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McBurney Amicus Brief

McBurney Amicus Brief

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Date Created:August 3, 2012

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No. 12-17 THE
 Supreme Court the United States 

Mark McBurney, al., Petitioners, 
Nathaniel Young, Deputy Commissionerand Director, Virginia Division Child  Support Enforcement, al., 
Respondents. Petition for Writ Certiorari the United States Court Appeals for the Fourth Circuit 
BRIEF AMICI CURIAE  
JUDICIAL WATCH, INC. AND  
ALLIED EDUCATIONAL FOUNDATION SUPPORT PETITIONERS 

Paul Orfanedes JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington, 20024 
(202) 646-5172 porfanedes@judicialwatch.org 
Counsel for Amici Curiae 

TABLE CONTENTS 
TABLE CONTENTS ............................................. 
TABLE AUTHORITIES ...................................... 
INTEREST AMICI CURIAE ................................ 
SUMMARY THE ARGUMENT ............................ 
ARGUMENT ............................................................... 

 the Union ..........................................................  The Privileges and Immunities ClauseProtects the Rights All Citizens Free  Governments ....................................................  
II.  The Right Access Public RecordsIs Well-Recognized Common Law   Right .................................................................  
III.  The Right Access Public Recordsof All States Important the  Maintenance and Well-Being  

CONCLUSION .......................................................... 

TABLE AUTHORITIES 
CASES 
Baldwin Fish and Game Commission Montana, 436 U.S. 371 (1978) ........... 12, 

Burton Tuite, Mich. 363 (1889) .......................... 

Clay Ballard, Va. 787 (1891) ............................. 

Corfield Coryell, Cas. 546 
 (CC Pa. 1825) ............................................... 

Gleason Judicial Watch, Inc., 
Case No. 10CV0952, City and
Country Denver District Court 
 (Bruce, J., Apr. 22, 2011) ..................................... 

Lee Minner, 
458 F.3d 194 (3d Cir. 2006) ............................. 9-10 

McBurney Young, 
667 F.3d 454 (4th Cir. 2012) .................................. 

Nixon Warner Communications, Inc., 
435 U.S. 589 (1978) ................................................ 

Nowack Auditor General, 
234 Mich. 200 (1928) .......................................... 7-8 

Slaughter-House Cases, U.S. (1873) ................................................ 

State King, 154 Ind. 621 (1900) .............................. 

State Williams, N.J.L. 332 (N.J. 1879) ....................................... 

Supreme Court New Hampshire Piper, 
470 U.S. 274 (1985) ............................ 12, 

Toomer Witsell, 334 U.S. 385 (1948) ....................... 

U.S. Department Justice
 Reporters Committee for Freedom the Press, 489 U.S. 749 (1989) ...........................
 
Washington Legal Foundation U.S. 
 Sentencing Commission, F.3d 897 (D.C. Cir. 1996) .................................. 

Wiley Woods, 393 Pa. 341 (1958). ........................... 

OTHER AUTHORITIES 
Chris Isidore Jennifer Liberto, 
Mortgage deal could bring billions relief, CNN Money (Feb. 15, 2012),
 available http://money.cnn.com ............... 10-11 
Letter the Honorable Timothy Geithner, 
U.S. House Representatives Committee Financial Services, dated June 20, 2011, 
available http://financialservices.house.gov ... 
Press Release, Chairman Bachus Comments Elizabeth Warrens Role Mortgage   Settlement Talks, The Committee  Financial Services (Apr. 2011) ........................ 
Thomas Moyer, Interpreting Ohios Sunshine Laws: Judicial Perspective, N.Y.U. ANN. SURV. AM. 247 (2003) ..................................... 8-9 

