CHARLESTON, W.Va. -- West Virginia' justices and judges should reveal any messages they exchange with people who have cases before them, Supreme Court candidate Tish Chafin proposed Wednesday.
One of the Democratic nominees in this year's two-seat race, Chafin called for a court rule that would require disclosure of such written or electronic communications. Her campaign told The Associated Press that the rule would extend to communications involving officers of companies with pending cases.
Chafin cited the AP's unsuccessful Freedom of Information Act requests for emails between then-Justice Elliott "Spike" Maynard and Don Blankenship, the since-retired chief executive of Massey Energy Co. The coal operator was appealing a $50 million verdict against it at the time. AP requested the emails in 2008, after photographs came to light showing longtime friends Maynard and Blankenship sharing drinks and socializing together in Monte Carlo.
"My Transparent Court Initiative encourages judicial accountability through transparency, and is key to restoring public confidence in the Supreme Court," Chafin said in a statement.
Chafin said her proposal would help avoid lawsuits over what is a public record, discourage people with pending cases from attempting secret exchanges with the providing judge or justice, and address potential conflicts of interest. As part of her campaign, Chafin previously proposed revamping the process for deciding when judicial officers must step down from cases because of such conflicts.
West Virginia does not provide for the appeal of rejected Freedom of Information Act requests except in court. AP sued in 2008 after Supreme Court officials repeatedly refused to provide the emails from Maynard's court-issued account. A Kanawha Circuit judge ordered the release of five emails but withheld another eight, concluding they reflected Maynard's relationship with Blankenship, but the justice had by then recused himself from Massey cases.
The state Supreme Court heard the resulting appeal from its administrative director, and ruled against AP in 2009.The opinion written by Justice Robin Davis -- the other Democratic candidate in this year's race -- concluded that none of the emails were public records as defined by state law, including those released by the circuit judge.
That opinion also inaccurately described at least some of the emails. Davis wrote that 12 of them "simply provided URL links to privately operated Internet Web sites that carried news articles," while the 13th was an "agenda for a meeting being held by a private organization." But of the five emails ordered released by Kanawha Circuit Judge Duke Bloom, two contained links not to news articles but to pages on the website of the Huntington law firm of then-Supreme Court candidate Menis Ketchum. Those emails also included critical comments Maynard wrote about Ketchum's firm.
Ketchum later won that year's Democratic primary, and is now chief justice. Maynard lost that primary, in which two of the court's five seats were on the ballot.
Chafin cites the opinion's characterization of the emails, while also noting efforts by the Legislature since to revisit the Freedom of Information Act's definition of public record. Her proposal calls for the court to adopt an administrative rule, which would not require legislation. She also argues that the court could have done so in AP's case, regardless of how FOIA defines a public record.
"In this case, the Court became both a party and the ultimate judge of the case," Chafin said in a campaign position paper, which also said, "Instead of releasing the emails, the Court chose to litigate the case and then decide that it was right. The litigation was expensive: as of early October of 2009, the Supreme Court had spent $54,552 in legal expenses defending the refusal to disclose the emails."The Massey appeal also prompted a 2009 U.S. Supreme Court ruling that barred Justice Brent Benjamin from hearing the coal company's cases after Blankenship spent more than $3 million to help him win election in 2004. That case helped prompt Chafin's recusal proposal earlier in the campaign. The state Supreme Court ultimately reversed the $50 million verdict against Massey, in a coal contract dispute, and the company has since been acquired by Alpha Natural Resources Inc.