West Virginia High Court Waylays Judge's Order that Newspaper Reveal Sources

Image via WikipediaThe West Virginia Supreme Court of Appeals this week in State of West Virginia ex rel. The Lincoln Journal, Inc. et al. v. Hon. F. Jane Hustead (Case No. 35734) granted a writ of petition preventing enforcement of Cabell County Circuit Judge Jane Hustead's order compelling The Lincoln Journal to reveal confidential sources used in 11 articles that underlie defamation lawsuits brought against the daily by Bobby Adkins and Timothy Butcher in December 2008.

As reported by The State Journal and Associated Press, the High Court determined Judge Hustead exceeded her authority when she ordered The Lincoln Journal to divulge its sources to plaintiffs Butcher and Adkins. The two men sued for defamation, invasion of privacy, false light and emotional distress based on a series of articles published by the defendant in April and May 2008, regarding a county prosecutor's probe into alleged campaign violations during the 2008 primary involving individuals who allegedly funneled or  received thousands of dollars to back candidates purportedly endorsed by Butcher. The articles in question were replete with references to "courthouse sources", "unnamed sources" and other anonymous monikers.

The West Virginia Supreme Court faulted Judge Hustead for not applying the test set forth in the state's seminal reporter's privilege case, Hudok v. Henry, 182 W. Va. 500, 389 S.E.2d 188 (1989), holding that a journalist's sources and notes could not be compelled absent a showing that the information sought is highly material and relevant, critical to maintaining a legal claim and unavailable from other sources.

The High Court said Judge Hustead must apply the Hudok factors and "separately identify each alleged defamatory article with specificity, identify each source therein that the respondents seek, and thereupon conduct a separate Hudok analysis for each."

Further complicating the case is that the West Virginia legislature passed  H.B. 2159, a reporter's privilege law, on March 12, 2011, that takes effect 90 days from its passage (see "TUOL" post 4/7/11). When Judge Hustead conducts the hearing ordered by the Supreme Court could raise the issue of whether the state's new shield law is controlling.