Lorenna D. H. in liberally in and favor insurer Hatfield, Holton, J. Linda Pamela K. Mareie sured, not ... such construction should be Lovins, Lewis, Jones, Patty S. Teresa L. ob unreasonably applied to contravene the Martin, Perry, Sherry L. Louella Martha J. Syllabus parties.’ ject plain intent of and Pettit, Roe, Perry, Kimberly A. Janice Janice Co.[, 2[, part], Inc.] Coal v. Point Marson Roush, Smith, Stephens, Beulah Rebecca Pennsylvania, 158 Insurance Co. State full deserve to receive the Debra L. Wise (1974).” 146, 210 Syl. pt. S.E.2d pro- limits policy amount of insurance Doe, 615, 499 S.E.2d v. Hamric their, injuries. pur- coverage for vide UHP specifically compensate chased insurance ease, ap- majority have should negligence this caused its victims of medical ambiguity in the lan- preciated the inherent wrote physicians, and West Mutual resulting policy amend- guage from the express purpose. Be- policy UHP’s subject included within ments and span respondents’ injuries two cause dif- provi- ambiguous policy policy. Given that i.e., policy periods, ferent against insur- sions are to be construed provide retro- policy’s because the revisions drafting language, such company ance therefor, respondents coverage active majority correspondingly should permitted been to recover should have adopted favorable to the construction most limits, coverage full amount of available insured, interpretation which is the conclusion, majority’s contrary I From the coverage adopted by the court find circuit respectfully dissent. respondents compensate is available policies insofar under both the 2006 and injuries in 2006 and were sustained their interpret subject policy lan-

2007. To major- by the guage in the manner advocated 764 S.E.2d 769 nothing clarify ity this controverted does Virginia ex rel. Patrick STATE of West Virginia Mu- language and fails to hold West MORRISEY, Attorney General of ambiguity it for the created tual accountable Virginia, Petitioner West policy. in UHP’s insurance Relieving in this case its the insurer OF DISCI OFFICE WEST VIRGINIA duty coverage injuries provide Virgi PLINARY and West COUNSEL when respondents, particularly Disciplinary Board, Respon Lawyer nia policy compelled by ambiguous result is dents. incorporated provision that it drafted and sold, pro- policy

into that it insurance No. 14-0587. fair, and it is a “result [that] duces not. Appeals Supreme Court of Inju- right thing to do.” Manville Pers. Virginia. Blankenship, 231 ry Settlement Trust 2014. Sept. Submitted (Davis, J., twenty-three dissenting). The 15, 2014. Decided Oct. seeking recovery in case women part part Dissenting in Concurring in avarice, they acting greed out of Benjamin Opinion Justice they injuries did for which seek not cause Nov. simply compensated. These ladies are recompense trying gain some measure of humiliating tragically disfiguring and

for the

240 General, Morrisey, Attorney

Patrick El- Ritchie, Lin, General, bert Solicitor J. Zak Charleston, WV, General, Attorney Assistant for Petitioner. N. Cipoletti,

Rachael L. Fletcher Renee Counsel, Frymyer, Disciplinary Office Charleston, WV, Respondents. for Quasebarth, Berkeley Christopher C. Office, Martinsburg, County Prosecutor’s WV, Sims, County C.H. Brandon Jefferson Office, WV, Town, Prosecutor’s Charles Curiae, Prosecuting Virginia Amicus Attorneys Association.

DAVIS, I. Chief Justice: brought origi- matter This AND FACTUAL PROCEDURAL Court Patrick jurisdiction of this nal HISTORY Virgi- Morrisey, Attorney of West General County Mingo On Com- October seeks a writ General nia. Smith, missioner, Greg telephoned the Attor- against Disciplinary Office of prohibition ney request General’s office Lawyer Dis- Counsel and West provide prosecutorial General ser- “ODC”) (collectively pre- Board ciplinary county.4 response vices enforcing an informal advi- vent ODC telephoned request, General The informal sory opinion that it issued.1 deputy whether or assis- ODC and asked “a opinion that the Attor- advisory determined appoint- accepted tant who prose- did ney not have General Mingo County prosecutor ment limited outside cute cases resign need from the Office authority granted by W. Va. a leave of absence.” Accord- General or take (1987) (Repl.Vol.2013).2 The § 5-3-2 Code General, responded ODC advisory also indicated in the informal ODC trigger appointment would disci- that such an 8.4(d) Pro- of the Rules of Rule plinary action.5 be violated if the Conduct would fessional cases prosecuted response, with ODC’s Not satisfied scope provided telephoned of that which was outside ODC fol- also question. The ODC further concluded lowing day statute. with a modified This 1.7(b) poten- rules Attorney Rule of those could asked that time General ODC the tially attorney gen- deputy be violated. or “whether a assistant ethically accept appointment as a eral could request for writ of support In of his the supervised special prosecutor a assistant Attorney the General contends prohibition, the prosecuting attorney.” According to At- county prosecutors to that General, again ODC once stated that torney Attorney to with request the General assist prohibited the Rules of Professional Conduct of prosecutions, and that the office appointment.6 such an independent Attorney General has common Attorney On the General prosecute criminal cases. October law to requesting letter a formal advi- the sent ODC a careful review of the briefs and After a filed, sory following question: the listening argument opinion the to appendix of Professional deny writ.3 “Whether under Rules parties, we (2013) (Repl.Vol.2013) provides Attorney filed and briefed this 1. The General petition prohibition. temporary appointment procedure a for a writ of of a matter as for the brief, However, Attorney in a his footnote of lawyer vacancy. W. fill the Under Va.Code suggest he a seems that also seeks General 3~10-8(a), county commission is author- Attorney as the Gen- writ of mandamus. Insofar thirty days position of ized fill the "within petition not file for a writ of manda- eral did a by appointment person vacancy of a same issue, did decline to mus and not brief we vacating political party officeholder proceed- matter view this as a writ mandamus office.” ing. merely indicates it informed 5. ODC’s brief Throughout opinion, to "At- this our reference 2. Attorney lawyers that it did not believe that it torney in his' of- General" includes fice, Attorney "permissible law" Gener- unless otherwise indicated. was appointment accept as the constitution- al “to acknowledge that an Ami- 3. This Court wishes to Mingo County Prosecutor!.]” al officer of the Virginia cus Curiae brief was filed Prosecuting support Attorneys Association informally advised brief indicates that ODC’s impact proceeding this Because prosecutors ODC. question modified General that the State, permitted on all in the potential [that ODC] was with conflict "rife arguments. participate in oral Association statutory or was aware of constitutional [request].” authority permitting the Mingo County prosecutor facing feder- 4. The charges the time. there is a al criminal When vacancy prosecutor, office of attorney gen- deputy a or assistant General’s brief indicates Conduct that, 2, 2014, ethically accept as a appointment on June he eral received a letter county prosecutor by pros- special the prosecuting assistant facsimile from Virginia County Code 7- pursuant requesting to West Preston ecutor assistance with However, General’s letter outlined prosecutions. 7-8.” The because of ODC, advisory the reasons he believed that no in detail the informal would result from office Attorney ethical violation contends that he did not undertaking The letter request duties. accept prosecutor. from the In- that, stead, in the event of conflict concluded General filed the instant duties, arising prohibition. such the conflicted attor- writ for a “the ney could be screened and that Rules II. infringe

