Justices question need to suspend Plants’ license

KENNY KEMP | Gazette Kanawha County Prosecuting Attorney Mark Plants (right) listens to his lawyer,
KENNY KEMP | Gazette
West Virginia Supreme Court justices Menis Ketchum (from left), Robin Davis, Margaret Workman and Allen Loughry listen to arguments over whether Plants’ law license should be suspended immediately. Justice Brent Benjamin removed himself from the case.

After a Kanawha Circuit judge barred Kanawha County Prosecuting Attorney Mark Plants’ office from handling domestic violence cases while Plants faces a similar charge, state Supreme Court justices questioned Monday why they still needed to suspend Plants’ law license.

“The conflict persists while [Plants] is the prosecuting attorney of Kanawha County,” Joanne Vella Kirby, attorney for the state Office of Disciplinary Counsel, told justices. “The problem becomes the public perception of the integrity and impartiality.”

The ODC, which oversees attorneys in the state, has asked justices immediately to suspend Plants’ law license until disciplinary proceedings against him are completed with the state Lawyer Disciplinary Board.

But Justice Margaret Workman noted Monday that justices usually don’t suspend an attorney’s law license until disciplinary proceedings are complete.

Plants is charged with domestic battery of his 11-year-old son after police say he left a 6- to 7-inch bruise on the boy’s thigh with a belt. He is also charged with violating a domestic violence protective order. Both charges are misdemeanors.

If Plants’ law license is suspended, he could no longer be the county’s prosecuting attorney. “You’re asking the court to step in and take a rather extraordinary measure,” Workman said.

Responding to a petition filed by the city of Charleston, Kanawha Circuit Judge Duke Bloom barred Plants’ office from cases involving child abuse and neglect, violent crimes against children by their parents and criminal violations of protective orders. The judge appointed former longtime assistant prosecutor Don Morris to handle those cases, along with three assistant prosecutors. Those assistants will report to Morris, not Plants.

Bloom’s order prevents a conflict of interest and there’s no need to suspend Plants, his attorney, Robert Davis, told justices.

Plants hasn’t violated the state Rules of Professional Conduct, like the ODC claims, his attorney said. As soon as Plants was made aware of the ODC’s opinion that his office shouldn’t be handling alleged cases of domestic violence between parents and children, Plants took the necessary steps to avoid a conflict, Robert Davis said.

He added that justices could send a monitor to the prosecutor’s office to make sure conflicts were being handled appropriately, or issue a order similar to Blooms.

Kirby argues that Plants’ belief that he has the right to discipline his son within reason and that what he’s charged with isn’t a crime creates a conflict of interest with his being a prosecutor.

“Although [Plants] is certainly free to assert this defense in his criminal proceeding, he may not do so while serving as the Prosecuting Attorney of Kanawha County tasked with prosecuting alleged violations of West Virginia law,” the ODC’s brief filed last week in the Supreme Court clerk’s office states.

Chief Justice Robin Davis told Kirby the ODC would have a much stronger argument for immediate suspension if Plants already had been convicted of the charges he faces.

Kirby pointed out the negative light having essentially two prosecutor’s offices casts on the justice system. Morris is being paid $200 an hour by the Kanawha County Commission.

“How long do we expect taxpayers of Kanawha County to carry this additional financial burden?” the chief justice asked.

Justice Brent Benjamin recused himself from the case.

Reach Kate White at kate.white@wvgazette.com or 304-348-1723.

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