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.
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 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.
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.
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.
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
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[.]"
The Attorney General's brief indicates that, on June 2, 2014, he received a 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.
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:
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.
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 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.
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
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 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).
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 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.
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, 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:
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, 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, 318 Ark. 6, 884 S.W.2d 239 (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.
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:
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."); 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)).
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 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,
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 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.
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.
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 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
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 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):
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:
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
(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:
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.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 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.
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 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:
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:
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:
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.
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.
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:
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 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:
People v. Kramer, 33 Misc. 209, 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., 121 Ill. 638, 13 N.E. 176, 180 (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, 128 Kan. 665, 280 P. 910, 911-12 (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 any matters-criminal as well as civil."); Johnson v. Commonwealth ex rel. Meredith, 291 Ky. 829, 165 S.W.2d 820, 826 (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, 101 Minn. 277, 112 N.W. 269, 272 (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, 54 Mont. 401, 170 P. 947, 948 (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.
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, 128 Kan. 665, 280 P. 910, 912 (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 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:
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 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[.]"
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.
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:
As a result of the interplay between West Virginia Constitution article 9, § 1 and W. Va.Code § 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).
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,
We explained the operation of this constitutional provision in Nibert as follows:
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.
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:
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:
65 W.Va. 700, 64 S.E. 935.
The second case cited by the Attorney General as authority for having common law
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 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):
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:
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
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 "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:
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.
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 authority of the Attorney General was abolished.
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.
BENJAMIN, Justice, concurring in part, dissenting in part, and concurring in the judgment:
ONCE upon a time, there was a village by the sea. Some villagers fished the sea in their trawlers. Others were content to cast their lines in a vast freshwater inland lake where fish were abundant. Yet other villagers were farmers, who worked the land and who used the lake to water their livestock. All the villagers were happy. Food was plentiful. No one went hungry. Villagers enjoyed recreational time at the beach, at the lake, and at the parks. Life was good for the village by the sea.
One day, the lead sea captain of the sea trawlers noticed that sea conditions had become such that he now had more fishermen than needed to meet his quotas for fish. At the same time, he noticed that the lake anglers were often unable to meet their quotas. The lead sea captain proposed that several of his fishermen be transferred to the lake, on an as-needed basis, to assist the lake anglers.
Upon learning of this, the farming boss immediately objected, maintaining that sea fishing was sea fishing and lake fishing was lake fishing. He asserted that it was simply not proper for the chief lake angler to supervise sea fishermen who, though competent fishermen, had been trained their entire lives by others in the net-method of fishing, not the line-method of fishing. The fanning boss warned that if the lead sea captain insisted on the transfer, the farmers would construct irrigation ditches to their fields from the lake, thereby reducing the lake's fish population to a level compatible with the quota abilities of the lake anglers.
A conflict having arisen in the village, the matter was taken before the village elders. Determined to get to the bottom of the controversy that was disturbing the village's customary calm, the Elders asked if any sea fishermen had yet been transferred to the lake. The lead sea captain and the chief lake angler assured that such was not the case. The Elders then inquired whether digging had commenced on the irrigation ditches. The farming boss responded that construction of irrigation ditches had not begun, being merely in the planning stages. The Elders exchanged glances among themselves, and then proclaimed — partly in exasperation and partly in relief — "There is no current conflict here! Everything is running along smoothly, just as it always has been."
The representatives of the various occupations heeded the Elders' proclamation, and, indeed, all the villagers in attendance were constrained to admit that the sea might thereafter grow less jealous of its bounty, such that no fishermen need ever be transferred and no irrigation ditches need ever be
I agree with the majority that the requested writ should be denied, and I concur in its opinion insofar as it concludes that the Attorney General is without standing to bring this proceeding. It is perhaps more accurate to say that the matter is not yet ripe for adjudication, but, in either case, it is plain that the threshold requirement of justiciability is lacking. Moreover, the majority is manifestly correct that a decision on the merits would constitute an impermissible advisory opinion, a determination that ought to end the analysis then and there. We possess no jurisdiction to proceed farther. See Clark c. Shores, 201 W.Va. 636, 637 n. 4, 499 S.E.2d 858, 859 n. 4 (1997) ("`The courts of this State have no jurisdiction ... if no justiciable controversy exists.... Courts are not constituted for the purpose of making advisory decrees or resolving academic disputes.'") (quoting Town of So. Charleston v. Bd. of Edvc. of Kanawha Cnty., 132 W.Va. 77, 83, 50 S.E.2d 880, 883 (1948)).
Notwithstanding the unassailable case it makes that it has no authority to render an advisory opinion, the majority proceeds to embark on that very journey. The trip is justified, according to the majority, because the scope of the Attorney General's authority is "collateral" to what it describes as the ultimate issue before us, i.e., whether the exercise of such authority would violate the ethics rules. With all respect to my colleagues in the majority, the ultimate issue before us has been revealed as whether we have jurisdiction of the Attorney General's petition. Having answered that question in the negative, we are bound to answer no others.
The majority's designation of the scope-of-authority dispute as merely collateral is further belied by its characterization of the question as a "singular issue [having] immense importance to our criminal justice system." If the majority's assertion proves true, then its opinion will not long be remembered for the ethics context from which it arises or even for its cogent discussion of standing. The majority opinion will instead be recalled as a definitive curtailment of executive power by a coequal branch of government. Declarations of that sort are — for good reason — not routinely made (the majority admits that its adjudication on the merits is an "extraordinary measure"), and the opportunity to make them ought not be sought out. A big, bushy tail may be perceived at the outset as collateral to the dog, but when the tail then wags the dog, the tail rightly assumes paramount importance in the eyes of all.
Finally, the lone authority cited by the majority in support of its remarkable trek, see State ex rel. Foster v. Luff, 164 W.Va. 413, 264 S.E.2d 477 (1980), is of no avail. In Foster, we accepted jurisdiction over a petition seeking review of a trial court's decision to curtail the resources available to an indigent criminal defendant who had requested the procurement of expert services. We took the opportunity thus afforded to explain how the court in that case (and, indeed, future courts) should evaluate such requests. Although we informed the parties and the bar that we would not, in the future, accept interlocutory trial rulings for review by extraordinary writ, see 164 W.Va. at 419, 264 S.E.2d at 481, the proceeding in Foster was the functional equivalent of one commenced pursuant to West Virginia Code § 58-5-2 to resolve a
Regardless of its precise source, our jurisdiction to consider the question presented in Foster was appropriate, and, upon the exercise of that jurisdiction, we certainly possessed the discretion to instruct the lower tribunal in sufficient detail that it might more assuredly conduct the inevitable proceedings on remand. That is not the situation we confront here, where the dispute has not ripened and the Attorney General is without standing to pursue his petition. There is no jurisdiction to decide anything before us — other than that we have no jurisdiction — and there is no inevitable proceeding awaiting on remand that might benefit from our guidance. I must, therefore, respectfully dissent from that part of the majority's opinion in which it has elected to ignore the established norms governing the boundaries of judicial authority by discussing the merits of an issue (whether described as primary or collateral) that has been brought to our attention by other than legally prescribed means.
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."
Syl. pt. 5, Findley v. State Farm Mut. Auto. Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002).
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).
