SER Patrick Morrisey, Attorney General v. W. Va. Ofc. of Disciplinary Counsel, etc. , 234 W. Va. 238 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
SEPTEMBER 2014 TERM
FILED
_____________ October 15, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 14-0587 SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. PATRICK MORRISEY,
ATTORNEY GENERAL OF WEST VIRGINIA,
Petitioner
V.
WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL AND
WEST VIRGINIA LAWYER DISCIPLINARY BOARD,
Respondents
PETITION FOR WRIT OF PROHIBITION
WRIT DENIED
Submitted: September 30, 2014
Filed: October 15, 2014
Patrick Morrisey Rachael L. Fletcher Cipoletti
Attorney General Renee N. Frymyer
Elbert Lin Office of Disciplinary Counsel
Solicitor General Charleston, West Virginia
J. Zak Ritchie Attorneys for Respondents
Assistant Attorney General
Charleston, West Virginia
Attorneys for Petitioner Christopher C. Quasebarth
Berkeley County Prosecutor’s Office
Martinsburg, West Virginia
Brandon C.H. Sims
Jefferson County Prosecutor’s Office
Charles Town, West Virginia
Attorneys for Amicus Curiae,
West Virginia Prosecuting
Attorneys Association
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs in part and dissents in part and reserves the right to file
a separate opinion.
SYLLABUS BY THE COURT
1. “As a general rule any person who will be affected or injured by the
proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition; but a
person who has no interest in such proceeding and whose rights will not be affected or
injured by it can not do so.” Syllabus point 6, State ex rel. Linger v. County Court of Upshur
County, 150 W. Va. 207, 144 S.E.2d 689 (1965).
2. “A statute should be so read and applied as to make it accord with the
spirit, purposes and objects of the general system of law of which it is intended to form a
part; it being presumed that the legislators who drafted and passed it were familiar with all
existing law, applicable to the subject matter, whether constitutional, statutory or common,
and intended the statute to harmonize completely with the same and aid in the effectuation
of the general purpose and design thereof, if its terms are consistent therewith.” Syllabus
point 5, State v. Snyder, 64 W. Va. 659, 63 S.E. 385 (1908).
3. In the absence of a statute indicating otherwise, a prosecutor’s
appointment of assistants under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) and W. Va.
Code § 7-7-7 (2011) (Supp. 2014) is generally limited to that of appointing attorneys as
employees of the prosecutor and county commission.
i
4. In the absence of a statute indicating otherwise, county prosecutors do
not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the
Attorney General or any member of the Attorney General’s office as a special prosecutor.
5. As a result of the ratification of West Virginia Constitution article 9, § 1
by the people of this State and the Legislature’s enactment of W. Va. Code § 7-4-1 (1971)
(Repl. Vol. 2010), the common law criminal prosecutorial authority of the Attorney General
was abolished.
ii
Davis, Chief Justice:
This matter was brought under the original jurisdiction of this Court by Patrick
Morrisey, Attorney General of West Virginia. The Attorney General seeks a writ of
prohibition against the Office of Disciplinary Counsel and the West Virginia Lawyer
Disciplinary Board (collectively “ODC”) to prevent ODC from enforcing an informal
advisory opinion that it issued.1 The informal advisory opinion determined that the Attorney
General did not have authority to prosecute criminal cases outside of the limited prosecutorial
authority granted by W. Va. Code § 5-3-2 (1987) (Repl. Vol. 2013).2 The ODC also
indicated in the informal advisory opinion that Rule 8.4(d) of the Rules of Professional
Conduct would be violated if the Attorney General prosecuted criminal cases outside the
scope of that which was provided by statute. The ODC further also concluded that Rule
1.7(b) of those rules could potentially be violated.
In support of his request for the writ of prohibition, the Attorney General
contends that county prosecutors have authority to request the Attorney General to assist with
1
The Attorney General filed and briefed this matter as a petition for a writ of
prohibition. However, in a footnote of his brief, the Attorney General seems to suggest that
he also seeks a writ of mandamus. Insofar as the Attorney General did not file a petition for
a writ of mandamus and did not brief that issue, we decline to view this matter as a writ of
mandamus proceeding.
2
Throughout this opinion, our reference to “Attorney General” includes the
lawyers in his office, unless otherwise indicated.
1
criminal prosecutions, and that the office of Attorney General has independent common law
authority to prosecute criminal cases. After a careful review of the briefs and the appendix
filed, and listening to the argument of the parties, we deny the writ.3
I.
FACTUAL AND PROCEDURAL HISTORY
On October 9, 2013, a Mingo County Commissioner, Greg Smith, telephoned
the Attorney General’s office with a request that the Attorney General provide prosecutorial
services for the county.4 In response to the request, the Attorney General telephoned ODC
and asked whether “a deputy or assistant attorney general who accepted appointment as the
Mingo County prosecutor would need to resign from the Office of Attorney General or take
a leave of absence.” According to the Attorney General, ODC responded that such an
appointment would trigger disciplinary action.5
3
This Court wishes to acknowledge that an Amicus Curiae brief was filed by
the West Virginia Prosecuting Attorneys Association in support of ODC. Because of the
impact of this proceeding on all prosecutors in the State, we permitted the Association to
participate in oral arguments.
4
The Mingo County prosecutor was facing federal criminal charges at the time.
When there is a vacancy in the office of prosecutor, W. Va. Code § 3-10-8 (2013) (Repl. Vol.
2013) provides the procedure for the temporary appointment of a lawyer to fill the vacancy.
Under W. Va. Code § 3-10-8(a), the county commission is authorized to fill the position
“within thirty days of the vacancy by appointment of a person of the same political party as
the officeholder vacating the office.”
5
ODC’s brief indicates that it merely informed the Attorney General that it did
(continued...)
2
Not satisfied with ODC’s response, the Attorney General telephoned ODC the
following day with a modified question. This time the Attorney General asked ODC
“whether a deputy or assistant attorney general could ethically accept appointment as a
special assistant prosecutor supervised by a prosecuting attorney.” According to the Attorney
General, ODC once again stated that the Rules of Professional Conduct prohibited such an
appointment.6
On October 17, 2013, the Attorney General sent ODC a letter requesting a
formal advisory opinion on the following question: “Whether under the Rules of Professional
Conduct a deputy or assistant attorney general may ethically accept appointment as a special
assistant prosecutor by a county prosecutor pursuant to West Virginia Code § 7-7-8.” The
Attorney General’s letter outlined in detail the reasons he believed that no ethical violation
would result from his office undertaking prosecutorial duties. The letter concluded that, in
the event of a conflict arising from such duties, the conflicted attorney could be screened and
that “the Rules cannot infringe on the Office of Attorney General’s common law and
statutory authority to assist county prosecutors with their duties.”
5
(...continued)
not believe that it was “permissible by law” for the Attorney General “to accept the
appointment as the constitutional officer of the Mingo County Prosecutor[.]”
6
ODC’s brief indicates that it informally advised the Attorney General that the
modified question was “rife with potential conflict and [that ODC] was not aware of any
constitutional or statutory authority permitting the [request].”
3
On January 24, 2014, the ODC responded to the Attorney General’s request for
a formal advisory opinion by stating that ODC “declines to issue a formal advisory opinion
in this matter and considers this response to be an informal advisory opinion pursuant to Rule
2.15[.]”7 The informal advisory opinion issued by ODC stated:
[T]he Lawyer Disciplinary Board determined that there currently
exists in West Virginia no authority, constitutional, statutory or
otherwise, for the Attorney General to assist county prosecutors
with criminal prosecutions outside of what is contemplated in
W. Va. Code § 5-3-2 (concerning the prosecution of criminal
proceedings arising from extraordinary circumstances existing
at state institutions of corrections). Thus, it was the opinion of
the Lawyer Disciplinary Board that to assist a county prosecutor
in the criminal prosecutions contemplated in your request would
be a violation of Rule 8.4(d) of the Rules of Professional
Conduct and, as was previously discussed, a potential violation
of Rule 1.7(b) of the Rules of Professional Conduct. It is further
noted that it is not likely a waivable conflict because of state
actors.
The Attorney General’s brief indicates that, on June 2, 2014, he received a
7
The ODC and Investigative Panel of the Lawyer Disciplinary Board are
authorized to issue an informal advisory opinion under Rule 2.15 of the Rules of Lawyer
Disciplinary Procedure. Under Rule 2.15(c), an informal advisory opinion “is not binding
on the Hearing Panel of the Lawyer Disciplinary Board or the Court, but shall be admissible
in any subsequent disciplinary proceeding involving the requesting lawyer.”
Rule 2.16 of the rules provides for a formal advisory opinion, which is rendered
directly by the Hearing Panel. Pursuant to Rule 2.16(d), “[a] formal advisory opinion is
binding on the Hearing Panel of the Lawyer Disciplinary Board in any subsequent
disciplinary proceeding involving the requesting lawyer, but is not binding upon the Supreme
Court of Appeals.”
4
letter by facsimile from the prosecuting attorney of Preston County requesting assistance with
criminal prosecutions. However, because of the informal advisory opinion of ODC, the
Attorney General contends that he did not accept the request from the prosecutor. Instead,
the Attorney General filed the instant petition for a writ of prohibition.
II.
STANDARD OF REVIEW
This Court has explained the standard of review applicable to a writ of
prohibition by stating that “[a] writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or having
such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syl. pt. 2, State ex
rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). In Syllabus point 4 of
State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996), this Court held:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction but
only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal’s order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
5
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
III.
