CHARLESTON, W.Va. — West Virginia’s attorney general does have common law powers.
The state Supreme Court made that clear this week by overruling a 1982 decision that limited the powers of the state attorney general. It was part of the unanimous ruling that allowed the attorney general to continue the practice of hiring outside counsel.
“This really reinforces the notion that the West Virginia attorney general will function in a manner that’s traditionally understood in history,” said current AG Patrick Morrisey.
“This clarifies an important area of law that was left a little bit murky in recent years.”
In Manchin vs. Browning, Secretary of State A. James Manchin tried to compel Attorney General Chauncey Browning to represent the Secretary of State in federal litigation.
Even though the federal lawsuit was settled while the case was pending, the court opted to use it to address the duties of the attorney general more than 30 years ago.
In Tuesday’s ruling, the Supreme Court said, “In resolving this issue, the opinion in Manchin ventured off into sweeping dicta that called into question whether the Attorney General had common law powers,” the opinion said.
“The decision in Manchin relied upon the status of the Office of Attorney General in Virginia, prior to the start of the Civil War, in order to conclude that West Virginia’s Attorney General did not have common law powers.”
In general, the ruling said the AG only had the powers the Legislature spelled out in statute.
Citing language in the West Virginia Constitution, the court this week reversed that finding.
“The Office of Attorney General retains inherent common law powers, when not expressly restricted or limited by statute,” the court concluded.
“We’ve had independent authority to act on a wide variety of matters. There’s some people who have disagreed with that notion. Hopefully, this case puts that question to rest,” said Morrisey.
Darrell McGraw, the longtime AG who lost his re-election bid to Morrisey last year, wrote the opinion for Manchin vs. Browning when he sat on the Supreme Court in 1982. After he was elected attorney general in 1992, he was forced to operate the office under the limitations he had created.
Morrisey was a guest on Wednesday’s MetroNews “Talkline.”