cannot on the Office of statutory authori- General’s common law and OF STANDARD REVIEW ty prosecutors their assist explained This Court has standard duties.” applicable prohibition by review to a writ of January responded the ODC On stating prohibition writ “[a] will request for a for- General’s prevent simple issue abuse of discretion advisory opinion by stating that mal ODC by only It will trial court. issue where the advisory opinion to issue a formal “declines jurisdiction trial no having court has response matter and considers this jurisdiction legitimate its powers. exceeds advisory opinion pursuant be an informal Syl. pt. W. Va.Code 53-1-1.” State ex rel. advisory opinion 2.15[.]”7 Rule informal Sencindiver, Peacher v. ODC stated: issued Syllabus In point S.E.2d 425 4 of Berger, State ex rel. Hoover v. Lawyer Disciplinary deter- [T]he Board (1996), Court held: currently mined there exists West constitutional, authority, determining no statu- whether to entertain and otherwise, tory prohibition for the Gen- issue the writ for cases riot county prosecutors eral assist involving jurisdiction an absence of but prosecutions only criminal outside of what it is where claimed that lower contemplated in legitimate W. Va.Code tribunal its powers, exceeded (1) (concerning prosecution of criminal this will examine Court five factors: proceedings arising extraordinary party seeking whether the no the writ has means, existing ap- adequate circumstances at state institutions other such as direct corrections). Thus, (2) opinion peal, relief; it was the to obtain the desired Lawyer Disciplinary petitioner of the that to or damaged Board whether the will be county prosecutor way a in prejudiced assist the criminal a that is not correctable (3) prosecutions contemplated your request appeal; whether the lower tribunal’s 8.4(d) clearly would be a violation of of the Rule order is erroneous as a matter of and, (4) law; Rules of Professional Conduct as was whether lower tribunal’s order discussed, previously potential repeated per- a violation or an oft error manifests 1.7(b) disregard procedural of Rule the Rules of Professional for either or sistent law; Conduct. It is further noted that is not substantive whether the lower likely a waivable conflict because of state raises important tribunal’s order new and problems impres- actors. issues of law of first Investigative Lawyer provides 7. The ODC and of the Panel of Rule 2.16 rules for a formal Disciplinary Board are issue an directly authorized to advisory opinion, which is rendered advisory opinion 2.15 informal under Rule 2.16(d), Hearing Panel. Pursuant to Rule Lawyer Disciplinary Under Rules of Procedure. advisory opinion binding "[a] formal on the 2.15(c), opinion advisory an Rule informal “is Hearing Lawyer Disciplinary Panel Board binding Lawyer Hearing on the Panel of the any subsequent disciplinary proceeding involv- Court, Disciplinary Board or the shall be but lawyer, binding requesting but is not any subsequent disciplinary pro- admissible ceeding Supreme Appeals.” Court of involving requesting lawyer.” sepa- guidelines grounds for denial are discussed These factors are sion. rately starting point for below. as a serve useful discretionary writ determining a whether Attorney 1. The General lacks Although all should issue. prohibition standing. General has not satisfied, it is clear need five factors not be complaint that an was filed alleged ethics factor, of clear third the existence begun an inde against him. Nor has ODC law, given be as a matter of should error investigation possible a pendent into ethical weight. substantial General with re violation specific alleged in spect facts III. simply responded has to a petition. ODC to render request DISCUSSION General opinion participation about At an before this proceeding comes The instant torney prosecutions un General criminal prohibition. petition as a for a writ Court ODC specific der circumstances. rendered addressing request the merits of the Prior to advisory indicating that informal if an relief, the At- must whether consider engaged General torney standing has to invoke this circumstances out prosecutions extraordinary in the first jurisdiction Court’s 8.4(d) him, violated, Rule would be lined the collater- We then will examine instance. 1.7(b) potential being Rule had the Attorney General has of whether the al issue a General seeks writ violated. prosecute offenses. prevent prohibition enforcement Standing and of an the Issuance A. non-binding advisory opinion. informal This Advisory Opinion by Court seeking pi-oper a a writ of is not basis Here, pro- seeks any satisfy prohibition does not advisory informal hibit enforcement an impor enunciated in Hoover. More factors had occa- opinion by Although ODC. we have passed tantly, the General has for a writ of petition to consider sion standing. Standing, threshold issue of ODC, against been it has never prohibition course, may party time raised prohibit enforce- context of a sponte by the State ex sua Court. See rel. advisory opinion. informa1 Usu- ment of an Bedell, Corp. Line Abraham prohibition sought ally, writ of has been (2004) (Davis, J., been filed against complaint ODC after (“The concurring) this Court decisions of lawyer. rel. York v. against a See State ex jurisdictions pointed out that an Disciplinary Coun- Office of court has inherent appellate sel, 744 S.E.2d 293 sponte duty to sua address the issue of prohibition attorney seek- (denying writ of standing, parties even when the have failed prosecuting him prohibit ODC from court level raise the issue at the trial violations); alleged ethics State ex rel. for appellate during proceeding a before Virginia Disciplin- v. West Office of Clifford court.”).8 Counsel, 334, 231 745 S.E.2d 225 ary W.Va. (2013) petition This Court held that a for (granting prohibit writ ODC from prohibition “may by maintained complaint alleging conflict writ of be prosecuting a a attorney); any person injuriously v. the action rel. Scales interest State ex affected ex Legal Virginia prevent[.]” he seeks to State rel. West which Committee Ethics of Bar, 507, Hosp. Virginia 729 Mem’l v. West State 191 446 S.E.2d Gordon State W.Va. Nurses, (1994) Registered 136 stop Bd. Exam’rs (granting prohibition writ of for (1951) 88, 105, 1, 11 (empha 66 S.E.2d investigation). the reasons set ethics For W.Va. added; and citation forth, quotations internal we have sis determined omitted). require “injuriously im- affected” prohibition in this ease is for a writ prohibition to obtain a writ of set General lacks ment proper because succinctly Syllabus point 6 of State advisory. ex standing, sought and the relief out standing issue. The Amicus brief raised and briefed the also

245 commission); County visory v. Coun- Linger Upshur opinion rel. Court state election 207, (1965), (1994) § 144 ty, (Repl.Vol.2013), 150 S.E.2d 689 as W. Va.Code 5-3-1 W.Va. (1977) § follows: W. Va.Code 18-12B-11 (Repl.Vol. 2012), (2001) § & Va.Code W. 30-38-18 general any person rule will be As a who (Repl.Vol.2012) (advisory opinion by at injured by proceeding affected torney general); § W. Va.Code 11-10-5r prohibit he which seeks to is entitled to (1986) (Repl.Vol.2013) (advisory opinion prohibition; per- apply for writ of but commissioner); § tax W. Va.Code 6-9A-11 proceeding son has no interest in such who (2006) (Repl.Vol.2010), § W. Va.Code 6B-2-3 rights will and whose not be affected or (2004) (Repl.Vol.2010), § W. Va.Code 6B-2-5 injured it can not do so. (2008) (Repl.Vol.2010), § & 18- W. Va.Code 105, 106 Dandy, re 224 Accord In W.Va. n. (2010) (Repl.Vol.2012) 5-la (advisory opinion 121 n. 1 680 S.E.2d We have Commission); Ethics W. holding recognized Linger as a stand (1993) Vol.2012) § Va.Code (Repl 18-5A-3 ing requirement invoking pro the writ of (advisory opinion by state board of edu Frazier, Myers hibition. See v. cation); (2011) § Va.Code 18-10F-2 (1984) (“In 676, 319 S.E.2d 800 (Repl.Vol.2012) (advisory opinion by in cases, prohibition our note reviewing commission); terstate § W. Va.Code 28-7-1 rule standing expressed (2003) (Repl.Vol.2013) (advisory opinion by Syllabus Linger Point 6 of State v. ex rel. commission for interstate adult offender County Upshur County, 150 Court W.Va. (2004) supervision); W. Va.Code (1965)”). 207, 144 S.E.2d 689 State Accord (Repl.Vol.2011) (advisory opinion by inter 100, 113, Merrifield, ex rel. 202 Core W.Va. product regulation state insurance commis (1998); 210 ex rel. State sion); (Repl. W. Va.Code 49-8A-1 Cook, 161, 166, Goodwin 248 Vol.2014) (advisory opinion by the interstate (1978).9 S.E.2d 605 juveniles). commission for that he contends injured” by prohibition was “affected or informal ODC’s The writ is not de advisory signed because he risk an relief person to accord to a who mere him, complaint being against ly requested ethics filed advisory opinion receives a with reputational stigma disagrees.10 associated the which he or she The writ same, contrary prohibition revolving if he acted informal is not door. Woo See Laurita, advisory opinion. 707, 713, Consequently, the Attor- dall v. 195 W.Va. (1973) (“The ney right piecemeal General contends that he has a S.E.2d chal prohibition prevent lenge discretionary rulings seek a writ writs through possible filing against orderly of an complaint prohibition ethics does not facilitate the logic justice.”). him. The right administration “[T]he entertaining prohibition clearly would have this Court a writ of must shown before prohibition every from petitioner extraordinary individual who re- entitled to advisory opinion remedy.” Ry. ceives an “adverse” S. Maynard, Co. v. Norfolk 113, 120, all other ODC and state that are entities S.E.2d advisory opinions. allowed to issue See W. See also ex rel. Kees v. Sand (ad- ers, (Repl.Vol.2013) 3-1B-3 respect general standing, likely injury through 9. With to our rule will on be redressed decision we have held: a favorable of the court. 5, Syl. Findley pt. v. State Farm Mut. Ins. Auto. Standing comprised of three elements: 80, Co., 213 W.Va. 576 S.E.2d 807 First, party attempting to establish stand- ing "injury-in-fact" have suffered an must point 10. We also out that the General's —an legally protected of a invasion which is interest blaming appears preventing to be brief ODC for (a) (b) particularized and concrete actual him from did cases. ODC conjectural hypotheti- or imminent and not any- doing not bar the General from Second, simply advisory cal. there must be a connec- thing. causal ODC issued an informal injury question presented tion between the form- the conduct that addressed Third, by Attorney the basis of the lawsuit. it must it General. be. 246 (“The rule,

