CHARLESTON – The state Supreme Court will decide if e-mails between former Justice Spike Maynard and Massey Energy CEO Don Blankenship will see the light of day.
On Wednesday, the five current Justices heard arguments in an appeal made by The Associated Press regarding a September 2008 decision by Kanawha Circuit Judge Duke Bloom, who ordered that five of 13 e-mails between longtime friends Maynard and Blankenship be released. Those five had to do with Maynard's unsuccessful re-election campaign of last year.
Bloom said the other eight should not be released because they didn't directly relate to the business of state government. Bloom noted that he would have released all 13 e-mails if Maynard had not recused himself from cases involving Massey Energy.
State Supreme Court Administrator Steve Canterbury, the actual defendant in the AP's case, also appealed Bloom's ruling. He contends none of the documents should be made public.
"You do a content-based analysis," said Ancil Ramey, a Charleston attorney who is representing Canterbury in the case. "If it doesn't have to do with the performance of the official's duty, then it isn't a public document.
"This court doesn't have to re-invent the wheel."
Ramey also said AP's request could result in e-mails Justices write on home computers open to FOIA requests.
"Justices wear judicial robes, but they also wear bathrobes," Ramey said. "They have friends. They have lives."
Chief Justice Brent Benjamin said this all could mean a check he writes at the grocery store could be open to FOIA requests.
Patrick McGinley, who is representing the AP, disagreed.
"The Legislature has provided the instruction as to which documents are public and which are private," McGinley argued. "What this case is about ... is transparency.
"Clearly, that runs afoul of common sense. That never was the intention of the Legislature. Judge Bloom interpreted the statute correctly."
Justice Robin Jean Davis said the AP request also could result in every e-mail and memo between a Justice and his or her law clerks also could be open to FOIA requests.
Again, McGinley disagreed.
"We've said from beginning that the FOIA contains exemptions," he said. "When the AP came to us about this case, we said you are not entitled to memoranda ...
"This case is very narrow. What we have to work with is the statute. If the Legislature wants to broaden it, they can. The AP never has assumed that Justice Maynard acted improperly. Is the public entitled to know what a public official is doing?"
Justice Margaret Workman said asked if Maynard was e-mailing an acquaintance or a litigant before the court.
"They weren't to a litigant, they were e-mails from Justice Maynard to Don Blankenship,'' Ramey said, adding that Blankenship is an officer of a litigant, not one himself.
Davis noted that no court in the United States had ruled for requests like that of the AP.
Background on the story
The U.S. Supreme Court ruled in June that Benjamin should have recused himself from the high-profile Harman-Massey case because of campaign support from Blankenship.
Hoping to unseat Justice Warren McGraw in 2004, Blankenship spent more than $3 million through an independent expenditure group called "And For the Sake of the Kids."
When a $50 million verdict against Massey came before the Court in 2007, Benjamin twice refused to step down.
The state Supreme Court overturned the verdict in November 2007 with a 3-2 vote, then again by the same vote in April after then-Chief Justice Maynard recused himself.
Photographs had surfaced of Maynard and Blankenship on vacation in Monaco. The two, lifelong friends from Mingo County, said they were coincidentally vacationing at the same place at the same time, and Maynard provided documentation to show he paid his own way.
Harman owner Hugh Caperton –- who was battling Massey in court over a coal contract -- complained throughout that Benjamin should have taken himself off the case. Former Supreme Court Justice Larry Starcher agreed, recusing himself in the hopes Benjamin would do the same.
Benjamin refused and insisted that he cannot control spending outside his campaign. The U.S. Supreme Court voted 5-4 that he should've recused himself.
Last year, Workman and Justice Menis Ketchum both defeated Maynard in the Democratic primary and ended up on the bench.