On November 26, the West Virginia Supreme Court of Appeals issued a decision in a suit filed by the Charleston Gazette (which I posted about back in November of 2010), to enforce a FOIA request initially sent by former Gazette police misconduct reporter Gary Harki. After the circuit court refused to allow the internal files to be produced, the Gazette appealed and ended up winning at the Supreme Court.
The opinion is available in .pdf format on the Court’s website here.
Essentially the Court ruled that state police internal investigation documents are subject to production through FOIA requests, so long as the investigation has been concluded, and the allegations involve official misconduct about which the public has a right to know. I’m summarizing.
This holding did not specifically address political subdivisions, i.e., counties and municipalities. However, I don’t see any legitimate reason for treating them differently under this case law.
Yes, once again it has been sometime since I have posted. I just don’t have the time that I used to to comment on various things. That being said, there are a few different things which have popped up in the news that I just can’t resist.
1. Casey Anthony. Good for her attorney calling out all of the talking head lawyers who gave their b.s. opinions on the case throughout the last several years, and especially during the last few days of the trial. He also gave the media “the bird”. I was really getting aggravated with all of the “former prosecutor”[s] running their mouth on every cable channel about how she was going to be convicted of first degree murder and about how good the prosecutors were. They are pretty much all the same. They are mostly blonde (sometimes brunette) females. Almost none of them could be considered unattractive or overweight. They have loud, big, mouths and holier-than-thou attitudes – especially if other females/children are somehow involved in the subject on which they are running their mouths. Fox News / CNN have determined that they are qualified to bestow their opinions onto us due to their looks, and due to the fact that they used to be a “prosecutor.” Then there is Nancy Grace. She is the queen of the former prosecutors. She actually does have experience. She is a defendant’s worst nightmare: a bitter loud-mouthed prosecutor who is willing to do unethical things in order to win.
It was courageous for these 12 jurors to acquit Casey Anthony despite the all-knowing public and media having already deemed her guilty. How dare politicians/pundits condemn the jurors for their decision. I have said it before and I will say it again: it is the “law and order” people in our midst who will be our ruination. They are obsessed with their own personal safety. The same people who claim to stand for smaller government and more individual freedom are often the first ones to condemn jurors for upholding our constitution. The reason is because they are cowards: they are afraid for their own safety and so they worship law enforcement. They are also playing politics and know that the majority of voters / people who watch the news are older citizens, who are also obsessed with their own safety. We need less laws, not more.
I could care less about Casey Anthony. I believe she was involved in her daughter’s death. However, it was very satisfying to see the prosecutor, Linda Drane Burdick, who was so pompous, arrogant and self righteous in her demeanor be brought so low by the loss of the century.
2. The North Carolina troopers who arrested the trial lawyer’s wife. Being a Tarheel, I have been watching what has been going on with the NC troopers and the trial lawyer’s wife. Again, it is sickening that politicians and supposed proponents of freedom and smaller government support police-state behavior. Even though NC, like VA, is a conservative state politically and socially, it is a police-state when it comes to law enforcement. For some crazy reason, conservative voters support massive government when it comes to Criminal Law – including its creation, enforcement and prosecution. Again, I believe they are either older people obsessed with their safety, or they are cowards (they place fear of personal safety over our country’s liberty), or they are obsessed with being politically correct (it is generally politically popular, especially where there are senior citizen voters, to be “tough on crime”.
Anyways, this trooper pulls over a relatively attractive woman driving a Lexus SUV. Big surprise. I have discussed before the intense security threat posed by attractive women driving expensive SUVs. The trooper, who of course sports the obligatory military-esque hairdo, asks the woman if she was drinking. She had a sip of wine at some banquet she was driving home from. The trooper then makes her get out of the car and asks her to blow in the portable BAC device. She refuses and instead opts to be taken to the real breathalyzer machine (they used to use “intoxalyzer 5000’s” in NC). In NC, you are entitled to call a witness for the test and the witness has 30 minutes to get there. Naturally she calls her lawyer husband. The husband shows up and she blows two 0.00’s. Obviously she is not intoxicated. There was no other evidence of intoxication.
North Carolina is a DWI state (or at least it used to be when I prosecuted DWI’s there), meaning that you couldn’t convict somebody of DWI based on the BAC alone. The officer would have to testify to erratic driving and/or the person failing field sobriety tests. You are legally allowed to be above the BAC of 0.08 if it was not proven that you were in fact intoxicated. At this point, since the lawyer husband is present and is angry at the kidnapping of his wife, the trooper refuses to release the woman, and instead is arrests her and keeps her in handcuffs.
