Monthly Archives: December 2013

A light shines on appellate motions

Appellate courts are generally free of the hurly-burly that marks a trial court’s daily life.  You generally won’t find, for example, discovery or evidentiary disputes in appellate courts because the record is fixed in the trial court.  Occasionally, however, a motion (a request for court action) is made in appellate court, which the court then typically handles by order or opinion.

This week, Richard Posner, a widely-known, scholarly-yet-publicly-visible judge on the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago, wrote an interesting opinion disposing of motions in two cases.  (Federal appellate courts generally act in panels of three, but individual judges may dispose of motions, and Judge Posner was the Seventh Circuit’s designated motions judge for the week.)  [H/T this National Law Journal article, via VCOG’s indispensable, daily Transparency News.]

The issue was whether the court would keep confidential the terms of the settlement agreement that resolved each case.

From an openness perspective, Judge Posner’s opinion is notable both for its content and for the contrast it reveals in how different appellate courts handle public access to motions.

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Clerks impede access to records in VAAG recount case (and others)

As we recently noted in praising the Fairfax Electoral Board’s transparency, the race to be the next Virginia Attorney General is not over.  The current venue is Richmond Circuit Court, where a three-judge panel is presiding over a statewide recount that will take place starting today in Fairfax and tomorrow across the rest of the Commonwealth.

Although there are many cases that have a public impact or are otherwise newsworthy, it’s hard to imagine a circuit court case that the public has more of an interest in observing closely than the recount case (Obenshain v. Herring, Richmond Cir. Ct. case no. CL13-5272).  But an erroneous legal interpretation means that if you want to follow that fast-moving case and are not a Virginia attorney who has paid the Richmond Circuit Court for remote access, you’re essentially out of luck.

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Fairfax shows transparency done right in VAAG recount

Earlier this year, Fairfax County Circuit Court Clerk John Frey began making court opinions freely available on his office’s website, for which the Virginia Coalition for Open Government awarded Frey an open government award at its annual conference.  This week, the Fairfax County Electoral Board again has made Fairfax a model for transparency and open government.

If you’re at all interested in Virginia state government lately, you know that the race to be the next Virginia Attorney General is not yet over.  Democrat Mark Herring was certified as the winner by a mere 165 votes out of the 2.2 million cast, but lawyers for Republican Mark Obenshain are vigorously prosecuting a recount in Richmond Circuit Court.  The actual recount is set to occur across the state next week.

Fairfax, owing to its large portion of Virginia’s population and its critical support for Herring, has been a central focus on election night and since.  Notwithstanding the fact that two out of the three Fairfax Electoral Board members are Republican, including Twitter sensation Brian W. Schoeneman, unfounded conspiracy theories swirled online as Fairfax officials conducted the post-election canvass, identifying votes that helped Herring over the top.  (Vote corrections in Richmond, another locale where two out of three Board members are Republicans, actually gave Herring the lead, but Fairfax closed the gap significantly, was indispensable to Herring overall, and has been the focus of Republican election lawyers.)

Schoeneman’s engagement after the election on Twitter, sparked by astute observers’ tweets, was enough to praise the electoral board for openness.  But the Fairfax Electoral Board has now shown that it’s not content to achieve transparency 140 characters at a time.

This past Wednesday, December 11, the Fairfax Electoral Board unanimously adopted a 33 page voluntary report detailing the post-election decisions and process in Fairfax, as well as influential pre-election events.  That report is now available to the public.  (H/T Rick Hasen’s excellent Election Law Blog.)  The Board explains that it created the report “to explain to interested stakeholders and the public the sequence of events, the decisions made by the Board and the rationale for those decisions.”  The Board hopes “that by being transparent and open about these issues, the  public will be reassured about the administration of the election.”

When controversy swirls, too often government officials keep their cards close to the vest.  We commend the Fairfax Electoral Board for embracing transparency and openness instead.  Whatever the ultimate rulings of the recount court and results of the election are, the public wins when it gets a full explanation of the decision-making of government officials.


FOIA Council meeting: The Empire Strikes Back

The FOIA Advisory Council met yesterday for its final meeting of the year.  We suggest that the soundtrack for this meeting should begin and end with the Imperial March.

The main agenda item was the latest draft of Delegate Scott Surovell’s long-running effort to amend the Freedom of Information Act (FOIA) to bring the SCC under FOIA, superseding the badly flawed 2011 decision by the Supreme Court of Virginia in Christian v. SCC.   An hour and a half after discussion began, it was clear that the SCC had won the battle but also that the war will rage on in the upcoming General Assembly session.

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An interesting federal FOIA case, and related questions for Virginia

A case recently argued before the U.S. Court of Appeals for the D.C. Circuit presents a perfect storm of government surveillance, outdated computing statutes, and the intersection between the Freedom of Information Act (FOIA) and governmental lawyers.  Although it is a federal case not directly applicable to Virginia, the case raises questions about similar issues in Virginia, and the decision of the influential D.C. Circuit could have a significant impact.

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