(1994) right extraor- our it is obvious Consistent with petitioner’s in- clearly prohibition be dinary remedy prohibition must that “the writ of cannot of reme- ... an he is entitled to such to secure from Court appear voked[ ] th[is] before Brett, advisory opinion[.]” 401 All General has Barnett v. dy.”). that 532, disagrees (Okla.Crim.App.1965). with an informal See is that he P.2d 534 shown Indus., suggests Vieweg, advisory opinion by ODC that ethi- ex also State rel. ACF Inc. v. 176, 525, 13, may prosecutes occur if he n. 514 184 cal violations 204 W.Va. (declining as proposed prohibition in the manner writ of criminal cases n. showing satisfy the “af- seeking advisory opinion). This does not him. requirement standing injured” for fected proceeding, In the instant prohibition. The to seek a writ of authority, nor has cited to no valid injury, no nor has has suffered exist, any authority permits does that been taken. action its Court to decide whether ODC exceeded informal legitimate authority issuing an advisory. sought 2. The relief 8.4(d) advisory opinion regarding Rule lacking standing, the relief In ’addition to 1.7(b). pointed we have out else- Rule As result sought General would 2.15(c) grants Rule opinion, where in this issuing advisory opinion in this an Court advisory issue ODC informal 8.4(d) 1.7(b) Rule application of Rule in it state opinions. that rule does Nowhere to-a situation that has occurred. advisory opin- that ODC must issue informal deeply fundamen It is a rooted and attorney agree requesting ions that will law that “this Court not authorized to tal fact, abundantly In the rule makes with. advisory opinions[.]” City ex rel. issue advisory opinion is not clear that an informal Coghill, Charleston v. Panel, Hearing or a in binding on this Court J., (Haden, 113, dis 207 S.E.2d arising disciplinary proceeding event of regard, senting). In this observed we addressed in the informal out matters Gainer, Harshbarger advisory opinion. disciplinary Insofar no (1991), “[sjinee Pres against the proceeding has been instituted Washington, sought ident a result the informal General as legal refused advice from the Justices merits advisory opinion, any decision on the Court, Supreme courts-state United States 8.4(d) position on Rule and Rule of ODC’s continuously maintained and federal-have 1.7(b) advisory ruling would in an result ” ‘advisory opinions.’ they give will this Court. Moreover, Fuel Co. Public United Gas petitioner seeking adviso- The issue of a an Commission, Service petition ry opinion through a for writ (1914), “[b]y S.E. noted Dougan v. prohibition was addressed in ju appellate plain the Constitution terms of Gray, 318 Ark. 884 S.W.2d 239 arising risdiction is limited to controversies attorney Dougan, petition an filed a fur judicial 'proceedings^]” This Court Su- prohibition with the Arkansas writ advisory opinions ther the issue of addressed Court, seeking prevent probate preme Police v. Board Trustees Mainella holding contempt.11 him court City men’s Pension or Fund Relief probate had ruled that if the court Fairmont, 183, 185-86, 27 S.E.2d adoptive juris- did not return an child to the (1943),as 487-88 follows: court, contempt proceedings diction of the purpose not constituted for the Courts are against be him. The Court invoked making advisory resolving decrees or Dougan rejected a writ of disputes. pleadings and evi- academic grounds sought an prohibition on the right legal present dence a claim of must advisory opinion: party asserted one and denied counts, Dougan, petitions of his us jurisdiction in one other béfore of a suit prohibition prevent to issue a writ of taken. parties case. 11. Other issues and were involved

247 (declin- probate holding court from him con- P.2d 240 (Okla.Crim.App.1980) probate tempt. prohibition The record shows writ of because it “fails Dougan contempt, allege court has not cited jurisdic- facts sufficient to invoke the probate and we do not know whether tion of this Court insofar as request but, contempt. fact, will cite him for It is well court advisory not for relief for an give that this not opinion”). established court does advisory opinions, or answer academic foregoing, In view of the we decline Thus, questions. we the mer- do not reach to address the merits of ODC’s determina count. its of the 8.4(d) regarding application of Rule (internal

Dougan, 884 at 242 S.W.2d citations 1.7(b) any and Rule prosecutorial omitted). litigation contemplated, advisory because to do so would result in an ruling Dougan A similar to that of was opinion. (6th ODC has not any initiated investi Hogan, made in Hericks v. 502 795 F.2d gation complaint against or Cir.1974). Hericks, plaintiff was in- upon advisory General based its informal jured employed by while rail- the defendant Thus, opinion. we “will not decide abstract company. plaintiff road an action filed controversy.” issues where there is no against the defendant federal under court Whittaker, v. 650 S.E.2d Employers’ During Liability the Federal Act. 216, 232 “Courts case, are not constituted discovery sought the defendant purpose making advisory decrees private physi- to have interviews with certain resolving disputes[.]” or Syl. pt. academic plaintiff. plaintiff cians who treated the Gainer, part, Harshbarger W.Va. objected and threatened to doctor sue See ex privately also State spoke who with defendant. Indus., rel. ACF Inc. Vieweg, proposed The trial court drafted a order that (“As 176, 184 533 n. S.E.2d n. 13 require plaintiff the doc- to allow before, frequently we have said Court speak privately. tors to with the defendant advisory However, opinion respect cannot issue an filed, proposed order not Thus, hypothetical controversy.... to a by agreement parties between the and the court, peti conclude that we cannot entertain the pending plaintiffs petition for a request prohibition.”); tioners’ for writ of prohibition. writ of The Sixth Circuit re- 29-30, Graney, Farley v. fused to address the petition merits of the as (1960) (“[C]ourts ... will not follows: rights adjudicate which merely contin apparent It seems from the at- extensive events, gent dependent upon contingent as tention which has been directed distinguished from actual controversies.... attempted presented issue to be to this Nor will courts resolve mere dis academic Court, here, both in the District Court questions putes or advi moot render mere present agreed that the proceeding is one sory opinions which are unrelated actual below, tacitly expressly, if not (citations omitted)). controversies.” designed to elicit an advisory opinion. We decline invitation to an issue resolve Summary. We have determined properly before us. standing General lacked express opinion concerning no We the' prosecute for a prohibi writ of “Proposed Order” other than to determine tion, and resolution of the merits of existence, that its and notation thereof on petition advisory would result in an Court, the docket of the District does not though this Court. Even we have deter jurisdiction clothe this Court with to enter- resolving application mined that Rule interlocutory appeal tain an not certified to 8.4(d) 1.7(b) is properly and Rule before 1292(b) pursuant us to 28 U.S.C. or oth- prohibition, this Court on a writ of dowe erwise, and the Petition For of Prohi- Writ important believe present that an issue was bition is denied. ed parties regarding whether Hericks, (internal 502 F.2d at 796-97 cita- omitted). L.N., tions See also pre- Matter circumstances he authority prosecute to ney General has crimi- believe that resolution

sented to ODC. We proposed. he Two importance nal cases in the manner issue has immense singular this (1) question: system. heart of this justice Consequent- issues at the to criminal our county prosecutors authority have to ly, necessary to collat- whether find it address this prosecute to appoint the General eral matter. criminal whether the cases clear begin, we wish to make Before we prose- General law has common precedent addressing for an that we have address cute criminal cases. We both issues important prohibi- issue in a writ of collateral separately. properly was not before proceeding County Do Not Au- B. Prosecutors Have example, in State ex rel. this Court. For thority Appoint 413, Luff, 164 W.Va. 264 S.E.2d Foster v. to Prosecute Criminal Cases (1980), filed a for a the defendant mandamus, alleging prohibition writ stated, previously As judge in that the trial abused discretion a letter from the General received Preston adequate for him to failing to authorize funds County prosecutor asking provide him to di determined that the mat- experts. retain We prosecuting in eases. rect assistance properly before Court be- ter was not this prosecutor The letter had indicated court’s order was an interlocu- cause the trial backlog a of criminal cases- needed assis However, tory guidelines because no order. in tance them.12 trial courts follow in place were in for that under W. contends Va.Code in experts for funds assessing (Repl.Vol.2010) prose a motion for cases, appoint we determined it was neces- him pros cutors sary procedural is- special prosecutor. address this collateral ecute crimes as sue, petition. merits of the We but not the Resolving requires this issue this Foster, in stated Court to the intent of W. ascertain while [flinally, it should be stressed that previously 7-7-8. have held that We accepted this under our we have issue object construing primary statute “[t]he powers, original jurisdiction this was done give effect to the intent of is ascertain and resolve a issue of order to substantial Legislature.” Syl. pt. Smith v. State importance the trial of considerable Comm’r, Comp. 159 W.Va. Workmen’s As we in State v. criminal cases. stated (1975). examining 219 S.E.2d 361 statuto 752,] Milam, 260 S.E.2d [163 W.Va. given ry language generally, words are their (1979), regard to in hear- camera “[ejourts usage, common are not free to confession, of a ings on the voluntariness there, not language read into the what is but court a faet- where “the trial exercises apply rather the statute as written.” should ... his is interloc- finding function decision Meadows, State ex Frazier v. rel. utory appealable and therefore nor We further prohibition.” a writ controllable “[w]hen have held that statute clear and Foster, S.E.2d at 481. unambiguous legislative and the intent went to issue a decision Foster plain, interpreted should not be statute requiring the trial court to moulded writ courts, duty ease it is guidelines conducting for apply new apply not to construe but to courts good hearing determining whether cause Syl. pt. statute.” State General Daniel money he was entitled defendant Morgan Foreign Veterans Post No. sought experts. Wars, 107 S.E.2d 353 hand, statutory when the presents, a collateral On lan

The instant case clear, matter, guage is it must be construed. As a substantial issue of considerable point Farley 1 of importance Syllabus in we said in in the trial of criminal cases Buckalew, 414 S.E.2d 454 That issue is whether the Attor- State. funding problem points to seek additional from coun- 12. The Amicus out the issue of back- ty logs in order to hire additional assis- cases is not novel to counties. commissions in criminal suggests remedy prosecutors. tant Amicus (1992), ambiguous prosecuting attorney that is must be The of county “[a] statute each applied.” can A may, before it be statute in by construed accordance with limited and ambiguous by if “can be read reasonable provisions is it section [§ of seven of 7-7-7] ” meanings.... persons to have different article, appoint practicing attorneys to County Cnty., v. Comm’n Mercer Lawson assist him in the discharge of his official of (1996). 77, 81, W.Va. 488 S.E.2d duties his during Any term of office. at- Thus, open only is statute to construction “[a] torney appointed so shall be classified as language requires interpreta- used where prosecuting attorney an assistant and shall ambiguity because of which renders it may perform take the same oath and susceptible or of two more constructions or same his principal. duties as Each assis- meaning or doubtful obscure that pleasure tant shall at serve the will and might reasonable minds be uncertain or dis- principal may and be removed from Meek, meaning.” agree as to its Hereford county office the circuit court of in 132 W.Va. appointed which he is cause for principal might which his be removed.

