West Virginia Village By the Sea

Justice Benjamin has now filed his concurring and dissenting opinion from a decision of the West Virginia Supreme Court of Appeals last month to deny a writ of prohibition to the state Attorney General.

The holding of the majority

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.

The result inspired the following tale from Justice Benjamin

 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 farming 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 dug. Indeed, everything probably had been premature. Just as the proceedings were about to adjourn, however, the Elders conferred among themselves and announced that a fence would be built all the way around the lake, with but two gates for which the farming boss and the chief lake angler would be given the only keys. At this, the lead sea captain leapt to his feet and exclaimed, “But this is unnecessary. Our fishermen will have no place to take their families on the weekends! Other villagers will no longer be able to enjoy the lake. With all respect, learned Elders, why would you insist upon such an unnecessary and extravagant thing when there is no current need?” A reverential hush fell as the question lingered in the room. “Because,” the Elders replied nonchalantly, “we know what is best for all of you, we know what you need, we are quite good at building fences, and this is what is needed for life to be good in our village by the sea.”

He concurs in the result but notes

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.

(Mike Frisch)