CHARLESTON -- West Virginia Supreme Court of Appeals Justice Margaret Workman said in a dissenting opinion released Nov. 18 the public has the right to know about e-mail messages former Justice Spike Maynard was sending to Massey Energy President and CEO Don Blankenship.

In the opinion, Workman said the e-mail messages sought by The Associated Press were public records and should have been released under West Virginia's Freedom of Information Act.

"Put simply, when a judge or a justice communicates, via a record that is prepared, owned and retained by a public body, with a party litigant (or someone closely connected therewith) while that party's case is pending before that judge, such communication necessarily contains information that relates to that judge or justice's conduct of the public's business to the extent that it reveals the nature of the relationship between the two," Workman wrote in the opinion.

Workman said information about the e-mails would have clarified the close relationship between Blankenship and Maynard. Blankenship’s company was appealing a $50 million verdict against it. Benjamin had refused to recuse himself from that appeal.

“The fact that a judicial officer is a close personal associate of a litigant whose case he is hearing is relevant public information,” Workman noted.

The court voted 4-1 Nov. 12 that 13 e-mail messages between Maynard and Blankenship did not have to be released under the state's public records law. Supreme Court Administrator Steve Canterbury had refused an earlier AP request for the e-mails sparking the initial lawsuit.

Workman also wrote the federal definition of "agency records" is much broader than West Virginia's definition of "public records." She said Justice Robin Davis, in relying on the federal definition, was "unhelpful and misleading.” In addition, Workman wrote Maynard should have disclosed the e-mail messages to Blankenship under the state's Code of Judicial Conduct, which aims to protect public confidence in the courts.

"To maintain the public confidence necessary to sustain the legitimacy of the judiciary, judges must disclose, when requested under FOIA, their communication with party litigants," Workman wrote.

Workman also suggested the lawmakers may want to revise West Virginia's FOIA to clarify the context in which such communications are made.

Davis, writing for the majority, said the e-mail messages were private, rather than public records and not subject to West Virginia's FOIA.

In doing so, Davis cited two federal court rulings defining what records are "agency records" under federal law. One federal case allowed a National Labor Relations Board member to withhold her e-mails and faxes seeking reappointment to the NLRB. The other allowed a Securities and Exchange Commission director to keep private his appointment calendar.

Chief Justice Brent Benjamin and Justices Menis Ketchum and Thomas McHugh signed on to Davis' majority opinion in the FOIA ruling.

Justice Workman declined further comment when contacted. According to Jennifer Bundy, public information officer for the state Supreme Court, justices do not normally comment on opinions.

“The opinion speaks for itself,” Bundy said.