DISCUSSION
The instant proceeding comes before this Court as a petition for a writ of
prohibition. Prior to addressing the merits of the request for relief, we must consider whether
the Attorney General has standing to invoke this Court’s extraordinary jurisdiction in the first
instance. We then will examine the collateral issue of whether the Attorney General has
authority to prosecute criminal offenses.
A. Standing and the Issuance of an Advisory Opinion by this Court
Here, the Attorney General seeks to prohibit enforcement of an informal
advisory opinion by ODC. Although we have had occasion to consider a petition for a writ
of prohibition against ODC, it has never been in the context of a petition to prohibit
enforcement of an informal advisory opinion. Usually, a writ of prohibition has been sought
against ODC after a complaint has been filed against a lawyer. See State ex rel. York v. West
Virginia Office of Disciplinary Counsel, 231 W. Va. 183, 744 S.E.2d 293 (2013) (denying
writ of prohibition to attorney seeking to prohibit ODC from prosecuting him for alleged
ethics violations); State ex rel. Clifford v. West Virginia Office of Disciplinary Counsel, 231
6
W. Va. 334, 745 S.E.2d 225 (2013) (granting writ to prohibit ODC from prosecuting a
complaint alleging conflict of interest by attorney); State ex rel. Scales v. Committee on Legal
Ethics of West Virginia State Bar, 191 W. Va. 507, 446 S.E.2d 729 (1994) (granting writ of
prohibition to stop ethics investigation). For the reasons set forth, we have determined that
the petition for a writ of prohibition in this case is improper because the Attorney General
lacks standing, and the relief sought is advisory. The grounds for denial are discussed
separately below.
1. The Attorney General lacks standing. The Attorney General has not
alleged that an ethics complaint was filed against him. Nor has ODC begun an independent
investigation into a possible ethical violation by the Attorney General with respect to the
specific facts alleged in the petition. ODC has simply responded to a request by the Attorney
General to render an opinion about the participation of the Attorney General in criminal
prosecutions under specific circumstances. ODC rendered an informal advisory opinion
indicating that if the Attorney General engaged in criminal prosecutions under the
circumstances outlined by him, Rule 8.4(d) would be violated, and Rule 1.7(b) had the
potential of being violated. The Attorney General seeks a writ of prohibition to prevent
enforcement of this non-binding informal advisory opinion. This is not a proper basis for
seeking a writ of prohibition and does not satisfy any of the factors enunciated in Hoover.
More importantly, the Attorney General has not passed the threshold issue of standing.
7
Standing, of course, may be raised at any time by a party or sua sponte by the Court. See
State ex rel. Abraham Linc Corp. v. Bedell, 216 W. Va. 99, 111, 602 S.E.2d 542, 554 (2004)
(Davis, J., concurring) (“The decisions of this Court and other jurisdictions have pointed out
that an appellate court has the inherent authority and duty to sua sponte address the issue of
standing, even when the parties have failed to raise the issue at the trial court level or during
a proceeding before the appellate court.”).8
This Court has held that a petition for a writ of prohibition “may be maintained
by any person injuriously affected by the action which he seeks to prevent[.]” State ex rel.
Gordon Mem’l Hosp. v. West Virginia State Bd. of Exam’rs for Registered Nurses, 136
W. Va. 88, 105, 66 S.E.2d 1, 11 (1951) (emphasis added; internal quotations and citation
omitted). The “injuriously affected” requirement to obtain a writ of prohibition was set out
succinctly in Syllabus point 6 of State ex rel. Linger v. County Court of Upshur County, 150
W. Va. 207, 144 S.E.2d 689 (1965), as follows:
As a general rule any person who will be affected or
injured by the proceeding which he seeks to prohibit is entitled
to apply for a writ of prohibition; but a person who has no
interest in such proceeding and whose rights will not be affected
or injured by it can not do so.
Accord In re Dandy, 224 W. Va. 105, 106 n.1, 680 S.E.2d 120, 121 n.1 (2009). We have
recognized the holding in Linger as a standing requirement for invoking the writ of
8
The Amicus brief also raised and briefed the standing issue.
8
prohibition. See Myers v. Frazier, 173 W. Va. 658, 676, 319 S.E.2d 782, 800 (1984) (“In
reviewing our prohibition cases, we note that the general rule for standing is expressed in
Syllabus Point 6 of State ex rel. Linger v. County Court of Upshur County, 150 W. Va. 207,
144 S.E.2d 689 (1965)). Accord State ex rel. Core v. Merrifield, 202 W. Va. 100, 113, 502
S.E.2d 197, 210 (1998); State ex rel. Goodwin v. Cook, 162 W. Va. 161, 166, 248 S.E.2d
602, 605 (1978).9
The Attorney General contends that he was “affected or injured” by ODC’s
informal advisory opinion because he would risk an ethics complaint being filed against him,
and the reputational stigma associated with the same, if he acted contrary to the informal
advisory opinion. Consequently, the Attorney General contends that he has a right to seek
a writ of prohibition to prevent the possible filing of an ethics complaint against him. The
logic of the Attorney General would have this Court entertaining a writ of prohibition from
9
With respect to our general rule on standing, we have held:
Standing is comprised of three elements: First, the party
attempting to establish standing must have suffered an
“injury-in-fact”–an invasion of a legally protected interest which
is (a) concrete and particularized and (b) actual or imminent and
not conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct forming the basis
of the lawsuit. Third, it must be likely that the injury will be
redressed through a favorable decision of the court.
Syl. pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 576 S.E.2d 807 (2002).
9
every individual who receives an “adverse” advisory opinion from ODC and all other state
entities that are allowed to issue advisory opinions. See W. Va. Code § 3-1B-3 (1995) (Repl.
Vol. 2013) (advisory opinion by state election commission); W. Va. Code § 5-3-1 (1994)
(Repl. Vol. 2013), W. Va. Code § 18-12B-11 (1977) (Repl. Vol. 2012), & W. Va. Code
§ 30-38-18 (2001) (Repl. Vol. 2012) (advisory opinion by the attorney general); W. Va. Code
§ 11-10-5r (1986) (Repl. Vol. 2013) (advisory opinion by tax commissioner); W. Va. Code
§ 6-9A-11 (2006) (Repl. Vol. 2010), W. Va. Code § 6B-2-3 (2004) (Repl. Vol. 2010), W. Va.
Code § 6B-2-5 (2008) (Repl. Vol. 2010), & W. Va. Code § 18-5-1a (2010) (Repl. Vol. 2012)
(advisory opinion by West Virginia Ethics Commission); W. Va. Code § 18-5A-3 (1993)
(Repl Vol. 2012) (advisory opinion by state board of education); W. Va. Code § 18-10F-2
(2011) (Repl. Vol. 2012) (advisory opinion by the interstate commission); W. Va. Code
§ 28-7-1 (2003) (Repl. Vol. 2013) (advisory opinion by the interstate commission for adult
offender supervision); W. Va. Code § 33-47-16 (2004) (Repl. Vol. 2011) (advisory opinion
by interstate insurance product regulation commission); W. Va. Code § 49-8A-1 (2004)
(Repl. Vol. 2014) (advisory opinion by the interstate commission for juveniles).
The writ of prohibition is not designed to accord relief to a person who merely
receives a requested advisory opinion with which he or she disagrees.10 The writ of
10
We also point out that the Attorney General’s brief appears to be blaming
ODC for preventing him from prosecuting criminal cases. ODC did not bar the Attorney
General from doing anything. ODC simply issued an informal advisory opinion that
(continued...)
10
prohibition is not a revolving door. See Woodall v. Laurita, 156 W. Va. 707, 713, 195 S.E.2d
717, 721 (1973) (“The piecemeal challenge of discretionary rulings through writs of
prohibition does not facilitate the orderly administration of justice.”). “[T]he right to
prohibition must be clearly shown before a petitioner is entitled to this extraordinary
remedy.” Norfolk S. Ry. Co. v. Maynard, 190 W. Va. 113, 120, 437 S.E.2d 277, 284 (1993).
See also State ex rel. Kees v. Sanders, 192 W. Va. 602, 606, 453 S.E.2d 436, 440 (1994)
(“The petitioner’s right to the extraordinary remedy of prohibition must clearly appear before
he is entitled to such remedy.”). All that the Attorney General has shown is that he disagrees
with an informal advisory opinion by ODC that suggests ethical violations may occur if he
prosecutes criminal cases in the manner proposed by him. This showing does not satisfy the
“affected or injured” requirement for standing to seek a writ of prohibition. The Attorney
General has suffered no injury, nor has any action been taken.
2. The relief sought is advisory. In addition to lacking standing, the relief
sought by the Attorney General would result in this Court issuing an advisory opinion on the
application of Rule 8.4(d) and Rule 1.7(b) to a situation that has not occurred.
It is a deeply rooted and fundamental law that “this Court is not authorized to
issue advisory opinions[.]” State ex rel. City of Charleston v. Coghill, 156 W. Va. 877, 891,
10
(...continued)
addressed the question presented to it by the Attorney General.
11
207 S.E.2d 113, 122 (1973) (Haden, J., dissenting). In this regard, we observed in
Harshbarger v. Gainer, 184 W. Va. 656, 659, 403 S.E.2d 399, 402 (1991), that “[s]ince
President Washington, in 1793, sought and was refused legal advice from the Justices of the
United States Supreme Court, courts–state and federal–have continuously maintained that
they will not give ‘advisory opinions.’” Moreover, in United Fuel Gas Co. v. Public Service
Commission, 73 W. Va. 571, 578, 80 S.E. 931, 934 (1914), we noted that “[b]y the plain
terms of the Constitution appellate jurisdiction is limited to controversies arising in judicial
proceedings[.]” This Court further addressed the issue of advisory opinions in Mainella v.