INTEREST THE AMICI CURIAE1 
Judicial Watch, Inc. (Judicial Watch) not-for-profit, educational foundation that seeks promote integrity, transparency, and accountabilityin government and fidelity the rule law. furtherance its public interest mission, Judicial Watch regularly requests access public records offederal, state, and local government agencies and officials and disseminates its findings the public. addition, Judicial Watch regularly files amicus curiae briefs and has appeared amicus curiae this Court number occasions.  
The Allied Educational Foundation (AEF) anot-for-profit, charitable and educational foundation based Englewood, New Jersey. Founded 1964, AEF dedicated promoting education diverseareas study. AEF regularly files amicus curiae briefs means advance its purpose and hasappeared amicus curiae this Court number occasions. demonstrated the petition for writ certiorari, there split between the U.S. Courts Appeal for the Third and Fourth Circuits towhether the right access public records privilege and immunity under the U.S. Constitution. Whereas the Third Circuit held that the right access public records common law right Pursuant Supreme Court Rule 37.6, Amici Curiae state that counsel for party authored this brief whole part and that person entity, other than Amici Curiae and their counsel, made monetary contribution intended fundthe preparation and submission this brief.  All parties haveconsented the filing this brief; letters reflecting thisblanket consent have been filed with the Clerk. 
that furthers vital national economy, the FourthCircuit disagreed. The Fourth Circuits ruling,which issue this matter, dismissed the importance the right access public records andconcluded that, even such right exists, does not bear upon the vitality the Nation singleentity. educational foundations, Amici are concerned that the Fourth Circuits opinion not overturned, valuable weapon their arsenal will weakened, not, lost entirely.  The ability organizations and individuals such Amici seek access publicrecords any state vital them furthering their public interest missions. this brief, Amici intend present the history the right access public records well how Amici recently used this right. doing so, Amici seek help demonstrate that the right access public records basic the maintenance and well-being the country. Because the right access public records bears upon the vitality the Nation single entity, thepetition for writ certiorari should granted that all persons have the right request publicrecords from all states. 
SUMMARY THE ARGUMENT 
The Privileges and Immunities Clause Article the U.S. Constitution protects basic rightsbearing upon the vitality the Nation singleentity. One such right the right access public records. Since the founding the nation, courtshave recognized the right the people gain accessto and inspect the public records local governments. However, just because the requested records have been may those city, county, state government does not mean such records are only local importance and value. The inspection public records city, county, and state governments arerelevant and often shed light the policies andactivities the federal government.  Sometimes, gaining access local records the only way fully understand the actions the federal government. addition, many policy decisions activities local governments are being debated implemented other localities across the Nation.Therefore, the right access public record notonly sheds light local government, but alsobears upon the vitality the Nation singleentity. 

