Supreme Court finds ‘good cause’ in Plants filing, will expedite

Kanawha Prosecuting Attorney Mark Plants (right) listens Tuesday as his chief of staff, Dan Holstein, tells a Kanawha Circuit Court judge his office should be removed from handling only those domestic violence cases involving parents and children that deal with corporal punishment.
Kanawha County Prosecuting Attorney Mark Plants (center) talks with (from left) city of Charleston attorneys Grady Ford and Paul Ellis, attorneys with the state Office of Disciplinary Counsel Joanne Vella Kirby and Rachael Fletcher Cipoletti, and Dan Holstein, Plants’ chief of staff.

The West Virginia Supreme Court found Tuesday that there is “good cause” for a filing that calls for the prosecuting attorney of Kanawha County to be immediately suspended or his office taken off domestic violence cases involving parents and minor children.

In their order, justices said Prosecuting Attorney Mark Plants’ disciplinary matter would be expedited and set oral arguments for May 5.

Plants is charged with domestic battery of his 11-year-old son and has admitted striking the boy several times with a belt. He also faces a charge of violating a domestic violence protection order telling him to stay away from his ex-wife and sons. Both charges are misdemeanors.

The Office of Disciplinary Counsel, which oversees lawyers in the state, asked the state Supreme Court earlier this month to immediately suspend Plants or remove his office from handling similar cases. The ODC says Plants’ argument that he didn’t commit a crime and that he has the right to discipline his son within reason creates a conflict of interest.

Justices met in a private conference Tuesday to discuss the ODC’s filing. Justice Brent Benjamin was disqualified, the order states.

Earlier Tuesday, in light of the criminal charges Plants faces, prosecutors were told to turn over a list of all cases involving parents and minor children to a Kanawha County judge by 4 p.m. Kanawha Circuit Judge Duke Bloom said the list should include all cases that involve domestic battery or assault of a minor child, all felony cases that involve parents and children, and all charges brought over the violation of a domestic violence protective order.

Dan Holstein, Plants’ chief of staff, said late Tuesday afternoon that the prosecutor’s office had turned over most of those cases, and would turn over more this morning. The judge said that was OK, Holstein said.

The city of Charleston has filed a petition asking Bloom to prohibit Plants’ office from hearing domestic violence cases involving parents and children on cases investigated by Charleston police.

Since the ODC’s filing, Kanawha prosecutors haven’t been handling those types of cases. Holstein said during Tuesday’s hearing that because prosecutors have already stopped handling those cases, the city’s petition isn’t needed.

Holstein wants Bloom to limit the cases prosecutors have stopped handling to include only those that involve corporal punishment or that sound similar to what police have charged Plants with.

Charleston City Attorney Paul Ellis asked Bloom to clarify what cases prosecutors should disqualify themselves from. Ellis pointed out that if some cases proceed it could lead to verdicts being appealed and overturned.

The potential conflict would be “a built-in defense that would not otherwise be there if not for this either actual or potential conflict,” Ellis said. “It will result in a reversal to what would otherwise be a good conviction.”

Bloom asked Ellis, “What about the effect on victims if they have to go through another trial?”

“Some victims have already called asking if their case could be affected,” Ellis said.

Bloom said he plans to rule promptly on the matter and asked attorneys to turn in findings of fact and conclusions of law and proposed orders by noon today.

Holstein said he welcomes guidance from Bloom and said removing prosecutors from cases involving corporal punishment would be a much more manageable solution for the prosecutor’s office.

“We don’t have very many cases of corporal punishment,” Holstein said. “I can think of probably less than five.”

Reach Kate White at or 304-348-1723.

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