WEST VIRGINIA RECORD

CHARLESTON – Journalists around the nation press the West Virginia Supreme Court of Appeals to release referendum petitions with hundreds of phony signatures to the monthly Observer newspaper in Shepherdstown.

On April 16, two groups pleaded to the Justices that Jefferson Circuit Judge David Sanders improperly keeps the petitions under wraps.

The Reporters Committee for Freedom of the Press and the Society of Professional Journalists argued that Sanders confused the right to petition with the right to vote.

"The lower court erred in simply assuming that the referendum position at issue in this case is akin to a secret ballot," Troy Giatras of Charleston wrote.

Those who submit referendum petitions act as legislators, not private citizens, he wrote.

"If the Court allows referendums to be placed on the ballot without disclosing the identities of the government actors and citizens who petitioned for the referendum, the general public has no way of holding the government accountable," he wrote.

The group circulating the petitions last year sought a referendum on a zoning ordinance that county commissioners adopted in 2008.

State law requires a referendum on a new zoning ordinance if ten percent of voters sign petitions for one.

According to Observer lawyer Stephen Skinner of Charles Town, County Clerk Jennifer Maghan kept a running tally of valid and invalid signatures.

Skinner wrote last year that 18 percent of the signatures were invalid.

He wrote that Maghan's clerks regularly revealed names and signatures to the group circulating the petitions.

When the Observer requested the petitions, Maghan refused on the advice of assistant prosecuting attorney Stephanie Grove.

Grove wrote that under the West Virginia Freedom of Information Act, a public record must have been created by a public body.

"There is no affiliation between the County Commission and this citizen group, and the County Commission did not request that the group undertake the petition drive," she wrote.

Observer publisher Thomas Harding sought relief in circuit court and got none.

Sanders bought Grove's argument and added his own, predicting identification would have a chilling effect on petition activity.

He challenged anyone who felt Maghan acted improperly to call the election fraud unit of the Secretary of State.

"There is no reason to believe that the Clerk did not properly perform her duty to certify each and every signature presented or that a newspaper is in a better position to verify the signatures than those deputy clerks who are trained by and use the methods prescribed by the West Virginia Secretary of State," he wrote.

On appeal for the Observer in October, Skinner wrote that the order would exclude hundreds of thousands of documents long open to the public.

He wrote that deeds, wills and estates would fall outside the definition of public record, along with applications to agencies, commissions and local governments.

He wrote that none of the 4,000 who signed petitions faced or would face retaliation.

The Justices granted an appeal in January.

On the same day the national groups entered as friends of the court, Skinner delivered the newspaper's brief to the Justices.

"It is simply preposterous to assume the legislature intended for the definition of public record to drastically curtail the scope of public access to important records in government files because they were not prepared by a public body," he wrote.

Public access allows citizens to detect fraud, he wrote.

He asked for immediate disclosure, legal fees, costs and other proper relief.

The Justices have not set any action on the appeal.