April 29, 2013
States Can Restrict FOIA Laws to Own Citizens, Court Says
A unanimous Supreme Court ruled today in McBurney v. Young that a state can restrict its own freedom of information law to its own citizens without violating the Privileges and Immunities Clause or the dormant Commerce Clause. We covered oral arguments here.
The ruling puts an exclamation point behind the idea that there's no fundamental right to public records. If there were any doubt going into the case, this ruling settled the matter: Our Constitution doesn't require freedom of information. If you want it, take it up with your legislature.
The case arose out of two out-of-state claimants' efforts to get Virginia state records through the state FOIA. One of those claimants, McBurney, sought records related to the state's 9-month delay in enforcing a child support order that he had against his ex-spouse, a Virginia resident. The other, Hurlbert, sought state real estate tax records on half of his clients. The state didn't provide the requested records pursuant to its FOIA, however, because its FOIA extends only to state citizens. (It did provide most of the records through other means.) Both McBurney and Hurlbert sued, arguing that the FOIA violated the Article 4 Privileges and Immunities Clause and the dormant Commerce Clause.
The Court disagreed. In an opinion by Justice Alito, the Court said that the FOIA doesn't interfere with a fundamental right in violation of the Privileges and Immunities Clause. It said that the FOIA doesn't violate the opportunity to pursue a common calling, because the law wasn't designed to provide a competitive advatage for Virginia citizens. It doesn't violate the right to own or transfer property in Virginia, because Virginia makes the necessary records available through the clerks of its circuit courts (even if not through its FOIA). The FOIA doesn't violate the right to gain equal access to Virginia courts, because its citizens-only application leaves open "reasoanble and adequate" access to the courts (because state procedure allows discovery and subpoenas, which would provide noncitizens with any relevant and nonprivileged information, and state law allows equal access to judicial records). And it doesn't violate a claimed right to gain access to public information on equal terms, because, well, there is no such right.
The Court also rejected Hurlbert's dormant Commerce Clause claim, ruling that Virginia's FOIA neither regulates nor burdens interstate commerce. "[R]ather, it merely provides a service to local citizens that would not otherwise be available at all." Op. at 13.
Justice Thomas joined the opinion but wrote separately to remind us of his view that "[t]he negative Commerce Clause has no basis in the text of the Constitution."
April 29, 2013 in Cases and Case Materials, Dormant Commerce Clause, Federalism, Fundamental Rights, News, Opinion Analysis, Privileges and Immunities: Article IV | Permalink | Comments (1) | TrackBack
February 21, 2013
Can States Limit Government Information to Their Own Citizens?
The Supreme court heard oral arguments yesterday in McBurney v. Young, a case testing whether a state's freedom of information law, or FOIA, can limit access to government information to its own citizens consistent with the Article IV Privileges and Immunities Clause and the Dormant Commerce Clause. (Together these provisions restrict states in discriminating against out-of-staters in the exercise of fundamental rights or important economic interests, or in interstate commerce.) The case was brought by two out-of-staters against Virginia after the state denied them access to records related to the state's enforcement of a child support order and state property records collected for clients as part of a business. Virginia is one of only three states that restricts its FOIA records to in-staters.
The case is tough, because it's not obvious that Virginia's restriction is a restriction on interstate commerce (in violation of the Dormant Commerce Clause), and it's not obvious that the access that the petitioners seek is the kind of right that they, as out-of-staters, should enjoy with respect to Virginia.
The questions from the bench went right to these points. The Court was concerned about whether Virginia's restriction was, in fact, a restriction on commerce, or whether it was merely a law, not a commercial regulation, that had at most an incidental effect on interstate commerce. (The Dormant Commerce Clause points go to the property-records seeker, not the child-support seeker.) In other words: does the Dormant Commerce Clause even apply, given that this may not be a regulation of commerce?
Justices were also concerned about the magnitude of the effect, on both sides. As to the petitioners, they wondered why the cost to the petitioner wasn't negligible. After all, any out-of-stater could simply hire an in-stater for a nominal fee to file their request and thus dodge the restriction. As to the state, they wondered why the cost to the state in providing equal access to its records was significant. The burden of addition requests from out-of-staters didn't seem to be much.