Guidance the construction of ambiguous statutes be found related statute, isolation, This read authorizes statutory provisions. held We have county prosecutors “appoint practicing to at- subject which relate to the same “[statutes torneys him discharge to assist of his together should read applied matter be and during official duties his term office.” Legislature’s can so intention be language This isolated could render the stat- gathered from the whole of the enactments.” ambiguous prosecu- to scope ute as Smith, pt. Syl. appointment powers. tor’s pari The materia statutory rule appears to have seized only applies when a statute construction is language argue provision isolated that this ambiguous. have held rule “[t]he We permits prosecutors to “appoint one or more that statutes which relate to the same sub deputy attorneys general spe- or assistant as ject together should and be read construed is attorneys prosecuting cial assistant to assist statutory a rule of construction and does not prosecutions investiga- him with ‘both and ” statutory provision apply which is clear tions.’ The General also contends Ep Syl. unambiguous.” pt. and attorneys employed that “these remain perly, 65 S.E.2d 488 paid by and the Office of the Gen- Finally, guided general process we ai’e eral.” principles statutory em construction Assuming language that the cited isolated Snyder, 5 of State v. Syllabus point bodied ambiguous, above is we do believe that (1908): 63 S.E. Legislature grant prosecu- intended applied A statute should so read § tors the 7-7-8 W. Va.Code spirit, pur- to make it accord appoint special General as a system poses objects general prosecutor, for several reasons. part; law of which is intended form a it terms, begin, by To its own W. Va.Code being presumed legislators it who § 7-7-8 cannot be read in isolation. passed

drafted and it were familiar with all expressly appointment law, statute states that the subject existing applicable to the mat- power granted subject require- it is ter, constitutional, statutory whether (Supp. common, ments W. Va.Code and intended the statute to har- 2014). expressly requires The latter statute completely monize with the same and aid county ap- commissions to consent purpose in the effectuation prosecutors. It thereof, pointment of assistant design if are its terms consis- 7-7-7(a), provided in rele- tent therewith. part, vant county general authority prosecu- clerk, clerk, sheriff, appoint prosecutors county [t]he tors assistant set circuit attorney, county out under W. Va.Code 7-7-8. This statute assessor and advice provides, part: and with the and consent of relevant commission, county. Clayton, may appoint em- See (“[W]hile discharge of them in the 522 S.E.2d at 207 the Sheriff ploy, to assist during joint their employers their official duties for and and the Commission office, assistants, depu- respective terms of appointed employed individuals those Sheriff, employees. ties and retains the Commission who responsibility compensa- ultimate added). Haney (Emphasis See v. Coun- also Fury v. persons[.]”). these See tion of also Cnty., 212 ty Preston W.Va. Comm’n of 198, Court, 199 Cnty. F.Supp. Wood 434, (2002) (“County 575 S.E.2d (S.D.W.Va.1985) (“The controlling statute employees employees include Commission issue, 7-7-7, § makes W. Va.Code county including the various elected officials general proposition as a the Coun- clear that clerk, clerk, county county circuit asses- ty and the individual elected Commission sor, attorney. Pursuant those county joint employers officials (2000), § these 7-7-7 elected W. Va.Code offices.”). county in the In employees various ‘by county employees hire and with officials hold, sum, a and we so in the absence of county the advice and consent of the commis- otherwise, indicating prosecutor’s sion[.]’”). statute a in- recognized that the We 7-7-7(a) appointment of Va.Code assistants W. § “was for the tent of W. Va.Code (1987) § (Repl.Vol.2010) 7-7-8 and W. Va. county initially to confirm or [commission] (2011) (Supp.2014) generally § Code 7-7-7 is [prosecutor’s] appointees refuse to confirm a attorneys as appointing to that limited part system of as of our cheeks balances. county employees prosecutor com- authority, county [commis- Without that effectively discharge its mission. cannot overall sion] county.”

responsibilities governing argues that the de The Dingess Scaggs, ex State rel. v. W.Va. Angell, cision in State In (2004), prosecu S.E.2d 887 is for application of this statute to context of the appoint special prosecutor. him as a tors to county we have held: sheriffs disagree. We language The Va.Code 7- plain W. (1982) (Repl.Vol.1993)permits 7-7 a sheriff Angell, In the defendant was indicted appoint employ individuals to assist compensation fraud Kanawha workers’ performance in the offi- County grand jury. attorneys prosecut The his/her him/her only after has obtained cial duties attorneys employed the defendant were he/she county com- and consent of the advice Compensation Commission Workers’ appointment employ- (“WCC”). mission to such The been attorneys had WCC ment. appointed special coun prosecutors ty motion prosecutor. The defendant filed a Syl. pt. Cnty. Clayton, Webster Comm’n grounds to dismiss the indictment on the 107, 522 S.E.2d 201 See appointment special prosecutors Syl. Cnty. pt. part, also Harrison process. due The court dis violated trial Assessor, 222 Cnty. Comm’n v. Harrison filed a (“When missed the indictment. State (2008) S.E.2d 555 prohibition prevent for writ of employee an county seeks to hire assessor barring special of the order enforcement assessing ap- perform other than duties prosec prosecutors participating duties, required praising assessor process that due ution.13 We determined and consent of the first obtain advice prosecution by result of was not violated as a pursuant county commission Va.Code also Moreover, special prosecutors. (Repl.Vol.2006).”). § 7-7-7 that, though special made clear even prosecutor appointed under W. an assistant WCC, prosecutors employees of their were employee an 7-7-7 considered county appointment by the prosecutor county, paid was confirmed and the and is appeal. appeal. filed Court 13. The also an This the State did not have the determined judicial crystaiized arrange- the event a final commission. We decision Syllabus Angelí point 2 of as follows: adjudges prosecutorial ment that the statewide powers vested by county prosecuting this subdivision in the appointment fraud attorneys, provisions may only and abuse unit pursuant be exer- (Repl. public Code cised official other than an Vol.2003), attorneys employed by employee unit, of the fraud and abuse then Compensation Commission Workers’ to that provisions extent the of this subdi- prosecutors prosecu- serve as assistant vesting vision statewide pow- compensation of workers’ fraud and er shall thenceforth be of no force and abuse eases does not itself violate due effect[.] principles. process Angelí recognized WCC, The decision in 609 S.E.2d 887. prosecutor, County Kanawha and the important What is to understand about the arrange commission worked out an Angell reached in resolution the Court’s ment so prosecutorial authority au concern with “the method which WCC § thorized Va.Code in W. 23-1- proceeds prosecution with of the cases involv 1b(g)(22)(B)(iv) be could carried out. Ulti perpetrated against criminal fraud the mately, Angelí process found that no “due fund.” 216 W.Va. at Angell, WCC- 609 violation” prosecuto- occurred because of the 891. This concern was attributed arrangement WCC, rial made the the Legislature the fact that the to created a County prosecutor, Kanawha county the fraud and abuse crime unit within the work commission. compensation system. The ers’ fraud and In proceeding, the Attorney instant expressly given prosecutorial unit abuse was rely Angelí General cannot authority as authority § under 23-1- allowing prosecutors empower for to him (2005) 1b(g)(22)(B)(iv) (Repl.Vol.2010). This general prosecutorial authority. with reads, provision part, in as follows: recognized prosecutorial authority Angelí unit, The fraud and abuse in cases of Legislature granting based fraud, authority criminal has to review attorneys “specific” WCC’s fraud and abuse prosecute those cases for violations of prosecutorial powers. and limited 61-3-24e], twenty-four-e sections [§ twen- 61-3-24Í], ty-four-f twenty-four-g [§ prosecutors We also find that do not 61-3-24g] twenty-four-h 61-3- [§ [§ authority give to 24h], three, chapter sixty-one article of this prosecutorial authority unlimited because the code, any as well as other criminal statutes Legislature specifically has determined un may applicable.14 be prosecutors der may what circumstances problem Legislature Id. created appointment seek óf the General to when it clothed the fraud and WCC abuse Legislature prosecute criminal offenses. The attorneys prosecutorial authority unit given pros has General limited that it failed to set out mechanism which authority § ecutorial under W. Va.Code 5-3- attorneys lawfully prosecu could act as (1987) (Repl.Vol.2013) as follows: implicitly recognized tors. This failure was shall, Legislature § [H]e [the General] W. Va.Code 23-1- when 1b(g)(22)(F) requested as prosecuting attorney follows: of a only § full text of W. Va.Code 23—1— addition the abuse unit fraud and has (2005) b(g)(22)(B)(iv) (Repl.Vol.2010) reads as authority prosecute and refer cases in- follows: volving appropriate criminal fraud state au- unit, The fraud and abuse cases of crimi- prosecution, thorities for but it also has the fraud, nal has the to review and encouraged, authority, cooperate and is prosecute those of cases for violations sections appropriate with the federal authorities for re- 61-3-24e], twenty-four-e twenty-four-f [§ possible prosecution-, view and either state 61-3-24Í], twenty-four-g 61-3-24g] [§ [§ agencies, involving or federal cases of three, twenty-four-h chap- [§ 61-3-24h] article concerning Compensation fraud the Workers’ code, sixty-one ter as well of this as System Virginia!.] in West applicable. criminal statutes that

