McBurney v. Young

• Decision Date: 29 April 2013
• Docket Number: No. 12–17.,12–17.
• Parties: Mark J. McBURNEY, et al., Petitioners v. Nathaniel L. YOUNG, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al.
• Court: U.S. Supreme Court

569 U.S. 221

133 S.Ct. 1709

185 L.Ed.2d 758

Mark J. McBURNEY, et al., Petitioners

v.Nathaniel L. YOUNG, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, et al.

No. 12–17.

Supreme Court of the United States

Argued Feb. 20, 2013.

Decided April 29, 2013.

Deepak Gupta, for Petitioners.

Duncan Getchell, Jr., Solicitor General, for Respondents.

Brian Wolfman, Anne King, Institute for Public Representation, Washington, DC, Deepak Gupta, Counsel of Record, Gregory A. Beck, Jonathan E. Taylor, Gupta Beck PLLC, Washington, DC, for Petitioners.

Kenneth T. Cuccinelli, II, Attorney General of Virginia, Patricia L. West, Chief Deputy Attorney General, E. Duncan Getchell, Jr. Solicitor General of Virginia, Counsel of Record, Michael H. Brady, Assistant Attorney General, Office of the Attorney General, Richmond, VA, Joseph P. Rapisarda, Jr., County Attorney, Benjamin A. Thorp, Assistant County Attorney, Henrico County Attorney's Office, Henrico, VA, for Respondents.

Justice ALITO delivered the opinion of the Court.

In this case, we must decide whether the Virginia Freedom of Information Act, Va.Code Ann. § 2.2–3700 et seq. , violates either the Privileges and Immunities Clause of Article IV of the Constitution or the dormant Commerce Clause. The Virginia Freedom of Information Act (FOIA), provides that "all public records shall be open to inspection and copying by any citizens of the Commonwealth," but it grants no such right to non-Virginians. § 2.2–3704(A) (Lexis 2011).

Petitioners, who are citizens of other States, unsuccessfully sought information under the Act and then brought this constitutional challenge. We hold, however, that petitioners' constitutional rights were not violated. By means other than the state FOIA, Virginia made available to petitioners most of the information that they sought, and the Commonwealth's refusal to furnish the additional information did not abridge any constitutionally protected privilege or immunity. Nor did Virginia violate the dormant Commerce Clause. The state Freedom of Information Act does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship. For these reasons, we affirm the decision of the Court of Appeals rejecting petitioners' constitutional claims.

I

Petitioners Mark J. McBurney and Roger W. Hurlbert are citizens of Rhode Island and California respectively. McBurney and Hurlbert each requested documents under the Virginia FOIA, but their requests were denied because of their citizenship.

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. App. in No. 11–1099(CA4), p. 39A. 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, Va.Code Ann. § 2.2–3800 et seq. , 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.

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.

Petitioners filed suit under 42 U.S.C. § 1983, seeking declaratory and injunctive relief for violations of the Privileges and Immunities Clause and, in Hurlbert's case, the dormant Commerce Clause. The District Court granted Virginia's motion for summary judgment, McBurney v. Cuccinelli, 780 F.Supp.2d 439 (E.D.Va.2011), and the Court of Appeals affirmed, 667 F.3d 454 (C.A.4 2012).

Like Virginia, several other States have enacted freedom of information laws that are available only to their citizens. See, e.g., Ala.Code § 36–12–40 (2012 Cum.Supp.); Ark.Code Ann. § 25–19–105 (2011 Supp.); Del.Code Ann., Tit. 29, § 10003 (2012 Supp.); Mo.Rev.Stat. § 109.180 (2012) ; N.H.Rev.Stat. Ann. § 91–A:4 (West 2012) ; N.J. Stat. Ann. § 47:1A–1 (West 2003) ; Tenn.Code Ann. § 10–7–503 (2012). In Lee v. Minner, 458 F.3d 194 (2006), the Third Circuit held that this feature of Delaware's FOIA violated the Privileges and Immunities Clause. We granted certiorari to resolve this conflict. 568 U.S. ––––, 133 S.Ct. 421, 184 L.Ed.2d 252 (2012).