Finally the Justices wondered whether Virginia shouldn't be allowed to restrict access to its records, given that its law is designed to provide access to government information to ensure good government--a concern that applies uniquely to Virginians. On this point, several Justices compared the right to access to the right to vote, and noted that out-of-staters don't get it. In short: Shouldn't Virginia be able to keep its records to its own state citizens? The question goes at least in part to the purpose of Virginia's FOIA--to provide information on governance (as the state would have it), or to restrict information in restraint of free trade (as the petitioner argued).
The parties didn't provide terrific answers to any of these questions. But counsel for the petitioner did note that the challenge was as applied, not facial. This could allow the Court to rule narrowly in favor of this individual, without overturning the restriction as to anyone else. But even that result seems likely only if the Court can get over two threshold problems. First, the restriction is not a direct discriminatory regulation of interstate commerce (even if it may have an indirect effect on interstate commerce in this case). Next, Virginia is certainly able to restrict some of its state functions to its own citizens. The question for the Court: Is this one of them?
February 21, 2013 in Cases and Case Materials, Commerce Clause, Dormant Commerce Clause, Federalism, News, Privileges and Immunities, Privileges and Immunities: Article IV | Permalink | Comments (0) | TrackBack
February 09, 2012
State FOIA for State Residents Only: Constitutional According to the Fourth Circuit
May a state limit its statutory Freedom of Information Act to "state citizens"?
Doesn't such a provision violate the Privileges and Immunities Clause of Article IV? Or the dormant aspect of the commerce clause?
Not according to the Fourth Circuit. In McBurney v. Young, decided earlier this month, the Fourth Circuit upheld the constitutionality of a Virginia statute that allows access to state records to "to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth." Va. Code Ann. § 2.2-3704(A).
The challengers - - - one a former resident of Virginia with his divorce, child custody, and child support decrees from Virginia and another an information broker dealing in real estate tax assessments - - - argued that the state citizen limitation violated the Privileges and Immunities Clause of Article IV and the information broker also argued the "dormant" aspect of the Commerce Clause, Art. I §8 cl. 3.
The Fourth Circuit affirmed the district judge's rejection of both of these claims.
Regarding Article IV Privileges and Immunities (P&I), the panel opinion admitted that the contours of the P&I Clause are not well-developed, but noted that the "fundamental rights" its encompasses are distinct and "bear upon the vitality of the nation." With regard to the right to "pursue a common calling," the panel noted that the Virginia statute is not a residency requirement per se: the Virgina FOIA "does not act as a wholesale barrier to entering a business, nor does it establish a license, fee, or other burden to nonresidents entering or engaging in a profession" and on its face it "addresses no business, profession,
or trade." With regard to the less well-established rights under P&I, such as "equal access to information" or "ability to advance one's interests," the panel found these rights were not established. Having found no right sufficient to invoke P&I, the panel did not engage in any balancing of state interests and means chosen.
Regarding the dormant commerce clause (DCC), the panel again found that the clause was not properly at issue. The panel stated that although "the VFOIA discriminates against noncitizens of Virginia, it does not discriminate 'against interstate commerce' or 'out-of-state economic interests.' " Yet the panel somewhat confusingly added that "[a]ny effect on commerce is incidental and unrelated to the actual language of VFOIA or its citizens-only provision," and therefore a Pike balancing analysis, after Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) is appropriate. The panel, however, does not engage in any balancing, holding that "the opening brief does not challenge the district court's application of the Pike analysis and thus the argument is waived.
There is something about an open records act being limited to state citizens that seems inconsistent with our notions of a "United States," as well as inconsistent with our notions of openness. The Fourth Circuit's lack of a discussion of the state interests and how they are being served leaves an unfortunate gap, even as P&I and DCC doctrines do not seem adequate to address the issue.
June 27, 2011
Federal Judge Enjoins Georgia's Immigration Statute
Georgia's House Bill 87, the "Illegal Immigration Reform and Enforcement Act of 2011" is similar to efforts by other states to control immigration, including the Indiana statute enjoined a few days ago and most notably Arizona.
A motion for preliminary injunction sought relief on three sections of the statute scheduled to take effect on July 1, 2011, but a federal judge has enjoined its enforcement in a 45 page opinion (and additional appendix).
