A Putnam County judge on Wednesday turned down West Virginia Attorney General Patrick Morrisey's request to force the Daily Gazette Co. to turn over information about the combination of the Charleston Gazette and Charleston Daily Mail newspapers.
Circuit Judge Phillip Stowers agreed with attorneys for the Gazette-Mail that probable cause must first be found before the newspaper is forced to produce documents, which could cost thousands of dollars.
"I have a state actor asking a private business to do something and the court says I have the right to decide whether or not probable cause exists that they are doing something they shouldn't be doing, and I think this analysis fails for the fact that a reasonable person cannot imagine, based on this supposition, that something nefarious is going on," Stowers said.
"The chilling effect - the chilling effect - of allowing a state actor, whether it's the attorney general or any state entity to be able to, on mere supposition, require a person involved in First Amendment activity to have to spend a bunch of money just because someone thought it was a good idea to look into it - that's not what this statute envisioned," the judge said.
Morrisey's office filed a petition in August in Putnam Circuit Court asking that Stowers require the company to comply with an investigative subpoena about the newly formed Gazette-Mail. Lawyers in the attorney general's office said they were looking into whether any antitrust violations occurred under state law when the newsrooms combined on July 19.
Richard Neely, an attorney for the newspaper, told the judge that Gazette-Mail President Elizabeth Chilton voluntarily answered questions from Morrisey's office but didn't comply with the attorney general's request for huge amounts of documents that would create a financial burden for the company - a request, Neely added, that would accomplish nothing.
The Gazette and Daily Mail operated independently for readers and advertisers until Jan. 1, 1958, when the owners merged the business, advertising, circulation and production departments into a single corporation - a move known as a joint operating agreement, and one followed by competing newspapers around the country.
Assistant Attorney General Doug Davis - who declined comment after the hearing - argued that Morrisey's office had probable cause to investigate the combination of the newspapers due to a 2010 federal agreement that required the newspapers to operate separately for five years. That agreement expired on July 19, the day the newspapers combined newsroom functions with the exception of editorial page content.
The judge compared Davis' argument that probable cause existed because of the previous DOJ agreement to following a defendant after he or she is released from prison.
Just because someone was in prison once doesn't mean they will automatically break the law again, Stowers said. "We are in a post-expiration environment," he said.
The judge pointed out that Morrisey's office never received any complaints about the joining of the newspapers.
"There's been no complaint in this matter that anyone is particularly upset, that anyone has paid a higher price, that anyone has lost a market or anyone has lost some access to a free press. And, absent that, why would this court grant, whether it's a newspaper or some other business lawfully engaged in business in West Virginia, to have to produce more documents than what they voluntarily agreed to do? Why is that necessary?" the judge asked.
"I can't believe ... that absent any complaint, absent anything articulable ... that an entity who bought itself, that then agreed to operate a certain way for a period of years and nothing else has happened, is automatically guilty of doing what they tried to prevent being accused of doing," the judge said, adding his example that, "simply because they now walked out of prison, we should follow them around and see if they violate the law. I don't think that's the world we live in."
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.