Coal Tattoo

Should the Alpha/Massey slurry deal be secret?

Share This Article

Circuit Court Judges from left: Judge Jay Hoke of Lincoln County, Judge James Mazzone of Ohio County, and Judge John Hutchison of Raleigh County listen to pretrial motions in a coal slurry pollution lawsuit against Massey Energy in Ohio County Circuit Court on Friday, July 22, 2011, in Wheeling, W.Va. (AP Photo/The Intelligencer, Scott McCloskey)

Lawyers for Massey Energy and coalfield residents were plugging right along, arguing over how The Associated Press found out that they had settled a case over Massey’s coal slurry pollution for $35 million … Then the walls of the ceremonial courtroom in the old Kanawha County Courthouse shook.

Was God telling us that Massey lawyers should stop their campaign to figure out AP writer Vicki Smith’s sources? Or was it just the rumblings from the Mineral, Va.-based earthquake hitting West Virginia?

Whichever it was, the courtroom security folks cleared us all out, and eventually Judges Jay Hoke, James Mazzone and John Hutchison finished up their hearing on the steps of the building. The judges agreed to Massey’s request that the court privately inspect a telephone call script and a letter the plaintiffs’ lawyers used to inform their more than 850 individual clients of the settlement terms.

It’s not clear exactly what the judges are looking for, or what they’ll do if they find it. Are they trying to figure out exactly who leaked the settlement letter to the AP? What if they figure that out? Will this person be punished somehow? I asked Judge Mazzone these questions, and he said:

I’m not exactly sure what the scope of our examination will be.

But what I really can’t figure out is why the judges are going to all this trouble without first making even the most basic attempt to answer the more important threshold question: Should this settlement be secret in the first place?

This question became even more confusing when, at yesterday’s hearing, the panel judges indicated that had not even seen the settlement agreement yet. If they haven’t seen it, how could there be an actual order of the court sealing it from the public?

As we all stood outside the courthouse yesterday afternoon, I tried to get an answer on these issues from Judge Mazzone. He at first declined to comment, but then called Judge Hutchison over to help him try to answer my query. Judge Hutchison explained that his view is that the two parties to the lawsuit — Massey and the residents — agreed to a secret settlement, and that’s the end of it, unless someone files suit to challenge that confidentiality:

It’s up to a third party to ask for such things to be unsealed.

I asked the judge, perhaps foolishly beginning my question with the phrase, “with all due respect,” if he could point me to some case law in West Virginia that backed up that conclusion. The judge snapped, “Don’t ‘with all due respect me'” and stomped off, refusing to answer any more questions.

So is Judge Hutchison right? Are judges just supposed to accept whatever secrecy the parties to a civil suit drop into the court’s lap?

Well, the Gazette has had some recent experience litigating this issue in a case involving Massey, the Upper Big Branch Mine Disaster and the Alpha Natural Resources merger. We won the case, unsealing hundreds of pages of court filings. You can read our lawyers’ brief here and Kanawha Circuit Judge Charles King’s ruling here.

You would think the panel judges in this Massey slurry case would understand the law in this area, since one of the more important cases involves a Supreme Court review of actions by Judge Hoke to seal court records and close his courtroom.

In that case, the Supreme Court made two important findings:

— The open courts provision of Article III, Section 17 of the Constitution of West Virginia guarantees a qualified constitutional right on the part of the public to attend all civil court proceedings; and

— Unless a statute provides for confidentiality, court records shall be open to public inspection.

The court went on to say that, “the qualified public right of access to civil court proceedings guaranteed by Article III, Section 17 of the Constitution of West Virginia is not absolute and is subject to reasonable limitations imposed in the interest of the fair administration of justice or other compelling public policies.” But the justices also made it clear that circuit judges aren’t supposed to just approve secrecy requests by the parties without examining whether confidentiality is the best move in a particular case:

In performing this analysis, the trial court first must make a careful inquiry and afford all interested parties an opportunity to be heard. The trial court must also consider alternatives to closure. Where the trial court closes proceedings or seals records and documents, it must make specific findings of fact which are detailed enough to allow appellate review to determine whether the proceedings or records are required to be open to the public by virtue of the constitutional presumption of access.

Other courts have found that judges should not “abdicate their responsibility” to protect the public’s right to court records and only allow records to be sealed in very limited circumstances.

And most recently, a federal judge in Virginia refused to allow the parties to a civil litigation settlement to seal the terms of their settlement, even though no third party had intervened to argue for openness. As the Reporters Committee for Freedom of the Press reported:

Despite the urging of both parties that the secrecy of the deal was a key aspect of the agreement, the court denied the request to seal it and ordered the parties to indicate whether they wished to continue with the settlement — knowing its terms would be available to the public — or proceed to trial.

“Few principles have as long a pedigree and are as well-settled as the public’s right of access to court proceedings and judicial documents,” Ellis said. “With strong roots in the common law and the First Amendment, this principle is central to the legitimacy and independence of the judiciary. . . . While this right is not absolute, courts have uniformly emphasized that sealing should be the relatively rare exception, not the common practice.”

So far, we haven’t heard much from either side about why this settlement’s details should be kept secret. All that Massey lawyer Dan Stickler told the court yesterday was that AP’s publication of the settlement amount could be problematic for his clients in other similar cases that are pending:

We have other litigation where this kind of information could have a very negative impact on the proceedings.

And, even though AP already knows the settlement details — and has published them for all the world to see — Judge Hutchison warned the plaintiffs lawyers to caution their clients about further leaks:

Everything has got to remain confidential.