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Some question constitutional standing of AG ethics act

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"This bill goes much further than just restricting funds," said Delegate John Shott, R-Mercer. "In fact, it oversteps our constitutional boundaries as to what we can do with respect to the operation of our court system."

The statement Shott gave on the House floor Feb. 24 was against the West Virginia Attorney General Ethics Act, which later passed the House by a narrow party-line vote.

During the floor session, the two main arguments about the legislation were the proposals for enhanced and tightened ethical requirements in regard to court appearances and a provision that money received from cases be would be funneled back to the Legislature to allocate as it sees fit.

Who regulates court proceedings?

According to Shott, the authority to set rules regarding West Virginia's court systems is reserved exclusively for the West Virginia Supreme Court of Appeals.

How would the proposed legislation infringe on those powers reserved for the Supreme Court?

"This bill is a series of disqualifications," Shott said. "In other words, an attorney cannot represent a client in a court system under certain circumstances. That's not our prerogative. We have no authority to do that."

Who does have the right to determine if ethical conflicts exist? The Supreme Court, Shott said.

There are however, two things Shott said the Legislature does have the authority to oversee — how money is used and the ability to control outside bidding. 

However, usurping power from the Supreme Court would create a constitutional crisis, he said.

"We cannot, absolutely cannot, usurp the prerogative of the Supreme Court of Appeals," Shott said.

Not only does the power to determine court proceedings lie with the Supreme Court, but because the office of the Attorney General is a hybrid of sorts, two different oaths are required, adding an extra blanket of protection.

Minority Leader Delegate Tim Armstead, R-Kanawha, said the attorney general is required to take both the governmental ethics oath and, as an attorney, is bound to the rules of professional conduct.

"(The attorney general) has two layers of protection against ethical violations," he said. "He's required to adhere to governmental ethics, where there are already protections in place regarding conflicts of interest," Armstead said. "In addition to that, he took an oath as an attorney. As an attorney, he is also subjected to rules of professional conduct."

Under the proposed bill, the assistant attorney general, acting in lieu of the attorney general if there were to be a conflict of interest, would be supervised by the governor.

Armstead pointed out some potential issues with that particular designation.

"Is there any constitutional right for the governor to supervise the assistant attorney general?" he asked. "I'm not sure to request him to do that would not be out of compliance with law."

If the governor were to supervise, legal decisions and decisions about legal requirements would have to be made. 

Armstead asked if the governor would be out of compliance with the law if he's not an attorney.

Many opponents of the proposed bill wondered how someone could legally make legal decisions or offer legal guidance without the possession of a law license.

Delegate Patrick Lane, R-Kanawha, who is an attorney, asserted that the legislation goes "far beyond what the court thinks is right and proper for the practice of law in West Virginia."

"How can we, as a constitutional body, say to another constitutional officer, the attorney general, you have no power and we are going to subject you to the will and the oversight of the executive, the governor, a third constitutional officer?" Lane asked. "The duly elected constitutional officer, the attorney general, has his or her power stripped and given to the governor of the state of West Virginia. 

"We simply don't have the authority to say to the state's chief legal law officer, ‘you have no power or authority under the constitution.'"

While Lane said there is a lot of good in the proposed bill, a problem still exists.

"The problem is if you take an unconstitutional bill and you wrap all the good stuff around it, it's still unconstitutional," he said.

Delegate Paul Espinosa, R-Jefferson, said he couldn't support a piece of legislation that merely targeted one person in one office while exempting legislators, governors, Supreme Court justices or other constitutional officers to adhere to the same rules.

"It's fundamentally unfair and severely hampers the core functions of the attorney general's office," he said. "The people of West Virginia elected the attorney general to perform his duties under the West Virginia constitution and this House had no right or basis to subvert our constitution or the will of the people."

Funneling the money back

Another provision in the bill would require the Office of Attorney General to hand over any money earned from cases to the Legislature to appropriate.

"Just as a private attorney can't keep a client's money, the attorney general shouldn't be able to keep taxpayer money recovered by him," said House Speaker Tim Miley, D-Harrison, who is an attorney.

While both proponents and opponents both agreed with that sentiment, Armstead said Morrisey is respecting the money issue and taking appropriate action to ensure cooperation.

During the 2013 regular legislative session, Attorney General Patrick Morrisey worked with lawmakers on an agreement for a new policy to return settlement money to the state's General Revenue Fund.

"I campaigned on a platform of returning lawsuit settlement moneys back to the Legislature and the taxpayers, and the promises made many months ago have been kept," Morrisey said at that time. "This bill and its approval by members of the Legislature shows this is a new day in the Attorney General's Office."

The attorney general is part of the state's Board of Public Works. Other offices that make up the Board of Public Works are the Governor, Secretary of State, Auditor, Treasurer, Commissioner of Agriculture and the State Superintendent of Schools.

Why target the Attorney General?

The big question raised by many who stood to speak during the House floor session was why they should create legislation that targets the Office of Attorney General when there are numerous other individuals within office who have been accused of misconduct.

Many lawmakers pointed to the Department of Agriculture, where suspicious activity from the previous Commissioner of Agriculture was uncovered by a legislative audit. And still others described targeting one office and the individual in that office instead of known offenders as "outrageous" and nothing more than a "political grab."

Many lawmakers pointed out the bill targeted the lone Republican in a sea of Democrats and that Morrisey had voluntarily removed himself from a case when a potential ethical conflict did arise.

Many opponents of the bill said overlooking known misconduct in order to target an office for "political purposes" equated to a sad day for the Mountain State.

"We choose not to look at any other official, yet the news is rampant with allegations of other misuse within our government and we focus on one person," Shott said. "What is the importance of this bill? 

"Is it the activity of the attorney general defending our second amendment rights? Is it the activity of our attorney general in resisting the overreach of the Environmental Protection Agency and other government agencies?"

Balancing responsibilities

After the vote, Miley issued a news release.

"Being the legal representative of the state of West Virginia, the attorney general is both an executive and judicial officer who must balance constitutional duties with the attorney-client relationship," Miley said in the statement. 

Instead of focusing on adding additional ethical standards, in spite of the fact that the attorney general takes two separate ethical oaths, West Virginia Citizens Against Lawsuit Abuse instead suggested codifying limits on contingency fess for private attorneys hired to represent the state. 

"We applaud and recommend codification of Attorney General Patrick Morrisey's self-imposed policy that limits payments to outside counsel attorneys," CALA said in a statement.

And WV CALA Executive Director Greg Thomas said the House Judiciary Committee historically looked the other way in regards to questionable activity by former Attorney General Darrell McGraw.

"Many of the same members of the House Judiciary Committee ignored that activity and took very little action to reign in his unethical, reckless and embarrassing behavior," Thomas said. "It is clear that House Bill 4490 is politically motivated and does not address the serious problems of the McGraw era with outside counsel attorneys making millions through backroom contingency fee agreements on representing the State of West Virginia."

During the lengthy discussion of the proposed legislation, Shott said one thing is inconceivable.

"It is inconceivable to me, inconceivable, that when the highest elected legal official, our chief legal officer, tells us this statue is unconstitutional we would even dare consider moving forward," he said.

If a person questions whether or not the measure is unconstitutional, he or she can go to the Supreme Court and ask the justices, Shott said.

"If there's any question … we have the prerogative to go to the Supreme Court and ask them," he said. "We can get a ruling."

The bill has been introduced in the Senate.