State v. Nibert

• Decision Date: 04 June 2013
• Docket Number: 13–0102.,Nos. 13–0086,s. 13–0086
• Citation: 231 W.Va. 227,744 S.E.2d 625
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. DISCOVER FINANCIAL SERVICES, INC., Discover Bank, DFS Services, L.L.C., and American Bankers Management Company, Inc.; Bank of America Corporation and FIA Card Services, N.A.; Citigroup Inc. and Citibank, N.A.; GE Money Bank; World Financial Network National Bank, CSI Processing, L.L.C., and CPP North America L.L.C.; HSBC Bank Nevada, N.A. and HSBC Card Services, Inc.; and JPMorgan Chase & Co. and Chase Bank USA, N.A., Petitioners v. Honorable David W. NIBERT, Judge of the Circuit Court of Mason County, West Virginia, Respondent. State of West Virginia ex rel. GlaxoSmithKline, LLC, formerly SmithKline Beecham Corporation d/b/a GlaxoSmithKline, Petitioner. v. The Honorable James H. Young, Jr., Judge of the Circuit Court of Wayne County; and All Plaintiffs in State ex rel. Morrisey V. GlaxoSmithKline, LLC, Respondents.

231 W.Va. 227
744 S.E.2d 625

STATE of West Virginia ex rel. DISCOVER FINANCIAL SERVICES, INC., Discover Bank, DFS Services, L.L.C., and American Bankers Management Company, Inc.; Bank of America Corporation and FIA Card Services, N.A.; Citigroup Inc. and Citibank, N.A.; GE Money Bank; World Financial Network National Bank, CSI Processing, L.L.C., and CPP North America L.L.C.; HSBC Bank Nevada, N.A. and HSBC Card Services, Inc.; and JPMorgan Chase & Co. and Chase Bank USA, N.A., Petitioners
v.
Honorable David W. NIBERT, Judge of the Circuit Court of Mason County, West Virginia, Respondent.
State of West Virginia ex rel. GlaxoSmithKline, LLC, formerly SmithKline Beecham Corporation d/b/a GlaxoSmithKline, Petitioner.
v.
The Honorable James H. Young, Jr., Judge of the Circuit Court of Wayne County; and All Plaintiffs in State ex rel. Morrisey V. GlaxoSmithKline, LLC, Respondents.

Nos. 13–0086, 13–0102.

Supreme Court of Appeals of
West Virginia.

Submitted May 14, 2013.
Decided June 4, 2013.

[744 S.E.2d 627]

Syllabus by the Court

1. The phrase “contract of hire,” in W. Va.Code § 6B–1–3(d) (2008) (Repl.Vol.2010) of the West Virginia Governmental Ethics Act, refers to an agreement in which a person provides labor or personal services to a government entity for wages or a salary.

2. Under the definition of “employee” provided by W. Va.Code § 6B–1–3(d) (2008) (Repl.Vol.2010) of the West Virginia Governmental Ethics Act, a private attorney appointed as a special assistant attorney general is not an employee of the Office of the Attorney General.

3. The Office of Attorney General retains inherent common law powers, when not expressly restricted or limited by statute. The extent of those powers is to be determined on a case-by-case basis. Insofar as the decision in Manchin v. Browning, 170 W.Va. 779, 296 S.E.2d 909 (1982), is inconsistent with this holding, it is expressly overruled.

4. The Attorney General has common law authority to appoint special assistant attorneys general.

5. The Attorney General has common law authority to provide for compensation to be paid to special assistant attorneys general through a court-approved award of attorney's fees taken directly from the losing opponent in the litigation.

Kara Cunningham, Russell D. Jessee, Steptoe & Johnson, PLLC, Charleston, WV, for Petitioners, Discover Financial Services, Inc., Discover Bank, and DFS Services L.L.C.

Bruce M. Jacobs, Charles L. Woody, Spilman Thomas & Battle, PLLC, Charleston, WV, for Petitioner, American Bankers Management Company, Inc.

Bruce M. Jacobs, Alexander Macia, Spilman Thomas & Battle, PLLC, Charleston, WV, for Petitioners, Bank of America Corporation and FIA Card Services, N.A.

Jeffrey M. Wakefield, Flaherty, Sensabaugh & Bonasso, PLLC, Charleston, WV, for Petitioners, Citigroup Inc. and Citibank, N.A.

Bryant J. Spann, David B. Thomas, Thomas Combs & Spann, PLLC, Charleston, WV, for Petitioner, GE Money Bank.

Charles M. Love, Fazal A. Shere, Bowles Rice McDavid Graff & Love, LLP, Charleston, WV, Alan S. Kaplinsky, Martin C. Bryce, Jr., Ballard Spahr, LLP, Philadelphia, PA, for Petitioner, World Financial Network National Bank.

Bruce M. Jacobs, Spilman, Thomas & Battle, PLLC, Charleston, WV, for Petitioner, CCP North America L.L.C.

Chris R. Arthur, W. Scott Campbell, Samuel I. White, P.C., Charleston, WV, for Petitioners, HSBC Bank Nevada, N.A. and HSBC Card Services, Inc.

William W. Booker, Thomas H. Ewing, Kay Casto & Chaney, PLLC, Charleston, WV, for Petitioners, JPMorgan Chase & Co. and Chase Bank USA, N.A.

Michael J. Farrell, Tamela J. White, Farrell, White & Legg, PLLC, Huntington, WV,

[744 S.E.2d 628]

Kenneth H. Zucker, Nina M. Gussack, John F. Brenner, Ellen K. Scott, Pepper Hamilton, LLP, Philadelphia, PA, for Petitioner, GlaxoSmithKline.

