Cuccinelli team headed to Supreme Court Wednesday
Top lawyers for Virginia Attorney General Ken Cuccinelli will be making oral arguments before the United State Supreme Court on Wednesday.
No, it's not about health care--not yet, at least.
Instead, Virginia Solicitor General E. Duncan Getchell will argue for the commonwealth in a complicated procedural case that will determine when state agencies can access the federal court system.
Here's the issue: typically, the only way a state can get sued in federal court is by another state or by the federal government. A 1908 suit also gives citizens the right to sue states for violation of their federal rights by suing specific state officials. That's how citizens sue and argue state laws violate their civil rights--by actually suing individuals, such as the governor or the attorney general.
In this instance, a state agency that uses federal funds to advocate for people with disabilities is seeking access to documents compiled during an investigation of the deaths of two people and the injuries of a third at a state hospital. The records of the panel are considered confidential by state law and not released.
The Virginia Office of Protection and Advocacy has sued several state officials seeking access to the documents. Virginia's lawyers have argued the lawsuit basically amounts to the state suing itself and should not be allowed in federal court.
The Eastern District of Virginia found for the state agency--known as VOPA. That ruling was overturned by the 4th Circuit Court of Appeals. Now, the Supreme Court will hear the case on Wednesday.
If the Supreme Court finds for VOPA, the case will be remanded to the district court level to consider the substance of VOPA's suit--its quest to get records from the state. If the Supreme Court finds for Virginia, the agency's leaders will have to decide whether to try to file suit in state court instead.
It will be Getchell's second time arguing before the nation's highest court--his first while working for Cuccinelli. (He was formerly the head of appellate litigation for McGuire Woods.)
But it could be some good practice for him though: President Obama's Solicitor General has joined the suit and will argue on VOPA's behalf against Virginia.
Rosalind S. Helderman
| November 30, 2010; 8:00 AM ET
Categories: Ken Cuccinelli, Rosalind Helderman
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