Massey case about Starcher's e-mails dismissed

By Chris Dickerson | Nov 19, 2008




CHARLESTON – Massey Energy's case against the administrative director of the state Supreme Court regarding access to outgoing Justice Larry Starcher's e-mails has been dismissed.

Kanawha Circuit Judge Jennifer Bailey Walker on Nov. 18 issued the order dismissing the case, noting that Massey Energy failed to provide notice of the action before the suit was filed July 18 and failed to serve a copy of the complaint with the Attorney General.

"The Supreme Court of Appeals has held that compliance with pre-suit notification provisions are a jurisdictional prerequisite to filing an action against a government agency," Walker wrote in her order. "The Supreme Court further held that 'dismissal is mandated because the plaintiffs' failure to comply with statutory notice mandates deprives the circuit court of jurisdiction over this matter.'"

Walker concluded that, in his position, Canterbury is a government agency according to state law.

"As a result, this Court lacks jurisdiction to proceed in this matter because the plaintiff failed to provide pre-suit notification to the chief officer of the government agency and the Attorney General as mandated by West Virginia Code," Walker wrote. "Additionally, dismissal of this matter is proper on the grounds of insufficiency of service as the plaintiff failed to serve a copy of the subject complaint on the Attorney General of West Virginia as required by West Virginia Code."

In the complaint filed July 18, Massey claimed Canterbury was wrong in not disclosing e-mails to or from Starcher, his staff, the court's administrative staff and any third parties that refer to Massey or CEO Don Blankenship.

On July 9, Massey had sent a FOIA request to Canterbury, asking for the communication to or from Starcher. According to the suit, Canterbury denied the request July 15, in a letter that said, "it would (not) be appropriate to comply with your request for the e-mails of Justice Larry Starcher."

The West Virginia Freedom of Information Act states "Every person has a right to inspect or copy any public record of a public body in this State ..."

"Public body" includes elected state officials, such as Starcher, the suit says.

Canterbury invoked a January memorandum from counsel J. Kirk Brandfass, which stated, "a position can be taken that the provisions of the West Virginia FOIA are not applicable to the Justices of the West Virginia Supreme Court."

In her order, Walker also notes that Massey did not file a response to Canterbury's motion to dismiss.

Wheeling attorney Bob Fitzsimmons and Weirton attorney Daniel Guida represented Canterbury in the case.

Kanawha Circuit Court case number 08-C-1401

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