county appointment wherein institution cor- al’s office.15 The a state granted prosecutors located, statute provide attorneys for rection invoked unless a circuit court cannot be special prosecuting attor- appointment judge from find or Justice this Court neys prosecuting attorney assist “extraordinary exist at a circumstances” prosecution of criminal said institution, prose- state and the correctional when, proceedings fully prosecute cannot cases cutor’s office judge county, justice or a circuit said budget Applying because constraints.16 Virginia Supreme Ap- Court of the West expressio statutory the rule of construction peals, extraordinary circumstances exist at (the expression unius est exclusio alterius institution which render financial said another), thing one is the exclusion prosecuting resources the office Legislature if becomes obvious that had prosecute inadequate said prosecutors to have absolute intended cases. discretionary authority appoint the Attor- statute, Legislature spe- Under this ney to assist in crimes cifically prosecutors, authorized counties general, there would have been no need institutions, appoint setting appointment with state correctional out the limited au- 5-3-2.17 See thority § prosecutors under W. Va.Code special Gener- (violation (Repl.Vol.2013) provision 15. There is a in W. of natural resources Va.Code 5-3-2 laws); (1937) (Repl.Vol.2013) suggests (Repl.Vol. the Gover W. Va.Code 21-3-14 may appoint prose 2013) (violation employee safety nor General to and welfare proceedings. provi laws); The relevant cute (Repl. W. Va.Code 21A-10-13 provides Vol.2013) (violation sion statute compensa- unemployment any appear "shall cause in the General in which laws); (1999) (Repl. § tion W. Va.Code 22-5-6 pending any in state is interested that is other Vol.2014) (violation laws); pollution of air W. state, request court in the on the written the (vio- (2002) of (Repl.Vol.2014) § 22-15-15 Va.Code governor, appearance and such is entered when laws); management W. lation solid waste Va. of charge he shall take of and have control of such (viola- (2002) (Repl.Vol.2014) § Code 22-14-14 added). (emphasis Id. cause." Commentators laws); § W. of dam control Va.Code 22—18— provision suggested per Code "[t]his that (1994) (violation (Repl.Vol.2014) 15 of hazardous attorney governor general place the the mits charge to laws). management Although we make waste any prosecution of which criminal statutes, reference to these we make no determi- provision does not the state state, interested. validity opinion regarding nation in this the of however, attorney general may that the sua authority granted the in the stat- sponte any prose intervene in trial level criminal utes. Cleckley Franklin D. and J. cution.” Palmer, Jr., Louis to the West Introduction Attorney authority 17. General does have to (1994). System Its Laws Criminal Justice 229 provide prosecutors on criminal advice to mat- language appearing in the Similar laws of other 5-3-2, Legislature § ters. W. Va.Code the Under jurisdictions interpreted allowing has the been provided Attorney expressly General general appoint attorney governor pros to the to prose- "may with and the several consult advise See, State, e.g., ecute cases. Westoverv. attorneys relating cuting matters to official 145, 315, (1947); Ariz. 185 P.2d 318 State v. 66 permits office[.]” of their This statute also duties Dawson, (1911); 86 Kan. 119 P. Attorney appear General to in criminal cases Marshall, Cordray ex rel. 123 Ohio St.3d State v. "pending Supreme Appeals, or in Court N.E.2d Insofar as court, any us, the state is Moreover, federal which interest- specific provision is not before we need not § ed.” W. Va.Code 5-3-2. under W. meaning. decide its (1971) (Repl.Vol.2010), § Va.Code 7-4-1 At- prosecutorial authority giv- In addition to torney General is authorized to seek the assis- Attorney en to the General W. Va.Code county prosecutors tance of as follows: 5-3-2, Legislature § has authorized the At- duty It be the further shall prosecutions torney to conduct gen- requested by attorney attorney, eral, when in other limited See for violations law areas. attorney gener- perform or to assist (vi- (1974) (Repl.Vol.2013) § W. Va.Code 5-1-26 performing, county in which al in he is declaring proclamation the existence olation elected, legal required per- any to be duties emergency); § a fuel W. Va.Code 16-12-6 of (1994) by attorney general, and which formed (violation (Repl.Vol.2011) sewers prose- laws); with the duties of the not inconsistent sewage plant § W. treatment Va.Code 19- (1976) (violation cuting attorney legal representative as the (Repl.Vol.2007) 12D-11 of nox- duty laws); county. shall It also be weed W. Va.Code 19-16A-25 ious (violation (1990) prosecuting attorney, requested (Repl.Vol.2007) pesticide when laws); perform attorney general, or to assist the 20-7-6 control Syl. Hereford, ex pt. Browning, State rel. Battle decision in Manchin v. (1963) (“A (1982), 133 S.E.2d 86 stat- 296 S.E.2d 909 is incon- thing be done in provides ute which for a holding, expressly sistent with this it is person particular prescribed manner or overruled. it not be implies or tribunal shall done 744 S.E.2d 625. The Attor- person otherwise or a different or tribu- ney General’s reliance on is mis- Nibert nal; expressio maxim unius est ex- placed. The decision Nibert careful to alterius, express clusio mention one recognize specific powers common law another, thing implies ap- the exclusion of can be abolished statute.”)..

plies to such Consequently, law. Nibert clear that made Consequently, we now hold the extent of the common General’s otherwise, indicating absence of a statute powers case-by- law had to be decided aon prosecutors do not have un following teachings case basis. In (Repl.Vol. der W. Va.Code Nibert, we will determine if the 2010) appoint General or prosecuto- General has common law criminal member of General’s office as a powers. rial special prosecutor.18 begin noting ques- We that it is without C. The General’s Common Law recognized tion that the common law Authority to Prosecute Criminal Cases attorneys general prosecutorial powers. had Was Abolished the Constitution powers attorneys general The common law and Statute prosecute criminal cases has been outlined as follows: argued General has prose that he has common law power, Thé had the cute criminal cases based this Court’s among things, duty, was his decision in ex rel. prosecute Discover Financial pro- necessary all actions for the Services, Nibert, Inc. tection property and defense of the Syllabus point 3 of crown, and, by revenues of the informa- tion, Nibert we held: persons certain bring classes of accused and of crimes misdemeanors to The Office of General retains trial. powers, inherent common law when not

expressly by England restricted or limited statute. The law of the law common was powers government. attorney to of The extent of those is be deter- our colonial case-by-ease general, mined on a Insofar government, basis. as under colonial attorney general performing, any legal cy involving matter child matter or a abuse performed by required neglect chapter duties to be pursuant forty-nine attor- to of this code, ney general, any county any prose- other than that in special or in matter wherein a elected, attorney which such is appointed previously cutor to has failed take performance any and for the such duties in any within as the action thereon such time any county pros- than in which such other Executive Director deems unreasonable.... ecuting attorney paid is elected he shall be his judge disqualifies The circuit ... who court expenses. actual prosecutor appointment by ... shall seek the special prosecuting attorney a institute of Legislature 18. We also note created a disqualified prosecutor. to substitute for general special procedure appointing prose- for appointment authority In addition to the under through Virginia Prosecuting cutors the West 7-4-6, Legislature § has also Attorneys § Institute W. Va.Code granted special appoint the Institute to (2009) statute, (Repl.Vol.2010). Under this prosecutors in situations. W. Va.Code See special empowered appoint prose- Institute is (2005) (Ethics (Repl.Vol.2010) Com- 6B-2-9 following cutors in certain situations. is may peti- mission under certain circumstances 7-4-6(e): provided by W. Va.Code appointment tion a of a circuit court Institute); special through prosecutor W. Va. subject prosecuting attorney ap- Each is (2004) (In- 33-41-4(b) (Repl.Vol.2011) Code pointment special by the as a institute to serve surance Commissioner under certain circum- prosecuting attorney any county where the ap- prosecutor stances a for the circuit court for that or his or her office disqualified pointment prosecutor through participating special has been of a from a case, Institute). particular juvenile delinquen- a

254 state, criminal, includes both civil and appointment gover- from the his received the initiation, prosecution disposition and colony, duties and exercised his nor of the cases.”); Dummy Horse Chicago, Hunt v. & on was common law. Later he