Board of Trustees of Policemen’s Pension or Relief Fund of City of Fairmont, 126 W. Va.
183, 185-86, 27 S.E.2d 486, 487-88 (1943), as follows:
Courts are not constituted for the purpose of making advisory
decrees or resolving academic disputes. The pleadings and
evidence must present a claim of legal right asserted by one
party and denied by the other before jurisdiction of a suit may be
taken.
Consistent with our general rule, it is obvious that “the writ of prohibition cannot be
invoked[] to secure from th[is] Court . . . an advisory opinion[.]” Barnett v. Brett, 401 P.2d
532, 534 (Okla. Crim. App. 1965). See also State ex rel. ACF Indus., Inc. v. Vieweg, 204
W. Va. 525, 533 n.13, 514 S.E.2d 176, 184 n.13 (1999) (declining writ of prohibition as
seeking advisory opinion).
In the instant proceeding, the Attorney General has cited to no valid authority,
12
nor does any authority exist, that permits this Court to decide whether ODC exceeded its
legitimate authority by issuing an informal advisory opinion regarding Rule 8.4(d) and Rule
1.7(b). As we have pointed out elsewhere in this opinion, Rule 2.15(c) grants ODC authority
to issue informal advisory opinions. Nowhere in that rule does it state that ODC must issue
informal advisory opinions that the requesting attorney will agree with. In fact, the rule
makes abundantly clear that an informal advisory opinion is not binding on this Court or a
Hearing Panel, in the event of a disciplinary proceeding arising out of matters addressed in
the informal advisory opinion. Insofar as no disciplinary proceeding has been instituted
against the Attorney General as a result of the informal advisory opinion, any decision on the
merits of ODC’s position on Rule 8.4(d) and Rule 1.7(b) would result in an advisory ruling
by this Court.
The issue of a petitioner seeking an advisory opinion through a petition for a
writ of prohibition was addressed in Dougan v. Gray, 884 S.W.2d 239 (Ark. 1994). In
Dougan, an attorney filed a petition for a writ of prohibition with the Arkansas Supreme
Court, seeking to prevent a probate court from holding him in contempt.11 The probate court
had ruled that if the attorney did not return an adoptive child to the jurisdiction of the court,
contempt proceedings would be invoked against him. The Court in Dougan rejected the
petition for a writ of prohibition on the grounds that it sought an advisory opinion:
11
Other issues and parties were involved in the case.
13
Dougan, in one of his counts, petitions us to issue a writ
of prohibition to prevent the probate court from holding him in
contempt. The record shows that the probate court has not cited
Dougan for contempt, and we do not know whether the probate
court will cite him for contempt. It is well established that this
court does not give advisory opinions, or answer academic
questions. Thus, we do not reach the merits of the count.
Dougan, 884 S.W.2d at 242 (internal citations omitted).
A ruling similar to that of Dougan was made in Hericks v. Hogan, 502 F.2d
795 (6th Cir. 1974). In Hericks, the plaintiff was injured while employed by the defendant
railroad company. The plaintiff filed an action against the defendant in federal court under
the Federal Employers’ Liability Act. During discovery in the case, the defendant sought to
have private interviews with certain physicians who treated the plaintiff. The plaintiff
objected and threatened to sue any doctor who spoke privately with the defendant. The trial
court drafted a proposed order that would require the plaintiff to allow the doctors to speak
with the defendant privately. However, the proposed order was not filed, by agreement
between the parties and the court, pending the plaintiff’s petition for a writ of prohibition.
The Sixth Circuit refused to address the merits of the petition as follows:
It seems apparent from the extensive attention which has been
directed to the issue attempted to be presented to this Court,
both in the District Court and here, that the present proceeding
is one agreed upon below, tacitly if not expressly, as designed to
elicit an advisory opinion. We decline the invitation to resolve
an issue not properly before us.
We express no opinion concerning the “Proposed Order”
14
other than to determine that its existence, and notation thereof
on the docket of the District Court, does not clothe this Court
with jurisdiction to entertain an interlocutory appeal not certified
to us pursuant to 28 U.S.C. § 1292(b) or otherwise, and the
Petition For Writ of Prohibition is denied.
Hericks, 502 F.2d at 796-97 (internal citations omitted). See also Matter of L. N., 617 P.2d
239, 240 (Okla. Crim. App. 1980) (declining writ of prohibition because it “fails to allege
facts sufficient to invoke the jurisdiction of this Court insofar as the request is not for relief
but, in fact, for an advisory opinion”).
In view of the foregoing, we decline to address the merits of ODC’s
determination regarding the application of Rule 8.4(d) and Rule 1.7(b) to any criminal
prosecutorial litigation the Attorney General contemplated, because to do so would result in
an advisory opinion. ODC has not initiated any investigation or complaint against the
Attorney General based upon its informal advisory opinion. Thus, we “will not decide
abstract issues where there is no controversy.” State v. Whittaker, 221 W. Va. 117, 133, 650
S.E.2d 216, 232 (2007). “Courts are not constituted for the purpose of making advisory
decrees or resolving academic disputes[.]” Syl. pt. 2, in part, Harshbarger v. Gainer, 184
W. Va. 656, 403 S.E.2d 399 (1991). See also State ex rel. ACF Indus., Inc. v. Vieweg, 204
W. Va. 525, 533 n.13, 514 S.E.2d 176, 184 n.13 (“As we frequently have said before, this
Court cannot issue an advisory opinion with respect to a hypothetical controversy. . . . Thus,
we conclude that we cannot entertain the petitioners’ request for a writ of prohibition.”);
15
Farley v. Graney, 146 W. Va. 22, 29-30, 119 S.E.2d 833, 838 (1960) (“[C]ourts will not . . .
adjudicate rights which are merely contingent or dependent upon contingent events, as
distinguished from actual controversies . . . . Nor will courts resolve mere academic disputes
or moot questions or render mere advisory opinions which are unrelated to actual
controversies.” (citations omitted)).
3. Summary. We have determined that the Attorney General lacked standing
to prosecute this petition for a writ of prohibition, and that resolution of the merits of the
petition would result in an advisory opinion by this Court. Even though we have determined
that resolving the application of Rule 8.4(d) and Rule 1.7(b) is not properly before this Court
on a writ of prohibition, we do believe that an important issue was presented by the parties
regarding whether the Attorney General has criminal prosecutorial authority under the
circumstances he presented to ODC. We believe that resolution of this singular issue has
immense importance to our criminal justice system. Consequently, we find it necessary to
address this collateral matter.
Before we begin, we wish to make clear that we have precedent for addressing
an important collateral issue in a writ of prohibition proceeding that was not properly before
this Court. For example, in State ex rel. Foster v. Luff, 164 W. Va. 413, 264 S.E.2d 477
(1980), the defendant filed a petition for a writ of prohibition and mandamus, alleging that
16
the trial judge abused his discretion in failing to authorize adequate funds for him to retain
experts. We determined that the matter was not properly before this Court because the trial
court’s order was an interlocutory order. However, because no guidelines were in place for
trial courts to follow in assessing a motion for funds for experts in criminal cases, we
determined it was necessary to address this collateral procedural issue, but not the merits of
the petition. We stated in Foster,
[f]inally, it should be stressed that while we have accepted this
issue under our original jurisdiction powers, this was done in
order to resolve a substantial issue of considerable importance
in the trial of criminal cases. As we stated in State v. Milam,
W. Va., 260 S.E.2d 295, 301 (1979), in regard to in camera
hearings on the voluntariness of a confession, where “the trial
court exercises a fact-finding function . . . his decision is
interlocutory and therefore not appealable nor controllable by a
writ of prohibition.”
Foster, 164 W. Va. at 419, 264 S.E.2d at 481. The decision in Foster went on to issue a
moulded writ requiring the trial court to apply the new guidelines for conducting a good
cause hearing in determining whether the defendant was entitled to the money he sought for
experts.
The instant case presents, as a collateral matter, a substantial issue of
considerable importance in the trial of criminal cases in this State. That issue is whether the
Attorney General has authority to prosecute criminal cases in the manner he proposed. Two
issues are at the heart of this question: (1) whether county prosecutors have authority to
17
appoint the Attorney General to prosecute criminal cases and (2) whether the Attorney
General has common law authority to prosecute criminal cases. We address both issues
separately.
B. County Prosecutors Do Not Have Authority
to Appoint the Attorney General to Prosecute Criminal Cases
As previously stated, the Attorney General received a letter from the Preston
County prosecutor asking him to provide direct assistance in prosecuting criminal cases. The
letter indicated that the prosecutor had a backlog of criminal cases and needed assistance in
prosecuting them.12 The Attorney General contends that under W. Va. Code § 7-7-8 (1987)
(Repl. Vol. 2010) county prosecutors have authority to appoint him to prosecute crimes as
a special prosecutor.
Resolving this issue requires this Court to ascertain the intent of W. Va. Code
§ 7-7-8. We previously have held that “[t]he primary object in construing a statute is to
ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. State
Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). In examining statutory
language generally, words are given their common usage, and “[c]ourts are not free to read
into the language what is not there, but rather should apply the statute as written.” State ex
12
The Amicus points out that the issue of backlogs in criminal cases is not
novel to counties. The Amicus suggests that the remedy for this problem is to seek additional
funding from county commissions in order to hire additional assistant prosecutors.
