Summary judgment granted for Shepherdstown Observer publisher in case against Tennant

By Kyla Asbury | May 27, 2013

Editor's note: This is a corrected version of an article that previously ran in the West Virginia Record.

CHARLESTON – Kanawha Circuit Judge Louis H. Bloom last year granted the Shepherdstown Observer's publisher's Motion of Summary Judgment in a lawsuit against Secretary of State Natalie Tennant that was filed in 2010.

The plaintiff's Motion for Judgment on the Pleadings or for Summary Judgment was filed on March 8, 2011, by Thomas Harding, and on May 31, 2011, Tennant filed a Defendant's Memorandum in Opposition to the Plaintiff's Motion for Judgment on the Pleadings or for Summary Judgment.

Harding filed the lawsuit in 2010 after he claimed Tennant misapplied election law and stifled the newspaper’s investigation into alleged voting irregularities.

On June 2, 2011, both parties came before the court for a hearing on Harding's motion, at which time the court instructed the parties to attempt to work out a resolution, according to the order.

By letter, dated Oct. 25, 2011, counsel for the parties advised the court they were unable to come to an agreement on the interpretation and applications of West Virginia code and agreed to submit the case to the Court for a decision based on the previously filed memoranda, according to the order.

On June 18, the court ordered that the Plaintiff's Motion for Summary Judgment be granted and ordered that the action be dismissed and stricken from the docket.

The court concluded that “even when liberally construing both statues, as required, to give two seemingly conflicting statutes meaning, it is clear that W.Va. Code § 3-8-8(i) is in complete opposition to W.Va. Code § 3-1-50,” according to the order.

The order also stated it was clear the blanket gag order on all disclosures by any person, without regard to the purpose or circumstance, of any fact of an election law violation complaint or investigation, proscribed by West Virginia Code § 3-8-8(i) is an “overly broad restriction on speech, despite the State’s purported legitimate interests justifying such statute.”

The lawsuit was filed after Tennant’s office used a pending investigation against Harding to prevent him from publishing information about a controversial zoning referendum in Jefferson County, according to the complaint filed June 2, 2010, in Kanawha Circuit Court.

Harding claimed after the Jefferson County Commission enacted a new zoning ordinance in 2008, the residents circulated a petition to collect enough signatures to put a referendum on the new ordinance on the ballot in November 2009.

The Jefferson County clerk certified the petition had enough valid signatures, and the referendum was defeated.

Harding claimed the Shepherdstown Observer filed a Freedom of Information Act request for the petition, but the county clerk refused to turn over the list of names because of a decision that was upheld by Jefferson Circuit Judge David Sanders in August 2009.

The newspaper appealed Sanders’ ruling, and in January 2010, the state Supreme Court agreed to hear the appeal.

On Nov. 7, 2009, Harding claims he noticed Ronda Lehman, who had organized the petition drive, was working as the chief poll worker at his polling place when he went to vote and took a photograph of her performing her duties. Harding posted the photo, which did not contain citizens, voting booths or ballots, on the Shepherdstown Observer’s website.

Afterward, the Secretary of State’s Office informed Harding that he was under investigation for possible violations of West Virginia election law, which prohibits journalists from entering polling places while they are working as reporters, according to the suit.

Harding was charged in connection with the Election Day incident, but the criminal charges against him were later dismissed.

The Secretary of State’s Office reminded Harding that it was illegal “to divulge to anyone any part of a report or any proceeding involving an investigation,” according to the suit.

The suit said Tennant invoked the law when she issued a statement explaining why she would not reveal information about her office’s possible investigation into allegations of widespread voter fraud in Lincoln County during the 2009 primary elections.

Harding was represented by Robert M. Bastress; David M. Hammer of Hammer, Ferretti & Schiavoni; and Stephen Andrew Arnold.

Kanawha Circuit Court case number: 10-C-990

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