Attorney no-show puts FOIA lawsuit in jeopardy
Lawrence Smith Aug. 3, 2012, 2:45am
CHARLESTON – As a result of his attorney's failure to show for recent hearing, a Clay County man's Freedom of Information lawsuit is on the brink of being dismissed.
Kanawha Circuit Judge Charles E. King, Jr. denied a motion by Michael Boggs to amend his suit against the Clay County Business Development Authority. The reason King denied the motion was due to the failure of Boggs' attorney, David R. Karr, Jr., to appear at the July 24 hearing to argue why.
Records show Karr filed the motion on Dec. 9. The reason for it was to state with specificity the reason why the state Development Office was a defendant in the suit.
During the hearing, Doren Burell, WVDO's attorney said the proposed amended complaint he received from Karr failed to do that.
"Though it names my client," Burrell said, "it does not allege any failure."
"It seems they should be dismissed, and the matters should be referred back to Clay County under that venue," he added.
According to court records, Boggs, a former board member, filed suit against both the CCBDA, and the Clay County Commission in Clay Circuit Court in 2010 seeking to compel release of certain documents he requested under the state Freedom of Information Act.
Among the documents he requested were quarterly reports from 2008-2010 of itemized receipts and disbursements from the Authority to the Commission, and its annual reports during those same years of all its activities.
In his suit, Boggs alleges the Authority made decisions on how to spend money despite not having the minimal number of 12 board members as required by state law.
Clay Circuit Judge Jack Alsop dismissed the suit after determining WVDO had an interest in the suit since it gave the Authority some money. In February 2011, Karr refiled the suit in Kanawha County, which has original jurisdiction in suits involving state agencies naming WVDO, CCBDA and the Commission as co-defendants.
During the hearing, CCBDA's and the Commission's attorney, William Murray, argued the case should be dismissed, and refiled in Clay County. Also, he asked King, absent granting his motion to dismiss, to allow CCBDA and the Commission to file an answer.
Previously, Karr made a motion for default judgment for CCBDA and the Commission failing to answer Boggs' suit within 30 days of being served a summons. According to Murray, the reason they didn't file an answer earlier was because they were under the impression Clay County Prosecutor Jim E. Samples would be handling it.
Though King granted Murray's motion to allow his clients to file an answer, he said he would be taking the motions both he and Burell made to dismiss the suit on their respective grounds under advisement.
Prior to concluding the hearing, King inquired if anyone knew the reason for Karr's absence. Though Murray said he could only speculate, he averred that Karr was aware of it as they both were in King's office the day before asking for the hearing to be postponed that day, and rescheduled for July 24.
The West Virginia Record attempted to get a comment from Karr as to why he did not attend the hearing. When reached at his office in Charleston, Karr said he was out of town, and would provide a comment upon his return.
He did not call by presstime.
Kanawha Circuit Court case number 11-C-269