Mcburney v. Kenneth T. Cuccinelli Ii
| Decision Date | 21 January 2011 |
| Docket Number | Action No. 3:09–CV–44. |
| Citation | 780 F.Supp.2d 439 |
| Parties | Mark J. McBURNEY, et al., Plaintiffs,v.Kenneth T. CUCCINELLI II, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Virginia |
OPINION TEXT STARTS HERE
Stephen Winston Bricker, The Bricker Law Firm PC, Richmond, VA, David Charney Vladeck, Kathryn Anne Sabbeth, Washington, DC, for Plaintiffs.Christy Warrington Monolo, Stephen R. McCullough, Office of the Attorney General, Benjamin Adelbert Thorp, IV, Richmond, VA, for Defendants.
THIS MATTER is before the Court on Plaintiffs' Cross Motion for Summary Judgment (Doc. No. 56); the State Defendant's Motion for Summary Judgment (Doc. No. 54); and Defendant Thomas C. Litde's Cross–Motion for Summary Judgment (Doc. No. 52). For the reasons stated below, the Court GRANTS Defendant Thomas C. Little's Cross–Motion for Summary Judgment and the State Defendant's Motion for Summary Judgment and DENIES Plaintiffs' Cross Motion for Summary Judgment.
Plaintiffs Mark J. McBurney (“McBurney”) and Roger W. Hurlbert (“Hurlbert”) allege different facts that support their common argument that Virginia's Freedom of Information Act (“VFOIA”) violates the dormant Commerce Clause and the Privileges and Immunities Clause of Article IV (“Privileges and Immunities Clause”) of the United States Constitution.
McBurney was a Virginia citizen from 1987 until 2000. He married Lore Ethel Mills (“Mills”) while living in Virginia. The couple had a son, but divorced in 2002. A court awarded Mills custody and ordered McBurney to pay child support. McBurney and Mills subsequently entered into a private agreement whereby their son would live with McBurney in Australia and Mills would pay child support. Mills eventually defaulted on the agreement and McBurney, still in Australia, filed a child support application with the Virginia Department of Social Services' Division of Child Support Enforcement (“DCSE”) in July 2006. DCSE failed to file a proper petition and McBurney was denied child support payments for nine months.
McBurney moved back to the United States, to Rhode Island, and made a VFOIA request in April 2008 for all documents pertaining to him, his son, and his ex-wife. DCSE denied his request on grounds that portions of the information requested were confidential under Virginia law and he could not receive the non-confidential information because he was not a Virginia citizen. McBurney filed a second VFOIA request in May 2008 that listed a Virginia address, but DCSE also denied this request because McBurney was not a Virginia citizen. DCSE did, however, inform McBurney that he could obtain the requested information under Virginia's Government Data Collection and Dissemination Practices Act. McBurney submitted a request under this Act and obtained some, but not all, of the documents he could have received under VFOIA.
Hurlbert is a California citizen and the sole proprietor of Sage Information Services, a California company. Hurlbert is in the business of obtaining real estate tax records from state agencies throughout the United States, including in Virginia. He requests records pursuant to states' freedom of information statutes. Hurlbert charges $75 per hour for his services, which include procuring records and using negotiation or litigation to obtain records if necessary.
Hurlbert filed a VFOIA request for real estate property assessment records with Henrico County's Real Estate Assessment Division in June 2008. The County denied the request because Hurlbert was not a Virginia citizen. Hurlbert subsequently received the requested information in February 2009, when the County sent the records to his attorney in Virginia. Hurlbert has not attempted to request records from Virginia since June 2008. Prior to having his request denied, Hurlbert made seventeen requests for records from Virginia, fifteen of which were in early 2008.
McBurney and Hurlbert commenced an action on January 21, 2009, against the Attorney General for the Commonwealth of Virginia, then Robert F. McDonnell; 1 Nathaniel L. Young, Deputy Commissioner and Director of Virginia's DCSE (“the State Defendant”); and Samuel A. Davis (“Davis”), 2 Director of the Real Estate Assessment Division in Henrico County, Virginia. Plaintiffs' action sought declaratory and injunctive relief from enforcement of VFOIA pursuant to 42 U.S.C. § 1983. The Court granted Plaintiffs leave to amend their Complaint to add Bonnie E. Stewart (“Stewart”) as a plaintiff on April 7, 2009.