So in essence, a private American citizen was taken in handcuffs out of her car and incarcerated/kidnapped. But that’s okay right? According to a local magistrate, and according to the cops, that is just standard procedure. He was just following procedure. These people ought to be run off of the taxpayer payrolls. How dare they tell the citizens that it is their procedure to arrest somebody with no probable cause and hold them against their will. Impeachment is also a procedure. Maybe the magistrate, and the storm trooper, should be prosecuted for kidnapping and battery. We can follow procedure to the letter.
The storm trooper then allows the woman’s husband to follow him to the magistrate’s office so that she could be arraigned and post bond, etc. While following the storm trooper the husband gets pulled over by another storm trooper – for speeding (despite the fact that he was following another trooper). The troopers report stated that he did not have any communication with the other trooper and that there was no set-up involved. First of all, anyone who would believe that is a complete fool. And anyone who would deny that it was a set-up is a complete liar. Since then, text messages have been released from between the officers which show that there was communication. Not only that, but the officers were discussing the lawyer and his wife and saying things like “f**k him” and “f**k her”. The second trooper, who pulled over the husband, sent the following text message to his trooper buddy, who was transporting the wife:
Trooper Smith then wrote at 12:31 a.m.: “TELL HIM IF HE WANTS TO COP AN ATTITUDE TO FEEL FREE AND COME BACK AND ILL S—– HIM THAT SPEED.”
How dare these troopers use their sacred position of trust to violate the liberties of law-abiding citizens of this country. Nevertheless, ignorant kool-aid drinker NC state senator Thom Goolsby decided to run his mouth in the media and support the troopers. These are the dangerous ones. The politicians who are so worried about keeping their political jobs that they are willing to throw innocent citizens under the bus. This guy is willing to allow troopers to kidnap citizens under color of law just to spite a trial lawyer and his wife. He needs to be run out of office.
Not only should these delta-force wannabes be fired, they should be criminally prosecuted for kidnapping and battery. If they are allowed to keep their jobs, it is telling every other crooked cop out there that it is okay to abuse their position of trust in order to spite somebody.
The Charleston Gazette filed a FOIA lawsuit against the West Virginia State Police yesterday in Kanawha County Circuit Court, seeking disciplinary information and records. They also published a story detailing the lawsuit, which contained a shocking paragraph (at least to me):
According to the six-page public report produced by the professional standards section in 2009, 13 troopers were dismissed that year based on sustained allegations, up from 3 the previous year. An additional 19 resigned prior to discipline. There were a total of 112 incidents where action was taken in 2009, according to the report.
Wow. 32 troopers kicked to the curb in one year? That is bad. And 19 resigned prior to discipline. That means that they are now working at a municipal or county law enforcement agency, and that the unwitting citizens of that jurisdiction have no idea of what misconduct their new officer had previously been constructively terminated for. It’s not easy to get fired as a law enforcement officer. For instance, look at the Travis Barker case, which was cited in the Gazette article today. We sued him for allegedly arresting the guy who he thought was having an affair with his wife, for a charge that was not illegal, and then beating him while handcuffed to the floor with no other troopers or witnesses present. And this is not the first accusation against him. Yet he still has the authority, as far as I know, to pull people over and shoot them if necessary.
So these 32 individuals must have really misbehaved.
Reporter Gary Harki provided more information on the Gazette’s blog, Sustained Outrage, about the lawsuit and about allegations against the WVSP. It also includes a copy of the lawsuit filed yesterday. Harki also provides links to some recent stories detailing the WVSP’s recent issues with disclosure:
These three stories from July do a good job of telling the other recent accusations:
And if this is the WVSP, imagine the statistics on county and municipal departments.
There was in interesting three part series in the Charleston Gazette’s “Watchdog blog,” “Sustained Outrage” by Andrew Clevenger, focusing on a civil lawsuit against the West Virginia State Police on behalf of Charleston attorney Roger Wolfe – a case I posted on awhile back.
Part 1 deals with a FOIA issue that popped up in that case. Law enforcement agencies (or rather their defense counsel) do not want to hand over the contents of internal investigations of law enforcement officers, citing concerns over sustaining the integrity of the internal investigation process.