18
rel. Frazier v. Meadows, 193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994). We further have held
that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the statute
should not be interpreted by the courts, and in such case it is the duty of the courts not to
construe but to apply the statute.” Syl. pt. 5, State v. General Daniel Morgan Post No. 548,
Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353 (1959). On the other hand, when
the statutory language is not clear, it must be construed. As we said in Syllabus point 1 of
Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992), “[a] statute that is ambiguous
must be construed before it can be applied.” A statute is ambiguous if it “can be read by
reasonable persons to have different meanings. . . .” Lawson v. County Comm’n of Mercer
Cnty., 199 W. Va. 77, 81, 483 S.E.2d 77, 81 (1996). Thus, “[a] statute is open to
construction only where the language used requires interpretation because of ambiguity
which renders it susceptible of two or more constructions or of such doubtful or obscure
meaning that reasonable minds might be uncertain or disagree as to its meaning.” Hereford
v. Meek, 132 W. Va. 373, 386, 52 S.E.2d 740, 747 (1949).
Guidance in the construction of ambiguous statutes may be found in related
statutory provisions. We have held that “[s]tatutes which relate to the same subject matter
should be read and applied together so that the Legislature’s intention can be gathered from
the whole of the enactments.” Syl. pt. 3, Smith, 159 W. Va. 108, 219 S.E.2d 361. The in
pari materia rule of statutory construction applies only when a statute is ambiguous. We
19
have held that “[t]he rule that statutes which relate to the same subject should be read and
construed together is a rule of statutory construction and does not apply to a statutory
provision which is clear and unambiguous.” Syl. pt. 1, State v. Epperly, 135 W. Va. 877, 65
S.E.2d 488 (1951). Finally, we are guided by the general process and principles of statutory
construction embodied in Syllabus point 5 of State v. Snyder, 64 W. Va. 659, 63 S.E. 385
(1908):
A statute should be so read and applied as to make it
accord with the spirit, purposes and objects of the general
system of law of which it is intended to form a part; it being
presumed that the legislators who drafted and passed it were
familiar with all existing law, applicable to the subject matter,
whether constitutional, statutory or common, and intended the
statute to harmonize completely with the same and aid in the
effectuation of the general purpose and design thereof, if its
terms are consistent therewith.
The general authority of county prosecutors to appoint assistant prosecutors is
set out under W. Va. Code § 7-7-8. This statute provides, in relevant part:
The prosecuting attorney of each county may, in
accordance with and limited by the provisions of section seven
[§ 7-7-7] of this article, appoint practicing attorneys to assist him
in the discharge of his official duties during his term of office.
Any attorney so appointed shall be classified as an assistant
prosecuting attorney and shall take the same oath and may
perform the same duties as his principal. Each assistant shall
serve at the will and pleasure of his principal and may be
removed from office by the circuit court of the county in which
he is appointed for any cause for which his principal might be
removed.
20
This statute, read in isolation, authorizes county prosecutors to “appoint practicing attorneys
to assist him in the discharge of his official duties during his term of office.” This isolated
language could render the statute ambiguous as to the scope of a prosecutor’s appointment
powers. The Attorney General appears to have seized upon this isolated language to argue
that this provision permits prosecutors to “appoint one or more deputy or assistant attorneys
general as special assistant prosecuting attorneys to assist him with ‘both prosecutions and
investigations.’” The Attorney General also contends that “these attorneys would remain
employed and paid by the Office of the Attorney General.”
Assuming that the isolated language cited above is ambiguous, we do not
believe that the Legislature intended to grant prosecutors the authority under W. Va. Code
§ 7-7-8 to appoint the Attorney General as a special prosecutor, for several reasons.
To begin, by its own terms, W. Va. Code § 7-7-8 cannot be read in isolation.
The statute expressly states that the appointment power granted by it is subject to the
requirements of W. Va. Code § 7-7-7 (2011) (Supp. 2014). The latter statute expressly
requires county commissions to consent to the appointment of assistant prosecutors. It is
provided in W. Va. Code § 7-7-7(a), in relevant part, that
[t]he county clerk, circuit clerk, sheriff, county assessor
and prosecuting attorney, by and with the advice and consent of
the county commission, may appoint and employ, to assist them
in the discharge of their official duties for and during their
21
respective terms of office, assistants, deputies and employees.
(Emphasis added). See also Haney v. County Comm’n of Preston Cnty., 212 W. Va. 824, 830,
575 S.E.2d 434, 440 (2002) (“County Commission employees include employees of the
various elected county officials including the county clerk, circuit clerk, county assessor, and
prosecuting attorney. Pursuant to W. Va. Code § 7-7-7 (2000), these elected county officials
hire employees ‘by and with the advice and consent of the county commission[.]’”). We have
recognized that the intent of W. Va. Code § 7-7-7(a) “was for the county [commission]
initially to confirm or refuse to confirm a [prosecutor’s] appointees as part of our system of
checks and balances. Without that authority, the county [commission] cannot effectively
discharge its overall responsibilities in governing the county.” State ex rel. Dingess v. Scaggs,
156 W. Va. 588, 590, 195 S.E.2d 724, 725 (1973). In the context of the application of this
statute to county sheriffs we have held:
The plain language of W. Va. Code § 7-7-7 (1982)
(Repl. Vol. 1993) permits a sheriff to appoint or employ
individuals to assist him/her in the performance of his/her official
duties only after he/she has obtained the advice and consent of
the county commission to such appointment or employment.
Syl. pt. 4, Webster Cnty. Comm’n v. Clayton, 206 W. Va. 107, 522 S.E.2d 201 (1999). See
also Syl. pt. 8, in part, Harrison Cnty. Comm’n v. Harrison Cnty. Assessor, 222 W. Va. 25,
658 S.E.2d 555 (2008) (“When a county assessor seeks to hire an employee to perform duties
other than assessing and appraising duties, the assessor is required to first obtain the advice
and consent of the county commission pursuant to W. Va. Code § 7-7-7 (2000) (Repl. Vol.
22
2006).”). Moreover, an assistant prosecutor appointed under W. Va. Code § 7-7-7 is
considered an employee of the prosecutor and the county, and is paid by the county. See
Clayton, 206 W. Va. at 113, 522 S.E.2d at 207 (“[W]hile the Sheriff and the Commission are
joint employers of those individuals appointed or employed by the Sheriff, it is the
Commission who retains the ultimate responsibility for the compensation of these
persons[.]”). See also Fury v. Wood Cnty. Court, 608 F. Supp. 198, 199 (S.D.W. Va. 1985)
(“The statute controlling this issue, W. Va. Code § 7-7-7, makes it clear that as a general
proposition the County Commission and the individual elected county officials are joint
employers of those employees in the various county offices.”). In sum, and we so hold, in the
absence of a statute indicating otherwise, a prosecutor’s appointment of assistants under
W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) and W. Va. Code § 7-7-7 (2011) (Supp. 2014)
is generally limited to that of appointing attorneys as employees of the prosecutor and county
commission.
The Attorney General argues that the decision in State v. Angell, 216 W. Va.
626, 609 S.E.2d 887 (2004), is authority for prosecutors to appoint him as a special
prosecutor. We disagree.
In Angell, the defendant was indicted for workers’ compensation fraud by a
Kanawha County grand jury. The attorneys prosecuting the defendant were attorneys
23
employed by the Workers’ Compensation Commission (“WCC”). The WCC attorneys had
been appointed as special prosecutors by the county prosecutor. The defendant filed a motion
to dismiss the indictment on the grounds that the appointment of the special prosecutors
violated due process. The trial court dismissed the indictment. The State filed a petition for
a writ of prohibition to prevent enforcement of the order barring the special prosecutors from
participating in the prosecution.13 We determined that due process was not violated as a result
of prosecution by the special prosecutors. The opinion also made clear that, even though the
special prosecutors were employees of WCC, their appointment was confirmed by the county
commission. We crystalized this arrangement in Syllabus point 2 of Angell as follows:
The appointment by county prosecuting attorneys,
pursuant to the provisions of West Virginia Code § 7-7-8 (1987)
(Repl. Vol. 2003), of attorneys employed by the Workers’
Compensation Commission to serve as assistant prosecutors for
prosecution of workers’ compensation fraud and abuse cases
does not of itself violate due process principles.
216 W. Va. 626, 609 S.E.2d 887.
What is important to understand about the resolution reached in Angell is the
Court’s concern with “the method by which WCC proceeds with the prosecution of cases
involving criminal fraud perpetrated against the WCC fund.” Angell, 216 W. Va. at 630, 609
S.E.2d at 891. This concern was attributed to the fact that the Legislature created a fraud and
13
The State also filed an appeal. This Court determined the State did not have
the authority to appeal.
24
abuse crime unit within the workers’ compensation system. The fraud and abuse unit was
expressly given prosecutorial authority under W. Va. Code § 23-1-1b(g)(22)(B)(iv) (2005)
(Repl. Vol. 2010). This provision reads, in part, as follows:
The fraud and abuse unit, in cases of criminal fraud, has
the authority to review and prosecute those cases for violations
of sections twenty-four-e [§ 61-3-24e], twenty-four-f [§ 61-3­
24f], twenty-four-g [§ 61-3-24g] and twenty-four-h [§ 61-3-24h],
article three, chapter sixty-one of this code, as well as any other
criminal statutes that may be applicable.14
Id. The problem the Legislature created when it clothed the WCC fraud and abuse unit
attorneys with prosecutorial authority is that it failed to set out a mechanism by which the
attorneys could lawfully act as prosecutors. This failure was implicitly recognized by the
Legislature in W. Va. Code § 23-1-1b(g)(22)(F) as follows:
In the event that a final judicial decision adjudges that the
statewide prosecutorial powers vested by this subdivision in the
14
The full text of W. Va. Code § 23-1-1b(g)(22)(B)(iv) (2005) (Repl. Vol.