The Attorney General and State Defendant filed a Motion to Dismiss and Remove the Attorney General as an Improper Party. Davis also filed a Motion to Dismiss. This Court granted both Motions. McBurney v. Mims, No. 3:09–CV–44, 2009 WL 1209037, at *6–7 .3 The Court held that the Attorney General was not a proper party under the Eleventh Amendment. Id. at *3–4. Because Stewart only asserted claims against the Attorney General, she was dismissed as a Plaintiff when the Attorney General was dismissed as a Defendant. The Court also held that McBurney and Hurlbert lacked standing to bring claims against the State Defendant and Davis and dismissed them as Plaintiffs. Id. at *6–7. Because only McBurney brought a claim against the State Defendant and only Hurlbert brought a claim against Davis, the Court dismissed Davis and the State Defendant as Defendants. Consequently, no parties remained before the Court and it dismissed the case.
Plaintiffs appealed the dismissal. The Fourth Circuit affirmed in part, reversed in part, and remanded the case for further proceedings. McBurney v. Cuccinelli, 616 F.3d 393, 404–05 (4th Cir.2010). The Fourth Circuit affirmed the holding that the Attorney General was not a proper party, but found that McBurney and Hurlbert had standing to bring their claims. Id. at 403–04. Accordingly, this Court was directed to consider McBurney's and Hurlbert's claims on the merits.
A motion for summary judgment should be granted where “there is no genuine issue as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the burden of establishing the nonexistence of a triable issue of fact by “showing ... that there is an absence of evidence to support the non-moving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
A court may consider the parties' pleadings, discovery materials, and affidavits to determine if a triable issue exists. Fed.R.Civ.P. 56(c)(2). “Summary judgment is appropriate only where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Nat'l Ass'n of Gov't Emps. v. Fed. Labor Relations Auth., 830 F.Supp. 889, 897 (E.D.Va.1993) (internal citation omitted). All “factual disputes and any competing, rational inferences [are resolved] in the light most favorable to the party opposing [the] motion.” Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal citation omitted).
When considering cross-motions for summary judgment, the court must apply the same standard and cannot resolve genuine issues of material fact. Monumental Paving & Excavating, Inc. v. Pa. Mfrs' Ass'n Ins. Co., 176 F.3d 794, 797 (4th Cir.1999). The court should “consider and rule upon each party's motion separately and determine whether summary judgment is appropriate as to each under the Rule 56 standard.” Id.
The Virginia Freedom of Information Act provides in relevant part:
Except as otherwise specifically provided by law, all public records shall be open to inspection and copying by any citizens of the Commonwealth during the regular office hours of the custodian of such records. Access to such records shall not be denied 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).
Plaintiffs move the Court to grant their Motion and (1) declare VFOIA's citizens-only provision unconstitutional because it violates the Privileges and Immunities Clause and the dormant Commerce Clause; (2) enjoin Defendants from enforcing the citizens-only provision; and (3) order Defendants to process McBurney's pending VFOIA request. Plaintiffs assert that VFOIA violates their rights under the Privileges and Immunities Clause by impeding their access to public information, rendering them unable to advocate for their interests, denying them equal access to courts, and preventing them from pursuing economic interests on the same footing at Virginia citizens. Plaintiffs further assert that VFOIA's citizens-only clause violates the dormant Commerce Clause because it erects barriers to interstate commerce, making it impossible for noncitizens to do business on an equal basis with Virginia citizens.
The parties have not shown a genuine dispute over any material fact. Accordingly, the Court decides only if any party is entitled to judgment as a matter of law.
To have standing, a plaintiff must show: (1) he suffered an injury, which means “an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical;” (2) the injury was caused by the person sued; and (3) a court can likely redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal...
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