Wolfe’s attorneys made a discovery request for those documents, and the WVSP objected claiming that under a Freedom of Information Act Request (FOIA), those documents would be exempt from disclosure. However, Cleavinger quickly points out that:
A state Supreme Court ruling in a 2000 case, Maclay v. Jones, SPECIFICALLY addresses theVERY ISSUE of police records and civil litigation. Here’s what the syllabus point says:
The provisions of this state’s Freedom of Information Act, West Virginia Code §§ 29B–1 to -7 (1998), which address confidentiality as to the public generally, were not intended to shield law enforcement investigatory materials from a legitimate discovery request when such information is otherwise subject to discovery in the course of civil proceedings.
But Andrew, that’s a STATE case. The rules are different in FEDERAL court, right?
U.S. District Judge Charles H. Haden II, in a 2003 ruling in the case Floren v. Whittington, reached the same conclusion. He even cited the Supreme Court’s Maclay opinion.
Cleavinger then hammers the last nail in the coffin, pointing out that:
Virginia Lanham should remember this ruling, as she was one of the two attorneys fromShuman, McCuskey & Slicer who represented some of the defendants in the Floren case. (So should Michael Mullins, who represents Trooper Green in the Wolfe suit; he defended former Dunbar Police Chief Earl Whittington in Floren.)
This case is pending in federal court. The presiding judge issued a ruling in an eleven page opinion – by the way this is another helpful opinion for any plaintiff’s attorneys litigating this issue – calling the WVSP’s objection to the discovery request “unpersuasive” and “unconvincing” and even ordered the WVSP to pay Wolfe attorney’s fees for their improper objection and refusal to produce the personnel filed, etc.
Let’s see if the defense counsel try to use these objections in state court….
– John H. Bryan, West Virginia Attorney.
There was a Charleston Gazette article last week detailing a ruling by a Kanawha County Circuit Court judge dismissing Massey Energy’s FOIA (Freedom of Information Act) lawsuit seeking emails from Supreme Court Justice Larry Starcher.
The grounds for dismissal were failure to comply with the statutory notice provisions. When you are suing the state, even with respect to a FOIA case, you have to comply with the notice provisions of W. Va. Code Section 55-17-1, et seq. – which means that you have to give written notice via certified mail, return receipt requested, to both the “chief officer” of the state agency and the Attorney General, of the “alleged claim and the relief desired.” It’s pretty basic really, though I ran afoul once in sending notice to the “general counsel” rather than the “chief officer.” But regardless, there’s not much case law on the topic for either side in these situations. But, if you don’t send the notice at all – to anyone – then the suit absolutely cannot proceed.
I was in court this morning on a governmental liability case such as this, and the attorney representing the other side is perhaps the most respected and knowledgeable attorney in West Virginia regarding these types of governmental liability issues. He told me the behind-the-scenes story behind the adoption of this pre-suit notice statute, which I won’t recite here, but let’s just say that, like everything else in West Virginia, every statute has it’s ulterior motives. The legislature should be required to put this stuff on the legislative record so that you can bring it up in your arguments. Circuit Court’s usually don’t take judicial notice of attorney gossip.
One point of confusion is possibly this: if you sue over a FOIA violation against a political subdivision (i.e., county or city), W. Va. Code Chapter 55-17 doesn’t apply – there’s no notice required prior to suit. The statute only applies to the state and all of it’s agencies and appendages. And, the Supreme Court is an appendage of the state – and needless to say is usually not a good party to have on the other side of your lawsuit. But then again, a very prominent attorney in the state asked me, after I brought up this issue, “is there anything wrong with writing someone a letter to tell them your gonna sue them?” I guess there’s not – especially if you want to put their insurance carrier on notice of the potential claim.
Anyways, as a “little guy” who is almost always the “David” fighting the “Goliath” law firms, it makes me smile a little bit to see a big firm, representing possibly the most lucrative client in the state, make a mistake such as this. They probably had gobs of lawyers working on this case, and had all the resources in the world at their disposal – and they still messed up. But all clients – even huge corporate clients – in the end, must count on individuals, both with their attributes and their mistakes.
A Florida trial lawyer who was a family friend once said to my father (talking about taking on big firms): “though they may have a hundred lawyers working on the case, can’t but one of them speak at a time.”
– John H. Bryan, West Virginia Attorney
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