Supreme Court Watch

Whether, under the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution, a state may preclude citizens of other states from enjoying the same right of access to public records that the state affords its own citizens.

The oral argument in this case suggested that the justices weren't impressed that there was a violation and the unanimous result reaffirmed it.  As I did then, this surprised me somewhat.  The justices after all also didn't seem overly impressed of the need for the favoritism here regarding access to state FOIA requests.  So, why not require the evenhanded treatment that the Privileges and Immunities Clause seems to warrant?  In effect, the ruling was that the FOIA requests aren't really "fundamental" enough to warrant application of the rule and regardless any differential treatment was minor.  So, the fact one litigant "received much of what he sought" (aka not the same as a state resident might) by alternative means was good enough.  Also, largely appealing to history, the right to access of public information on equal terms with in-state citizens is not one the clause protects.  [Here's a more substantive summary.]

Eh. The litigants were not equally treated. The state's interests were dubious -- the cost concern was trivial for individual requests and could have been handled differently. That is, just charge the person any additional charge to compensate for providing a service to a non-tax payer.  FOIA does provide state citizens the right to be informed about their own government.  But, as the facts of the case suggests, that is not the only value of such requests, and others out of state also are concerned with such details, particularly if they have some business within the state in some fashion.  I think a case might have been made on the commerce point but the P/I issue alone could have handled it.

The opinion does not refute that there is some interest there, it should was not impressed with the importance of it all.  It seems to me that a more clear rule would be best here, instead of trying to determining if the interest was "fundamental" and even then if the burden was strong enough.  Again, at least, if the result would not in any real way burden an interest that in-state citizens have a right to retain.  Access to records is not akin to voting or the like. At least, it is troubling no one had any problems with the favoritism particularly given its gratuitous nature.  If the case was too trivial to matter, why take the litigants' appeal? 

Meanwhile, the USSC disposed of another case 5-4 as improvidently granted.  A few of the majority justified the move given the dissent.  The case regarded "[w]hether a state’s failure to fund counsel for an indigent defendant for five years as a direct result of the prosecution’s choice to seek the death penalty should be weighed against the state for speedy trial purposes."  (to quote again from SCOTUSblog)  Clear statement rules at times are cited by conservative justices, but the above suggests a certain selectivity. The same applies to respecting the findings of state courts as the conflicting opinions here underline.

I think DIGs are a big waste of time so should be used sparingly.  So, there is a high burden to justify one here.  OTOH, they are used at times to settle cases where the justices are in effect stuck and/or "wanted this case to go away rather than have to pick sides on the merits" and the result is to keep the law as a whole in stasis.  Unclear how that plays out here. Anyway, oral arguments are over, and there are basically two months left of the term, the more "hot button" cases likely to be decided in June.  Meanwhile, orders and various other opinions will be handed down. 

Also, speedy recovery to bike aficionado Justice Breyer.