Brenda Nichols Harper, West Virginia Chamber of Commerce, Charleston, WV, Victor E. Schwartz, Cary Silverman, Shook, Hardy & Bacon, LLP, Washington, DC, Richard F. Shearer, Shook, Hardy & Bacon, LLP, Kansas City, MO, for Amicus Curiae, West Virginia Chamber of Commerce.

Patrick Morrisey, Attorney General, Daniel W. Greear, Chief Counsel, Office of Attorney General, Guy R. Bucci, Timothy Bailey, L. Lee Javins, II, Special Assistant Attorneys General, Bucci Bailey & Javins, William Druckman, Special Assistant Attorney General, Druckman & Estep, Charleston, WV, for Respondent in Case Number 13–0086.

Patrick Morrisey, Attorney General, Daniel W. Greear, Chief Counsel, Office of Attorney General, Charleston, WV, Paul T. Farrell, Jr., Special Assistant Attorney General, Greene, Ketchum, Bailey, Walker, Farrell & Tweel, Huntington, WV, Laura J. Baughman, S. Ann Saucer, Special Assistant Attorneys General, Baron & Budd, PC, Dallas, TX, Bill Robins, Justin R. Kaufman, Special Assistant Attorneys General, Heard Robins Cloud & Black, LLP, Santa Fe, NM, for Respondents in Case Number 13–0102.

DAVIS, Justice:

This matter involves two consolidated petitions for writs of prohibition filed under the original jurisdiction of this Court. The petition filed in Case No. 13–0086 was brought by the defendants in seven consolidated cases pending before the Circuit Court of Mason County; ¹ and the petition in Case No. 13–0102 was filed by GlaxoSmithKline, a defendant below, from a case pending before the Circuit Court of Wayne County.² The Petitioners seek a writ of prohibition to prevent enforcement of circuit court orders that denied their motions to disqualify private attorneys from representing the Respondent, the State of West Virginia,³ as special assistant attorneys general. The essence of the Petitioners' contentions is that the special assistant attorneys general should be disqualified because their fee arrangements (1) violate the West Virginia Governmental Ethics Act; (2) violate Rule 1.7(b) of the West Virginia Rules of Professional Conduct; ⁴ and (3) the Attorney General lacks authority to appoint special assistant attorneys general. After a careful review of the briefs and the record submitted in this case, and listening to the arguments of the parties, we deny the writs.⁵

[744 S.E.2d 629]

I. FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background for each of the consolidated cases will be set forth separately.

A. Petitioners in Case No. 13–0086

The record in Case No. 13–0086 indicates that civil complaints were filed against each of the Petitioners by the Attorney General,⁶ on behalf of the State, in August 2011.⁷ The complaints alleged that the Petitioners violated the General Consumer Protection provisions of Article 6 ⁸ of the West Virginia Consumer Credit and Protection Act ⁹ by engaging in unfair, deceptive, and unconscionable practices designed to trick consumers into paying for credit card service plans.

On April 20, 2012, the Petitioners filed a joint motion with the circuit court seeking to disqualify the special assistant attorneys general.¹⁰ The motion alleged that the appointment of special assistant attorneys general violated the West Virginia Governmental Ethics Act and the Rules of Professional Conduct, and that the Attorney General did not have authority to make such appointments. A hearing on the motion was held on July 16, 2012. On August 15, 2012, the trial court entered an order denying the motion to disqualify. The Petitioners subsequently filed the instant petition for a writ of prohibition.

B. Petitioner in Case No. 13–0102

The record in Case No. 13–0102 indicates that a civil complaint was filed against the Petitioner, GlaxoSmithKline, by the Attorney General,¹¹ on behalf of the State, in March 2012.¹² The complaint alleged that the Petitioner violated the General Consumer Protection provisions of Article 6 ¹³ of the West Virginia Consumer Credit and Protection Act ¹⁴ by engaging in unfair and deceptive acts and practices and by employing unfair methods of competition in marketing the diabetes drug Avandia. The complaint also alleged the Petitioner engaged in conduct that violated the West Virginia Fraud and Abuse in the Medicaid Program Act; ¹⁵ the West Virginia Public Employees Insurance Act; ¹⁶ and the West Virginia Insurance Fraud Prevention Act,¹⁷ and set out other causes of action that included strict liability, breach of warranty, and unjust enrichment. ¹⁸

On August 10, 2012, the Petitioner filed a motion with the circuit court seeking to disqualify the special assistant attorneys general. The motion alleged that the appointment of special assistant attorneys general violated the West Virginia Governmental Ethics Act and the Rules of Professional Conduct, and that the Attorney General did not have authority to make such appointments.¹⁹ On

[744 S.E.2d 630]

September 28, 2012, the trial court entered an order denying the motion to disqualify. The Petitioner subsequently filed the instant petition for a writ of prohibition.

II. STANDARD OF REVIEW

This matter is before the Court on two consolidated petitions for writs of prohibition that challenge lower court orders denying the Petitioners' motion to disqualify the special assistant attorneys general. We have held that “[a] party aggrieved by a lower court's decision on a motion to disqualify an attorney may properly challenge the lower court's decision by way of a petition for a writ of prohibition.” Syl. pt. 1, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 697 S.E.2d 740 (2010). We also previously have held that “[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53–1–1.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). More specifically, this Court has held:

In determining whether to entertain and issue the writ of prohibition for cases not involving the absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five...