Latest Filings in Spotsylvania FOIA Case Request Reversal of October 15 Ruling
Court's ruling was "erroneous, prejudicial, and improper," petitioner Theodore Marcus, an attorney, argues.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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Spotsylvania’s General District Court was wrong to rule last week that a lawsuit seeking release of documents responsive to a request under the Virginia Freedom of Information Act could be dismissed due to “improper service,” petitioner Theodore Marcus argues.
In documents filed on Friday, Marcus asks the Court to reverse its ruling of October 15 dismissing the case; agree that the respondents in the case—the Spotsylvania School Board, individual members April Gillespie and Lisa Phelps, and superintendent Clint Mitchell—received full notice as required by Virginia Code; and sanction the respondents for “causing (or approving) the making of false and improper legal and factual arguments.”
“Respondents’ counsel’s arguments to Court were improper and in opposition to the governing law and standards found in the Virginia Freedom of Information Act, specifically Va. Code § 2.23713(C),” Marcus wrote in a Motion for Reconsideration, Sanctions, and Recusal. “Moreover, the Court’s acceptance of those arguments, or its independent view as to Petitioner’s non-compliance with VFOIA’s requirements, was erroneous, prejudicial to Petitioner’s rights under the VFOIA, and highly improper. The Court’s serious apparent judicial failings on the issues presented suggest a high degree of incompetence at best or, at worst, a lack of judicial ethics.”
In court on October 15, attorneys John Thomas and Evan Tucker with the firm McGuire Woods, representing the respondents, argued that Marcus did not properly follow the process laid out in Virginia Code for serving notice of the petition, mainly because he served the petition himself and did so via email, instead of enlisting the Sheriff’s Office or a third-party civil process server.
Judge Jane Reynolds agreed with these arguments and was prepared to continue the case and schedule a trial in December, but Marcus—who works as an attorney for the federal government—asked her instead to dismiss the case so that he could bring it back and have it heard again within seven days, as Virginia Code requires.
In Friday’s filing, Marcus points out that Virginia Code specifically does not require FOIA lawsuits be “served,” only that they must be “received” by the party against whom the petition is brought.
“That language is intentional,” Megan Rhyne, executive director of the Virginia Coalition for Open Government, told the Advance last week. “These procedures are not put in place to be procedural booby traps for citizens who are trying to enforce their rights.”
This language has been in Virginia Code since 2011, but the 2023 edition of Virginia’s Judicial District Court Benchbook “appears utterly to misstate [Virginia Code’s] notice (not ‘service’) requirements,” Marcus wrote in an addendum to his motion for reconsideration, which he filed on Monday morning.
In contrast to Virginia Code, the Benchbook states: “Providing a copy of a petition before filing is not a substitute for service of process after filing.”
Marcus’s addendum argues that “Although a court's Benchbook is, presumably, not precedent of any type for the rendering of a decision … it seems inescapably clear that both [Judge Jane Reynolds] and Respondents’ counsel leveraged it to deprive Petitioner of his day in court.”
Reynolds, who presided over last week’s hearing, was on the committee that authored the 2023 Benchbook, Marcus points out in the addendum.
“This raises the question, objectively, whether the Court has 'skin in the game',” the addendum states.
“If there is another ‘Judge Jane Reynolds’ associated with the Benchbook, Petitioner humbly apologizes for this particular averment and withdraws it,” it continues. “Petitioner was unable to locate any other ‘Judge Jane Reynolds’ in the Commonwealth or elsewhere through his research, it should be noted.”
Previous editions of the Benchbook do not contain the sentence about providing notice not being a substitute for service of process, the addendum states.
“Thus, the inclusion of the language about ‘service of process’ may have been a deliberate effort to alter the General Assembly’s intended outcomes for VFOIA enforcement,” it reads.
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Mr. Marcus being an attorney is what helped him. Those of us who don't know the ins and outs of the law would not have known what he knows. Good job Mr. Marcus. Thanks for not giving up against Phelps and Gillespie. They need to be held accountable.
This is very concerning that some public officials, voted in and paid for by the county citizens,believe they can ignore FOIA requests. Not to mention a local judge who was not up to date on the interpretation of said law. Hopefully this was not a case of cowing down to a powerful legal group. Wake up people. Let truth and honesty prevail!