CHARLESTON, W.Va. (Legal Newsline) - Though former West Virginia Supreme Court Justice Elliott "Spike" Maynard lost the election, The Associated Press still is going after eight of his e-mails to Massey Energy CEO Don Blankenship.
In September, Kanawha Circuit Court Judge Louis "Duke" Bloom ordered the release of only five of the 13 e-mails Supreme Court officials said existed between Maynard and Blankenship.
Bloom said Maynard's subsequent recusal from a highly controversial case involving Massey after The AP filed a Freedom of Information Act request for the e-mails exempted another eight e-mails from disclosure because they didn't pertain to Maynard's bid for re-election.
However, Bloom noted that if Maynard had not stepped down in the case, he would have ordered all the e-mails released. Supreme Court officials had refused to honor The AP's FOIA, so The AP sued.
Justices on March 26 will vote on whether or not to grant The AP's petition for appeal. The AP argues that no action by Maynard in the case changed the fact that the e-mails are public record under state law because they pertain to the extent of Maynard's relationship with Blankenship.
The relationship became relevant when photos of Maynard and Blankenship together while on vacation on the French Riviera surfaced in a case where Massey appealed a $50 million verdict returned against it by a Boone County jury.
The court, including Maynard, had already voted to overturn the verdict. The pictures surfaced as the court prepared to rehear the case.
The photos were connected with a motion for Maynard's recusal from the case filed by the Harman Mining Company, which had won the verdict against Massey.
The photos touched off a firestorm of controversy that many blame for Maynard's inability to win nomination during the 2008 Democratic primary election.
Hugh Caperton, the president of Harman, also wanted Chief Justice Brent Benjamin off the case because Blankenship spent $3 million in 2004 to help defeat Benjamin's Democratic opponent in the Supreme Court race, former Justice Warren McGraw.
Benjamin refused to step down. That issue currently is under consideration by the U.S. Supreme Court.
The AP, in its petition over the Maynard photos, said that there is still that lingering controversy over judicial impartiality as evidenced by the U.S. Supreme Court's willingness to consider Caperton's appeal.
The AP also cites an associated lawsuit filed by Massey Energy against the state Supreme Court, alleging that it's method of recusal -- in which a justice decides for themselves whether to step down from cases -- violates the company's due process rights.
That case, which was filed in federal court in Charleston, has been stayed until the U.S. Supreme Court rules in the Caperton case.
The AP says that the mere fact that local and national media have picked up on and followed the Caperton story asserts that the matter of judicial impartiality -- as The AP says could be exemplified through the release of the other eight e-mails -- is of "enormous statewide and national public interest."
The AP further argues that releasing the e-mails would help in restoring the public's confidence in its judicial officers.
The petition cites a case out of Idaho that involved a county prosecutor and the head of a juvenile court.
In Cowles Publishing Company v. Kootenai County Board of County Commissioners, a local newspaper sought e-mail correspondence between the prosecutor and the manager of the county's juvenile court, whom the prosecutor supervised.
The request for the correspondence came as the prosecutor publicly defended the manager after federal funds were pulled because the court didn't file quarterly financial reports.
The newspaper was pursuing a story about allegations of an inappropriate personal relationship between the prosecutor and the court manager and wanted the e-mails as part of the reporting.
The county released 400 e-mails but withheld 597 e-mails, arguing that these did not pertain to official government business, but a romantic relationship between the prosecutor and the court manager.
The Idaho Supreme Court eventually ordered the county to release all the e-mails. That court ruled that the e-mails were subject to FOIA because they would have shed light on whether or not the prosecutor defended the court manager because of the relationship between them -- thus meaning the correspondence was of "legitimate public interest."
"The notoriety and public interest in the relationship between Justice Maynard and Mr. Blankenship is obvious and palpable," The AP argues. "Both Justice Maynard and Mr. Blankenship were quoted widely defending their relationship, just as the prosecutor in Idaho defended his relationship with the employee.
"As a direct result of the relationship with Mr. Blankenship, Justice Maynard thereafter affirmatively took official action, recusing himself from cases concerning his friend's company. That relationship was a major focus of the primary election campaign where Justice Maynard was denied nomination for re-election.
"Directly contrary to what the lower court concluded, Justice Maynard's official action of recusal actually confirms and supports the fact that all court records of his communications with Mr. Blankenship are 'public records.'"