2010) reads as follows:
The fraud and abuse unit, in cases of criminal fraud, has
the authority to review and prosecute those cases for violations
of sections twenty-four-e [§ 61-3-24e], twenty-four-f [§ 61-3­
24f], twenty-four-g [§ 61-3-24g] and twenty-four-h [§ 61-3-24h]
article three, chapter sixty-one of this code, as well as any other
criminal statutes that may be applicable. In addition the fraud
and abuse unit not only has the authority to prosecute and refer
cases involving criminal fraud to appropriate state authorities for
prosecution, but it also has the authority, and is encouraged, to
cooperate with the appropriate federal authorities for review and
possible prosecution, by either state or federal agencies, of cases
involving criminal fraud concerning the Workers’
Compensation System in West Virginia[.]
25
fraud and abuse unit may only be exercised by a public official
other than an employee of the fraud and abuse unit, then to that
extent the provisions of this subdivision vesting statewide
prosecutorial power shall thenceforth be of no force and effect[.]
The decision in Angell recognized that WCC, the Kanawha County prosecutor, and the county
commission worked out an arrangement so that the prosecutorial authority authorized in
W. Va. Code § 23-1-1b(g)(22)(B)(iv) could be carried out. Ultimately, Angell found that no
“due process violation” occurred because of the prosecutorial arrangement made by the WCC,
the Kanawha County prosecutor, and the county commission.
In the instant proceeding, the Attorney General cannot rely on Angell as
authority for allowing prosecutors to empower him with general prosecutorial authority. The
prosecutorial authority recognized in Angell was based upon the Legislature granting WCC’s
fraud and abuse attorneys “specific” and limited prosecutorial powers.
We also find that prosecutors do not have authority to give the Attorney General
unlimited prosecutorial authority because the Legislature has specifically determined under
what circumstances prosecutors may seek appointment of the Attorney General to prosecute
criminal offenses. The Legislature has given the Attorney General limited prosecutorial
authority under W. Va. Code § 5-3-2 (1987) (Repl. Vol. 2013) as follows:
[H]e [the Attorney General] shall, when requested by the
prosecuting attorney of a county wherein a state institution of
correction is located, provide attorneys for appointment as special
26
prosecuting attorneys to assist the prosecuting attorney of said
county in the prosecution of criminal proceedings when, in the
opinion of the circuit judge of said county, or a justice of the
West Virginia Supreme Court of Appeals, extraordinary
circumstances exist at said institution which render the financial
resources of the office of the prosecuting attorney inadequate to
prosecute said cases.
Under this statute, the Legislature has specifically authorized prosecutors, in counties with
state correctional institutions, to appoint special prosecutors from the Attorney General’s
office.15 The appointment authority granted to prosecutors under the statute cannot be invoked
unless a circuit court judge or Justice from this Court find that “extraordinary circumstances”
exist at a state correctional institution, and the prosecutor’s office cannot fully prosecute cases
because of budget constraints.16 Applying the rule of statutory construction expressio unius
15
There is a provision in W. Va. Code § 5-3-2 (1987) (Repl. Vol. 2013) that
suggests the Governor may appoint the Attorney General to prosecute criminal proceedings.
The relevant provision of the statute provides that the Attorney General “shall appear in any
cause in which the state is interested that is pending in any other court in the state, on the
written request of the governor, and when such appearance is entered he shall take charge
of and have control of such cause.” Id. (emphasis added). Commentators have suggested
that “[t]his Code provision permits the governor to place the attorney general in charge of
any criminal prosecution with which the state is interested. The provision does not state,
however, that the attorney general may sua sponte intervene in any trial level criminal
prosecution.” Franklin D. Cleckley and Louis J. Palmer, Jr., Introduction to the West
Virginia Criminal Justice System and Its Laws 229 (1994). Similar language appearing in
the laws of other jurisdictions has been interpreted as allowing the governor to appoint the
attorney general to prosecute criminal cases. See, e.g., Westover v. State, 185 P.2d 315, 318
(Ariz. 1947); State v. Dawson, 119 P. 360, 363 (Kan. 1911); State ex rel. Cordray v.
Marshall, 915 N.E.2d 633, 637 (Ohio 2009). Insofar as this specific provision is not before
us, we need not decide its meaning.
16
In addition to the prosecutorial authority given to the Attorney General under
W. Va. Code § 5-3-2, the Legislature has authorized the Attorney General to conduct
(continued...)
27
est exclusio alterius (the expression of one thing is the exclusion of another), it becomes
obvious that if the Legislature had intended for prosecutors to have absolute discretionary
authority to appoint the Attorney General to assist in prosecuting crimes in general, there
would have been no need for setting out the limited appointment authority under W. Va. Code
§ 5-3-2.17 See Syl. pt. 1, State ex rel. Battle v. Hereford, 148 W. Va. 97, 133 S.E.2d 86 (1963)
16
(...continued)
criminal prosecutions for violations of law in other limited areas. See W. Va. Code § 5-1-26
(1974) (Repl. Vol. 2013) (violation of proclamation declaring the existence of a fuel
emergency); W. Va. Code § 16-12-6 (1994) (Repl. Vol. 2011) (violation of sewers and
sewage treatment plant laws); W. Va. Code § 19-12D-11 (1976) (Repl. Vol. 2007) (violation
of noxious weed laws); W. Va. Code § 19-16A-25 (1990) (Repl. Vol. 2007) (violation of
pesticide control laws); W. Va. Code § 20-7-6 (1961) (Repl. Vol. 2013) (violation of natural
resources laws); W. Va. Code § 21-3-14 (1937) (Repl. Vol. 2013) (violation of employee
safety and welfare laws); W. Va. Code § 21A-10-13 (1936) (Repl. Vol. 2013) (violation of
unemployment compensation laws); W. Va. Code § 22-5-6 (1999) (Repl. Vol. 2014)
(violation of air pollution laws); W. Va. Code § 22-15-15 (2002) (Repl. Vol. 2014) (violation
of solid waste management laws); W. Va. Code § 22-14-14 (2002) (Repl. Vol. 2014)
(violation of dam control laws); W. Va. Code § 22-18-15 (1994) (Repl. Vol. 2014) (violation
of hazardous waste management laws). Although we make reference to these statutes, we
make no determination in this opinion regarding the validity of the prosecutorial authority
granted in the statutes.
17
The Attorney General does have authority to provide advice to prosecutors
on criminal matters. Under W. Va. Code § 5-3-2, the Legislature has expressly provided that
the Attorney General “may consult with and advise the several prosecuting attorneys in
matters relating to the official duties of their office[.]” This statute also permits the Attorney
General to appear in criminal cases “pending in the Supreme Court of Appeals, or in any
federal court, in which the state is interested.” W. Va. Code § 5-3-2. Moreover, under
W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010), the Attorney General is authorized to seek
the assistance of county prosecutors as follows:
It shall be the further duty of the prosecuting attorney, when
requested by the attorney general, to perform or to assist the
attorney general in performing, in the county in which he is
(continued...)
28
(“A statute which provides for a thing to be done in a particular manner or by a prescribed
person or tribunal implies that it shall not be done otherwise or by a different person or
tribunal; and the maxim expressio unius est exclusio alterius, the express mention of one thing
implies the exclusion of another, applies to such statute.”).
Consequently, we now hold that in the absence of a statute indicating otherwise,
county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010)
to appoint the Attorney General or any member of the Attorney General’s office as a special
prosecutor.18
17
(...continued)
elected, any legal duties required to be performed by the
attorney general, and which are not inconsistent with the duties
of the prosecuting attorney as the legal representative of such
county. It shall also be the duty of the prosecuting attorney,
when requested by the attorney general, to perform or to assist
the attorney general in performing, any legal duties required to
be performed by the attorney general, in any county other than
that in which such prosecuting attorney is elected, and for the
performance of any such duties in any county other than that in
which such prosecuting attorney is elected he shall be paid his
actual expenses.
18
We also note that the Legislature created a general procedure for appointing
special prosecutors through the West Virginia Prosecuting Attorneys Institute under W. Va.
Code § 7-4-6 (2009) (Repl. Vol. 2010). Under this statute, the Institute is empowered to
appoint special prosecutors in certain situations. The following is provided by W. Va. Code
§ 7-4-6(e):
Each prosecuting attorney is subject to appointment by
the institute to serve as a special prosecuting attorney in any
county where the prosecutor for that county or his or her office
(continued...)
29
C. The Attorney General’s Common Law Authority to Prosecute
Criminal Cases Was Abolished by the Constitution and Statute
The Attorney General has argued that he has common law authority to prosecute
criminal cases based upon this Court’s decision in State ex rel. Discover Financial Services,
Inc. v. Nibert, 231 W. Va. 227, 744 S.E.2d 625 (2013). In Syllabus point 3 of Nibert we held:
The Office of Attorney General retains inherent common
law powers, when not expressly restricted or limited by statute.
The extent of those powers is to be determined on a case-by-case
basis. Insofar as the decision in Manchin v. Browning, 170
W. Va. 779, 296 S.E.2d 909 (1982), is inconsistent with this
holding, it is expressly overruled.
