Chafin proposes rule requiring disclosure of emails, written messages
Jessica M. Karmasek Sep. 20, 2012, 4:45am
CHARLESTON - West Virginia Supreme Court of Appeals candidate Tish Chafin says the state's justices and judges should disclose any messages they receive from, or send to, individuals with cases before them.
Chafin revealed her Transparent Court Initiative this week.
The initiative, according to materials on her campaign website, provides "the necessary leadership to create open, impartial West Virginia courts, where citizens and business interests will know that their cases are heard fairly and equitably."
Chafin's initiative encourages judicial accountability through transparency, in hopes of restoring public confidence in the state's high court.
In particular, she is proposing that the state Supreme Court adopt an administrative rule requiring the disclosure of written and/or electronic communications between a party -- or an officer of a corporate party -- with a pending case and any judicial officer assigned to that case.
Her proposed rule -- which would not require legislation -- would apply to all members of the Supreme Court and all lower court judges.
West Virginia Code, she points out, currently does not require disclosure of written and/or electronic communications between a party with a case pending in court and any member of the Supreme Court or lower court judge.
Chafin believes the public has a right to know if a litigant and a judge or justice are communicating while a case is pending.
"Promoting a culture of independence and accountability in our state's court system is critical to ensuring the integrity of our judiciary," she said in the initiative's executive summary, adding that government transparency is a "key pillar" of a democratic society.
Chafin points to a request made by The Associated Press in 2008 that the state Supreme Court disclose any record reflecting communications between then-Justice Elliott "Spike" Maynard and Don Blankenship, then-chief executive of Massey Energy Co.
The AP filed a Freedom of Information Act request for the emails after photos came to light showing Maynard and Blankenship -- longtime friends -- vacationing in Monte Carlo.
At the time, Massey was appealing a $50 million verdict against it.
After the Court repeatedly refused to provide the emails from Maynard's account, the AP sued in 2008.
Kanawha County Circuit Judge Louis "Duke" Bloom ordered that five emails be released but withheld another eight.
The AP again appealed, back to the Supreme Court, which ruled against the news service in 2009.
"Instead of releasing the emails, the Court chose to litigate the case and then decide it was right," Chafin writes in her initiative.
And the litigation was expensive.
"As of early October of 2009, the Supreme Court had spent $54,552 in legal expenses defending the refusal to disclose the emails," she notes.
Chafin says by adopting her proposed rule, expensive FOIA litigation over what is or is not a public record can be avoided.
A formal rule also will discourage litigants from attempting to engage in secret improper communications.
Also, the disclosures will help ensure that conflicts of interest are adequately addressed.
Finally, she says, citizens can be assured that cases are argued by the parties in public in open court where all sides have a "fair chance" to address the arguments of the opposition.
"Operating in the open and not behind closed doors makes government more accountable and more effective to the citizens it serves," Chafin writes in her initiative.
Chafin, the managing partner of the H. Truman Chafin Law Firm in Williamson with her husband, state Sen. Truman Chafin, is facing incumbent Justice Robin Jean Davis, state Supreme Court law clerk Allen Loughry and circuit judge John Yoder for one of two open seats on the Court this fall.
Both Chafin and Davis are Democrats; Loughry and Yoder are Republicans.
The general election is Nov. 6.