CHARLESTON –- Kanawha County Circuit Judge James Stucky shouldn't have dodged a decision on a Charleston Gazette request for Charleston police payroll records, the city argues in a March 5 brief for the West Virginia Supreme Court of Appeals.

"The circuit court's voice was exactly what the parties needed to hear in this matter," wrote Scott Johnson, of Steptoe and Johnson in Charleston.

The city petitioned for declaratory judgment last year, seeking an order that would either open the records to Gazette reporter Andrew Clevenger or deny access.

Clevenger had requested records of 28 officers to check out allegations that police "doubled dipped" as private security guards while on duty.

The police union, Lodge 74 of the Fraternal Order of Police, notified city officials that if they released the records, the union would sue the city.

City leaders also expected that if they denied access, the Gazette would sue.

They wanted Stucky to decide for them, but he dismissed the petition.

He ruled that there was no controversy before him, because circuit judges Tod Kaufman and Jennifer Bailey-Walker already sealed the records.

The other judges, however, had sealed records of only six officers on Clevenger's list.

Johnson wrote to the Justices, "... that still leaves 22 officers whose records are not directly covered by either Judge Kaufman's or Judge Walker's orders."

He wrote, "Yet, the records of these other 22 officers contain exactly the same type of information that Judges Kaufman and Walker have already found to implicate the officers' privacy rights."

He argued that Stucky violated due process by dismissing the petition without notice and without a hearing.

"The circuit court here mistakenly found that its intervention would not settle the controversy," Johnson wrote.

"The city had a right to seek guidance from the circuit court and properly invoked the jurisdiction of the circuit court," he wrote.

Johnson noted that if police sue the city, the city will have to pay its own legal fees.

If the Gazette sues the city, he added, the city will have to pay its own legal fees and it might have to pay the Gazette's fees.

He wrote, "... it is ultimately the city's taxpayers who will bear the cost of any litigation, including any sanctions against the city for having guessed wrong with respect to its obligations in the face of competing demands."

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