Petitions are public records, Justices rule

By Steve Korris | Sep 30, 2010


CHARLESTON -- Publisher Thomas Harding of the Observer in Shepherdstown won a crusade for free press and free information, right on time for everyone but himself.

The West Virginia Supreme Court of Appeals opened Jefferson County referendum petitions to Harding on Sept. 23, a year and a half after he asked for them.

"There is no question that the petitions are public records required to be disclosed under our Freedom of Information Act," Justice Menis Ketchum wrote.

He wrote that disclosure of referendum petitions "serves a vital function in protecting the integrity of the electoral process and in promoting transparency and accountability in the conduct of the public's business."

The Justices reversed Circuit Judge David Sanders, who ruled that the definition of public record didn't fit the petitions because a private group circulated them.

West Virginia legislators instigated the conflict in 2008, by enacting a law that allows citizens to force a popular vote on changes in county zoning ordinances.

Jefferson County commissioners changed their ordinance that October, and opponents started gathering signatures for a referendum to overturn it.

They needed 10 percent of registered voters, and the pages they presented to County Clerk Jennifer Maghan carried more than enough names.

Maghan sifted through 4,259 signatures, invalidated 796, and certified that the remaining 3,463 exceeded 10 percent.

In March 2009, Harding requested copies of signatures and all other documents for the Observer, which he publishes on paper and online.

Assistant prosecuting attorney Stephanie Grove sent him only the clerk's certification.

"It is clear that the petition and signatures do not fall within the definition of a public record as the document was not prepared by the public body but rather was prepared by a private citizen group that was neither affiliated with nor under the control of the County Commission," Grove wrote.

When Harding sued in circuit court, Sanders adopted Grove's statement as his own.

Ten weeks ahead of the election, he declared that making names public "would have a chilling effect on the ability of citizens to petition the government."

He found no reason to believe a newspaper was in a better position to verify signatures than clerks trained by the Secretary of State.

He advised anyone who felt Maghan improperly certified the petition that the Secretary of State has an election fraud unit.

He found no valid public purpose in making signatures public.

Harding appealed five weeks before the election, which proceeded in November and resulted in repeal of the new ordinance.

At the Supreme Court of Appeals, Harding argued that Sanders violated the Freedom of Information Act and the U. S. Constitution.

Two national groups, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists, supported Harding as friends of the court.

Earlier this year, U.S. Supreme Court Justices relieved West Virginia's Justices of the duty to decide the constitutional half of the case.

In a similar case from Washington state, they held that disclosure "is substantially related to the important interest of preserving the integrity of the electoral process."

West Virginia's Justices adopted that position, with Ketchum pointing out that Sanders didn't have the benefit of it when he reached his decision.

On the other half of the case, Ketchum wrote that the county's definition of public record would severely limit the scope of the Freedom of Information Act.

He wrote that Sanders erred three ways, by treating petitions as secret ballots, predicting a chilling effect on citizens, and finding no valid public purpose for disclosure.

The Justices directed Sanders to enter an order requiring Maghan to produce signatures.

Stephen Skinner of Charles Town and Patrick McGinley of Morgantown represented the Observer.

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