The US Supreme Court rendered a decision recently in the case of McBurney et al v. Young et al. This case piqued my interest for two reasons:
- It's exceedingly rare for SCOTUS to render a unanimous verdict;
- The High Court makes a questionable contribution to the field of law dealing with the right of the public to access documents under government control - under what are called Freedom of Information laws.
This decision adds fuel to my ongoing arguments in support of a Constitutional Convention aimed at not merely amending that document, but completely replacing it. I hope to prove this point by means of the following analysis of selected portions of the High Court's decision. Even though it can be daunting for the average layperson, such as myself, to tackle the language of a Supreme Court decision, I believe the results (which follow) will show it's at least worth while to try.
The Gist of the Matter
McBurney and Hurlbert each filed separate and unrelated requests for information available under the terms of the Virginia Freedom of Information Act (VFOIA). This Act details the types of information controlled by that state which may be obtained by Virginia's citizens, and under what circumstances. However, since neither of these parties is a Virginia citizen, the state denied their requests. Appeals to the federal judicial system followed, based on arguments that such denials violated certain provisions of the US Constitution.
SCOTUS decided to hear this case because the Third Circuit Court had struck down a Delaware FOIA law which insisted on providing information to Delaware's citizens only. So, even though SCOTUS managed a unanimous verdict, there were grounds for concern by a lower court.
For your convenience, at the end of my article are three footnotes which link to pertinent sources. Footnote One connects to the actual decision as posted on the Supreme Court's website. Footnote Two provides a reasonable and brief summary of what transpired. Footnote Three expresses the concerns of groups dedicated to transparency in government.
What is a Syllabus?
In some of my quoted material below, I refer to a "syllabus" mentioned in Footnote One, which states:
QUOTE:
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
:UNQUOTE.
Even though the "syllabus" is offered with a disclaimer, you may be reasonably assured that it's an accurate reflection of the "opinion of the Court." At least, I have found that to be the case upon scrolling down to read that opinion as delivered by Justice Alito.
In the matter of Hurlbert's complaint
QUOTE [from Alito's opinion in Footnote One]:
Hurlbert is the sole proprietor of Sage Information Services, a business that requests real estate tax records on clients’ behalf from state and local governments across the United States. In 2008, Hurlbert was hired by a land/title company to obtain real estate tax records for properties in Henrico County, Virginia. He filed a Virginia FOIA request for the documents with the Henrico County Real Estate Assessor’s Office, but his request was denied because he was not a Virginia citizen.
[and]
Henrico County, from which Hurlbert sought real estate tax assessments, follows this practice [of posting documents on-line] as does almost every other county in the Commonwealth. Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden on noncitizens’ ability to own or transfer property in Virginia.
:UNQUOTE.
Regarding my highlight above: "Requiring noncitizens to conduct a few minutes of Internet research..." I suspect it's not quite as easy as conducting "a few minutes of Internet research." If it were, then Hurlbert unnecessarily went through a lot of time, trouble, and expense to pursue this case all the way to the Supreme Court. As a practical businessman, Hurlbert would surely have done as Alito suggested had his need for information been that easy to fulfill.
I have to wonder how Internet savvy Alito must be to make such a claim. It's never been my experience, when dealing with government websites, to obtain information in "a few minutes."
QUOTE [from the Syllabus section of Footnote One]:
Virginia’s FOIA does not violate the dormant Commerce Clause. The “common thread” among this Court’s dormant Commerce Clause cases is that “the State interfered with the natural functioning of the interstate market either through prohibition or through burdensome regulation.” ...Virginia’s FOIA, by contrast, neither prohibits access to an interstate market nor imposes burdensome regulation on that market. Accordingly, this is not properly viewed as a dormant Commerce Clause case.
:UNQUOTE.