231 W. Va. 227, 744 S.E.2d 625. The Attorney General’s reliance on Nibert is misplaced.
The decision in Nibert was careful to recognize that specific common law powers of the
Attorney General can be abolished by law. Consequently, Nibert made clear that the extent
18
(...continued)
has been disqualified from participating in a particular criminal
case, a juvenile delinquency matter or a matter involving child
abuse neglect pursuant to chapter forty-nine of this code, or in
any matter wherein a special prosecutor previously appointed
has failed to take any action thereon within such time as the
Executive Director deems unreasonable. . . . The circuit court
judge . . . who disqualifies the prosecutor . . . shall seek the
appointment by the institute of a special prosecuting attorney to
substitute for the disqualified prosecutor.
In addition to the appointment authority under W. Va. Code § 7-4-6, the Legislature has also
granted the Institute authority to appoint special prosecutors in other situations. See W. Va.
Code § 6B-2-9 (2005) (Repl. Vol. 2010) (Ethics Commission under certain circumstances
may petition a circuit court for the appointment of a special prosecutor through the Institute);
W. Va. Code § 33-41-4(b) (2004) (Repl. Vol. 2011) (Insurance Commissioner under certain
circumstances may petition a circuit court for the appointment of a special prosecutor through
the Institute).
30
of the Attorney General’s common law powers had to be decided on a case-by-case basis. In
following the teachings of Nibert, we will determine if the Attorney General has common law
criminal prosecutorial powers.
We begin by noting that it is without question that the common law recognized
that attorneys general had prosecutorial powers. The common law powers of attorneys
general to prosecute criminal cases has been outlined as follows:
The attorney general had the power, and it was his duty,
among other things, to prosecute all actions necessary for the
protection and defense of the property and revenues of the crown,
and, by information, to bring certain classes of persons accused
of crimes and misdemeanors to trial.
The common law of England was the law of our colonial
government. The attorney general, under the colonial
government, received his appointment from the governor of the
colony, and exercised his duties under the common law. Later on
he was commissioned by the crown. The attorney general, at
common law, was the chief legal representative of the sovereign
in the courts, and it was his duty to appear for and prosecute in
behalf of the crown any matters, criminal as well as civil. It was
said by Blackstone:
He represents the sovereign, in whose name all criminal
process issue, and his power to prosecute all criminal offenses is
unquestioned at common law.
....
As the powers of the attorney general were not conferred
by statute, a grant by statute of the same or other powers would
not operate to deprive him of those belonging to the office at
common law, unless the statute, either expressly or by reasonable
31
intendment, forbade the exercise of powers not thus expressly
conferred. He must be held, therefore, to have all the powers
belonging to the office at common law, and such additional
powers as the legislature has seen fit to confer upon him.
People v. Kramer, 68 N.Y.S. 383, 386 (1900) (internal quotations and citations omitted). See
Ex parte Young, 209 U.S. 123, 161, 28 S. Ct. 441, 454, 52 L. Ed. 714 (1908) (“It would seem
to be clear that the attorney general, under his power existing at common law, and by virtue
of these various statutes, had a general duty imposed upon him, which includes the right and
the power to enforce the statutes of the state[.]”); Fay v. Miller, 183 F.2d 986, 988 (D.C. Cir.
1950) (“[T]he United States Attorney is vested with broad discretion to protect the public
from crime, such discretion being derived both from statutory grant and the authority of the
Attorney General at common law.”); Public Defender Agency v. Superior Court, Third
Judicial Dist., 534 P.2d 947, 950 (Alaska 1975) (“Under the common law, an attorney general
is empowered to bring any action which he thinks necessary to protect the public interest, and
he possesses the corollary power to make any disposition of the state’s litigation which he
thinks best. This discretionary control over the legal business of the state, both civil and
criminal, includes the initiation, prosecution and disposition of cases.”); Hunt v. Chicago,
Horse & Dummy R. Co., 13 N.E. 176, 180 (Ill. 1887) (“In England, the office of attorney
general has existed from a very early period, and has been vested by the common law with a
great variety of duties in the administration of the government.”); State v. Finch, 280 P. 910,
911-12 (Kan. 1929) (“At common law the attorney-general was the chief representative of the
sovereign in the courts, and it was his duty to appear for and prosecute in behalf of the crown
32
any matters–criminal as well as civil.”); Johnson v. Commonwealth ex rel. Meredith, 165
S.W.2d 820, 826 (Ky. 1942) (“It is generally recognized that unless denied by statute the
attorney general of any state is clothed with all the powers incident to and traditionally
belonging to his office. . . . A majority of the courts hold that he has all common law powers
and duties except as modified by the constitution or statutes; and, of course, such as may be
added by the constitution and statutes.”); State v. Robinson, 112 N.W. 269, 272 (Minn. 1907)
(“The office of Attorney General has existed from an early period, both in England and in this
country, and is vested by the common law with a great variety of duties in the administration
of the government.”); State v. Young, 170 P. 947, 948 (Mont. 1918) (“It is the general
consensus of opinion that in practically every state of this Union whose basis of jurisprudence
is the common law, the office of Attorney General, as it existed in England, was adopted as
a part of the governmental machinery, and that in the absence of express restrictions, the
common-law duties attach themselves to the office so far as they are applicable and in
harmony with our system of government.”); State ex rel. Derryberry v. Kerr-McGee Corp.,
516 P.2d 813, 818 (Okla. 1973) (“At common law the duties of the Attorney General, as chief
law officer of the realm were numerous. He was the chief legal advisor of the crown, and was
intrusted with the management of all legal affairs and the prosecution of all suits, both civil
and criminal in which the crown was interested. He alone, could discontinue a criminal
prosecution by entering a nolle prosequi therein.”); State v. Jimenez, 588 P.2d 707, 709 (Utah
1978) (“At common law the top legal adviser was invested with criminal prosecution
33
authority, and such authority is deemed to be that of Attorney General in the common law
states of this country.”).
The above authorities make it clear that the common law provides attorneys
general with authority to prosecute criminal cases. However, it is equally clear “that the
attorney-general may exercise common-law powers unless the constitution or statute law,
either expressly or by reasonable intendment, forbids the exercise thereof.” State v. Finch,
280 P. 910, 912 (Kan. 1929) (internal quotations and citation omitted). That is, “where a
conflict arises between the common law and a statute or constitutional law, the common law
must yield.” State v. Robertson, 886 P.2d 85, 91 (Utah Ct. App. 1994) (internal quotations
and citation omitted). As will be seen, in West Virginia the state constitution and
accompanying legislation abolished the Attorney General’s common law authority to
prosecute criminal cases.
As a preliminary matter, we observe that “[q]uestions of constitutional
construction are in the main governed by the same general rules applied in statutory
construction.” Syl. pt. 1, Winkler v. State Sch. Bldg. Auth., 189 W. Va. 748, 434 S.E.2d 420
(1993). Of course, “[t]he object of construction, as applied to written constitutions, is to give
effect to the intent of the people in adopting it.” Syl. pt. 3, Diamond v. Parkersburg-Aetna
Corp., 146 W. Va. 543, 122 S.E.2d 436 (1961). Although this Court is vested with the
34
authority “to construe, interpret and apply provisions of the Constitution, . . . [we] may not
add to, distort or ignore the plain mandates thereof.” State ex rel. Bagley v. Blankenship, 161
W. Va. 630, 643, 246 S.E.2d 99, 107 (1978). Thus, “[i]f a constitutional provision is clear in
its terms, and the intention of the electorate is clearly embraced in the language of the
provision itself, this Court must apply and not interpret the provision.” Syl. pt 1, State ex rel.
Trent v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953). On the other hand, “if the language of
the constitutional provision is ambiguous, then the ordinary principles employed in statutory
construction must be applied to ascertain such intent.” State ex rel. Forbes v. Caperton, 198
W. Va. 474, 480, 481 S.E.2d 780, 786 (1996) (internal quotations and citations omitted).
The political structure of West Virginia has its roots in Virginia. Consequently,
Virginia is a starting point for understanding the constitutional and statutory framework of
criminal prosecutions in West Virginia. Beginning around 1800, “in Virginia . . . the tenure
of the prosecutor’s office, both in the county and superiour courts, [was] at the pleasure of
those courts respectively.” Ex parte Bouldin, 33 Va. 639, 641 (1836). The decision in
Bouldin explains the evolution and erosion of common law prosecutorial authority of the
Virginia Attorney General as follows:
[T]he attorney and solicitor general, in England, were, at all
times, appointed and removed at the pleasure of the crown. They
held, and still hold, their offices during pleasure, whilst the
tenure of judicial office has been placed on a more stable footing.
Prosecutions at the distant assizes are frequently conducted by
king’s counsel appointed for the occasion, and designated,
35
perhaps, by the attorney general. In this country, before the
revolution, the attorney general for the colony, held his office,
mediately or directly from the king, and at his pleasure. The
king’s attorneys or prosecutors in the county courts, we have
every reason to believe, were recommended by those courts, but
appointed by the attorney general, and by him removable at
pleasure, being considered merely as his deputies. This state of
things continued after the revolution, and after the constitution of
1776 had fixed the tenure of the attorney general’s office as one
during good behavior. Our laws are, indeed, silent on the
subject; but we are informed by a gentleman of this city, that
about the year 1787, he was nominated by the county court of
Charles City as a fit person to fill the office of attorney for that
county; and soon afterwards received a letter from the then
attorney general, authorizing him to act in that capacity. And we
learn from other sources, that such was the practice in similar
cases. When the district courts were established in 1788, the law
made it the duty of the attorney general to appoint persons to
prosecute in such of the courts as he could not attend himself;
thus placing the prosecutors in those courts, on the same footing
with the prosecutors in the county courts. It was conceded in the
argument, that, if these officers were the deputies of the attorney
general, they were removable at his pleasure. We think this is
sufficiently apparent from the terms of the statute, authorizing the
appointment in such courts as he could not attend himself. But
it appears more conclusively in the law ascertaining their salaries,
which gave to the attorney general a certain salary, and to each
of his deputies in the district courts 75 dollars per annum. His
deputies in the county courts, were paid in a different manner.
