State law requires elected officials to perform the duties of their office and Kanawha County Prosecuting Attorney Mark Plants isn’t doing his job, an attorney plans to argue in an effort to have him removed.
There’s also no telling if or when Plants will ever be able to do his job, according to a petition that calls for Plants to be removed from office.
Commissioners have reviewed and will vote Thursday whether to file a 24-page petition to remove Plants. If the draft, completed Wednesday, is approved, it will be filed Friday morning in Kanawha Circuit Court, according to Commission President Kent Carper. The state Supreme Court would then appoint a three-judge panel to hear it.
“We’re following the law, and it’s important that due process applies to everyone, and everyone deserves a day in court -- including the taxpayers of Kanawha County,” Carper said.
Plants faces two misdemeanor domestic violence charges over striking his son with a belt and violating a domestic violence protection order.
In addition to paying a special prosecutor to prosecute Plants, commissioners are writing checks for a special prosecutor handling all of the county’s cases involving domestic violence.
Kanawha County has spent in excess of $100,000, Melissa Foster Bird, an attorney with the firm Nelson Mullins, wrote in the petition.
“The Kanawha County Commission has determined that such ongoing and irreparable financial harm to the taxpayers of Kanawha County must not be allowed to continue,” the petition states.
Kanawha Circuit Judge Duke Bloom appointed Don Morris to serve as special prosecutor in those types of cases to avoid the appearance of impropriety after Plants said what he’s accused of doing isn’t a crime. Commissioners set Morris’ salary at $200 an hour.
“The disqualification of Mr. Plants is indefinite,” Bird wrote in the petition. If the charges against Plants are dismissed, or if the prosecutor is found not guilty by a jury, that doesn’t guarantee his office will be allowed to return to prosecuting domestic violence related charges.
The petition accuses Plants of trying to tarnish Morris’ name and the integrity of the judicial system when he “publicly and openly attacked” Morris’ pay as a waste of money and called his fee “grossly excessive.”
On Monday, Plants’ attorney, Jim Cagle, wrote to Mercer County Magistrate Michael Flanigan that Plants had changed his mind about a deal and wanted to take the charges to trial. The deal Plants made would have required him to attend a 32-week batterer’s intervention program in Putnam County. If completed, special prosecutor Sid Bell would consider dropping the charges. A hearing is set for Friday in Princeton. Bell has said he will object to Plants withdrawing from the agreement.
The petition uses a 1999 case that resulted in the removal of the Logan County prosecutor. Cagle is familiar with the proceedings, as he filed it on behalf of Logan County officials in an attempt to remove Prosecuting Attorney John G. Sims.
Allegations of official misconduct, malfeasance in office, incompetence and neglect of duty were made against Sims, but judges found that Sims had committed only two of the numerous allegations the petition allege and concluded that the violations didn’t warrant his removal from office.
Cagle appealed and the state Supreme Court reversed that decision, however.
Kanawha’s petition is similar to the petition filed against Sims. It also accuses Plants of, among other things, malfeasance and misconduct in office, and claims he violated court orders, the rules of professional conduct and the West Virginia Constitution.
State law in part defines malfeasance in office as something that interrupts or interferes with the performance of an official duty.
The petition says that Plants’ actions are interfering with him being the prosecutor.
Reach Kate White at firstname.lastname@example.org, 304-348-1723 or follow @KateLWhite on Twitter.