ARGUMENT 	The Privileges and Immunities Clause Protects the Rights All Citizens Free Governments. 
Article IV, Section the United States Constitution states, The Citizens each State shall entitled all Privileges and Immunities Citizens the several States. The clause, commonly referred the Privileges and Immunities Clause the Comity Clause, was intended fuse intoone Nation collection independent, sovereignStates. Supreme Court New Hampshire Piper, 470 U.S. 274, 279 (1985) (quoting Toomer Witsell, 334 U.S. 385, 395 (1948)). date, the Court has not definitively designated what constitutes privileges and immunities. However, has interpreted the clause various times through the years. the Slaughter-House Cases, the Court adopted the analysis found Corfield Coryell, Cas. 546 (CC Pa. 1825). U.S. 36, (1873).  Specifically, the Court reiterated: 
The inquiry is, what are the privileges and immunities citizens theseveral States? feel hesitation confining these expressions thoseprivileges and immunities which arefundamental; which belong right tothe citizens all free governments, and which have all times been enjoyed bycitizens the several States which compose this Union, from time theirbecoming free, independent, and sovereign. 
Slaughter-House Cases, U.S. (quoting Corfield, Cas. 551). addition, the Court explained that the court Corfield found that the privileges and immunities were 
those rights which are fundamental.Throughout [the] opinion, [privilegesand immunities] are spoken asrights belonging the individual acitizen State. And they have always been held the class rightswhich the State governments were created establish and secure. 
Slaughter-House Cases, U.S. 76. Baldwin Fish and Game Commission Montana, 436 U.S. 371 (1978), the Court held thatthe state Montana could charge nonresidentshigher fees obtain elk-hunting license than charged residents Montana obtain the samelicense. doing so, the Court explained that statesmay treat residents and nonresidents differently; however, some distinctions are prohibited becausethey hinder the formation, the purpose, the development single Union those States.  Baldwin, 436 U.S. 383. other words, the Court stated that the Privileges and Immunities Clause protectsthose rights bearing upon the vitality the Nationas single entity. Id. 
The Court recently affirmed this interpretation and expounded that the Court has never held thatthe Privileges and Immunities Clause protects onlyeconomic interests. Piper, 470 U.S. 281. issue Piper was whether the state Vermont could restrict bar admissions state residents only.  Id. 
275. holding that such restriction violated thePrivileges and Immunities Clause, the Court stated: believe that the legal profession has noncommercial role and duty that reinforce the view that the practice law falls within the ambit the Privileges and Immunities Clause. Out-of-state lawyers may  and often  representpersons who raise unpopular federalclaims. some cases, representation nonresident counsel may the onlymeans available for the vindication federal rights. The lawyer who champions unpopular causes surely important the maintenance wellbeing the Union. 
Id. 281 (internal citations omitted). other words, some instances, only nonresidents will challenge the policy decisions activities local governments. 
II. 	The Right Access Public Records Well-Recognized  Common Law Right. the Court has previously declared, It clear that the courts this country recognize general right inspect and copy public records and documents. Nixon Warner Communications, Inc., 435 
U.S. 589, 597 (1978). addition, the United States Court Appeals for the District Columbia Circuit has also stated that the right access exists inthe common law the states. Washington Legal Foundation U.S. Sentencing Commission, F.3d 897, 903 (D.C. Cir. 1996). other words, the right access public records applies not only public records the federal government but also public records state governments. 
For over 100 years, state courts have recognizedthe common law rule that every person entitled the inspection of public documents. State Williams, N.J.L. 332, 334 (N.J. 1879); see also Burton Tuite, Mich. 363, 374 (1889) (I not think that any common law ever obtained this freegovernment that would deny the people thereof the right free access to, and public inspection of,public records.). Significantly, 1891, the Virginia Supreme Court held, At common law, the right toinspect public documents well defined and understood. Clay Ballard, Va. 787, 791 (1891). 
Although much the concern the courts focused whether citizen had private, individualized interest the requested records, case law alsoillustrates the importance the right access topublic documents for the general good.  For example,in 1900, individual requested access the publicrecords the auditors office town Indiana for the purpose discovering whether the money andproperty the county had been duly accounted for the persons and officers charged with the collection and disbursement the same.  State King, 154 Ind. 621, 622 (1900). The town auditor refused provide access public records because, asserted, the requester did not have personal interest the requested records.  The court rejected that argument. ordering the town auditor provide access the requested records, the court stated, The general rule which obtained common law was that every person was entitled inspectionof public records, himself agent, provided had interest the matters which such records related. Id. 625. addition, the court held that persons interest to discover the condition thepublic ascertain the affairs his county have been honestly and faithfully administered bythe public officials charged with that duty completely appropriate. Id. other words, the right ofaccess public records grounded the publics right know what the government to.  