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07/15/82 A. JAMES MANCHIN v. CHAUNCEY H. BROWNING

July 15, 1982

A. JAMES MANCHIN, SECRETARY OF STATE, ETC.
v.
CHAUNCEY H. BROWNING, JR., ATTORNEY GENERAL, ETC.



Original Jurisdiction. Writ awarded.

The opinion of the court was delivered by: Mcgraw

1. The powers and duties of the Attorney General are specified by the constitution and by rules of law prescribed pursuant thereto.

2. The Attorney General Ordinarily exercises complete control of litigation conducted in his name.

3. By statute, the Attorney General is the legal representative of state officers and agencies sued in their official capacities. In the absence of other statutory or constitutional provision to the contrary, he is their sole legal representative in the courts and they are his clients.

4. The Attorney General has the duty to conform his conduct to that prescribed by the rules of professional ethics.

5. As a lawyer and an officer of the courts of this state, the Attorney General is subject to the rules of this Court governing the practice of law and the conduct of lawyers, which have the force and effect of law.

6. By law, the Attorney General shall assist in maintaining the integrity and competence of the legal profession; shall assist the legal profession in fulfilling its duty to make legal counsel available; shall assist in preventing the unauthorized practice of law; shall preserve the confidence and secrets of a client; shall exercise independent professional judgment on behalf of a client; shall represent a client competently; shall represent a client zealously within the bounds of the law; shall assist in improving the legal system; and shall avoid even the appearance of professional impropriety.

7. State officers are entitled to have their lawful public policy determinations vindicated in the courts just as individuals are entitled to vindicate their personal rights at law. When the Attorney General refuses to fulfill his duty, as required by law, to provide effective legal assistance to a state officer involved in litigation, such refusal operates to deny due process.

8. It is the duty of the Attorney General to provide the Secretary of State with adequate, effective legal representation.

McGRAW, Justice: This case came to us upon a pro se petition for a writ of mandamus. The petitioner, A. James Manchin, Secretary of State of West Virginia, seeks to compel the respondent, Chauncey H. Browning, Jr., Attorney General of West Virginia, to provide agreeable legal representation from the Attorney General's office or to appoint a Special Assistant Attorney General to represent the petitioner in litigation in the federal courts. The issues raised by the petition concern the powers and duties of the Attorney General to represent state officials in civil actions. We find that the petitioner is entitled to be represented by the Attorney General in the federal litigation, and we award the writ. *fn1

On December 11, 1981, a civil action was filed in the United States District Court for the Northern District of West Virginia against the petitioners, A. James Manchin, in his official capacity as Secretary of State. The plaintiff sought to have W.Va. Code § 1-2-3 [1971], *fn2 providing for apportionment of congressional districts, declared unconstitutional and to have the petitioner enjoined from compelling candidates for Congress to run "at large."

After service of the complaint upon the Secretary of State, the matter was referred to the Attorney General, the respondent herein, for preparation of an answer. Over the petitioner's objections the respondent's answer denied that the existing apportionment, as provided by the statute, was unconstitutional and sought to compromise the suit by requesting time to have the Legislature, rather than the courts, remedy any defects there might be. The position taken by the Attorney General was inconsistent with that of the Secretary of State, who agreed with the plaintiff in the civil action that the existing apportionment statute was unconstitutional and that reapportionment should take place immediately. Due to this conflict between the parties to this action respecting the position of the defense in the federal litigation, the Secretary of State requested the Attorney General to appoint special counsel to represent him in the federal court. This request was refused and the Secretary of State subsequently filed the petition in the instant case.

The issue presented for our determination is whether the Attorney General is required by law to afford the Secretary of State legal representation in any civil action in which the Secretary is made a party defendant in his official capacity. The petitioner asserts that the respondent's refusal to provide him with legal representation in the federal court litigation denied him the right to counsel, due process of law and access to the courts as guaranteed by the state and federal constitutions. U.S. Const. amends. VI, XIV; W.Va. Const. art. 3, § 10; art. 3, § 17. The respondent contends, however, that his office is vested with the exclusive authority to manage and control litigation to which the state or its officers, in their official capacities, are made parties, that the petitioner is merely a nominal party to the litigation in question, the real party in interest being the Legislature, and that he, as Attorney General, is required to defend the constitutionality of the acts of that body.