under the (1887) 176, Co., 638, N.E. 180 R. 121 Ill. 13 attorney by crown. commissioned (“In attorney general England, the office of law, legal the chief general, at common was early period, very a and has existed sovereign in the representative of the by great law the common with been vested courts, duty appear it was his arid variety of duties in the administration any of the crown prosecute and behalf Finch, 665, government.”); v. 128 Kan. State matters, civil. It was criminal as well as (“Át (1929) 910, law 280 911-12 common P. by said Blackstone: represen attorney-general was the chief sovereign, in represents the whose He courts, sovereign and tative of the issue, process and name all criminal prosecute in duty appear for and was his power prosecute all criminal offenses any as of the crown matters-criminal behalf unquestioned at common law. civil.”); well v. Commonwealth as Johnson Meredith, 829, Ky. S.W.2d ex rel. attorney general powers As (1942) (“It 820, recognized generally statute, grant not conferred were denied statute the that unless powers the same or other statute of general clothed all the state is with belong- deprive him of those operate traditionally belong powers incident law, ing office at common unless majority of courts his office.... A statute, expressly or reasonable either powers has all law hold that he common intendment, powers exercise of forbade the by the except as constitution duties modified expressly He conferred. must thus statutes; and, course, may be such as held, therefore, powers to have all statutes.”); by the added constitution law, and belonging to the office at common Robinson, Minn. v. 112 N.W. State powers legislature as the such additional (1907) (“The Gen office fit to confer him. has seen early period, an both eral has existed from Kramer, People 68 N.Y.S. country, 33 Misc. England and in is vested (internal (1900) quotations variety and cita great law the common omitted). parte Young, govern See tions Ex in the administration duties 401, 170 ment.”); P. Young, 28 S.Ct. 52 L.Ed. 714 54 Mont. U.S. (“It (“It general clear would seem to be is the consensus every power existing practically state attorney general, under his law, jurisprudence these whose virtue of various Union basis common law, Attorney Gen statutes, duty imposed-upon the office of common had him, eral, adopted England, existed in right power and the as it which includes the state[.]”); machinery, part governmental the and Fay -to enforce the statutes of the restrictions, (D.C.Cir.1950) Miller, 986, express in the absence of 183 F.2d 988 v. (“[T]he the attach themselves with common-law duties United States vested public they applicable as and in protect the from the office so far broad discretion crime, government.”); being harmony system with our discretion derived both such v. authority Derryberry the ex rel. Kerr-McGee statutory grant from State and (Okla.1973) (“At 813, law.”); Corp., 516 P.2d 818 at Public common Court, Gen law the duties of Agency Superior v. Third common Defender (Alaska Dist., 947, eral, were chief law officer of realm 534 950 as Judicial P.2d 1975) law, (“Under legal attorney He the chief advisor the common an numerous. crown, with the man bring and was intrusted general empowered any action prosecu agement legal all and the necessary protect affairs which he thinks suits, interest, and all both civil criminal possesses and the corol tion of public he alone, interested. He power disposition the crown was lary to make which by prosecution discontinue a criminal thinks This could litigation state’s which he best. therein.”); v. prosequi discretionary legal entering a nolle control over the business

255 (Utah 1978) (“At Jiminez, 707, ordinary employed statutory principles 588 P.2d 709 top legal adviser was applied law the invest- construction must common ascertain authority, prosecution ed criminal and such Caper with intent.” State ex rel. Forbes v. ton, 480, authority 474, 780, to be that of is deemed Attor- 198 481 W.Va. S.E.2d 786 (1996) (internal ney General in the common law states of this quotations and citations omit ted). country.”). The above authorities make it clear political Virginia structure West provides attorneys the common law gen Virginia. its roots in Consequently, Virginia authority with prosecute eral criminal starting point is a for understanding the However, equally eases.. it is clear “that the statutory constitutional and framework attorney-general may exercise common-law prosecutions Virginia. Be law, powers unless the constitution or statute ginning “in Virginia around ... expressly either or reasonable intend office, prosecutor’s tenure of the both in the ment, forbids the thereof.” exercise State v. county courts, superiour and [was] at the Finch, 128 Kan. P. 912 pleasure of those respectively.” courts Ex (internal omitted). quotations and citation Bouldin, (1836). parte 33 Va. is, That “where a conflict arises between the explains decision in Bouldin the evolution common law and a or constitutional statute and erosion of law common au law, yield.” the common law must State v. thority Virginia Attorney of the General as (Utah

Robertson, Ct.App. 886 P.2d follows: (internal 1994) quotations and citation omit attorney general, [T]he and solicitor ted). seen, As will be in West were, times, England, appointed at all and accompanying legisla constitution and state pleasure removed at of the crown. Attorney-General’s abolished the com held, hold, They and still their offices dur- law prosecute mon ing pleasure, judicial whilst the tenure of cases. placed office has been on a more stable matter, footing. preliminary As a we ob at the distant as- Prosecutions “[questions constitutional frequently serve con sizes are king’s conducted occasion, governed by are in the counsel appointed struction main general applied statutory designated, perhaps, attorney gen- same rules con Syl. pt. country, Winkler v. State eral. In this before the struction.” Sch. revolu- Auth., tion, Bldg. attorney colony, S.E.2d 420 for the course, object office, mediately directly Of held his or “[t]he construc tion, constitutions, applied pleasure. king, king’s to written is to give people attorneys effect to prosecutors the intent courts, believe, every adopting Syl. pt. it.” reason Diamond Parkers courts, Corp., burg-Aetna were recommended but those appointed attorney Although general, Court is vested construe, interpret him pleasure, being “to removable at consid- Constitution, provisions apply merely deputies. ... ered [we] as his This state to, revolution, ignore plain things not add distort continued after ex Bagley mandates thereof.” State rel. after the constitution of 1776 had fixed the Blankenship, general’s tenure of office as (1978). are, 99, Thus, during good 107 a one Our “[i]f constitutional behavior. laws terms, indeed, subject; provision is clear in its and the inten silent on the but we are clearly of the gentleman city, electorate is embraced in informed a of this that 1787, itself, language provision year the of the about the he was nominated apply interpret pro county City Court must the the court of Charles as a fit 1, Syl. pt. person attorney ex rel. to fill that vision.” Trent v. the office for Sims, 244, county; 122 afterwards and soon received hand, language attorney general, the other “if letter from au- On the of the the then provision ambiguous, thorizing capacity. then in that And constitutional him to act sources, prosecutors “attorneys were for that such was that called we learn other eases. the practice the in similar When example, the Commonwealth.” For in district courts were established Virginia it was Code title provided duty attorney of the law made it the the chapter “[ejvery § 7 commis- prosecute in general appoint persons revenue, sheriff, sioner constable or he could of the courts as not attend such officer, give of the shall information himself; prosecutors in placing thus any penal attorney law to such violation courts, footing those on the same with Commonwealth], forthwith [for the who shall county in prosecutors courts. It was prosecute necessary institute and all that, argument, in if these conceded proper proceedings case[.]”19 attorney of the deputies were the officers that, The make clear above authorities they plea- general, were removable Virginia sixty years over before West became sufficiently appar- think this is sure. We state, statute, Virginia had stripped from the of the authoriz- ent terms prose- appointment powers he General of his common law ing the such courts as But appears not attend himself. it cute criminal offenses.20 This situation could conclusively ascertaining Virgi- in the law help explain why more the framers of West salaries, gave attorney their which place nia’s chose to the office of Constitution salary, and to of his certain each Constitution, prosecutor in the and the deter- deputies in courts dollars the district Legislature place of the mination county per deputies annum. His prosecution exclusively county almost courts, paid were in a different manner. prosecutors. officers, Such was situation these Virginia § 1 of the Consti- Article attorney holding pleasure at the county tution of each “[t]he states voters January deputies, until general and as his prosecuting attorney ... a ... shall elect enacted, attorneys when was who ... the term ] shall hold for offieef prosecute in behalf of common- years.” provision four This constitutional appointed shall in the wealth hereafter itself duties does not in and of set out the inferiour and all other courts district prosecutor. authority setting The commonwealth, for out by an order of such prosecutor respectively. is contained in courts duties Constitution, pro- § 8 of the which Article (internal Bouldin, 648-49 parte 33 Va. at Ex legislature, vides that in cases not “[t]he omitted). The deci- quotations citations Constitution, pre- provided for in this shall Virginia how explains in Bouldin sion laws, scribe, by general powers ... began to com- General’s office lose compensation public offiees[.]” of all Pursu- authority as prosecutorial a result mon law Legis- authority, ant to its constitutional county attorneys to judges appointing local prosecutors lature out the sets duties of Eventually, prosecute criminal cases. § authority (Repl.Vol.2010), Virginia Legislature granted the to W. county part, follows: criminal cases to elected prosecute Virginia’s attorney the at- Commonwealth.” The for the Com- Under constitution 19. torney was a constitu- Commonwealth office. See monwealth is constitutional Va. Const, Const, § art. VII, ("There office. See Va. tional § art. shall be elected qualified voters of each ... an attor- Virgi Today, the office of 20. Commonwealth^]”). ney See Va. art. nia V, a constitutional office. Const. Commonwealth, for al, Gener- not the General’s crimi general prosecutorial authority. See Va. has been limited nal 15.2-1627(B). said Code It has been specifically authorized to a few offenses. statute pow- Virginia’s Attorney "[w]hether General has 2.2-511(A) ("Unless specifi Va.Code Ann. See deriving ers from the common law is not a set- so, cally requested by the Governor do Signer, tled Michael Constitutional Cri- issue.” no insti General shall have Resolving sis Commonwealth: prosecutions Conflict tute conduct in the cir General, Attorneys U. Between Governors except [for cuit courts the Commonwealth (2006) (internal quotations crimes[.]”). L.Rev. prose Rich. specifically enumerated omitted). Virginia "attorney called for the citation cutor is still duty prosecuting It shall be the of the the law of this State until altered or re- attorney to to the criminal pealed by Legislature. attend business the the which the State in he is explained operation We the of this constitu- qualified, elected and and when he has provision tional in Nibert as follows: any penal information the violation of VIII, We have held that Article Section county, within law committed such he shall 13 of Virginia the Constitution of West prosecute necessary institute and all Legislature authorizes the to enact stat- offender, proper proceedings against the abrogate utes that common the law[.] We and may in such case issue cause to equally recognized have [t]he common any issued a summons for witness he law, if repugnant of the Constitution of Every public deem material. officer shall State, this continues as the law of this give him information of the violation of changed State unless it is altered or penal county. law committed within Thus, Legislature. VIII, under Article interplay As a result of the between West Legislature Section expressly can Virginia 9, § 1 and Constitution article repeal specific aspects of Attorney 7-4-1, we have held that “[t]he General’s inherent powers. common law prosecuting is the constitutional of- Nibert, 231 W.Va. at 744 S.E.2d at 647. charged responsibility ficer with the of insti- As a result of the constitutional creation of tuting prosecutions and securing convictions prosecutor, the office Legislature em- behalf State of those who violate powered powers that office with all of the charged the criminal law. He is with the prosecution. empower- law This duty all State ex erimes[.]” repealed ment Attorney General’s com- Dostert, rel. Skinner v. authority mon prosecute law criminal of- is, “[gener- That fenses. ally speaking, prosecutor has exclusive authority prosecute criminal offenses at The General contends three the trial level in the name state.” acknowledged decisions of this Court have Cleekley Palmer, Franklin D. J. Louis the existence of his authority common law. Jr., Virginia Introduction the West Crimi- prosecute criminal cases.22 The first case System nal Laws Justice and Its cited State v. (1994).21 Ehrlick, 64 S.E. 935 In case, appears prosecutor

