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Supreme Court upholds Virginia information act that excludes non-residents

The US Supreme Court [official website] ruled unanimously Monday in McBurney v. Young [opinion, PDF; JURIST report] that Virginia has the right to exclude non-residents from accessing state records under its Freedom of Information Act (FOIA) [text]. The court determined the law did not violate the Privileges and Immunities Clause [text] of Article IV of the US Constitution, as it did not burden any fundamental privilege or immunity. The court also found the information was not part of the interstate market and thus did not implicate the dormant commerce clause [Cornell LII backgrounder]. Justice Samuel Alito delivered the opinion, stating that the law does not implicate either constitutional provision, as Virginia "provides a service that is related to state citizenship."

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.
Justice Clarence Thomas wrote a concurrence reiterating his long-held view that the dormant commerce clause does not exist. "I join the Court's opinion. Though the Court has properly applied our dormant Commerce Clause precedents, I continue to adhere to my view that '[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application, and, consequently, cannot serve as a basis for striking down a state statute.'"

The court also issued a per curiam opinion declining to rule on the already argued Boyer v. Louisiana [opinion, PDF; JURIST report] by dismissing it as improvidently granted. Alito wrote a concurrence explaining that while the question was to consider if the state's delay in paying a defense attorney could violate the speedy trial requirements of the constitution, the record showed that the defense had caused the trial to move along at a "plodding" pace. "In sum, the record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone's control. It is also quite clear that the delay caused by the defense likely worked in petitioner's favor." Justice Sonia Sotomayor, joined by three justices, dissented from the dismissal of certiorari. "Rather than dismiss the writ as improvidently granted, I would simply address this question. Our precedents provide a clear answer: Such a delay should weigh against the State. It is important for States to understand that they have an obligation to protect a defendant's constitutional right to a speedy trial."

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