Mental health services agency challenges release of state agency investigative report

According to this report from the AP, a mental health services agency in Danville is claiming that it would be irreparably harmed by the release of an investigative report compiled by the Virginia Office for Protection and Advocacy.

Interestingly, the article notes that the case is now pending in the U.S. District Court for the W.D. Va. in Danville, having been removed from Danville Circuit Court. I guess there are federal constitutional claims on which federal jurisdiction could be based. But why would the Commonwealth remove the case to federal court? I thought the usual tactic was to seek a transfer to the Circuit Court for the City of Richmond.

Also, the article notes that the VOPA has refused to produce the document pursuant to a request under the Freedom of Information Act, which makes me wonder why the Danville agency thinks that public disclosure is about to happen.

One issue I would suspect will be raised is whether a city agency has any authority to sue the Commonwealth. That was a topic a couple of years ago in the Bristol fiber case, and Judge Jones concluded in this opinion that the city could raise Supremacy clause issues against the state. Specifically, Judge Jones wrote: "In support of their motion to dismiss, Attorney General Earley and the Commonwealth contend that the City lacks standing to bring suit under federal and state law. It is true that some courts have held that political subdivisions of a state, such as cities, lack standing to challenge a state statute on constitutional grounds. See, e.g., Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1363 (9th Cir. 1998). The theory behind such a rule is that a state’s political subdivisions are “so thoroughly controlled by the body they are suing that the litigation amounts to a suit by the state against itself, [therefore lacking] live adversariness . . . .” Rogers v. Brockette, 588 F.2d 1057, 1065 (5th Cir. 1979). However, the majority of courts have rejected this rule, particularly in Supremacy Clause challenges. See, e.g., Branson School Dist. RE-82 v. Romer, 161 F.3d 619, 628 (10th Cir. 1998) (“[W]e conclude that a political subdivision has standing to bring a constitutional claim against its creating state when the substance of its claim relies on the Supremacy Clause and a putatively controlling federal law.”). Where a political subdivision is “legally and practically independent” from the state, the suit presents a genuine adversary contest. Rogers, 588 F.2d at 1065. Moreover, without deciding the issue, the Fourth Circuit has expressed doubts as to the validity of any such rule banning suits by cities against states. See City of Charleston v. Public Serv. Comm’n of W. Va., 57 F.3d 385, 390 (4th Cir. 1995). By virtue of Virginia’s broad grant of powers to localities, discussed below, I find that the City is sufficiently independent from state government to assert a Supremacy Clause challenge against it."