The it issue of whether the filed a authority prosecute enjoin retains common law engag defendants from racing gambling operation. criminal cases is resolved horse 9, granted Constitution article injunction. and W. Va.Code The circuit court an laws, § 7-4-1. appealed grounds Pursuant those office defendants on the stripped General was prosecutor authority common did not have to seek the prosecutorial authority. law This conclusion injunction in the name of and that the state specifically itself dictated the Constitu- only General had such authori VIII, provided by It tion. article 13 of ty. This Court noted that if matter that, the Constitution criminal, prosecutor had over matter, civil, only [e]xeept but if was the Attor provided as otherwise article, law, ney parts litigate proceeding. General could the common opinion of the laws found that the was civil. of this as are force on issue Therefore, prosecutor effective date this article are not did not have au thereto, repugnant thority rendering shall be and continue over the issue.. previously We mentioned in this each of cases. decisions in Legisla- areas some ture limited in which by Attorney cases cited General were decided permits prosecute General to unique addressing under the laws of each state criminal conduct. the matter. The decisions in states are not those controlling impact and have no on how we re- judicial 22. The General also cited to unique solve the our issue under laws. recognizing decisions from states common attorneys prosecute law respect following represent generally the decision, the state opinion provided the prose- of business. regarding powers the the its civil discussion Attorney the General: cutor and 702-03, Ehrlick, 936- 64 S.E. at very Attorney of General is of The office 37. and origin, powers and duties its ancient proposition that stands for the “Ehrlich common law. That recognized the were county attorney general of office and the attorney of cre- prosecuting is modern of prosecutor independent are and distinct with- seems, ation, powers and duties it and its Cleckley and in the limits set statute.” prescribed by stat- imposed, and given, are Palmer, Virginia’s Criminal Justice As and utory the Constitution law.... System agree 229. We observation. the two laws the state make offices of However, Attorney General seized the has prose- separate distinct and vest upon following single sentence in Ehrlich attorney powers impose cuting certain that he common argue has law duties, seems upon him certain it clear prosecutorial authority: strip Attorney General cannot him of Attorney may assist doubt the General No expressly given, nor increase the powers attorney prosecution prosecuting in the him_The upon busi- the burdens-laid business, himself, perform such ness, actually as pertaining well as once prosecuting of the nonaction of case theoretically Attorney Gen- office attorney, displace he offi- but cannot eral, two been divided between the has cer. purposes of convenience. We offices Ehrlich, at 936. attorney 65 W.Va. at S.E. may say prosecuting office To is of no moment. the extent of that This dicta has been carved out office, independent single passage in can be and made an Ehrlich General extent, control, misinterpreted recognizing common law having exclusive to some state, arising powers of the within in the Gener- business al, There no full county.... disapproved. would be individual It is clear from the it is that, responsibility, powers statutory if Attor- discussion Ehrlich absent ney attorney and prosecuting authority, prosecutor cannot invade the General, and concurrent. The one were coextensive At- of the and the duties responsible no than the would be more torney encroach General cannot other for the nonenforeement the laws. crys- prosecutor. This duties of the fact interference, produce Concurrence Syllabus points 1 and Ehrlich talized instances, conflict, many and friction as follows: disposition delaying of business to the county 1. The plain think it detriment of state. We authority, independent of sense, that, in a practical the two therefore General, prosecute all to institute and independent; are distinct but offices proceedings, cogniza- actions not seem all the business does county, courts has no ble in the of his but been of the civil business of divided. Part power authority, respecting seems to have been state part prosecution proceedings of civil on the reserved to General.... state, expressly con- beyond prosecuting attorney [T]he duties ferred statute. ... all extends to the criminal business state, As the law officer of the chief county. As the state in his own to civil clothed interested, in which the state is business powers charged with all the common-law act, state, only he on behalf of the can office, pertaining except to his and duties required when the auditor and under they far as have been limited in so latter, or when the direction statute. duty enjoined by There some statute. 64 S.E. 935. provisions many imposing specif- matters, duties, second case cited concerning particular ic having law authority for common giving power him to General as but there is no statute action, powers Railway or proceeding is Coal & Coke suit the involves Conley, 67 S.E. 613 right Co. v. W.Va. or collect the assess taxes Conley, plaintiff the railroad com- property, personal, or real of said railroad enjoin petition seeking a the pany filed by any authority in this State authorized County pros- General and Attorney Kanawha taxes, levy attorney-general whenever said taking any against it for ecutor from action requested by shall authority said to do comply with a limited failure to statute that so. could im- company certain fees the railroad plaintiff brought The the Attorney General pose. imposed only monetary statute The a Finally, into the ease because of this statute. compa- for a penalty violation. The railroad even if the statute had expressly above ny the believed statute was unconstitutional. Attorney the authorized General to become filed petition company The the railroad was litigation, involved in tax requested, when been pre-emptive that no action had filed involving companies, Attorney' railroad the by prose- or against Attorney it the General proper party General still a was in the ease The circuit court found statute cutor. the taxing civilly because the statute was en- granted entirety unconstitutional its and forceable, criminally This enforceable. appeal the company. relief to railroad An point through concurring was illustrated by Attorney pros- the was taken General opinion in case: the appeal, On the ecutor. this Court modified decree the circuit court’s so as to make stat- regard penalties I the valid and plaintiff. against only ute unconstitutional the enforceable, overcharges recoverable action, against company civil a railroad Attorney Conley General’s reliance is, earning civilly fair return. As it it is prosecutorial powers for common law has no all, against companies. enforceable And basis. First of Court’s nowhere the civilly Conley opinions against it will be enforceable this opinion separate or the company it; any earnings in the case when its but filed was there warrant discussion penally I statutory about common law or duties of do not believe enforceable. Attorney prosecutor. either the General or Conley, 67 at W.Va. S.E. at 646-47 Additionally, Conley the Court in noted that (Brannon, J., concurring). Insofar the complained the railroad statute the Conley statute civilly at issue was enforce- expressly specifically did “not company able, simply General cannot charge state and General of the rely upon authority prosecu- that case as prosecuting attorneys of the several power torial the common law. duty provi- with the its enforcing counties upon by relied sions, third case prosecution of indictments for authority prose- General for common law Conley, its at violation.” Robinson, cases is cute criminal Denham v. Additionally, impor- at 620. S.E. and most 77 S.E. 970 In Den- tantly, was in there existence at the time of ham, specific actually gave three defendants were for em- the case statute that indicted was discovered express bezzlement that the State companies. litigate involving point during matters railroad Tax Commissioner. At some prosecutor time litigation, following litigation, At the of the trial moved the chapter provided charges. was court to dismiss The motion (Repl.Vol.1906): prosecutor was made with “the advice General[.]” consent attorney- duty It shall be the Denham, 72 W.Va. at S.E. at appeal’ protect of this State to The trial denied the de- court motion. The the interests of the citizens of this State in actions, prohibi- fendants filed a writ of proceedings all suits and other now, be, prevent tion with Court to insti- enforcement that are shall hereafter State, any denying of the trial court’s order the motion tuted in court of record in this against charges. company of or dismiss the One of the issues favor railroad that, passes through any portion road defendants com- whose raised State, law, territory whenever such mon General had enforcing make this charged the was it. To the consent of a ease without to dismiss determination, Therefore, ap- prosecution against examined court. Attor- because the in order to a determina- propriate should be dismissed laws make them legal to the dismissal. had no ney General consented rejected argument opinion in the case prosecution. role in the prosecutions were pointing out that criminal statute, of the applicable In its examination prosecutor: responsibility prosecution of the defen Denham found practice rule argued it is that the of But “proper by earned out the dants had to be obtaining in courts can control trial not the body.” Den legal authority taxing of the attorney general, who the action of the ham, 250, 77 at 973. The at S.E. attorney; prosecuting concurred with the statute, however, not was the did define who many are state and federal and we cited authority body.” “proper taxing legal the cases, attorney that proposition, for the the opinion creating the looked at statutes few general is a constitutional officer with authority prosecutors the Attor the by the powers and that federal and defined ney in order to which General determine the mantle of the attor state constitutions for the responsible prosecuting office was England must be ney general of deemed opinion its concluded from defendants. attorney upon fallen the office of have following: examination the states, American when generals all the taxing legal authority the of the Who is organic by the law or some uncontrolled body county? prose- Is the of the he not not ac legislative enactment.... We can attorney, under Code cuting chapter entirety. proposition to the its So cede think, chapter, 1906? Section 6 of we attorney as the undertake far so. Section of the same makes him powers exercise or control the chapter attorney general imposes upon the prosecuting attorneys duties of we think specific imposed upon none of the duties practice rules by he is limited the same attorney prosecuting the the sixth sec- powers that control them. The and duties tion. attorneys generally are de prosecuting Denham, at at 973. S.E. chapter fined section Code opinion only “proper deduced that the Poffenbarger in by Judge as was said legal taxing prose- authority body,” of the Ehrlick, supra: may say the “We statute, the the purposes cution was office of has been prosecutor, Attorney not the General.23 attorney general out carved of that of ” Thus, to this Denham it is clear Court that independent made an office.... We proper found General not a was therefore, opinion, prose- that the nolle party litigation. Consequently, in the in the qui attempted ease no addi in this derived case, instant cannot General force, in or as tional because concurred rely upon authority recogniz- Denham as attorney general. sented prosecutorial powers law common Denham, 249-50, 77 S.E. at 972- Attorney General. explain did 73. The Denham Therefore, hold prosecutor erroneously we now that as a result why the believed necessary Virginia Constitution was the ratification of West General’s consent people seeking charges. article of this State to dismiss the How- before ever, analysis opinion, Legislature’s enactment of W. Va.Code based (1971) (Repl.Vol.2010), § 7-4-1 the common was it is clear that authority prosecutorial law criminal brought applicable into the case because entity Attorney General was abolished.24 specifically did not state what statute state, stating a final W. Va.Code conclusion.” 23. The statute added further confusion 10B, (Supp.1909). legal ch. 240a7 part "proper failure on taxing body” prosecute "shall right give inspector arguments during to institute chief It be noted that oral should necessary argued participate proceedings or to there- this Court in, prosecute law au- could limit his common and to the same of the courts day, One lead sea captain IV. of the sea trawlers noticed sea had conditions be- CONCLUSION come such that he now had fishermen more quotas than needed meet for fish. At have determined proceeding, this time, the same he noticed lake that the an- standing General lacked glers were quotas. often unable to meet their enforceability determine this Court captain proposed The lead sea that several of advisory opinion of an informal issued lake, his fishermen be transferred to the ODC. also have determined that We basis, anglers. an as-needed to assist the lake Court could not address the merits of the this, Upon learning farming boss advisory opinion informal because to do so immediately objected, maintaining that sea issuing advisory this Court an result in fishing fishing fishing was sea and lake opinion. a result of a As collateral issue fishing. lake simply He asserted that it was being proceeding, regarding raised proper super- for the chief angler lake General to who, though competent vise sea fishermen offenses, prosecute criminal we took the ex- fishermen, had been trained their entire lives traordinary addressing measure of this issue fishing, others in the neb-method of opinion widespread in this because of its fishing. farming the line-method of The boss implication system. our justice to if captain warned that the lead sea insisted regard, we have determined that transfer, on the the farmers would construct county prosecutors authority do not have un- irrigation to ditches their from the fields (1987) (Repl.Vol. der W. Va.Code 7-7-8 lake, reducing thereby popula- the lake’s fish 2010) appoint the Attorney to General as a compatible quota to a tion level with the special prosecutor. conclude We further that anglers. abilities of the lake article Constitution (Repl. having A village, conflict arisen in the Vol.2010) prosecu- common law criminal village matter was taken before the elders. torial General was get Determined to the bottom the con- resolving After collateral abolished. is- troversy village’s disturbing that was cus- opinion, prohibi- sue raised in the writ calm, tomary the Elders asked if sea prayed for is denied. yet fishermen had been transferred captain lake. The lead sea and the chief lake Writ denied. angler that such the ease. assured was not inquired digging The Elders then whether BENJAMIN, Justice, concurring part, irrigation had commenced ditches. dissenting part, concurring in the responded farming The boss that construc- judgment: begun, irrigation tion of ditches had be- (Filed 2014) Nov. ing merely planning stages. in the The Eld- themselves, exchanged glances among ers time, upon village by there was Once proclaimed partly exasperation and then — villagers the sea. Some fished the sea in partly in current relief —“There is no their Others trawlers. were content cast Everything running along conflict here! is their lines in vast freshwater inland lake smoothly, just always as it has been.” villag- where fish were abundant. Yet farmers, representatives occupa- ers were who the land and worked the various and, proclamation, who used the lake to water them livestock. tions heeded the Elders’ indeed, All villagers happy. villagers were Food all the attendance were plentiful. Villagers might one went hungry. No constrained to admit the sea beach, enjoyed grow jealous bounty, time at recreational at the thereafter less of its lake, parks. good and at the Life was for the need trans- such no fishermen ever be village by irrigation the sea. ever be ferred and no ditches need

