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Incoming attorney general eyes changes for office

CHARLESTON, W.Va. - Attorney General-elect Patrick Morrisey wants to "kick start" a better business climate by reviewing and interpreting state laws and regulations.

Morrisey wants to issue more advisory opinions to "clarify how some of the regulations may be modified."

Courts can overturn these non-binding advisory opinions, but they still carry weight, particularly in matters that do not go to court. Current Democratic Attorney General Darrell McGraw issues advisory opinions infrequently.

Morrisey said state officials would have to ask him before he could issue an advisory opinion.

Asked why state officials would seek opinions clarifying laws and regulations they may have helped write, Morrisey said there's a lot of inertia in state government.

"Unless you're looking at things, people sometimes don't question whether they are in the best interests of the people," Morrisey said. "We're going to be looking at a lot of regulations that perhaps people haven't examined in a long time."

Perhaps most significantly, Morrisey suggested state legislators could ask him for his opinion. Right now, this is not done.

"The leaders in the Legislature can ask for an opinion," Morrisey said in an interview after his first post-election press conference last week. "There's been questions as to whether it only applies to the speaker and to the Senate president, and there may be interpretations that it can apply more broadly."

If these interpretations are correct and rank-and-file legislators can ask the attorney general for advisory opinions, Morrisey and other Republicans will have a freer hand to look at public policy. That's because Republican legislators would be able to ask him for opinions.

Right now, every other executive branch agency is controlled by Democrats, the House and Senate leaders are both Democrats, and the state Supreme Court has a Democratic majority.

House Minority Leader Tim Armstead, R-Kanawha, said Morrisey's comments piqued his interest. He said being able to ask the attorney general for an advisory opinion could help legislators make sure the law was clear and help them advise constituents.

"Essentially, the attorney general is the attorney for state government - just like those who in city government would go to their prosecuting attorney, I think it's entirely reasonable and within the scope of his authority," Armstead said.

Armstead said lawmakers and constituents have had trouble getting advice from McGraw.

The Sissonville Volunteer Fire Department, for instance, asked McGraw recently if the department had to pay union-scale wages when it was building its new firehouse. The old one was destroyed in a fire.

"We were told, 'You can't get an opinion from the attorney general because you're not a government agency,'" said Tom Miller, secretary of the fire department's board of directors.

Miller said that didn't stop the state's labor department from ruling the fire department had to pay higher wages. That increased costs by several hundred thousand dollars.

Miller said he wanted to go back to McGraw's office to confirm the labor department's interpretation. Again, the fire department was turned away, Miller said.

Armstead said this was a good example of something he would like to be able to take to the attorney general for a decisive opinion.

But House Judiciary Chairman Tim Miley, D-Harrison, thinks the value of such opinions could be diminished if the attorney general issued too many of them.

"I don't want to see the credibility of the attorney general's office be diminished as a result of any activity that is more political than it is legal," Miley said.

Morrisey said he wants to sit down with Democratic Gov. Earl Ray Tomblin and his environmental regulators to "think through" how to review regulations.

In an interview published over the weekend, Department of Environmental Protection Secretary Randy Huffman was asked about Morrisey's offer to help the DEP more aggressively sue the federal government. Huffman said he was just fine with the lawyers he had and was not sure he needed Morrisey's help.

Senate Judiciary Chairman Corey Palumbo, D-Kanawha, wonders if Morrisey has the authority to issue advisory opinions at the request of rank-and-file legislators.

State law lists executive branch officials who can ask the attorney general for legal advice and then adds "or any other office of the state." But the same part of the law talks specifically about the legislative branches and specifically names only two members of the Legislature who can request advisory opinions: the House speaker and the Senate president.

"That would make me think that (rank and file) legislators cannot request opinions," Palumbo said.

Palumbo also worries Morrisey's plan could overwhelm Morrisey and his staff.

"It could really overburden the AG's office if everyone had their pet issue or two that they require the full legal opinion on," Palumbo said.

Other states more frequently issue advisory opinions. In Virginia, Republican Attorney General Ken Cuccinelli - who endorsed Morrisey in this year's election - generally issues several legal opinions each month, for instance.

Although McGraw does not frequently issue advisory opinions, one of them changed the course of the state's political history.

In 2010, McGraw issued an advisory opinion that said then-Gov. Joe Manchin could call a special election to fill the state's then-vacant U.S. Senate seat. It conflicted with an opinion from Secretary of State Natalie Tennant's Office but made an election inevitable. Manchin ran and won.

Another recent advisory opinion created an awkward encounter earlier this year in the state Supreme Court when two lawyers from the Attorney General's Office were on opposite sides of a case during oral arguments. One was representing the State Election Commission, which was trying to defend a law that McGraw's office had previously said was unconstitutional in a 2011 advisory opinion. The other lawyer from McGraw's office was defending the initial advisory opinion.

Morrisey said he would always look out for the interests of his clients, which are predominantly state agencies.

Contact writer Ry Rivard at or 304-348-1796. Follow him at



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