The state Supreme Court must disclose five e-mails from Chief Justice Elliott "Spike" Maynard to Massey Energy CEO Don Blankenship, a Kanawha circuit judge ruled Tuesday.

In April, The Associated Press sued Supreme Court Administrator Steve Canterbury over his refusal to release Maynard's e-mails following a Freedom of Information Act request from the news service.

The AP's request came in the wake of the release in January of photos showing Maynard and Blankenship vacationing on the French Riviera in July 2006. At the time, several cases involving Massey and its subsidiaries were either pending or making their way on appeal to the high court.

Judge Duke Bloom's Tuesday ruling rejected Canterbury's contention that judicial officers are exempt from FOIA because of constitutional separation of powers. It also set aside Canterbury's suggestion that personal e-mails sent by Maynard were not "public record."

"[T]he determinative fact in this case should not be that the e-mails were prepared on and sent from a government e-mail account," the ruling states. "[B]oth the content of the e-mails at issue and the context under which they were created are relevant to the determination of whether they contain information relating to the conduct of the public's business."

Earlier, Canterbury identified to the court 13 e-mails that were relevant to the AP's request. Bloom concluded that five e-mails were related to Maynard's re-election campaign, and should be disclosed.

The Supreme Court would have had to turn over the remaining eight e-mails if Maynard hadn't recused himself from a multimillion-dollar case involving Massey and Harman Mining Corp., Bloom noted.

"Because the information contained within the e-mail communications would have shed light on the extent of Justice Maynard's relationship with Don Blankenship and whether or not that relationship may have affected or influenced Justice Maynard's decision-making in Massey cases, the public would have been entitled to that information," Bloom wrote.

Maynard initially refused to recuse himself from Massey's appeal of the verdict in Harman's favor. In November 2007, he voted with the 3-2 majority to overturn the verdict.

After the photos surfaced, Maynard stepped aside from the case, as did Justice Larry Starcher, who voted against Massey. In April, with replacements for those two chosen by Justice Brent Benjamin, the Supreme Court again voted 3-2 in Massey's favor. The case has been appealed to the U.S. Supreme Court.

Canterbury said Tuesday that the Supreme Court will obey Bloom's order.

The state Supreme Court must disclose five e-mails from Chief Justice Elliott "Spike" Maynard to Massey Energy CEO Don Blankenship, a Kanawha circuit judge ruled Tuesday.

In April, The Associated Press sued Supreme Court Administrator Steve Canterbury over his refusal to release Maynard's e-mails following a Freedom of Information Act request from the news service.

The AP's request came in the wake of the release in January of photos showing Maynard and Blankenship vacationing on the French Riviera in July 2006. At the time, several cases involving Massey and its subsidiaries were either pending or making their way on appeal to the high court.

Judge Duke Bloom's Tuesday ruling rejected Canterbury's contention that judicial officers are exempt from FOIA because of constitutional separation of powers. It also set aside Canterbury's suggestion that personal e-mails sent by Maynard were not "public record."

"[T]he determinative fact in this case should not be that the e-mails were prepared on and sent from a government e-mail account," the ruling states. "[B]oth the content of the e-mails at issue and the context under which they were created are relevant to the determination of whether they contain information relating to the conduct of the public's business."

Earlier, Canterbury identified to the court 13 e-mails that were relevant to the AP's request. Bloom concluded that five e-mails were related to Maynard's re-election campaign, and should be disclosed.

The Supreme Court would have had to turn over the remaining eight e-mails if Maynard hadn't recused himself from a multimillion-dollar case involving Massey and Harman Mining Corp., Bloom noted.

"Because the information contained within the e-mail communications would have shed light on the extent of Justice Maynard's relationship with Don Blankenship and whether or not that relationship may have affected or influenced Justice Maynard's decision-making in Massey cases, the public would have been entitled to that information," Bloom wrote.

Maynard initially refused to recuse himself from Massey's appeal of the verdict in Harman's favor. In November 2007, he voted with the 3-2 majority to overturn the verdict.

After the photos surfaced, Maynard stepped aside from the case, as did Justice Larry Starcher, who voted against Massey. In April, with replacements for those two chosen by Justice Brent Benjamin, the Supreme Court again voted 3-2 in Massey's favor. The case has been appealed to the U.S. Supreme Court.

Canterbury said Tuesday that the Supreme Court will obey Bloom's order.

"We'll comply with the court order within the next 24 hours," he said. "My attorney will forward to the AP's attorney the five e-mails."

A call to Patrick McGinley, who represented the AP, was not returned Tuesday afternoon.

In July, Massey filed a similar lawsuit, asking for communications to or from Starcher, his staff, the court's administrative staff and any third parties that refer to Massey or Don Blankenship from January 2004 onward. That case is still pending.

Bloom's order rejects Canterbury's contention that subjecting justices to FOIA would hinder their ability to oversee the state's judiciary.

"The defendant has failed, however, to articulate how disclosure of the e-mail communications at issue would affect the judiciary's ability to properly function as an independent branch that administers the law. The AP is not seeking internal communication between judicial officers and law clerks or other court personnel concerning judicial decision-making," the order states.

According to an index of the e-mails that is part of the court files, Maynard wrote the five e-mails to Blankenship. They have the following dates and subject headings, according to Bloom's order: Sept. 21, 2007: "WV MetroNews web site link"; Oct. 11, 2007: "Green Ketchum web site link re: firm overview"; Oct. 11, 2007: "Green Ketchum web site link re: firm overview"; Oct. 15, 2007: "Charleston Daily Mail Kercheval editorial link"; Nov. 6, 2007: "Parkersburg News and Sentinel article link."

The e-mails were sent months before the photos of Maynard and Blankenship on the French Riviera surfaced in January 2008.

Maynard lost his bid for re-election in May's primary, finishing third out of four Democratic candidates for two positions on the court.

Reach Andrew Clevenger

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