U.S. Department Justice Reporters Committee for Freedom the Press, 489 U.S. 749, 800 (1989). 1928, the Michigan Supreme Court again examined the common law right access public records and the origin that right. doing so, noted, If there any rule the English common law that denies the public the right access public records, repugnant the spirit our democratic institutions. Ours government thepeople. Nowack Auditor General, 234 Mich. 200, 203 (1928). addition, the court stated, There question the common-law right the peopleat large inspect public documents and records. Id. 204. Moreover, reinforced the notion that the common law right to inspect public recordsincludes those circumstances when persons interest solely that as member the general public.  Id. the last years, state legislatures have enacted statutes addressing the right access public records. However, the statutory right does not narrow displace the common law right access. Courts continue recognize the right examination public records, either under statutory grant common law principles. Wiley Woods, 393 Pa. 341, 346 (1958). demonstrated above, the right access topublic records nothing new. fact, the basic right inspect public records has played important role the maintenance democracies inlocal governments since the founding the individual states well the Nation. the former Chief Justice the Ohio Supreme Court expressed: 
The public availability government information has long been recognized asa fundamental tenet upon which democratic theory rests. This principle, venerated the founding fathers and later codified state legislatures, has its foundation the common-law courts England. The common-law right toinspect government documents has been recognized Ohio since the earliest reported court decisions. there was statutory provision the contrary (and constitutional mandate), the right inspect public records was subject only the condition that the inspection did not endanger the safety the record unreasonably interferewith the duties the public officialhaving custody the record. These early Ohio cases, like those other jurisdictions, recognized that public records were available for inspection regardless whether individual had aprivate interest the record. 
Thomas Moyer, Interpreting Ohios Sunshine Laws: Judicial Perspective, N.Y.U. ANN. SURV. AM. 247, 247-248 (2003). other words, the right access public records basic right all persons democratic societies. 
III. 	The Right Access Public Records All States Important the Maintenance Well-Being the Union. its opinion, the Fourth Circuit held, Access states records simply does not bear upon the
vitality the Nation single entity. McBurney Young, 667 F.3d 454, 466 (4th Cir. 2012) (internal quotations omitted). Such declaration simplyincorrect. the Third Circuit noted: state island  least the figurative sense  and some eventswhich take place individual statemay relevant and have impactupon the policies not only the national government but also the states. Accordingly, political advocacy regarding matters national interest interests common between the states playan important role furthering vitalnational economy and vindicating individual rights. 
Lee Minner, 458 F.3d 194, 199-200 (3d Cir. 2006). other words, although each state sovereign, the actions and policies individual state likely have effect other states and the Nation whole. 
This interconnectedness evident the recent attempt the federal government address therecent housing meltdown. February 2012, federaland state officials entered into $26 billion foreclosure settlement with five the largest home lenders. Chris Isidore Jennifer Liberto, Mortgage deal could bring billions relief, CNN Money (Feb. 15,2012), available http://money.cnn.com. The agreement settled the potential charges brought individual states concerning allegations againstnumerous companies improper foreclosures. Id. The settlement, which was signed the U.S. Department Justice, the U.S. Department Housing and Urban Development, and state attorneysgeneral, created federal monitoring system oversee the foreclosure process and assist distressed homeowners receiving assistance related prior foreclosures their homes. Id. other words, the federal government was instrumental orchestrating settlement between the individual states and the mortgage lenders. 
Yet, the extent the federal governments involvement the day-to-day negotiations was unclear the public. During March 16, 2011 hearing the House Financial Services Subcommittee Financial Institutions and Consumer Credit, Elizabeth Warren, the interim head the Consumer Financial Protection Bureau (CFPB), characterizedthe CFPBs involvement the state settlement negotiations as: We have been asked for advice the Department Justice, the Secretary the Treasury, and other federal agencies. And when asked for advice, have given our advice.  Press Release, Chairman Bachus Comments Elizabeth Warrens Role Mortgage Settlement Talks, The Committee Financial Services (Apr. 2011). Because Ms. Warren did not indicate with anyspecificity the CFPBs role the settlement negotiations, Amicus Judicial Watch sought public records from the CFPB under the federal Freedom Information Act. For whatever reason, the federal agencydid not provide all relevant and response records toJudicial Watch. Therefore, Judicial Watch extended its investigation and sought access public records all state attorneys general. response its requests for access public records all state attorneys general, Amicus Judicial Watch received records such electronic mail, meeting minutes, and memoranda from more than half the attorneys general.  These public records demonstrated, among other things, that Ms. Warren initiated and led emergency meetings with state attorneys general that her office insisted remain secret. See Letter the Honorable Timothy Geithner, U.S. House Representatives Committeeon Financial Services, dated June 20, 2011, available http://financialservices.house.gov. addition, the public records suggest that the CFPBs participationin the settlement negotiations was far more intenseand aggressive than Ms. Warren described Congress. Therefore, the ability inspect public recordsof numerous states provided the public with more full understanding how the federal governmentwas involved the settlement agreement betweenstate attorneys general and the mortgage lenders.In other words, the public records the state attorneys general inspected Amicus Judicial Watch directly relate the vitality the Nation asingle entity. Baldwin, 436 U.S. 383. 
