Some of W.Va. chief justice's e-mail subject to disclosure, judge rules

John O'Brien Sep. 17, 2008, 2:47pm


CHARLESTON, W.Va. (Legal Newsline) - A state judge has ordered West Virginia Supreme Court Chief Justice Spike Maynard to release five e-mails between him and the head of a major corporation.

Kanawha County Circuit Court Judge Duke Bloom made his ruling Tuesday in a fight over a disputed Freedom of Information Act request by The Associated Press. Supreme Court Administrator Steve Canterbury fought the request, arguing that complying would set a bad precedent.

"(T)he defendant asserts that application of FOIA to the e-mail communications of a judicial officer would be unconstitutional 'in so far as it encroaches on the ability of the Court to regulate the judiciary,'" Bloom wrote.

"The defendant has failed, however, to articulate how disclosure of the e-mail communications at issue would affect the judiciary's ability to properly function as an independent branch that administers the law. The AP is not seeking internal communications between judicial officers and law clerks or other court personnel concerning judicial decision-making.

"Rather, The AP has requested documents concerning communications between a judicial officer and a third party, which do not implicate the judiciary's constitutional exercise of judicial power."

Thirteen of the e-mails were between Maynard and Massey CEO Don Blankenship, his longtime friend. Five of them discussed this year's Supreme Court election and were ordered released by Bloom.

According to a report in the Charleston Daily Mail, two of them criticized the Web site of Menis Ketchum. Ketchum was one of two Democrats that finished ahead of Maynard in May's primary and advanced to November's general election.

Ketchum is a trial lawyer from Huntington. Maynard wrote to Blankenship about two pages on the Greene Ketchum site -- one that advertises the firm's ability to handle medical malpractice cases and one dedicated to suits about mine accidents.

"Don -- this is only one of Menis' ads -- look at the kind of cases he is advertising for -- unbelievable," Maynard wrote of the medical malpractice page, according to the report.

The mine accidents page mentions a fatal fire for which Massey was faulted.

"This one you gotta see -- Aracoma is mentioned -- you could have prevented it if you had only operated the mine properly according to Menis," Maynard wrote, according to the report, which adds the other three e-mails are forwarded news articles and commentaries that mention Maynard.

Controversy over the relationship between Maynard and Blankenship started after a Boone County jury awarded $50 million to Harman Mining owner Hugh Caperton in his case against Massey, a dispute over a broken coal supply contract.

The Supreme Court overturned the verdict in November with a 3-2 vote. The majority reasoned that the disputed contract contained a stipulation that any disagreements be filed in a county in Virginia, where Caperton filed an additional suit against Massey.

Soon after the state Supreme Court's decision, photographs surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.

Still, the Justices voted unanimously to rehear Caperton's case. After Maynard voluntarily recused himself from all Massey cases, another 3-2 vote overturned the verdict, which had ballooned to $76 million with interest.

Caperton appealed that the decision to the U.S. Supreme Court. He feels Justice Brent Benjamin, whom Blankenship supported in the 2004 election by spending more than $3 million against opponent Warren McGraw, should have recused himself.

The AP filed its request in April and hoped to have the results before the primary. Instead, Bloom did not want to rush the issue.

Ketchum and former Justice Margaret Workman made it out of the Democratic primary. Republican Beth Walker, an attorney from Charleston, rounds out the ballot. Two spots on the Court are open.

"While is it abundantly clear what is at the heart of this particular request, any demand for the disclosure of communications or information of West Virginia Supreme Court Justices has effects well beyond any singular request," Canterbury said. "The disclosure of the requested information sets a bad precedent, is likely unconstitutional, and has long-range ramifications."

Canterbury said the results of this case could affect not only Supreme Court Justices, but also Circuit Judges, Family Court Judges, Juvenile Court Judges, Magistrates and Mental Hygiene Commissioners.

From Legal Newsline: Reach John O'Brien by e-mail at

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