thority being only requested exercised when what the and statute abolished. constitution have by prosecutor. We cannot and limit resurrect as the Indeed, to what it describes everything probably had been “collatei’al”

dug. us, i.e., proceedings as the were ultimate issue before whether premature. Just however, adjourn, the Elders con- such violate the exercise of would about among respect my themselves and announced col- ferred rules. With all ethics way be built around the a fence would all leagues majority, in the the ultimate issue lake, gates two for which the farm- with but we us has been revealed as whether before angler the chief lake would be boss and jurisdiction of the General’s this, only keys. sea given the At lead Having petition. question answered exclaimed, “But captain leapt to feet and no negative, we bound answer are unnecessary. will have this is Our fishermen others. take,their on the week- place no families scope-of- majority’s designation of the longer villagers no be able ends! Other will authority dispute merely is fur- as collateral respect, enjoy lake.- With all learned ther belied its charaetei’ization Elders, you an why insist im- question [having] a “singular as issue extravagant thing unnecessary and when sys- importance justice to our criminal mense A current reverential there no need?” majority’s proves tem.” If assertion question lingered fell hush true, opinion long its will not be remem- then “Because,” replied the Elders noncha- room. context from which bered for ethics you, all lantly, know what best for “we cogent even its discussion of arises or need, quite you good know what we instead standing. majority will fences, building and this is what is needed for ex- as a definitive curtailment of recalled village by our good life to be the sea.” power coequal govern- branch of ecutive of that are —for ment. Declarations sort agree majority request I that the (the major- good l’outinely reason —not made denied, be and I concur in its ed writ should ity adjudication on the merits admits its it that the Attor opinion insofar as concludes measure”), op- “extraordinary is an and the standing bring ney General is without portunity ought sought to make them not be proceeding. perhaps It is more accurate to big, bushy perceived A at out. tail yet ripe adjudi say that matter is not dog, when the outset as collateral to but cation, case, but, plain in either it dog, rightly wags the tail then the tail requirement justiciability of threshold eyes paramount importance in the assumes Moreover, lacking. majority is manifest of all. ly correct that decision on merits advisory impermissible opinion, constitute an Finally, authoi’ity by the the lone cited analy end ought a determination that trek, support majority in of its remarkable jurisdic no possess then and there. We sis Luff, see ex rel. State Foster Shores, proceed tion to farther. See Clark (1980), 264 S.E.2d 477 is of no avail. n. 499 S.E.2d 859 Foster, accepted jurisdiction peti we over (1997) (“ ‘The of this n. courts seeking trial decision review of a court’s jurisdiction justiciable ... if no controver no an indi to curtail the resources available to sy Courts not constituted for exists.... gent requested criminal defendant who had advisory purpose making decrees or took procurement, expert services. We ”) resolving disputes.’ (quoting academic how opportunity explain afforded to thus Charleston v. Bd. Educ. Town So. (and, indeed, future court that case Cnty., Kanawha courts) Al requests. should evaluate (1948)). bar though parties and the we informed future, not, accept inter- that we would Notwithstanding the case it unassailable review extraordi locutoi’y rulings trial makes that it has no to render an 419, 264 writ, at advisory nary see W.Va. opinion, majority proceeds func proceeding in Foster veiy was journey. trip embark on that pursuant equivalent of one commenced justified, according majoi’ity, tional because scope resolve General’s Code 58-5-2 to question of law in facilitation of substantial underlying litigation. source, juris- precise our

Regardless its question presented to consider the

diction and, appropriate, the exer-

Foster jurisdiction, certainly pos-

cise we the discretion to the lower

sessed instruct might in sufficient more

tribunal detail that it

assuredly conduct proceedings the inevitable

on remand. That is not the situation here, dispute

confront where the and the

ripened Attorney General is without

standing pursue petition. There is no

jurisdiction anything to decide us— before than that jurisdiction we have no —and awaiting no proceeding

there is inevitable might guid- our

remand benefit from must, therefore, I respectfully

ance. dissent part majority’s

from that ignore

which has elected to the established governing judicial

norms boundaries

authority by discussing the merits an issue

(whether collateral) primary described as brought been

that has to our attention legally prescribed

other than means.

764 S.E.2d 794 Virginia, of West

STATE Plaintiff t Below, Responden GUM,

Justin Sean Defendant

Below, Petitioner.

No. 12-1292.

Supreme Appeals Court of Virginia. Sept.

Submitted 2014.

Decided Oct.

Case Details

Case Name: SER Patrick Morrisey, Attorney General v. W. Va. Ofc. of Disciplinary Counsel, etc.

Court Name: West Virginia Supreme Court

Date Published: Oct 15, 2014

Citation: 764 S.E.2d 769

Docket Number: 14-0587

Court Abbreviation: W. Va.