Should the Alpha/Massey slurry deal be secret?

August 24, 2011 by Ken Ward Jr.

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.

16 Responses to “Should the Alpha/Massey slurry deal be secret?”

  1. Edd442 says:

    My answer to the headline is: ABSOLUTELY NOT! Nor should the victims be under gag order. The American public has a right to know the facts in these cases, both the settlement details, and what the people have experienced. There should be no limit on what the victims can talk about, so that situations like this can hopefully be prevented in the future. By revealing the information, it assists state and federal agencies in enforcement and action. Otherwise, the details are sequestered, and nothing can be done about it because “officially” they do not exist on record.

  2. concerned miner says:

    Ken

    With all due respect, (sorry couldn’t help myself) are we comparing apples to apples by saying the slurry settlement is the same as sealing the evidence in the Alpha/Massey merger. In the Alpha Massey deal they wanted all of the evidence from a stockholders suit sealed, in the slurry case all of the evidence submitted is out there, all parties just agreed that the settlement be kept confidential. We are quick to jump that the coal company wanted the settlement kept confidential, which is most likely the case, but let’s say one of the residents didn’t want his dead beat brother to find out how much money he was getting, isn’t that within his rights?

  3. Bob Kincaid says:

    I can certainly offer a few reasons (good or otherwise, as the parties might see them) as to why the parties might want the settlement DETAILS (as opposed to the mere fact of the settlement, itself) to remain private.

    1) This is a private lawsuit. The People of neither the United States nor the State of West Virginia are parties defendant or plaintiff;

    2) Court records are often sealed. Abuse/neglect cases come to mind. So do Juvenile Delinquency proceedings, as well as divorces. Should those records also be available to be flogged in the public square in the name of making a profit for an outlet of the media? Too often “the public’s right to know” is a convenient veil for a modern media outlet’s “right” to pursue a profit;

    3) Massey/Alpha didn’t want the details out there because it didn’t want to be seen as a “deep pocket” or have people perceive that they had “given in,” whether that be true or not;

    4) The people whose wells and bodies were poisoned by Massey/Alpha might not want the spotlight on them that would attract grifters and beggars. Perhaps they, having already had their lives up-ended by the coal company, would like a little peace and quiet;

    5) Defense counsel might not want the details made public because they don’t want their firm(s) perceived to be weak or ineffective;

    6) Plaintiffs’ counsel might not want the details made public because plaintiffs’ lawyers, no matter how necessarily or valid or valuable the work they do, are constantly hounded for “killin’ jawbz,” etc.

    Beyond the sensationalism of a big number (or, as I would argue, a number far too small) what public good is served by invading the privacy of a private citizen?

  4. Ken Ward Jr. says:

    Concerned miner and Bob Kincaid,

    Thanks for your comments … I would encourage you both to read the legal briefs and the court rulings I linked to … they do a far better job than I could of explaining the theories and legal holdings about secret court settlements and other secret court documents.

    A couple of points are important to remember:

    — Not all of the records of this lawsuit — or any other lawsuit against Massey or anybody else — are public. It used to be in West Virginia that discovery documents, depositions and the like were routinely filed at the courthouse. No more. That was done away with in part for space reasons. What happens now is that the parties exchange these documents, typically under an agreed-to protective order that keeps them secret unless both sides agree that portions of them can be made public or filed in public.

    — Bob is right that certain sorts of documents in court are routinely kept secret. Family court records in West Virginia are secret. There is a presumption of secrecy for juvenile court records. But, as the West Virginia case I linked to mentions, those are covered by separate statutes — lawmakers and other policymakers have decided they deserve those protections in most circumstances, with limited exceptions. Of course, this means that nobody — no journalist, no activist, no law professor — can try to examine how well, for example, our family court system in West Virginia works to protect battered women. We don’t know if judges do a good job or a poor job of protecting women in those cases, or children for that matter.

    — Just because the parties to a lawsuit are private doesn’t make the court records or court proceedings private. Once people decide to use the public’s court system to resolve their differences, they give up the right to absolute privacy … Courts protect many things — for example, some data about medical conditions of plaintiffs in toxic chemical tort cases are covered by protective orders, giving only the parties access to that information.

    — I don’t see any recognition in the case law that a settlement document deserves any different protection from public disclosure than any other sort of document in a case like this.