I have to disagree - the State did interfere by means of an unreasonable regulation which impeded the operation of Hurlbert's interstate enterprise. I cite two reasons:
- Any cost incurred by Virginia in complying with this request would have been borne by Hurlbert;
- Hurlbert could have exercised the option of arranging for a Virginia citizen to request this information for him. Of course, he would have most likely had to pay that citizen which, to me, sounds like he's being unreasonably burdened by the time and expense of making such an arrangement. Is that the proper function of state government, to throw up obstacles to the smooth functioning of interstate commerce? It's obvious, since VFOIA doesn't punish a Virginia citizen for making a request on behalf of a noncitizen, that Virginia isn't concerned about in-state information falling into out-of-state hands.
QUOTE [from the Syllabus section of Footnote One]:
Even shoehorned into the Court’s dormant Commerce Clause framework, however, Hurlbert’s claim would fail. Insofar as there is a “market” for public documents in Virginia, it is a market for a product that the Commonwealth has created and of which the Commonwealth is the sole manufacturer. A State does not violate the dormant Commerce Clause when, having created a market through a state program, it “limits benefits generated by [that] state program to those who fund the state treasury and whom the State was created to serve.”
:UNQUOTE.
Wow! That's a real stretch. I'm almost tempted to say, "Nice try." But instead I'll say, "Close but no cigar." If Virginia was really so keen on "[limiting] benefits generated by [that] state program to [Virginia's citizens]," then the VFOIA would surely contain (but it doesn't) punitive measures against Virginians who would act as conduits for information sought by noncitizens.
As for those "whom the State was created to serve," we must consider Virginians who would profit by dealing with Hurlbert's clients who had studied the information he sought. What about their rights?
In the matter of McBurney's complaint
QUOTE [from Alito's opinion in Footnote One]:
McBurney is a former resident of Virginia whose ex-wife is a Virginia citizen. After his ex-wife defaulted on her child support obligations, McBurney asked the Commonwealth’s Division of Child Support Enforcement to file a petition for child support on his behalf. The agency complied, but only after a 9-month delay. McBurney attributes that delay to agency error and says that it cost him nine months of child support. To ascertain the reason for the agency’s delay, McBurney filed a Virginia FOIA request seeking “all emails, notes, files, memos, reports, letters, policies, [and] opinions” pertaining to his family, along with all documents “regarding [his] application for child support” and all documents pertaining to the handling of child support claims like his. ... The agency denied McBurney’s request on the ground that he was not a Virginia citizen. McBurney later requested the same documents under Virginia’s Government Data Collection and Dissemination Practices Act...and through that request he received most of the information he had sought that pertained specifically to his own case. He did not, however, receive any general policy information about how the agency handled claims like his.
:UNQUOTE.
Seems pretty obvious to me: Virginia didn't want McBurney to have the evidence he needed to prove the agency was derelict in its duty by waiting 9-months to process his claim. However, if McBurney wants to obtain this information, he could move back to Virginia in order to once again become a Virginia citizen. However, he can't ask a Virginia citizen to file a request on his behalf - as could Herlbert, as detailed above. Virginia would deny the request on the grounds of confidentiality - even if McBurney should waive his rights to privacy in this instance.
The Supreme Court seems unduly (or should I say "typically"?) interested in erecting obstacles to stand in the way of justice being served. How easily these "justices" overlook the Preamble to the Constitution, which states:
"We the people of the United States, in order to ...establish justice...do ordain and establish this Constitution for the United States of America."
I emphasize the "establish justice" part since SCOTUS seems to translate that as meaning, "establish a legalistic quagmire of an environment meant to shield government from citizens seeking justice."
What about the Ninth Amendment?
QUOTE [from Footnote One's syllabus]:
The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws. ... Moreover, no such right was recognized at common law or in the early Republic. Nor is such a sweeping right “basic to the maintenance or well-being of the Union.
:UNQUOTE.
I just quoted three sentences from the learned justices, which I will now dispute:
Sentence One: Here I'll cite the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Even (dare I say "especially") during the early days of the Republic, US citizens realized something special was in the air. They knew, for instance, that it wouldn't have made any sense to speak of the First Amendment's guarantee of a free press before the invention of the printing press. In other words, people even back then realized that certain evolutionary trends were manifesting. Not only had their status had changed - that they were no longer serfs and had come to have recognized rights - but that technology had changed, bringing into existence a right that could not have existed earlier.