Such was the situation of these officers, holding at the pleasure
of the attorney general and as his deputies, until January 1800,
when it was enacted, that attorneys to prosecute in behalf of the
commonwealth shall hereafter be appointed in the district and all
other inferiour courts of this commonwealth, by an order of such
courts respectively.
Ex parte Bouldin, 33 Va. at 648-49 (internal quotations and citations omitted). The decision
in Bouldin explains how the Virginia Attorney General’s office began to lose common law
36
prosecutorial authority as a result of local county judges appointing attorneys to prosecute
criminal cases. Eventually, the Virginia Legislature granted the authority to prosecute
criminal cases to elected county prosecutors that were called “attorneys for the
Commonwealth.” For example, by 1860 it was provided under Virginia Code title 50, chapter
165, § 7 (1860) that “[e]very commissioner of the revenue, sheriff, constable or other officer,
shall give information of the violation of any penal law to such attorney [for the
Commonwealth], who shall forthwith institute and prosecute all necessary and proper
proceedings in such case[.]”19
The above authorities make clear that, over sixty years before West Virginia
became a state, Virginia had stripped the Attorney General of his common law powers to
prosecute criminal offenses.20 This situation may help explain why the framers of West
19
Under Virginia’s constitution in 1860, the attorney for the Commonwealth
was a constitutional office. See Va. Const. art. 6, § 9 (1860).
20
Today, the office of Attorney General in Virginia is a constitutional office.
See Va. Const. art. V, § 15. The Virginia Attorney General’s criminal prosecutorial authority
has been limited by statute to a few specifically authorized offenses. See Va. Code Ann.
§ 2.2-511(A) (“Unless specifically requested by the Governor to do so, the Attorney General
shall have no authority to institute or conduct criminal prosecutions in the circuit courts of
the Commonwealth except [for specifically enumerated crimes[.]”). The prosecutor in
Virginia is still called “attorney for the Commonwealth.” The attorney for the
Commonwealth is a constitutional office. See Va. Const. art. VII, § 4 (“There shall be
elected by the qualified voters of each county . . . an attorney for the Commonwealth[.]”).
The attorney for the Commonwealth, not the Attorney General, has general prosecutorial
authority. See Va. Code § 15.2-1627(B). It has been said that “[w]hether Virginia’s
Attorney General has powers deriving from the common law is not a settled issue.” Michael
(continued...)
37
Virginia’s Constitution chose to place the office of prosecutor in the Constitution, and the
determination of the Legislature to place criminal prosecution almost exclusively with county
prosecutors.
Article 9, § 1 of the West Virginia Constitution states that “[t]he voters of each
county shall elect . . . a prosecuting attorney . . . who shall hold . . . office[] for the term of
four years.” This constitutional provision does not in and of itself set out the duties of the
prosecutor. The authority for setting out the duties of the prosecutor is contained in Article
4, § 8 of the Constitution, which provides that “[t]he legislature, in cases not provided for in
this Constitution, shall prescribe, by general laws, the . . . powers and compensation of all
public offices[.]” Pursuant to its constitutional authority, the Legislature sets out the duties
of prosecutors in W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010), in part, as follows:
It shall be the duty of the prosecuting attorney to attend to
the criminal business of the State in the county in which he is
elected and qualified, and when he has information of the
violation of any penal law committed within such county, he
shall institute and prosecute all necessary and proper proceedings
against the offender, and may in such case issue or cause to be
issued a summons for any witness he may deem material. Every
public officer shall give him information of the violation of any
penal law committed within his county.
As a result of the interplay between West Virginia Constitution article 9, § 1 and W. Va. Code
20
(...continued)
Signer, Constitutional Crisis in the Commonwealth: Resolving the Conflict Between
Governors and Attorneys General, 41 U. Rich. L. Rev. 43, 57 (2006) (internal quotations and
citation omitted).
38
§ 7-4-1, we have held that “[t]he prosecuting attorney is the constitutional officer charged
with the responsibility of instituting prosecutions and securing convictions on behalf of the
State of those who violate the criminal law. He is charged with the duty of prosecuting all
crimes[.]” State ex rel. Skinner v. Dostert, 166 W. Va. 743, 750, 278 S.E.2d 624, 630 (1981).
That is, “[g]enerally speaking, the prosecutor has exclusive authority to prosecute criminal
offenses at the trial level in the name of the state.” Franklin D. Cleckley and Louis J. Palmer,
Jr., Introduction to the West Virginia Criminal Justice System and Its Laws 229 (1994).21
The issue of whether the Attorney General retains common law authority to
prosecute criminal cases is resolved by West Virginia Constitution article 9, § 1 and W. Va.
Code § 7-4-1. Pursuant to those laws, the office of Attorney General was stripped of common
law prosecutorial authority. This conclusion itself is specifically dictated by the Constitution.
It is provided by article VIII, § 13 of the Constitution that,
[e]xcept as otherwise provided in this article, such parts of
the common law, and of the laws of this State as are in force on
the effective date of this article and are not repugnant thereto,
shall be and continue the law of this State until altered or
repealed by the Legislature.
We explained the operation of this constitutional provision in Nibert as follows:
We have held that Article VIII, Section 13 of the
Constitution of West Virginia authorizes the Legislature to enact
statutes that abrogate the common law[.] We equally have
21
We have previously mentioned in this opinion some of the limited areas in
which the Legislature permits the Attorney General to prosecute criminal conduct.
39
recognized that [t]he common law, if not repugnant of the
Constitution of this State, continues as the law of this State
unless it is altered or changed by the Legislature. Thus, under
Article VIII, Section 13, the Legislature can expressly repeal
specific aspects of the Attorney General’s inherent common law
powers.
Nibert, 231 W. Va. at 249, 744 S.E.2d at 647. As a result of the constitutional creation of the
office of prosecutor, the Legislature empowered that office with all of the powers of criminal
law prosecution. This empowerment repealed the Attorney General’s common law authority
to prosecute criminal offenses.
The Attorney General contends that three decisions of this Court have
acknowledged the existence of his common law authority to prosecute criminal cases.22 The
first case cited by the Attorney General is State v. Ehrlick, 65 W. Va. 700, 64 S.E. 935 (1909).
In that case, it appears that a prosecutor filed a petition to enjoin the defendants from engaging
in a horse racing gambling operation. The circuit court granted an injunction. The defendants
appealed on the grounds that the prosecutor did not have authority to seek the injunction in
the name of the state and that only the Attorney General had such authority. This Court noted
that if the matter was criminal, the prosecutor had authority over the matter, but if it was civil,
only the Attorney General could litigate the proceeding. The opinion found that the issue was
22
The Attorney General also cited to judicial decisions from other states
recognizing common law authority in attorneys general to prosecute criminal cases. The
decisions in each of the cases cited by the Attorney General were decided under the unique
laws of each state addressing the matter. The decisions in those states are not controlling and
have no impact on how we resolve the issue under our unique laws.
40
civil. Therefore, the prosecutor did not have authority over the issue. In rendering this
decision, the opinion provided the following discussion regarding the powers of the
prosecutor and the Attorney General:
The office of Attorney General is of very ancient origin,
and its duties and powers were recognized by the common law.
That of prosecuting attorney is of modern creation, it seems, and
its powers and duties are given, imposed, and prescribed by
statutory law. . . . As the Constitution and laws of the state make
the two offices separate and distinct and vest in the prosecuting
attorney certain powers and impose upon him certain duties, it
seems clear that the Attorney General cannot strip him of the
powers expressly given, nor increase the burdens laid upon
him. . . . The business, once pertaining actually as well as
theoretically to the office of Attorney General, has been divided
between the two offices for purposes of convenience. We may
say the office of prosecuting attorney has been carved out of that
of Attorney General and made an independent office, having
exclusive control, to some extent, of business of the state, arising
within the county. . . . There would be no individual
responsibility, if the powers of the Attorney General and
prosecuting attorney were coextensive and concurrent. The one
would be no more responsible than the other for the
nonenforcement of the laws. Concurrence would produce
interference, conflict, and friction in many instances, delaying the
disposition of business to the detriment of the state. We think it
plain therefore that, in a practical sense, the two offices are
distinct and independent; but all the business does not seem to
have been divided. Part of the civil business of the state in the
county seems to have been reserved to the Attorney General. . . .
[T]he duties of the prosecuting attorney . . . extends to all the
criminal business of the state in his own county. As to civil
business in which the state is interested, he can act, on behalf of
the state, only when required by the auditor and under the
direction of the latter, or when the duty is enjoined by some
statute. There are many other provisions imposing specific
duties, concerning particular matters, but there is no statute
giving him power to represent the state generally in respect to its
41
civil business.
Ehrlick, 65 W. Va. at 702-03, 64 S.E. at 936-37.
