Supreme Court to Review Institute for Public Representation Case

October 10, 2012 —

A case filed by Georgetown Law’s Institute for Public Representation will now be heard in the U.S. Supreme Court. On October 5, the Court agreed to review the case of McBurney v. Young, asking whether a state may constitutionally deny nonresidents the same right of access to public records afforded to citizens of that state. 

“We are gratified that the Supreme Court decided to hear this important case,” said Visiting Professor Brian Wolfman, co-director of the Institute for Public Representation. “We are optimistic that the Court will agree that the states’ Freedom of Information Act (FOIA) laws cannot discriminate against non-residents, because access to public records is integral to our national economy and a key attribute of national citizenship.”

Georgetown Law Professor David Vladeck, a co-director of the IPR clinic (currently on leave), filed suit in federal district court against Virginia officials in 2009 on behalf of Mark McBurney, a citizen of Rhode Island, and Roger Hurlbert, a citizen of California. The plaintiffs sought access to public records in Virginia but were refused based on the “citizens-only” provision of the state’s FOIA statute.

Both the district court and the U.S. Court of Appeals for the 4th Circuit concluded that Virginia’s FOIA law was constitutional. IPR, however, contends that the law violates the Privileges and Immunities Clause of Article IV of the U.S. Constitution as well as its dormant Commerce Clause. 

IPR’s Supreme Court petition argued that the 4th Circuit’s February 2012 decision conflicts with the 3rd Circuit’s holding in Lee v. Minner, a 2006 case striking down the “citizens-only” provision in Delaware’s FOIA statute. The Lee case was won by IPR in the 3rd Circuit. 

“With respect to the Privileges and Immunities Clause, this case offers the Court an opportunity not only to resolve the split between the [3rd and 4th] Circuits, but also to clarify an avowedly ‘uncertain’ area of constitutional law that the Court has not grappled with in decades,” the clinic said in its petition to the High Court.

Former Georgetown Law students Tara Stearns (L’12) and Ray Tolentino (C’09, L’12) played a significant role in drafting and researching the petition under the supervision of IPR Staff Attorney Leah M. Nicholls and Wolfman. IPR is co-counsel in the Supreme Court with Adjunct Professor Deepak Gupta (L’02) of the Washington law firm Gupta Beck.

Former students Laura Brookover (L’10), Anjali Chavan (L’11), Christopher Conte (L’12), Andrew Deeringer (L’10), Dena Feldman (L’11), Steve Giballa (L’10), Hasa Kingo (L’10), Sara Liebschutz (L’10), Anna McClure (L’11), Brendan McTaggart (L’11) and Jeremiah Nelson (L’10) also played key roles in earlier stages of the litigation—which included obtaining a reversal of the district court’s holding that McBurney and Hurlbert lacked standing to sue.

The petition may be read by clicking here.

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