Gov. Justice pushes back on schedule/calendar lawsuit

Aug 30, 2023

The Democratic Senatorial Campaign Committee placed a billboard along the interstate in Charleston urging voters to learn more about its lawsuit seeking West Virginia Gov. Jim Justice’s schedules and calendars. (Photo by Steven Allen Adams)

CHARLESTON — The lawsuit seeking West Virginia Gov. Jim Justice’s official calendars and schedules going back to his first year in office continues, with attorneys for the governor asking a judge to deny a motion to grant a summary judgment in the case.

Attorneys for Justice filed a response Aug. 9 to a motion for summary judgment requested at the end of July by attorneys for the Democratic Senatorial Campaign Committee.

The DSCC attorneys are seeking a declaratory judgment from Kanawha County Circuit Court Judge Jennifer Bailey requiring Justice and the governor’s office to turn over public records, including an injunction ordering the office to comply plus the awarding of court fees. In a separate motion, DSCC attorneys asked Bailey to deny a motion from the governor’s office requesting dismissal of the lawsuit.

The DSCC is seeking access to records for all scheduled meetings involving Justice, Chief of Staff Brian Abraham, Deputy Chief of Staff Ann Urling and General Counsel Berkeley Bentley going back to January 2017, when Justice first took office.

In their Aug. 9 filing, attorneys for Justice and the governor’s office, represented by Hissam Forman Donovan Ritchie PLLC, continue to argue the requested records are not subject to the Freedom of Information Act and are not public records.

“The question in this case is whether any government official, executives, judges and legislators, must disclose their personal calendars and notes under state public records disclosure law,” wrote attorney Carl Shaffer. “…Documents used for the personal convenience of a government official, like personal calendars and notes in this case, are not ‘public records’ subject to FOIA.”

Shaffer also argued the requested calendars and schedules, even those records nearly seven years old, are protected from public scrutiny by the deliberate process privilege, also known as executive privilege.

“…A court applying the executive privilege must focus on the chilling effect disclosure would have on candid discussion by and among government officials in the future,” Shaffer wrote. “Moreover … the personal calendars and notes of the governor and his senior staff are inherently pre-decisional because they are constantly revised working drafts that inaccurately reflect their owners’ schedules.”

Diana Atiz, a research director with the DSCC, filed a FOIA with the governor’s office on April 13 seeking copies of records. Bentley denied the request, citing exemptions in the state’s FOIA law that allow state officials to withhold certain documents considered drafts or documents used by staff to coordinate both personal and official schedules. However, the governor’s office turned over similar records to the Associated Press in 2019 after first denying the AP’s FOIA request.

“The office of the governor denied (Atiz’s) request because any such document is not covered by the West Virginia Freedom of Information Act or is otherwise exempt from production.” Bentley said in an affidavit.

Justice’s records have become a target as the governor is running for the Republican nomination for U.S. Senate in 2024 for the seat held by Sen. Joe Manchin, D-W.Va. While Manchin has yet to announce his intentions to seek a third six-year term in the Senate, the DSCC sees Justice as the likely Republican challenger next year.

“Jim Justice cannot continue to hide his work schedule, or lack thereof, from West Virginians,” said DSCC spokesperson Amanda Sherman Baity. “We fully expect Justice’s schedule will receive further scrutiny in his nasty primary and in a court of law.”

On Aug. 18, the DSCC put up billboards along Interstate 64 in Charleston and near the Justice-owned Greenbrier Resort pushing drivers toward a website the DSCC created focusing on the public documents lawsuit.

Justice is facing a challenge in next year’s Republican primary for Senate from U.S. Rep. Alex Mooney, R-W.Va., and Zane Lawhorn.

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