Similarly, Amicus Judicial Watch investigated the circumstances underlying the U.S. Department Justices announcement that the Department ofJustice had entered into consent decree with the City Dayton concerning the allegation that thecity had engaged discrimination against African-Americans its hiring entry-level police officers and firefighters violation Title VII the CivilRights Act 1964.  Judicial Watch originally soughtaccess public records directly from the Department Justice.  Because the federal agency failed torespond Judicial Watchs Freedom InformationAct request, Judicial Watch requested access public records under the Ohio Public Records Act. response Amicus Judicial Watchs requestfor communications between the Department ofJustice and the Dayton Fire Department, the localentity provided records detailing the Department Justices objections the entrance examinationsused the City Dayton.  Specifically, JudicialWatch discovered that the Department Justicedisapproved the use written tests for firefighter applicants because, its opinion, very unlikelythat entry-level firefighter would have muchwriting. Judicial Watch subsequently disseminatedthis information the public. Through access thepublic records the City Dayton, Judicial Watchwas able shed light how the U.S. Departmentof Justice used its enforcement authority under the Civil Rights Act 1964 prevent the Dayton Fire Department from testing whether firefighter applicants had the ability write. other words, the public records the City Dayton directly related the activities the federal government and the Nation single entity. Baldwin, 436 U.S. 
383. 
Besides shedding light the federal governments interactions with state governments, the right access public records all states also allows for the inspection unpopular information that may not otherwise inspected. citizen state may reluctant request access particular records due the sensitivity nature the publicrecords. such instances, individual organization outside the state may the only entitywilling request unpopular inspection.  Piper, 470 U.S. 281. Most importantly, such situationis not merely hypothetical. Amicus Judicial Watch frequently requests access states public records that citizens that state may reluctant request because undesired consequences.  Throughthe right access public records, Judicial Watch has revealed corrupt practices police departments, abuses authority regulating bodies, and wasteof taxpayer funds illegal expenditures.   
For example, Judicial Watch currently litigation with the Colorado Attorney Regulation Counsel over records created and maintained one the administrative offices the Colorado Supreme Court. one court described Judicial Watchs efforts: 
Judicial Watch questions the use onestates resources (here, the person of[the Attorney regulation Counsel] andhis staff), assist another state politically-charged ethics probe.  Further, this time state budget shortfalls, the people this State doubtwould interested how came that state employee was ordered towork for another jurisdiction and whether Colorado was adequately reimbursed for that work. 
Gleason Judicial Watch, Inc., Case No. 10CV0952, City and Country Denver District Court (Bruce, J., Apr. 22, 2011). self-evident that the challengeto the authority and decision-making the Colorado Supreme Court unpopular and controversial. also likely that attorneys within the state would behesitant challenge their regulators. Therefore, without individuals organizations like Amici questions concerning the use one states resources may remain unanswered. such scenarios, the right noncitizens access public records nodifferent than the noncitizen-attorneys ability tryunpopular cases within state. The goals both instances clearly are important the maintenance well-being the Union. Piper, 470 U.S. 281. 

CONCLUSION 
The right access public records pre-exists the formation the Nation. fact, the right access public records predates the development the states. Individuals have always sought public records from city, county, and state governments toensure that the peoples representatives are properlyand positively maintaining democracies and adhering good government principles. not overturned, the Fourth Circuits ruling will hinder, notabolish, the peoples ability monitor the workings all governments. Because many policy decisions and activities local governments are being debatedor implemented other localities across the Nationor effect the United States whole, the right ofaccess public record not only sheds light local government, but also bears upon the vitality the Nation single entity. For the foregoing reasons, Amici respectfully request that the petition for writ certiorari granted. 
Respectfully submitted, 
Paul Orfanedes 
Counsel Record 
JUDICIAL WATCH, INC. 425 Third Street, S.W., Ste. 800 Washington,  20024 
(202) 646-5172 porfanedes@judicialwatch.org 
Counsel for Amici Curiae 
August 29, 2012