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Judges: Kanawha County can’t depose prosecutor before hearing

The attorney representing Kanawha County commissioners in their attempt to remove county Prosecuting Attorney Mark Plants won’t be allowed to question Plants before a hearing on the matter.

Three judges appointed to hear the removal petition wrote in an order filed Friday that the rules of civil procedure don’t apply during removal proceedings and that Plants isn’t subject to any exceptional rule, which would have permitted a deposition.

Plants faces two misdemeanor charges after striking his 11-year-old son with a belt multiple times and allegedly violating a domestic violence protection order that said he wasn’t allowed contact with his ex-wife and their two sons.

Plants’ office has been taken off most cases involving domestic violence-related charges because a circuit judge ruled that a conflict was created when Plants said what he did isn’t a crime. Special prosecutor Don Morris is being paid $200 an hour to handle those cases with a team of assistants.

County commissioners argue, among other things, that state law requires elected officials to do their jobs. Plants can’t do his job, commissioners say, and it isn’t clear when or if he’ll ever be able to.

Preston Circuit Judge Lawrance Miller, Berkeley Circuit Judge Christopher Wilkes and Doddridge Circuit Judge Timothy Sweeney will hold hearings Sept. 22 and 23 in Charleston to decide if Plants should be removed from office. The West Virginia Supreme Court appointed the judges to hear the removal petition.

Melissa Foster Bird, attorney for the commissioners, had requested that a videotaped deposition of Plants be held Sept. 4 at his attorney Jim Cagle’s office.

Bird argued that even if the rules of civil procedure don’t apply, Plants “holds knowledge of specific events at issue that only he knows” and should still be subject to a deposition under an extraordinary rule that involves public officials.

The judges found, however, that those special circumstances “have not been shown to exist in this case or that [Plants] holds knowledge of specific events at issue that only he knows.”

Bird said the ruling wouldn’t hurt the commissioners’ case.

“I feel entirely confident about the facts we laid out in our petition, and those facts support his removal as prosecutor,” she said. “Deposing him would have allowed me to explore other areas — things that I’ve heard, different sorts of issues that we wanted to explore a little further, but not being permitted to depose him doesn’t change any of the facts in the petition.”

Cagle said he will file an answer to the petition against Plants by Friday — even though he doesn’t believe the law requires him to do so.

Last Friday, the judges entered a scheduling order that said a list of witnesses and exhibits for the hearing later this month must be filed with them by Sept. 15.

Meanwhile, Plants is attending a batterer’s intervention program in Putnam County while a magistrate appointed to hear his criminal case decides when to set dates for jury trials. Mercer County Magistrate Mike Flanigan has said there will be separate trials for the charges.

Plants changed his mind after the removal petition was filed and said he wanted to go to trial because being acquitted would help his defense against the removal petition. He previously had made a deal that, after he completed the 34-week intervention program, prosecutor Sid Bell would consider dropping the charges. Flanigan ruled, though, that, even if Plants wants a trial, he must continue in the program.

Reach Kate White at, 304-348-1723 or @KateLWhite on Twitter.

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