That's why the Ninth Amendment was created - to cover future possibilities. Some might claim, instead, that it was to be sure all rights possessed by the people (but only at that time) were protected. However, I doubt this. Our Founding Fathers could have easily come up with a list of such static rights knowing that, within their collective wisdom, they could have covered all existing bases. However, they didn't do that, so I'm concluding that the first among these non-enumerated rights is one I dub the right of reasonable expectation.
Sentence Two: I think it's high time the High Court stop robotically referring to the understandings and conditions in existence over 200 years ago. The FOIA laws began to arrive on the scene in the 1960's and have proliferated ever since. US citizens have come to have a reasonable expectation of the rights assumed to underlie these laws - including the right of the people to know what their government is up to. We-the-People elected lawmakers that reflected their will to create and enforce those laws. And since we have a system that relies on the consent of the governed, the government would do well to duly recognize that - again, due to the right of reasonable expectation - our consent now is (among other factors) based on recognition of the right to know, which we now deem a Constitutionally-protected right. It might not have been so in the late 1700's, but so what? We have evolved, and we expect the political environment to reflect that evolution.
Sentence Three: I would argue that the opposite is now true - namely, "Such a sweeping right is 'critical to the maintenance or well-being of the Union.'" We now live in an age where information is the new coin of the realm - far more valuable than our debauched currency. Can you imagine the uproar should government at all levels suddenly decide to repeal their FOIA laws? Impossible! We've come to far and grown to used to this right which, admittedly, did not exist until about 50 years ago.
QUOTE [from Footnote One's Syllabus]:
Virginia’s FOIA exists to provide a mechanism for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone foot the bill for the fixed costs underlying recordkeeping in the Commonwealth [of Virginia].
:UNQUOTE.
"Noncitizens have no comparable need?" Then why is Virginia one of only seven states that impose restrictions on noncitizens? Is there something the other 43 states are unaware of that is somehow grasped by these seven? In the cases of Hurlbert and McBurney, it's easy to see that they had a need for records controlled by Viriginia.
As for "citizens [footing] the bill," that's nonsense. Virginia's FOIA allows for the imposition of fees necessary to cover the costs of producing requested records. If Virginia were so concerned about cost-cutting, that state could have insisted that its own citizens could request records only if they had a demonstrable need. But lo and behold, that is not the case. Any Virginian may ask for any non-sensitive or restricted documents for any reason whatsoever, without having to provide that reason. And, again, the other 43 states don't seem unduly concerned about the cost of providing information service to out-of-staters. Why is the Supreme Court so concerned?
So why did SCOTUS rule as it did?
The High Court is laboring under the assumption that the individual states still exist as viable political entities. They most certainly do not. The Fourteenth Amendment killed states' rights by defining as follows:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
Whenever an outsider force (in this case, the federal government) defines what constitutes state citizenship, that state has started down the slippery slope of loss of sovereignty. Of course, it's useful to remember that the Fourteenth was ratified under coercion - that is, the states once a part of the Confederacy would not be allowed to rejoin the Union unless they ratified the Fourteenth. That, and agree to rewrite their state constitutions and have those approved by the Feds. [Apparently, quite a massive loss of states' sovereignty took place after the USA's War of Secession - errantly called the Civil War.]
So, SCOTUS can pretend that states still exist as somewhat sovereign entities by, occasionally tossing them a bone like this ruling. But the Court does this at a terribly high price - introducing a chilling effect on the Right to Know.
Finally, here's something to ponder concerning these words of Article V of the Constitution: "The Congress...on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments..." Suppose, however, that this two thirds threshold is met but Congress refuses to call a convention. What would SCOTUS do should someone decide to sue Congress for dereliction of duty? Would SCOTUS refuse to hear the case - either citing lack of standing by the petitioner or by means of simply ignoring the suit? They can ignore anything they want to, you know.