II

Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States." U.S. Const., Art. IV, § 2, cl. 1. We have said that "[t]he object of the Privileges and Immunities Clause is to ‘strongly ... constitute the citizens of the United States [as] one people,’ by ‘plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.’ " Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 296, 118 S.Ct. 766, 139 L.Ed.2d 717 (1998) (quoting Paul v. Virginia, 8 Wall. 168, 180, 19 L.Ed. 357 (1869) ). This does not mean, we have cautioned, that "state citizenship or residency may never be used by a State to distinguish among persons." Baldwin v. Fish and Game Comm'n of Mont., 436 U.S. 371, 383, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978). "Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do." Ibid. Rather, we have long held that the Privileges and Immunities Clause protects only those privileges and immunities that are "fundamental."

See, e.g., id., at 382, 388, 98 S.Ct. 1852.

Petitioners allege that Virginia's citizens-only FOIA provision violates four different "fundamental" privileges or immunities: the opportunity to pursue a common calling, the ability to own and transfer property, access to the Virginia courts, and access to public information. The first three items on that list, however, are not abridged by the Virginia FOIA, and the fourth—framed broadly—is not protected by the Privileges and Immunities Clause.

A

Hurlbert argues that Virginia's citizens-only FOIA provision abridges his ability to earn a living in his chosen profession, namely, obtaining property records from state and local governments on behalf of clients. He is correct that the Privileges and Immunities Clause protects the right of citizens to "ply their trade, practice their occupation, or pursue a common calling." Hicklin v. Orbeck, 437 U.S. 518, 524, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978) ; Supreme Court of N.H. v. Piper, 470 U.S. 274, 280, 105 S.Ct. 1272, 84 L.Ed.2d 205 (1985) (" ‘[O]ne of the privileges which the Clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State’ "). But the Virginia FOIA does not abridge Hurlbert's ability to engage in a common calling in the sense prohibited by the Privileges and Immunities Clause. Rather, the Court has struck laws down as violating the privilege of pursuing a common calling only when those laws were enacted for the protectionist purpose of burdening out-of-state citizens. See, e.g., Hicklin, supra, (striking down as a violation of noncitizens' privileges and immunities an "Alaska Hire" statute containing a resident hiring preference for all employment related to the development of the State's oil and gas resources); Toomer v. Witsell, 334 U.S. 385, 395, 397, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948) (striking down a South Carolina statute imposing a $2,500 license fee on out-of-state shrimping boats and only a $25 fee on in-state shrimping boats where petitioners alleged that the "purpose and effect of this statute ... [was] not to conserve shrimp, but to exclude non-residents and thereby create a commercial monopoly for South Carolina residents," and the "record cas[t] some doubt on" the State's counterassertion that the statute's "obvious purpose was to conserve its shrimp supply"); United Building & Constr. Trades Council of Camden Cty. v. Mayor and Council of Camden, 465 U.S. 208, 104 S.Ct. 1020, 79 L.Ed.2d 249 (1984) (New Jersey municipal ordinance requiring that at least 40% of employees of contractors and subcontractors working on city construction projects be city residents facially burdened out-of-state citizens' ability to pursue a common calling). In each case, the clear aim of the statute at issue was to advantage in-state workers and commercial interests at the expense of their out-of-state counterparts.

Virginia's FOIA differs sharply from those statutes. By its own terms, Virginia's FOIA was enacted to "ensur[e] the people of the Commonwealth ready access to public records in the custody of a public body or its officers and employees, and free entry to meetings of public bodies wherein the business of the people is being conducted." Va.Code Ann. § 2.2–3700(B) (Lexis 2011). Hurlbert does not allege—and has offered no proof—that the challenged provision of the Virginia FOIA was enacted in order to...