CHARLESTON -- West Virginia's top attorney doesn't have the power to prosecute criminal cases.
One Republican candidate for attorney general wants to change that, while his GOP primary opponent calls that a "dangerous weaponization."
State Sen. Mike Stuart, R-Kanawha, issued a press release Tuesday calling on the West Virginia Legislature to consider expanding the authority of the Attorney General's Office to allow for criminal investigations and prosecutions.
"The attorney general plays an important role but it can do far more," Stuart said. "In most states, Attorney generals have the authority to empanel a grand jury, investigate criminal activity, and to prosecute drug dealers, child predators, insurance and Medicaid fraud, and public corruption but not in West Virginia.
"It is in the best interests of the people of West Virginia for its Attorney General to use every possible tool to best represent our citizens and to work in partnership with local prosecutors and law enforcement to strengthen public safety," Stuart continued.
Stuart, nearly five months through the first year of his four-year term as a freshman lawmaker, is a lawyer and a former U.S. attorney for the Southern District of West Virginia.
He announced his candidacy for attorney general at the beginning of May.
Stuart faces Senate Majority Whip and Senate Judiciary Committee Vice Chairman Ryan Weld, R-Brooke, in the Republican primary. Weld, an attorney and former assistant prosecuting attorney in Brooke County, announced his attorney general candidacy in April.
In a statement Tuesday evening, Weld said he was against expanding the powers of attorney general into criminal prosecutions, saying such powers should remain with local county prosecuting attorneys and law enforcement.
"I absolutely would not pursue such a dangerous weaponization of state government as the next attorney general," Weld said. "Being a former county prosecutor, I know just how hard our elected prosecutors, their assistant prosecutors and local law enforcement all work to keep our communities safe. Local government control and reducing our bureaucracy have always been priorities for me as a legislator. This does the opposite."
According to the state Constitution and state code, the attorney general has no criminal prosecution powers. State code only allows the attorney general to assist county prosecutors in criminal matters if a circuit judge or a justice of the state Supreme Court of Appeals deems it necessary.
"State law already contains numerous ways for prosecutors and local law enforcement to request assistance in criminal matters, including from the Attorney General's Office," Weld said. "I have full faith in the abilities of our elected prosecutors and sheriffs to do their jobs, and I see absolutely no reason to increase the size of our state government by taking away their powers and giving them to Charleston."
According to an opinion from the state Supreme Court in 2014, the court said the attorney general has no legal authority to prosecute criminal cases or assist county prosecutors even if requested by the county.
Morrisey sought a written opinion from the Office of Disciplinary Counsel in 2013 after the Mingo County Commission asked the Attorney General's Office to assist the county prosecuting attorney. The Office of Disciplinary Counsel told the Attorney General's Office that it was inappropriate and issued an informal advisory opinion.
"The Lawyer Disciplinary Board determined that there currently exists in West Virginia no authority, constitutional, statutory or otherwise, for the attorney general to assist county prosecutors with criminal prosecutions outside of what is contemplated (in state code)," wrote former Supreme Court Justice Robin Davis in a 2014 majority opinion affirming the ODC's advisory opinion.
After receiving a similar request for assistance from the prosecuting attorney of Preston County in 2014, Morrisey filed a petition with the Supreme Court seeking to prohibit enforcement of the Office of Disciplinary Counsel's informal advisory opinion. The Supreme Court sided with the Office of Disciplinary Counsel, determining state code and the state Constitution prohibited the attorney general from prosecuting criminal cases.
"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," Davis wrote. "This empowerment repealed the attorney general's common law authority to prosecute criminal offenses."
According to Stuart, West Virginia is one of 11 states that provide no criminal prosecution powers to attorneys general, while 35 states provide some level of prosecutorial power.
"As a former United States attorney with a big record of prosecuting drug dealers, fraudsters and corrupt public officials, I understand the pivotal role a prosecutor can play in protecting families, communities and the State of West Virginia," Stuart said. "Local prosecutors do a great job in West Virginia, but often with too few resources, too few prosecutors and little to no multi-county, regional or statewide strategic coordination. An attorney general with the authority to initiate and coordinate criminal investigations and prosecutions would significantly strengthen public safety and government accountability statewide."