    — In this case, there actually are children involved, and it’s up to the court to appoint a guardian who will ensure that the children’s interests are protected in the settlement. But without access to court records about the settlement, the press can’t play its constitutional role of ensuring that the court system does its job in this regard.

    — The federal case in Virginia describes in some detail how making public details of the settlement furthers the proper application and enforcement of the Fair Labor Standards Act. Without settlement information being made public, there’s no way for the press or policymakers to judge whether the system is working.

    The same goes for a case like this, where a regulatory system is supposed to protect people from coal-slurry pollution. Without detailed information about the case, reporters like Vicki Smith can’t serve their proper role in our society — ensuring that the court system work. Lawmakers who might want to know if current protections for citizens are working can’t judge that either.

    But beyond all of that, even if there is a valid argument for sealing such documents, the court and the judges are still supposed to consider those arguments, weigh them with the public’s right to know, and consider alternatives to sealing records. There’s no indication that’s been done in this instance.

    Ken.

  5. edd442 says:

    Bob,
    I can understand that the residents would want their privacy and want their lives to return to normal. But I think there’s something much greater at stake here. That is, we’ve seen this movie before: this pattern of gag orders has repeated itself in the coalfields like a broken record, and it has enabled the coal companies to continue their abuse without true accountability. There WOULD be, or at least SHOULD be a revolution in this country if these practices were made known. I think there is a moral obligation to make the health facts of the cases known as well as the actual practices of the company known to the public. I know this sounds harsh and judgmental, but these gag orders fall into the same historical pattern. The late, great Judy Bonds often talked about “Battered Wife Syndrome” in the coalfields. The pattern of Silence fits the pattern of abuse that she referred to.
    I understand that it would be difficult for some families to go public with their information. But some people are not afraid of the spotlight: some have even appeared in the movie The Last Mountain, so I don’t know how much this is really, truly an issue.
    On a side note, $27 million divided by 500 is a piddly $48,000 per family on average. This is a tragically small amount of money for someone who has suffered severe illness or even death in the family. The Federal Government places the value of a single life lost at $7.4 million in 2006. If anything, it might be perceived that the plaintiffs “gave in”.
    To counter your point in #1 above: there is the issue of the public welfare here, so no, I don’t think this just involves private parties.
    Obviously, this is not a cut-and-dry issue. But my point is the situation will never improve if the Silence is Never Broken.

  6. Ken Ward Jr. says:

    Here’s a link to a law review article cited by the federal judge in the Virginia case I mentioned, http://www.law.com/pdf/nlj/011204secrets-article.pdf … It’s well worth reading.

  7. Dianne Bady says:

    I’m responding to this issue on a purely emotional level.

    How very sad that the enormous amount of information gathered for this case cannot be used to help other people facing the same problem. I’ve heard one PhD water expert opine that well water in many places throughout the southern coalfields is likely contaminated with toxic coal wastes.

  8. concerned miner says:

    Ken

    You say “Without settlement information being made public, there’s no way for the press or policymakers to judge whether the system is working.” If there is a settlement.. then the system is working. I can understand if the case never makes it to the court and both sides don’t get what the want then the system is not working, but if there is a settlement then who is to judge if the settlement is fair, all of the stakeholders thought it was fair, if not they have every right to not agree and move forward with the suit.

    If you kill my prize pig and I think it is worth $1,000,000 and you think it is worth $100, most likely we end up with no settlement and go to court. If we both agree that the prize pig is worth $1,000 and agree to a settlement, case closed.

    I’m certainly not downplaying what happened in the slurry case, if Massey harmed these people they should have to make those people whole, but who are we to judge if the settlement is/was fair, if all the parties to the suit agree on their own free will.

  9. Ken Ward Jr. says:

    Concerned miner,

    You write about the parties agreeing of their own free will … actually, we don’t even know if that happened. The settlement was made during court-ordered and court-overseen mediation that took place behind closed doors, with all sides being ordered by the court not to talk about what was said during those sessions.