As a threshold issue, we note that the respondent attributes the power of the Attorney General to control litigation on behalf of the state and its officers to the broad common law powers of the office. He asserts that the Attorney General is the chief law officer of the state and is charged with representing the public interest in any such litigation without interference from or the approval of any other official. In support of this proposition, the respondent relies on State v. Ehrlick, 65 W.Va. 700, 64 S.E. 935 (1909).

Ehrilick involved a dispute between a county prosecuting attorney and the Attorney General as to which officer was empowered to seek an injunction on behalf of the state to restrain illegal gambling activities. The Court found that power to reside in the Attorney General on the ground that the office of prosecuting attorney was of statutory creation and thus vested only with the powers conferred by the Legislature, while "the office of Attorney General is of very ancient origin, and its duties and powers were recognized by the common law." 65 W.Va. at 702, 64 S.E. at 936. The Court held that the Attorney General possessed all the common law powers and duties of the office. Ehrlick, however, contained very little Discussion of the history of the office of Attorney General or of the powers and duties reposed therein. Indeed, we find no in-depth analysis of the office of Attorney General as it exists today in the jurisprudence of this jurisdiction. We believe such an analysis is essential to our understanding of the source and nature of the powers of our Attorney General today.

The Court in Ehrlick was quite correct in its statement that the office of Attorney General is of ancient origin. The title first appeared in England in 1461. The office developed from the medieval offices of King's Attorney and King's Serjeant. by 1570, the Attorney General, accepted by tradition to be a member of the bar, had become the chief legal adviser of the Crown. The office was vested with numerous powers and duties, including the management and control of the Crown's legal affairs and the prosecution of all suits in which the Crown was interested. The office was transported to the British colonies in North America and became the basis for the office of Attorney General in this country. L. Clay, The Attorney General of West Virginia (1957); D. Walker, The Oxford Companion to Law "Attorney-General" (1980). See generally 7 Am. Jur. 2d Attorney General § 9 (1980); 7A C.J.S. Attorney General § 1 (1980).

As a consequence of the American Revolution, the executive powers of the Crown office of Attorney General underwent substantial modification in Virginia. The first constitution of Virginia, adopted June 29, 1776, recognized the Attorney General as a judicial officer, thereby removing him from the executive department. He was appointed by and served at the pleasure of the General Assembly and was commission by the Governor. In addition, the Attorney General was specifically prohibited from holding elected office in either the legislative or executive department. Va. Const. of 1776, § 14. This constitution continued in force until superseded by an amended constitution, submitted by the General Assembly on January 15, 1830. The provisions of the amended constitution relating to the office of Attorney General were altered little. The Attorney General remained an officer of the judicial department, was appointed and commissioned in the same manner and continued to serve at the pleasure of the General Assembly. Va. Const. of 1830, art. V, § 7.

The 1852 Virginia Constitution made some sweeping changes in the office. It provided for the first time for the election of the Attorney General by the voters of the Commonwealth and established a definite term of office. The Attorney General continued to serve as an officer of the judiciary, however, and the amended constitution provided "he... shall perform such duties and receive such compensation as may be prescribed by law, and be removable in the manner prescribed for the removal of Judges." Va. Const. of 1852, art. VI, § 22.