“Ehrlick stands for the proposition that the office of attorney general and county
prosecutor are independent and distinct within the limits set by statute.” Cleckley and Palmer,
West Virginia’s Criminal Justice System 229. We agree with this observation. However, the
Attorney General has seized upon the following single sentence in Ehrlick to argue that he has
common law criminal prosecutorial authority:
No doubt the Attorney General may assist the prosecuting
attorney in the prosecution of such business, or perform it
himself, in case of the nonaction of the prosecuting attorney, but
he cannot displace that officer.
Ehrlick, 65 W. Va. at 703, 64 S.E. at 936. This dicta is of no moment. To the extent that this
single passage in Ehrlick can be misinterpreted as recognizing common law prosecutorial
powers in the Attorney General, it is disapproved. It is clear from the full discussion in
Ehrlick that, absent statutory authority, a prosecutor cannot invade the duties of the Attorney
General, and the Attorney General cannot encroach upon the duties of the prosecutor. This
fact was crystalized in Syllabus points 1 and 2 of Ehrlick as follows:
1. The prosecuting attorney of a county has authority,
independent of the Attorney General, to institute and prosecute
all criminal actions and proceedings, cognizable in the courts of
his county, but has no such power or authority, respecting the
prosecution of civil proceedings on the part of the state, beyond
that expressly conferred by statute.
42
2. As the chief law officer of the state, the Attorney
General is clothed and charged with all the common-law powers
and duties pertaining to his office, except in so far as they have
been limited by statute.
65 W. Va. 700, 64 S.E. 935.
The second case cited by the Attorney General as authority for having common
law prosecutorial powers is Coal & Coke Railway Co. v. Conley, 67 W. Va. 129, 67 S.E. 613
(1910). In Conley, the plaintiff railroad company filed a petition seeking to enjoin the
Attorney General and Kanawha County prosecutor from taking any action against it for failure
to comply with a statute that limited certain fees the railroad company could impose. The
statute imposed only a monetary penalty for a violation. The railroad company believed the
statute was unconstitutional. The petition the railroad company filed was pre-emptive in that
no action had been filed against it by the Attorney General or prosecutor. The circuit court
found the statute unconstitutional in its entirety and granted relief to the railroad company.
An appeal was taken by the Attorney General and prosecutor. On appeal, this Court modified
the circuit court’s decree so as to make the statute unconstitutional against only the plaintiff.
The Attorney General’s reliance on Conley for common law prosecutorial
powers has no basis. First of all, nowhere in the Court’s opinion in Conley or the separate
opinions filed in the case was there any discussion about common law or statutory duties of
either the Attorney General or prosecutor. Additionally, the Court in Conley noted that the
43
statute complained of by the railroad company did “not expressly and specifically charge the
Attorney General of the state and the prosecuting attorneys of the several counties with the
duty of enforcing its provisions, or the prosecution of indictments for its violation.” Conley,
67 W. Va. at 145, 67 S.E. at 620. Additionally, and most importantly, there was in existence
at the time of the case a specific statute that actually gave the Attorney General express
authority to litigate matters involving railroad companies. At the time of the litigation, the
following was provided in W. Va. Code chapter 120, § 3777 (1882) (Repl. Vol. 1906):
It shall be the duty of the attorney-general of this State to
appear and protect the interests of the citizens of this State in all
actions, suits and other proceedings that are now, or shall
hereafter be, instituted in any court of record in this State, in
favor of or against any railroad company whose road passes
through any portion of the territory of this State, whenever such
action, suit or proceeding involves the right to assess or collect
taxes upon the property, real or personal, of said railroad by any
authority in this State authorized to levy taxes, whenever said
attorney-general shall be requested by said authority to do so.
The plaintiff brought the Attorney General into the case because of this statute. Finally, even
if the above statute had not expressly authorized the Attorney General to become involved in
tax litigation, when requested, involving railroad companies, the Attorney General was still
a proper party in the case because the taxing statute was civilly enforceable, not criminally
enforceable. This point was illustrated through a concurring opinion in the case:
I would regard the penalties valid and enforceable, and
overcharges recoverable by civil action, against a railroad
company earning a fair return. As it is, it is civilly enforceable
against such companies. And it will be civilly enforceable
against this company when its earnings warrant it; but I do not
44
believe it is penally enforceable.
Conley, 67 W. Va. at 207, 67 S.E. at 646-47 (Brannon, J., concurring). Insofar as the statute
at issue in Conley was civilly enforceable, the Attorney General simply cannot rely upon that
case as authority for prosecutorial power under the common law.
The third case relied upon by the Attorney General for common law authority
to prosecute criminal cases is Denham v. Robinson, 72 W. Va. 243, 77 S.E. 970 (1913). In
Denham, three defendants were indicted for embezzlement that was discovered by the State
Tax Commissioner. At some point during the litigation, the prosecutor moved the trial court
to dismiss the charges. The motion was made by the prosecutor with “the advice and consent
of the Attorney General[.]” Denham, 72 W. Va. at 245, 77 S.E. at 971. The trial court denied
the motion. The defendants filed a petition for a writ of prohibition with this Court to prevent
enforcement of the trial court’s order denying the motion to dismiss the charges. One of the
issues raised by the defendants was that, at common law, the Attorney General had authority
to dismiss a case without the consent of the court. Therefore, the prosecution against them
should be dismissed because the Attorney General consented to the dismissal. The opinion
in the case rejected the argument by pointing out that criminal prosecutions were the
responsibility of the prosecutor:
But it is argued that the rule of practice obtaining in the
trial courts can not control the action of the attorney general, who
concurred with the prosecuting attorney; and we are cited many
state and federal cases, for the proposition, that the attorney
45
general is a constitutional officer with few defined powers and
that by the federal and state constitutions the mantle of the
attorney general of England must be deemed to have fallen upon
the office of attorney generals of all the American states, when
uncontrolled by the organic law or some legislative
enactment. . . . We can not accede to the proposition in its
entirety. So far as the attorney general may undertake to exercise
or control the powers and duties of prosecuting attorneys we
think he is limited by the same rules of practice that control them.
The powers and duties of prosecuting attorneys are generally
defined by section 6, chapter 120, Code 1906, and as was said by
Judge Poffenbarger in State v. Ehrlick, supra: “We may say the
office of prosecuting attorney has been carved out of that of
attorney general and made an independent office. . . .” We are of
opinion, therefore, that the nolle prosequi attempted in this case
derived no additional force, because concurred in or assented to
by the attorney general.
Denham, 72 W. Va. at 249-50, 77 S.E. at 972-73. The opinion in Denham did not explain
why the prosecutor erroneously believed the Attorney General’s consent was necessary before
seeking to dismiss the charges. However, based upon the analysis in the opinion, it is clear
that the Attorney General was brought into the case because the applicable statute did not state
specifically what entity was charged with enforcing it. To make this determination, the
opinion examined the appropriate laws in order to make a determination that the Attorney
General had no legal role in the prosecution.
In its examination of the applicable statute, Denham found that prosecution of
the defendants had to be carried out by the “proper legal authority of the taxing body.”
Denham, 72 W. Va. at 250, 77 S.E. at 973. The statute, however, did not define who was the
46
“proper legal authority of the taxing body.” The opinion looked at the statutes creating the
authority of prosecutors and the Attorney General in order to determine which office was
responsible for prosecuting the defendants. The opinion concluded from its examination the
following:
Who is the legal authority of the taxing body of the county? Is he
not the prosecuting attorney, under chapter 120, Code 1906?
Section 6 of that chapter, we think, makes him so. Section 5 of
the same chapter imposes upon the attorney general none of the
specific duties imposed upon the prosecuting attorney by the
sixth section.
Denham, 72 W. Va. at 250, 77 S.E. at 973. The opinion deduced that the only “proper legal
authority of the taxing body,” for prosecution purposes under the statute, was the prosecutor,
not the Attorney General.23 Thus, it is clear to this Court that Denham found the Attorney
General was not a proper party in the litigation. Consequently, in the instant case, the
Attorney General cannot rely upon Denham as authority for recognizing common law
prosecutorial powers in the Attorney General.
Therefore, we now hold that as a result of the ratification of West Virginia
Constitution article 9, § 1 by the people of this State and the Legislature’s enactment of
W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010), the common law criminal prosecutorial
23
The statute added further confusion by stating that failure on the part of the
“proper legal authority of the taxing body” to prosecute “shall give to the chief inspector the
right to institute the necessary proceedings or to participate therein, and to prosecute the same
in any of the courts of the state, to a final conclusion.” W. Va. Code ch. 10B, § 240a7 (1908)
(Supp. 1909).
47
authority of the Attorney General was abolished.24
IV.
CONCLUSION
In this proceeding, we have determined that the Attorney General lacked
standing to have this Court determine the enforceability of an informal advisory opinion
issued by ODC. We also have determined that this Court could not address the merits of the
informal advisory opinion because to do so would result in this Court issuing an advisory
opinion. As a result of a collateral issue being raised in this proceeding, regarding the
authority of the Attorney General to prosecute criminal offenses, we took the extraordinary
measure of addressing this issue in this opinion because of its widespread implication to our
criminal justice system. In this regard, we have determined that county prosecutors do not
have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney
General as a special prosecutor. We further conclude that under West Virginia Constitution
article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal
prosecutorial authority of the Attorney General was abolished. After resolving the collateral
issue raised in this opinion, the writ of prohibition prayed for is denied.
Writ denied.
24
It should be noted that during oral arguments the Attorney General argued
that this Court could limit his common law prosecutorial authority to being exercised only
when requested by a prosecutor. We cannot resurrect and limit what the constitution and
statute have abolished.
48