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W.Va. high court releases chief justice's e-mails

By The Associated Press

CHARLESTON, W.Va. — Five e-mails sent by West Virginia Supreme Court Chief Justice Elliott “Spike” Maynard to Massey Energy chief Don Blankenship show the justice was concerned with a Democratic challenger’s candidacy ahead of a primary that he ultimately lost.

The e-mails were released today, one day after a Kanawha County Circuit judge sided with the Associated Press, which sued the Supreme Court to have the messages released under the state’s Freedom of Information Act.

Judge Duke Bloom ruled yesterday that judicial officers are not exempt from the state’s open-records laws. Bloom’s order gave the Supreme Court 10 days to release the documents.

“We will follow to the letter the court order,” Steven Canterbury, the Supreme Court’s administrative director, said yesterday.

The ruling allowed the high court to withhold eight other e-mails sent by Maynard to Blankenship, finding that those e-mails were not public records because they did not discuss the public’s business.

State Supreme Court spokeswoman Jennifer Bundy said today that Maynard declined to comment. A call to Richmond, Va.-based Massey Energy was not returned in time for this story.

The Associated Press sued for access to the information as part of its coverage of Maynard’s July 2006 vacation rendezvous with Blankenship in Monaco and southern France.

In his ruling, Bloom dismissed the high court’s argument that the state FOIA did not apply to judicial officers.

Canterbury had argued that the act only applied to the court’s administrative functions and not to the justices. In court filings, lawyers for the Supreme Court argued that extending FOIA to e-mails and other communication by judicial officers would hamper the judiciary’s independence and violate the constitutional separation of powers.

Bloom, though, found nothing in the law to support that argument, saying that as written, West Virginia’s FOIA applies to “every state officer” in the executive, legislative and judicial departments.

“Given that the application of FOIA to the public records of judicial officers would not invade the constitutional power of the judiciary, the court finds that FOIA, by its express terms, applies to judicial officers.”

Bloom also noted that the “application of FOIA to the public records of judicial officers does not implicate constitutional concerns regarding separation of powers or improper legislative influence on the judicial decision-making process.

“Rather, given FOIA’s purpose and liberally construing the definition of a ‘public body’ the court finds that FOIA does apply to the public records of judicial officers.”

Bloom’s decision was lauded by national FOI advocates.

“Where that separation-of-powers argument has teeth is when judges are behind closed doors, pondering the law,” said Charles Davis, executive director of the National Freedom of Information Coalition. “In this instance, you’re not talking about that. You’re talking about politicking.”

The five e-mails Bloom ordered released all relate to Maynard’s ultimately unsuccessful bid for re-election this year. Two of the e-mails contain links to the Web site of rival candidate Menis Ketchum’s Huntington law firm. Three others contain links to news Web sites with stories about the campaign.

“The primary is over,” Ketchum said today. “I don’t want to comment on the critical nature of Spike’s e-mails.”

He did, though, say Bloom was correct in ruling that judicial officers are not exempt from the state FOIA.

Bloom ruled that the Supreme Court could withhold eight other e-mails sent by Maynard to Blankenship, but found that if Maynard had not later removed himself from hearing the coal company’s cases, those records would have been made public, too.

“Because the information contained within the e-mail communications would have shed light on the extent of Justice Maynard’s relationship with Don Blankenship and whether or not that relationship may have affected or influenced Justice Maynard’s decision-making in Massey cases, the public would have been entitled to that information,” Bloom wrote.

The relationship between Maynard and Blankenship became public earlier this year when vacation photographs of the two were included in a request that the high court reconsider its 3-2 decision last November overturning a multimillion-dollar judgment that Harman Mining Co. won against Massey in 2002. Maynard voted with the majority.

The photographs showed Maynard and Blankenship while they vacationed on the Riviera.

Massey had several cases pending or headed toward West Virginia’s sole appeals court at the time.

The Supreme Court later agreed to reconsider the case and Maynard recused himself from the rehearing. On rehearing the case, the court again voted 3-2 to overturn the jury verdict.

Maynard has said he will recuse himself from hearing all cases involving Massey Energy.

Massey has filed a similar case in Kanawha County Circuit Court seeking the e-mails of Justice Larry Starcher.

Related receives some judicial records for posting online

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Tenn. court won't release judge's 'graphic' fantasy tape
News media had sought access to audiotape, but court rules it is private property, not public record. 01.19.08

Coal company CEO accused of accosting ABC producer
Network spokesman says head of Massey Energy threatened to shoot Asa Eslocker and tore his shirt collar when newsman made unannounced attempt to interview him in company parking lot. 04.07.08

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