The relevant portions of the 1852 Virginia Constitution were still in effect at the time of West Virginia's separation from the mother state. *fn3 The constitutional convention which met in Wheeling from November 26, 1981 to February 18, 1862, to frame the first Constitution of West Virginia borrowed heavily from the 1852 Virginia Constitution in providing for an Attorney General of West Virginia. He was designated an officer of the judiciary and it was provided: "At every regular election of a Governor, an Attorney General shall also be elected. He shall be commissioned by the Governor; shall perform such duties, and receive such compensation as may be prescribed by law, and be removable in the same manner as the Judges." W.Va. Const. of 1863, Art. VI, § 16. This constitution was approved by the voters on April 3, 1862, and went into effect on June 20, 1863, when West Virginia was admitted into the Union. It remained in effect until the adoption of our present constitution in 1872.

The provisions of our constitution today relating to the office of the Attorney General remain substantially the same as they were in 1872. Article 7, section 1 transferred the Attorney General back to the executive department and provides:

The executive department shall consist of a governor, secretary of state, auditor, treasurer, commissioner of agriculture and attorney general, who shall be, ex officio, reporter of the court of appeals. Their terms of office shall be four years and shall commence on the first Monday after the second Wednesday of January next after their election. They shall reside at the seat of government during their terms of office, keep there the public records, books and papers pertaining to their respective offices and shall perform such duties as may be prescribed by law.

This section requires the Attorney General to perform certain specific duties, including service as the official reporter of this Court. See W.Va. Reports, Vols. 1-157 (1863-1974). However, most of the powers exercised and the duties performed by the Attorney General are not specified in the constitution. Rather, article 7, section 1 provides that the attorney General "shall perform such duties as may be prescribed by law."

The plain language of this constitutional provision, when viewed against the historical backdrop of the development of the office of Attorney General in the Virginias, leads us to conclude that the attorney General of West Virginia does not possess the common law powers attendant to that office in England and in British North America during the colonial period. By removing the traditional executive office of Attorney General to the judicial department and establishing a tri-partite state government, with separate legislative, executive and judicial departments, the framers of the first Virginia Constitution in effect abrogated any common law executive powers the holder of that office may have had. The executive function formerly exercised by the Attorney General at common law was extinguished, and for the next 96 years be remained a minor judicial officer, prohibited by the separation of powers from wielding the common law legislative and executive powers traditional to the office in Great Britain.

By the provisions of our present constitution, the Attorney General is once again an officer of the executive department. However, his return to the executive department did not revive the common law powers of the office. The people of West Virginia specifically expressed their intent that the Attorney General should not exercise those powers by providing that he "shall perform such duties as may be prescribed by law." Under settled rules of construction, the word "shall" when used in constitutional provisions is ordinarily taken to have been used mandatorily, and the word "may" generally should be read as conferring both permission and power. State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953). The phrases "prescribed by law" and "provided by law" mean prescribed or provided by statutes. Lawson v. Kanawha County Court, 80 W.Va. 612, 92 S.E. 786 (1917). The plain effect of the provision is to limit the powers of the Attorney General to those conferred by law laid down pursuant to the constitution. Consequently we conclude that the powers and duties of the Attorney General are specified by the constitution and by rules of law prescribed pursuant thereto. We hereby overrule State v. Ehrlick, supra, insofar as it conflicts with this view.

The courts of other jurisdictions which have decided whether constitutional provisions similar to article 7, section 1 of our constitution vest the Attorney General with common law powers and duties have concluded as we. In In Estate of Sharp, 63 Wis.2d 254, 260-261, 217 N.W.2d 258, 262 (1974), the Wisconsin court stated:

Wisconsin, unlike numerous states, has specifically circumscribed the powers and duties of the office of Attorney General. Art. VI, Sec. 3 of the Wisconsin Constitution limits those powers and duties to those "prescribed by law." This constitutional principle has been interpreted by the courts in numerous decisions as removing from the office of the Attorney General any powers and duties which were found in that office under common law.

Cited in State v. Wisconsin Telephon Co., 91 Wis.2d 702, , 284 N.W.2d 41, 44 (1979). See also State ex. rel. Reynolds v. Smith, 19 Wis.2d 577, 120 N.W.2d 664 (1963). The Supreme Court of Arizona discussed this principle at ...


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