Sustained Outrage

Behind closed courthouse doors in Cabell County

I have to admit that I was pretty stunned when I read this article by Curtis Johnson, my counterpart at the Huntington Herald-Dispatch. In Curtis’ telling, Cabell County Circuit Judge Alfred Ferguson kicked him out of an evidentiary hearing in open court after Curtis (quite correctly) refused to promise not to report on the hearing’s contents.

Here’s what Ferguson said later by way of an explanation, according to the article:

“When I’ve got this hearing scheduled and people there … I just can’t stop the court proceedings for the news media,” he said.

Oh, yes you can, judge. In fact, that’s exactly what you should have done. Or do West Virginia’s Supreme Court of Appeals’ rulings on press access no longer apply?

This isn’t the only time the issue of excluding the press from a criminal hearing has come up recently (cough, Tim Halloran, cough). So here, for the benefit of Ferguson, Halloran and any other judicial officer who want to arbitrarily boot reporters from his or her courtroom without prior warning, is a refresher on West Virginia’s open courts laws.

First, there’s Article III, Section 17 of the West Virginia Constitution:

The courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay.

In fact, under West Virginia law, even quasi-judicial proceedings, such as disciplinary hearings for doctors and lawyers, are open to the public, thanks in no small part to the crusading efforts of late Gazette publisher W.E. “Ned” Chilton III in Daily Gazette Co.,Inc. v. Committee on Legal Ethics of the West Virginia State Bar (1984) and Daily Gazette Co., Inc. v. West Virginia Board of Medicine (1986).

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‘Green goo’, DuPont and clarifying the facts

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Rebecca Morlock, 41, of Spelter, WVa., stands in front of the fence of former DuPont zinc-smelting plant in the town of Spelter, WV on July 27, 2009. Morlock keeps watching the demolished factory. “I’ll stay on top of it because people’s lives could possibly be at stake,” she says. (AP Photo / Lingbing Hang)

Vicki Smith over at The Associated Press had an interesting story over the weekend about the pollution of the Harrison County town of Spelter. Readers will recall this is the subject of a nearly $400 million jury verdict against DuPont Co., which now has an appeal pending before the state Supreme Court. Here’s how the story began:

For at least five years before Rebecca Morlock noticed what she calls “a green goo” seeping out of the ground below a former zinc-smelting plant in the town of Spelter, water loaded with potentially toxic heavy metals was trickling into the West Fork River.
State environmental inspectors didn’t spot it, even though they’re required to walk the site twice a year.
Neither did the engineering firm hired by DuPont to inspect the site monthly to ensure toxic waste remains sealed under a layer of earth and plastic.

The story prompted an odd letter to the Gazette’s editor (published today) from DuPont official Sheryl Telford, purportedly to “provide several clarifications” to the AP story. After reading the article and the letter both a couple of times, I couldn’t figure out what was being clarified.

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Legal ethics: Jackson Kelly and black lung cases

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In the Gazette and in our Coal Tattoo blog, I’ve written today about a legal ethics case involving West Virginia’s largest and oldest law firm, Jackson Kelly.

To summarize, one of the firm’s lawyers if facing misconduct charges based on allegations that he covered up evidence that a coal miner had black lung disease. The Statement of Charge filed by an investigative panel of the state Lawyer Disciplinary Board against Jackson Kelly lawyer Doug Smoot is posted here, and Smoot’s response is posted here. I’ve also posted copies of the two lawsuits against the firm here and here.

As I reported on this, at least one person directly involved in the case suggested to me that such issues shouldn’t be publicized until the proceeding is finished — that the public doesn’t have a right to know about ethics cases involving West Virginia lawyers until the matters are decided one way or the other.

Things are viewed a little differently here at The Charleston Gazette … the paper’s late publisher, W.E. Chilton III, took the issue all the way to the state Supreme Court, winning  a ruling that opened lawyer disciplinary proceedings to public scrutiny.  Among the holdings in that 1985 ruling, Daily Gazette Co. vs. Committe on Legal Ethics of West Virginia:

— Where formal disciplinary charges in an attorney disciplinary proceeding are filed, following a determination that probable cause exists to substantiate allegations of an ethical violation, the hearing on such charges shall be open to the public, who shall be entitled to all reports, records, and nondeliberative materials introduced at such hearing, including the record of the final action taken

— Once a complaint of unethical conduct in an attorney disciplinary proceeding is dismissed for lack of probable cause, the public has a right of access to the complaint and the findings of fact and conclusions of law which are presented in support of such dismissal.

— The right of public access to attorney disciplinary proceedings precludes utilization of private reprimand as a permissible sanction.

— By-Laws and Rules and Regulations of the West Virginia State Bar which govern public disclosure of lawyer disciplinary matters are unconstitutional under West Virginia Constitution art. III, § 17, when they fail to protect and vindicate the public’s interest in the integrity of the judicial system by unreasonably restricting access to information concerning formal disciplinary actions against lawyers, integral parts of the judicial system.