CHARLESTON, W.Va. - A Kanawha Circuit Court judge has dismissed Massey Energy Co.'s lawsuit seeking e-mails of West Virginia Supreme Court Justice Larry Starcher under the Freedom of Information Act.

In her dismissal order filed on Nov. 18, Judge Jennifer Bailey Walker said Massey failed to provide the 30-day notice required by state law before filing a lawsuit against a government agency.

In addition, Massey failed to give a copy of its complaint to the Attorney General's Office, which also is a valid reason to dismiss the lawsuit, Walker said.

In July, Massey requested any e-mails to or from Starcher, his staff, the court's administrative staff or any third parties between Jan. 1, 2004, and July 2008 that refer to the company or its chief executive, Don Blankenship.

Supreme Court administrator Steve Canterbury refused to disclose any of Starcher's e-mails. He cited a memo from Kirk Brandfass, the court's general counsel, which claimed "a position could be taken" that the state's Freedom of Information laws do not apply to Supreme Court justices.

Massey then sued Canterbury in Kanawha Circuit Court under the state's Freedom of Information Act, often referred to as FOIA, alleging that he wrongly withheld the requested information.

At the time, Charleston lawyer Henry Jernigan Jr., who filed the FOIA lawsuit on behalf of Massey, told the Gazette that the requested information might be relevant to Massey's planned appeal of a $220 million verdict in favor of Wheeling-Pittsburgh Steel Corp.

"We believe there may be information in [the e-mails] that may pertain to [an appeal to the U.S. Supreme Court]," he said. "We're not sure what they will reveal. We believe they may provide additional grounds firming up what we feel is the appearance of impropriety of [Starcher] sitting on this case."

A similar lawsuit filed by The Associated Press resulted in the release of five e-mails sent to Blankenship by Chief Justice Elliott "Spike" Maynard.

The news agency sought communications between the Maynard and Blankenship after photos surfaced of the two men together in the French Riviera in July 2006.

At the time, several Massey appeals, including a $50 million verdict in favor of Harman Mining Corp., were either pending or on their way to the state Supreme Court.

Maynard later voted with the majority in a 3-2 decision to overturn the Harman verdict.

Lawyers for Harman argued that the photos created at least the appearance of impropriety on Maynard's part, and asked him to recuse himself from the case. Although he initially refused to step aside, Maynard eventually bowed to mounting pressure and recused himself from the Harman case, saying he would also not sit on any other Massey cases in the future.

CHARLESTON, W.Va. - A Kanawha Circuit Court judge has dismissed Massey Energy Co.'s lawsuit seeking e-mails of West Virginia Supreme Court Justice Larry Starcher under the Freedom of Information Act.

In her dismissal order filed on Nov. 18, Judge Jennifer Bailey Walker said Massey failed to provide the 30-day notice required by state law before filing a lawsuit against a government agency.

In addition, Massey failed to give a copy of its complaint to the Attorney General's Office, which also is a valid reason to dismiss the lawsuit, Walker said.

In July, Massey requested any e-mails to or from Starcher, his staff, the court's administrative staff or any third parties between Jan. 1, 2004, and July 2008 that refer to the company or its chief executive, Don Blankenship.

Supreme Court administrator Steve Canterbury refused to disclose any of Starcher's e-mails. He cited a memo from Kirk Brandfass, the court's general counsel, which claimed "a position could be taken" that the state's Freedom of Information laws do not apply to Supreme Court justices.

Massey then sued Canterbury in Kanawha Circuit Court under the state's Freedom of Information Act, often referred to as FOIA, alleging that he wrongly withheld the requested information.

At the time, Charleston lawyer Henry Jernigan Jr., who filed the FOIA lawsuit on behalf of Massey, told the Gazette that the requested information might be relevant to Massey's planned appeal of a $220 million verdict in favor of Wheeling-Pittsburgh Steel Corp.

"We believe there may be information in [the e-mails] that may pertain to [an appeal to the U.S. Supreme Court]," he said. "We're not sure what they will reveal. We believe they may provide additional grounds firming up what we feel is the appearance of impropriety of [Starcher] sitting on this case."

A similar lawsuit filed by The Associated Press resulted in the release of five e-mails sent to Blankenship by Chief Justice Elliott "Spike" Maynard.

The news agency sought communications between the Maynard and Blankenship after photos surfaced of the two men together in the French Riviera in July 2006.

At the time, several Massey appeals, including a $50 million verdict in favor of Harman Mining Corp., were either pending or on their way to the state Supreme Court.

Maynard later voted with the majority in a 3-2 decision to overturn the Harman verdict.

Lawyers for Harman argued that the photos created at least the appearance of impropriety on Maynard's part, and asked him to recuse himself from the case. Although he initially refused to step aside, Maynard eventually bowed to mounting pressure and recused himself from the Harman case, saying he would also not sit on any other Massey cases in the future.

In September, Judge Duke Bloom rejected Canterbury's contention that justices are not subject to FOIA requests, and 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," Bloom's opinion stated. "[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."

Eight additional e-mails from Maynard to Blankenship were exempted from disclosure by Bloom because Maynard had recused himself from the Harman case.

"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.

On Sept. 30, the AP asked Bloom to reconsider his decision to withhold the eight e-mails.

"The scope of the public's interests in access to Justice Maynard's eight e-mails to Mr. Blankenship is much broader than the issue resolved by Justice Maynard's self-recusal in 2008," reads a memorandum submitted by the AP's attorney, Sean McGinley.

Bloom's order acknowledged that the eight e-mails provide insight to whether Maynard's relationship with Blankenship influenced the justice's decision-making in Massey cases, McGinley wrote.

"If at the time a record was created it 'related to the conduct of the public's business' it is a public record. Subsequent events [such as Maynard's recusal] cannot transform a public record into a record that is none of the public's business," the memo states.

Bloom denied the AP's request in an order entered on Oct. 20. The order gives no rationale behind his decision.

The Harman case continues to be contentious.

On Nov. 14, the U.S. Supreme Court agreed to hear Harman's appeal that West Virginia Justice Brent Benjamin should have recused himself from the case because Blankenship spent more than $3 million to unseat Benjamin's opponent in the 2004 election. The U.S. court is expected to hear arguments in the first half of 2009.

Reach Andrew Clevenger at acleven...@wvgazette.com">acleven...@wvgazette.com or 348-1723.