But the real point of my question lies in this answer: The High Court would not - could not - order Congress to call such a convention. For even though Congress has power over the Court - in terms of impeachment - SCOTUS has no similarly effective power over Congress. At least (and this seems to be so important to our learned justices) no power expressly stated in the Constitution.
As I claimed above, it's time to seriously consider replacing the US Constitution.
Steven Searle, former candidate for US President (in 2008 and 2012)
Founder of The Independent Contractors' Party
"Referring to the title of this essay, I conclude that SCOTUS's 'take' on Freedom of Information is simply to take some of that freedom away from us."
Contact me at bpa_cinc@yahoo.com
Virginia’s FOIA exists to provide a mechanism for Virginia citizens to obtain an accounting from their public officials; noncitizens have no comparable need. Moreover, the distinction between citizens and noncitizens recognizes that citizens alone foot the bill for the fixed costs underlying recordkeeping in the Commonwealth [of Virginia].
:UNQUOTE.
"Noncitizens have no comparable need?" Then why is Virginia one of only seven states that impose restrictions on noncitizens? Is there something the other 43 states are unaware of that is somehow grasped by these seven? In the cases of Hurlbert and McBurney, it's easy to see that they had a need for records controlled by Viriginia.
As for "citizens [footing] the bill," that's nonsense. Virginia's FOIA allows for the imposition of fees necessary to cover the costs of producing requested records. If Virginia were so concerned about cost-cutting, that state could have insisted that its own citizens could request records only if they had a demonstrable need. But lo and behold, that is not the case. Any Virginian may ask for any non-sensitive or restricted documents for any reason whatsoever, without having to provide that reason. And, again, the other 43 states don't seem unduly concerned about the cost of providing information service to out-of-staters. Why is the Supreme Court so concerned?
So why did SCOTUS rule as it did?
The High Court is laboring under the assumption that the individual states still exist as viable political entities. They most certainly do not. The Fourteenth Amendment killed states' rights by defining as follows:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
Whenever an outsider force (in this case, the federal government) defines what constitutes state citizenship, that state has started down the slippery slope of loss of sovereignty. Of course, it's useful to remember that the Fourteenth was ratified under coercion - that is, the states once a part of the Confederacy would not be allowed to rejoin the Union unless they ratified the Fourteenth. That, and agree to rewrite their state constitutions and have those approved by the Feds. [Apparently, quite a massive loss of states' sovereignty took place after the USA's War of Secession - errantly called the Civil War.]
So, SCOTUS can pretend that states still exist as somewhat sovereign entities by, occasionally tossing them a bone like this ruling. But the Court does this at a terribly high price - introducing a chilling effect on the Right to Know.
Finally, here's something to ponder concerning these words of Article V of the Constitution: "The Congress...on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments..." Suppose, however, that this two thirds threshold is met but Congress refuses to call a convention. What would SCOTUS do should someone decide to sue Congress for dereliction of duty? Would SCOTUS refuse to hear the case - either citing lack of standing by the petitioner or by means of simply ignoring the suit? They can ignore anything they want to, you know.
But the real point of my question lies in this answer: The High Court would not - could not - order Congress to call such a convention. For even though Congress has power over the Court - in terms of impeachment - SCOTUS has no similarly effective power over Congress. At least (and this seems to be so important to our learned justices) no power expressly stated in the Constitution.
As I claimed above, it's time to seriously consider replacing the US Constitution.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Steven Searle, former candidate for US President (in 2008 and 2012)
Founder of The Independent Contractors' Party
"Referring to the title of this essay, I conclude that SCOTUS's 'take' on Freedom of Information is simply to take some of that freedom away from us."
Contact me at bpa_cinc@yahoo.com
Footnotes
Footnote One:
http://www.supremecourt.gov/opinions/12pdf/12-17_d1o2.pdf
Footnote Two: http://www.abajournal.com/news/article/scotus_rejects_sweeping_privileges_claim_by_out-of-staters_denied_foia_reco/
Footnote Two: http://www.abajournal.com/news/article/scotus_rejects_sweeping_privileges_claim_by_out-of-staters_denied_foia_reco/
Footnote Three:
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