The plaintiffs contended that HB87 violates the Fourth Amendment, the Fourteenth Amendment's due process and equal protection clause, and Article IV privileges and immunities clause right to travel. The district judge rejected all of these arguments, as well as rejecting the State's argument that the individual and organizational plaintiffs lacked standing.
However, the district judge found favor with the arguments that the provisions of HB87 under consideration were preempted by federal law and therefore violative of the Supremacy Clause.
Section 8 of HB 87 authorizes local law enforcement officers to investigate a suspect’s illegal immigration status and, if the officer determines the suspect has violated federal immigration law, detain and arrest the suspect without a warrant. The judge stated: "Congress, however, has already addressed the circumstances in which local law enforcement personnel may enforce federal civil immigration law" in statutes that "clearly express Congressional intent that the Attorney General should designate state and local agents authorized to enforce immigration law." Indeed, the district judge noted, "Congress has provided that local officers may enforce civil immigration offenses only where the Attorney General has entered into a written agreement with a state," or "where the Attorney General has expressly authorized local officers in the event of a mass influx of aliens."
Section 7 of HB87 creates three criminal violations: (1) transporting or moving an illegal alien in a motor vehicle; (2) concealing, harboring or shielding an illegal alien from detection; and (3) inducing, enticing, or assisting an illegal alien to enter Georgia. The judge distinguishes Chamber of Commerce v. Whiting, decided by the United States Supreme Court in May, in which the Court held that federal law did not preempt an Arizona statute providing for suspension and revocation of business licenses for entities employing unauthorized aliens. Unlike in Whiting, the judge found that the state and federal provisions were not parallel: the state law prohibits knowingly inducing, enticing or assisting illegal aliens to enter Georgia. The federal law's corresponding “inducement” provision prohibits inducing an alien to “come to, enter, or reside in the United States.” "Once in the United States, it is not a federal crime to induce an illegal alien to enter Georgia from another state." Moreover, the judge reasoned that the Arizona statute in Whiting "imposed licensing laws specifically authorized by a statutory savings clause, HB87 imposes additional criminal laws on top of a comprehensive federal scheme that includes no such carve out for state regulation."
The judge therefore found both sections 7 and 8 to be sufficiently constitutionally suspect to support a preliminary injunction.
The judge also had some observations on Georgia's articulated necessity for regulating immigration:
The widespread belief that the federal government is doing nothing about illegal immigration is the belief in a myth. Although the Defendants characterize federal enforcement as “passive,” that assertion has no basis in fact. On an average day, Immigration and Customs Enforcement officers arrest approximately 816 aliens for administrative immigration violations and remove approximately 912 aliens, including 456 criminal aliens, from the United States. (Declaration of Daniel H. Ragsdale ¶ 5) (Attached for convenience as Appendix B). In 2010, immigration offenses were prosecuted in federal court more than any other offense. U.S. SENTENCING COMMISSION–2010SOURCEBOOK OF FEDERAL SENTENCING STATISTICS 11-12 (2010). Of the 83,946 cases prosecuted under the federal sentencing guidelines, 28,504, or 34% involved immigration offenses. Id. In 2010, of 81,304 criminal cases prosecuted in federal court, 38,619 (47.5%) were non-United States citizens. It is true that there are thousands of illegal immigrants in Georgia that are here because of the insatiable demand in decades gone by for cheap labor in agriculture and certain industries such as construction and poultry processing. The federal government gives priority to prosecuting and removing illegal immigrants that are committing crimes in this country and to those who have previously been deported for serious criminal offenses such as drug trafficking and crimes of violence. (Declaration of Daniel H. Ragsdale ¶¶ 16-28.) To the extent that federal officers and prosecutors have priorities that differ from those of local prosecutors, those priorities are part of the flexibility that “is a critical component of the statutory and regulatory framework” under which the federal government pursues the difficult (and often competing) objectives, of “protecting national security, protecting public safety, and securing the border.”
The federal district judge is Thomas Thrash formerly a LawProf at Georgia State. The case is sure to be appealed to the Eleventh Circuit.
[image: Cutters at Turpentine Farm in Georgia via]
June 27, 2011 in Cases and Case Materials, Criminal Procedure, Current Affairs, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Preemption, Privileges and Immunities: Article IV, Standing, Supremacy Clause | Permalink | Comments (0) | TrackBack