UBB families ask judge to throw out gag order

Families of the victims of the Upper Big Branch Mine disaster on Thursday asked a federal judge to lift her gag order in the Don Blankenship criminal case so they can testify freely to West Virginia lawmakers about bills that would narrow the rights of workers to sue employers over workplace injuries and deaths.

Lawyers for the estates of 14 of the miners who died in the April 2010 explosion at Upper Big Branch filed a motion in federal court in Beckley, urging U.S. District Judge Irene Berger to reconsider and vacate the gag order she issued the day after Blankenship was indicted on mine safety and securities charges.

They were joined in their legal motion by surviving Upper Big Branch miners Stanley Stewart and Charles Williams, and by the West Virginia Association for Justice, a group made of lawyers who represent injured workers and families of workers killed on the job.

“The UBB explosion was a forever, life-altering event for the intervenors and numerous communities throughout Southern West Virginia,” lawyers for the families and the association said in a 14-page court filing.

“To forbid victims and families of the victims (who are victims themselves) from speaking and participating in government is a breach of the social contract and unconscionable under the First Amendment,” the filing states. “As such, the intervenors move that this court limit the application of the gag order to permit these persons to exercise their fundamental constitutional right to petition their government and participate in the democratic process.”

The filing comes just one day after several Upper Big Branch families appeared at a House Judiciary Committee public hearing on a bill proposed to limit the circumstances under which workers or surviving families can file lawsuits against employers whose safety violations led to injuries or deaths.

While some of those family members spoke at the hearing, they did not discuss details of the safety violations that multiple investigations say caused the explosion at Upper Big Branch, said Tim Bailey, a lawyer for several of the families of mine disaster victims.

Earlier this month, Berger declined a request by The Charleston Gazette, National Public Radio, The Associated Press, The Wall Street Journal and Friends of West Virginia Public Broadcasting to throw out the gag order. The news organizations are planning to appeal that decision to the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

Blankenship faces a four-count indictment that alleges he conspired to violate mine safety rules, hamper federal safety enforcement and lied to securities regulators and investors. The indictment focuses on events at Massey Energy Co.’s Upper Big Branch Mine, in Raleigh County, where 29 miners died in a massive underground explosion on April 5, 2010.

The original gag order restricted access to legal filings and prohibits prosecutors and defense attorneys from talking to the news media about the case. Actual filings by the parties and orders by the court were not made available to the public or the news media. Only court computer system docket entries — short summaries of legal filings written by the court or the lawyers involved — had been publicly accessible.

In ruling on the news media challenge, Berger agreed to again make the indictment charging Blankenship public through the court’s computer system and to allow public access to court orders in the case, but she also ordered that other documents “that contain information or argument as to the facts and substance of the case” continue to be sealed.

For example, as of late Thursday, a motion filed by Blankenship’s legal team concerning the terms of his pre-trial release was listed on the court’s computer docket but had not been made publicly available. A court filing Wednesday saying that James Walls and Alexander Macia and the law firm Spilman Thomas and Battle had taken over from Jack Tinney as Blankenship’s local attorneys was initially not publicly available but was released on Thursday on the court computer system.

Also, the U.S. Mine Safety and Health Administration has cited Berger’s gag order in two long-pending Charleston Gazette Freedom of Information Act requests for documents concerning the Upper Big Branch disaster.

Reach Ken Ward Jr. at kward@wvgazette.com, 304-348-1702 or follow @kenwardjr on Twitter.

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