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Move to oust Plants will be based on Logan precedent

By Kate White, Courts Reporter

CHARLESTON, W.Va. — The removal from office of a Logan County prosecuting attorney 15 years ago will serve as precedent in the petition expected to be filed to try to oust Kanawha County Prosecuting Attorney Mark Plants.

Kanawha commissioners plan to review the petition Thursday to have Plants removed from office. They previously voted unanimously to draft it and found a law firm willing to argue it for free.

Melissa Foster Bird, of the firm Nelson Mullins, said Tuesday that the petition will argue that Plants engaged in misconduct and malfeasance in office by criticizing both special prosecutor Don Morris’ pay and the commissioners’ motive behind wanting him removed, among other things.

Plants faces two misdemeanor domestic violence charges over striking his son with a belt and violating a domestic violence protection order. Attorney Jim Cagle is representing Plants in the criminal case and will also represent him if commissioners go through with filing the petition of removal.

Cagle is familiar with the proceedings. In 1998, he filed a petition on behalf of then-Logan County Commission President Art Kirkendoll and other elected officials and members of the public, asking that Prosecuting Attorney John G. Sims be removed from office.

The state Supreme Court appointed Judges Alan Moats, Daniel McCarthy and Arthur Recht to hear the petition. Allegations of official misconduct, malfeasance in office, incompetence and neglect of duty were made against Sims.

Judges found that Sims had committed only two of the numerous allegations the petition alleged and concluded that the violations didn’t warrant his removal from office, but, instead, a suspension of his law license. Sims used pretrial publicity to prejudice the proceedings in a case and also engaged in other employment while serving as prosecutor.

Cagle appealed and the Supreme Court reversed that ruling and ordered Sims removed from office. That order states that the three-judge panel didn’t have the authority to suspend his law license.

Cagle wouldn’t comment on the Sims case Tuesday. Bird claims that, like one of the charges Sims was accused of, Plants has “talked publicly about things that have nothing to do with the office of the prosecutor.”

The Sims case “will be the absolute precedent,” Bird said. It’s the only case in which a prosecutor has been removed from office in West Virginia.

She pointed to filings made in a case before Kanawha Circuit Judge Duke Bloom that questioned Morris’ salary. Bloom appointed Morris to handle cases of domestic violence after Plants’ office was barred from handling such cases because of a conflict of interest.

County commissioners set Morris’ salary at $200 an hour. Plants asked Bloom in June, in an effort to cut costs, to cut Morris’ hours and appoint someone from his office to serve as special prosecutor.

Bloom criticized Plants for making comments that could make the public lose confidence in Morris’ abilities.

“How many of those jurors sitting up there in the box have read the paper and are thinking I’m nothing but a money-grubbing lawyer?” Morris asked. Bird pointed to that quote and said it would be a part of the petition.

“It’s the commission who set the fee,” she said.

Bird also mentioned a comment Plants made in the Gazette last week in which he said his mother had told him after months of holding back to let commissioners “have it.”

“That is an example of something he said that was completely outside the bounds of professionalism,” she said.

The criminal charges against Plants will play a small role in the petition, Bird said. The conflict wasn’t created because he is facing criminal charges but because he argues that what he did wasn’t a crime. That prevents him from defending the state of West Virginia on similar charges, Bloom has ruled.

On Monday, 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.

Bell said he will ask Flanigan not to let Plants withdraw from the deal. A hearing is set for Friday in Princeton.

Reach Kate White at kate.white@wvgazette.com, 304-348-1723 or follow @KateLWhite on Twitter.


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