On the eve of Tuesday's primary election, lawyers for The Associated Press and the state Supreme Court will argue today in Kanawha Circuit Court over whether the high court is required to turn over a justice's e-mails.

The AP is seeking a preliminary injunction, arguing that the public has a right to know - before heading to the polls Tuesday - the content of e-mails that may have passed back and forth between Chief Justice Elliott "Spike" Maynard and Massey Energy Co. officials, including chief executive Don Blankenship.

In its response, filed Friday afternoon, the Supreme Court maintains that private e-mails are not public record, even if sent by a public employee on a state-owned computer. It also argued that the AP, knowing that the primary was scheduled for Tuesday, could have prevented the time crunch by filing its lawsuit earlier.

Last week, Judge Duke Bloom scheduled an expedited hearing, giving the case a quicker-than-usual spot on his docket.

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.

On April 30, the AP sued Steve Canterbury, the court's administrative director, after he refused several requests under West Virginia's Freedom of Information Act to release Maynard's phone and e-mail records, as well as Maynard's visitor logs, from June and July 2006; May, October and November 2007; and January 2008. (The court did provide information regarding Maynard's phone records.)

The AP also requested all records or documents reflecting communications between Maynard and his staff and Blankenship and his representatives, as well as e-mails to or from a government e-mail address assigned to Brenda Magann, a paralegal with the court's Magistrate Court Services division.

The AP's FOIA requests were made as "a direct consequence of the enormous statewide and national public attention given the Blankenship-Maynard relationship," according to the AP's memorandum in support of a preliminary injunction.

On the eve of Tuesday's primary election, lawyers for The Associated Press and the state Supreme Court will argue today in Kanawha Circuit Court over whether the high court is required to turn over a justice's e-mails.

The AP is seeking a preliminary injunction, arguing that the public has a right to know - before heading to the polls Tuesday - the content of e-mails that may have passed back and forth between Chief Justice Elliott "Spike" Maynard and Massey Energy Co. officials, including chief executive Don Blankenship.

In its response, filed Friday afternoon, the Supreme Court maintains that private e-mails are not public record, even if sent by a public employee on a state-owned computer. It also argued that the AP, knowing that the primary was scheduled for Tuesday, could have prevented the time crunch by filing its lawsuit earlier.

Last week, Judge Duke Bloom scheduled an expedited hearing, giving the case a quicker-than-usual spot on his docket.

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.

On April 30, the AP sued Steve Canterbury, the court's administrative director, after he refused several requests under West Virginia's Freedom of Information Act to release Maynard's phone and e-mail records, as well as Maynard's visitor logs, from June and July 2006; May, October and November 2007; and January 2008. (The court did provide information regarding Maynard's phone records.)

The AP also requested all records or documents reflecting communications between Maynard and his staff and Blankenship and his representatives, as well as e-mails to or from a government e-mail address assigned to Brenda Magann, a paralegal with the court's Magistrate Court Services division.

The AP's FOIA requests were made as "a direct consequence of the enormous statewide and national public attention given the Blankenship-Maynard relationship," according to the AP's memorandum in support of a preliminary injunction.

The AP's requests do not assume unethical conduct or judicial impropriety by Maynard, but seek to clarify his conduct towards Blankenship while Massey cases were pending, the memo states.

"Serious questions have been raised in the public domain regarding the integrity of the Court," the memo reads. "It is possible the public records sought by the AP will cast light on this controversy. Indeed, pre-election disclosure of the withheld public records (or perhaps lack of such records) could prove exculpatory and extinguish the heated public debate."

In its response, the defense maintains that e-mails relating to personal matters are exempt from disclosure because they do not pertain to the "public's business."

"[I]n the instant case, whatever the perceived legitimacy of a press inquiry into the private e-mails of judicial officers and employees, such issue of public interest do not make those e-mails 'public records,'" the filing reads.

The defense also argues that the AP has not shown how it or the public will suffer irreparable harm if the judge does not issue an injunction immediately.

"If, indeed, as [the AP] now suggests, 'irreparable harm' will occur without expedited resolution, then why did [the AP] not file suit in January, February or March?" the response states. "It appears that what [the AP] has done is to delay taking action for months, until the eve of the primary election, in order to create a false sense of urgency."

On May 6, the AP subpoenaed the contested records, asking the defense to produce them at today's hearing, so that they would be immediately accessible if Bloom rules in the AP's favor.

Friday's filings, written by Charleston lawyer Ancil Ramey, include a defense motion to quash that subpoena.

Ramey, one of four lawyers representing Canterbury, also represented Massey during the original jury trial in Boone County in 2002 that produced a $50 million verdict in Harman Mining's favor.

To contact staff writer Andrew Clevenger, use e-mail or call 348-1723.