Earlier this week, Democrats in the West Virginia House of Delegates took dangerously partisan steps to strip constitutional powers from West Virginia's Attorney General Patrick Morrisey. The legislation in question, House Bill 4490, would severely limit the Attorney General's ability to fight the overreaching powers of the Environmental Protection Agency and the Obama administration. The legislation takes further steps to diffuse the role of the Attorney General by removing specific powers and forcing the office to unnecessarily hire outside counsel.
Needless to say, the bill passed on a strict party line vote with all Democrats present supporting the power grab.
Since taking office, Patrick Morrisey has shown incredible leadership as a pro-active Attorney General who fights for West Virginia's best interests. Morrisey has filed numerous briefs to protect West Virginia's energy industry and the rights of individuals to health care freedom. The right to file amicus briefs justly resides with the Attorney General. However, the bill in question requires the Attorney General to seek the approval of the Speaker of the House, the President of the Senate and the Governor. Currently, each of those positions is held by a Democrat.
Presumably, the Democrat leadership in West Virginia seeks this paradigmic change to prevent the Republican Attorney General from fighting against the Obama Administration. However, politics aside, the legislation is prima facie unconstitutional. Quite simply, as per Burton v. State ex rel McGraw, this legislation does not meet constitutional muster by forcing the Attorney General to relinquish his right to litigate on behalf of the State of West Virginia and forfeit that control to the West Virginia Legislature.
The legislation goes on to remove certain contract review procedures from the Attorney General's office and place that responsibility in the Secretary of State's office. Despite the fact that the current Secretary of State is also a Democrat, taking any legal contract review duties out of the hands of West Virginia's chief attorney is ludicrous despite the party affiliation of the current officeholders.
Another interesting point of the legislation obviously serves as a handout to wealthy trial attorneys who have traditionally served as a major Democrat party funding source. Despite the fact that the Attorney General and all attorneys employed in his office are subject to the Rules of Professional Conduct set forth by the West Virginia Bar, House Democrats have chosen to add additional highly restrictive conflict of interest rules.
According to House Counsel, the Attorney General would be forced to recuse himself from all cases linked to donors who have ever contributed any amount to any of his campaigns for any office at any point in time. As a result, the rules promulgated in HB 4490 would force the Attorney General to more frequently hire outside counsel to litigate cases without oversight by the State of West Virginia. It should not fall on deaf ears that the legislation would not prohibit the Attorney General from hiring outside counsel who contributed to his own Attorney General campaign.
The implication of the law is, hypothetically, if a Democrat funded by liberal trial lawyers ever wins the office of Attorney General again and chooses to hire an outside counsel, his entire donor list of attorneys is eligible for selection. Further, if an Attorney General received a $5 contribution thirty years prior in a county school board race from a party tangentially related to a case, he would be forced to recuse himself. Ultimately, the cost of hiring additional outside counsel could cost taxpayers millions of dollars.
The timing of the legislation could not be more suspect. While Democrats hold on to the last slivers of power in West Virginia, they have chosen to use the legislative process to attack the only Republican member of the Board of Public Works.
Since becoming Attorney General, Patrick Morrisey has jumped to the front lines of defending West Virginians against the job-killing agenda of the Obama administration. Voters elected Patrick Morrisey to do a job yet House Democrats have attempted to circumvent the electoral process and nullify the will of the people.
When West Virginias spoke at the ballot box in November 2012, the universal message was casting aside complacency and ushering in a new era of strength. On top of the gains made in the state legislature on the Republican side, voters empowered a new Attorney General to stand up and take the lead to defend their rights because other constitutional officers chose to accept defeat.
Voters will have their next opportunity to speak against the ruling party this November. No doubt, shameful tactics like those used in HB 4490 will be remembered.
EDITOR'S NOTE: Conrad Lucas, of Huntington, is Chairman of the West Virginia Republican Party.