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The Village By The Sea

The Village By The Sea

What do farmers, fishermen and village elders have to do with the Attorney General’s prosecutorial powers?  More than you may think!

On October 15, the Supreme Court issued an opinion in State ex rel. Morrisey v. West Virginia Office of Disciplinary Counsel, No. 14-0587.  Attorney General Morrisey was asked by the Mingo County Commission to provide prosecutorial support for the county.  Morrisey contacted the Office of Disciplinary Counsel, asking if attorneys employed by the AG could also serve in a county prosecutor’s office.  ODC advised that accepting an appointment as a county prosecuting attorney or assistant would warrant discipline.

Morrisey then filed a petition for a writ of prohibition.  The Supreme Court concluded that because there was no actual disciplinary complaint or investigation, the AG lacked standing.  Therefore, under settled law, there was no basis for issuing a writ of prohibition.

For the four member majority, however, this wasn’t quite the end of the matter.  There was a “collateral” issue--whether, in fact, the AG had the prosecutorial powers he was claiming.  For the next 32 pages, the Court reviewed the statutory, common-law and constitutional limits on the AG’s powers, concluding that prosecutors could not appoint attorneys from the AG’s office and, in turn, the AG could not do so using his own authority.

But Justice Benjamin would have none of it.  To his mind, this was a simple case of standing.  Because the Court had found that the AG lacked standing, the case was over.  There was no jurisdiction to proceed any further.

To emphasize his point, Justice Benjamin told the tale of a pleasant “village by the sea.”  Those who fished in the sea had been experiencing fair weather and had a surplus of fishermen.  The sea captain noticed that there were not enough men fishing on the inland lake.  Therefore, he proposed transferring some of his fishermen to the lake on a part-time basis.  But the farming boss objected, warning that if the plan went forward the farmers would dig ditches to drain water from the lake.

The dispute was taken to the village elders.  After intense questioning, the elders satisfied themselves that no conflict actually existed--no fishermen had been transferred, and no ditches had been dug.  Everyone admitted that the whole dispute was premature.  But before concluding the proceedings, the elders met briefly and announced that a fence would be built around the lake and that only two people would be given keys.  When asked why they would take this extraordinary and hurtful step without any cause, the elders replied simply: “Because…we know what is best for all of you.”

With this whimsical but poignant story, Justice Benjamin took a stuffy legal subject and made it understandable--even enjoyable.  The law doesn’t always have to be dry and drab.  It can entertain as well as instruct.  Regardless of whether, or not, you agree with Justice Benjamin on the outcome of this particular case, the fact of the matter is that he drew us into the story.  That’s a win for any writer!

 

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