When voters head to the polls today to vote for state Supreme Court justice, they won't have the benefit of knowing whether Chief Justice Elliott "Spike" Maynard had improper discussions via e-mail with Massey Energy CEO Don Blankenship.
Last month, The Associated Press sued state Supreme Court administrative director Steve Canterbury after he refused to turn over records of e-mails that may have been exchanged by Maynard and Blankenship, which the AP requested under the state's Freedom of Information Act.
But before lawyers for both sides could argue their cases at a hearing Monday, Kanawha Circuit Judge Duke Bloom said he wanted to be sure he has the authority to tell the higher court what to do.
"Is there jurisdiction for an inferior court to tell the Supreme Court how to conduct their business?" Bloom asked.
He asked both sides to submit written briefs on the issue, and scheduled another hearing for June 24.
West Virginia University law professor Pat McGinley, arguing on behalf of the AP, wanted to press ahead on Monday, citing the public's interest in learning more about the records before voting.
"An expedited hearing today would help determine if the [state Supreme] court has even looked for the [requested] documents over the last four months. That's something the public has a right to know," he said.
Bloom declined to proceed, and reminded McGinley that it was the AP's decision to file its lawsuit so close to the primary that created the deadline pressure.
McGinley noted that the AP followed up on its original FOIA submission in January with another on Feb. 29 that tried to limit its request to possible ex parte communications between Maynard and his staff and Blankenship and his representatives.
The AP's February request also included the e-mails of Brenda Magann, a paralegal with the court's Magistrate Court Services division who told ABC News last month that she was on the now-infamous vacation in Europe with Maynard in 2006.
Part of the reason the AP did not immediately file its lawsuit was that it was busy sorting through more than 900 pages of documents related to Magann's e-mails turned over by Supreme Court administrators in mid-March, McGinley said.
Maynard is one of four Democratic candidates seeking to fill one of two seats on the court up for grabs in November's general election. One Republican is also running for the court.
Maynard's relationship with Blankenship came under national scrutiny after photos surfaced in January showing the two men together on the French Riviera in July 2006.
When the photos were taken, several cases involving Massey and its subsidiaries were pending in front of the state Supreme Court. Maynard later voted with the 3-2 majority to overturn a multimillion-dollar verdict against Massey in a lawsuit brought by Harman Mining Corp.
Maynard, who has acknowledged a decades-long friendship with Blankenship, has denied any wrongdoing. He later recused himself from the Harman case, and said he would withdraw from all others involving Massey.
After Monday's hearing, Canterbury declined to discuss whether his office had assembled records of Maynard's e-mails pertaining to the AP's FOIA requests.
"We have to wait for the court proceedings to get all of that out," he said.
McGinley noted that the information requested by the AP could have cleared Maynard of any suggestion of impropriety.
"The goal of the AP was to disclose to the public important information that is relevant to the election tomorrow," he said. "[Bloom's] ruling will not allow that to happen. There will continue to be a cloud over the [state Supreme] court that disclosure of the public records involved might lift."
To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.