CHARLESTON - A circuit judge on Monday denied The Associated Press' wish to hammer out issues surrounding a denied request for a log of state Supreme Court Chief Justice Spike Maynard's e-mails and phone calls before Tuesday's primary election.
Kanawha Circuit Court Judge Duke Bloom told attorneys for The AP that they dragged their feet in filing their complaint against Supreme Court administrator Steve Canterbury. Maynard is one of four Democrats seeking two spots in the general election.
The AP filed its suit April 30, four months after its first Freedom of Information Act request. Attorney Sean McGinley said it was crucial to have the records before election day.
"If the information you sought is so important, why did you wait until essentially the eve of the event you speak of to file these papers?" Bloom responded.
The suit was filed against Canterbury as he has possession and control over the records requested by the AP, which include all e-mails and phone records, including cell phone calls. The AP also requested visitor logs pertaining to Maynard.
Canterbury has refused requests from AP reporter Lawrence Messina, who first asked for the records Jan. 16, 2008, and two times after.
McGinley wanted to know if the Court had even prepared the information in the event it was forced to turn it over. Bloom said it was too early to delve that deep.
Answers are needed on a jurisdictional issue, Bloom said. He wants to see if an inferior court has the authority to tell a superior one what to do. McGinley said he was prepared to discuss it Monday.
"I don't want seat-of-the-pants opinions," Bloom said. "I want case law.
"I don't think there is any law in West Virginia on that issue."
When McGinley told Bloom that he had found a similar case, Bloom replied, "I'll look forward to reading that case."
Bloom also questioned whether he was ethically able to go forward because circuit judges are paid by the Supreme Court.
Bloom told attorneys for Canterbury to file an answer to The AP's request for declaratory relief within 10 days.
In a letter to Canterbury, state Supreme Court general counsel J. Kirk Brandfass said in reference to the FOIA, West Virginia Code uses the term "public body" to include "judicial departments," but claims the term refers to the administrative functions of the Supreme Court, not the Justices themselves.
In a statement released by Canterbury, he says releasing the information will set a bad precedent and have long-term ramifications.
"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.
Only the issue of Bloom's possible recusal was solved. Both sides agreed after a brief recess that even though he is an employee of the state's court system, he could be impartial.