    Previous mediation in this case certainly was conducted in an interesting way:

    Publication: THE CHARLESTON GAZETTE
    Published: Friday, May 01, 2009
    Page: 5A
    Byline: VICKI SMITH THE ASSOCIATED PRESS
    WILLIAMSON – A Mingo County judge used assembly line efficiency Thursday to shuttle hundreds of plaintiffs through his courtroom in an attempt to resolve coal slurry water pollution lawsuits against a Massey Energy subsidiary.
    Circuit Judge Michael Thornsbury divided the plaintiffs into groups of 100 by alphabetical order and told them each would have just minutes to decide whether to accept or reject individual offers to settle their cases against Rawl Sales and Processing.
    “When you come in, it’s not going to be a time to hesitate,” he told the packed courtroom. The settlement talks could involve up to 700 separate cases involving current and former Mingo County residents.
    Away from the courthouse, about 500 plaintiffs were packed in a community gymnasium with no air conditioning in temperatures that hovered around 80 degrees.

    Does that seem like a system where the residents were able to decide things of their own free will?

    Again, the bottom line is that the law is judges are not to simply accept without question efforts to seal court records — whether they are evidence in a case or a settlement — and when I inquired of the judges in this case what evaluation they had done of whether the record should be sealed, they said they hadn’t done any.

    Ken.

  10. Edd442 says:

    Wow. The information in this last post by Ken is alarming. It seems like they were bullied into accepting the terms.

  11. Bob Kincaid says:

    Edd442,

    Courts do that sort of bullying all the time. I remember hearing a story once of a judge who compelled a settlement by getting the parties in a room, plying them with coffee, tea, soda, water, etc. and then refusing to let them go to the bathroom tilll they reached agreement.

    All,

    I am not in any wise justifying the withholding of the details, but merely offering that there ARE reasons (see above, “valid or otherwise” or some such), where it had been alleged that there were no reasons.

    I generally suspect the Defense wanted this gag order more than did the Plaintiffs.

    Ken’s right, that much of the record ISN’T sealed. Just the settlement. You’d be surprised (or not) how often such silence is the price of settlement demanded by defense counsel.

    As I also noted, I tend to think that the settlement monies were probably much too low. Vicki Smith’s account posted above, I believe, lends credence to that idea.

  12. concerned miner says:

    Ken

    If it were me placed in those conditions, it would have taken a matter of seconds, see you in court. I agree, it seems that in the Mingo County Court these people were being forced to make a decision, but not being forced to take a settlement.

  13. Pragmatic Realist says:

    How could anybody write, print and mail out 850 letters to 850 households and expect that every single one of them be kept confidential and secret? That’s just silly.

  14. Edd442 says:

    So what parts of the record from this case are NOT sealed? I’m still confused by all this.

  15. Bob Kincaid says:

    Edd442,

    As Ken notes, the gag order pertains to the settlement document itself. The Complaint, the Answer, the motion practice, the depositions, etc. are all presumably available for public review, if I understand Ken’s assertions above.

  16. Ken Ward Jr. says:

    Bob Kincaid and Edd442,

    To try to clarify:

    — As I tried to write in this post:

    “… 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?”

    It’s not entirely clear to me that there is a COURT ORDER that seals the settlement agreement. The judges indicated they hadn’t seen it, it hadn’t been presented to the court — if so, they could not yet have sealed it, I don’t believe. I’ve asked for a copy of any such order, but the court has not yet provided any such thing. Clearly, from the case law I cited above, any such order that does not spell out in some detail the reasons for confidentiality, weigh those against the public’s right to know, consider alternatives to sealing, and give any parties that might oppose confidentiality an opportunity to object, would be easily overturned on appeal.

    — It’s also not entirely clear what records may or may not be covered by any protective orders governing discovery. Generally, documents exchanged in discovery and depositions taken during discovery are no longer filed in public courthouses in West Virginia. While they may be technically not covered by a protective order, they also are not available to the public — unless one of the parties wants to provide them. In this instance, there are some documents available in court files, but it’s not clear what other documents are technically public, but not available in court files, or covered by protective orders.

    What is clear from what the judges told me is that they have not made much of an effort to determine whether documents the parties want secret should be made secret or not.

    In addition, it’s worth noting that when this case was transferred from Mingo Circuit Court to the state’s Mass Litigation Panel, the files were moved from Mingo County to Ohio County (where Judge Mazzone is based). So, the files are not available very easily to the people of Mingo County. And, while the Mass Litigation Panel uses an electronic filing system, it is through a contract with Lexis-Nexis, and the court has not yet answered my questions about what provision was made for the public to have free access to those records electronically.

    Don’t know if that clears anything up or not … to me, what I thought was most interesting and most important is that this is another instance where the courts of West Virginia don’t appear to be following the law regarding when court records may and may not be sealed.

    Ken.

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