5/16/23, 9:57 AM Gmail - Request for Exemption Order in Stanfield v.

Marsden, York-Poquoson Circuit Court (CL23003390)

Josh Stanfield <jstanfield@gmail.com>

Request for Exemption Order in Stanfield v. Marsden, York-Poquoson Circuit Court

(CL23003390)
Josh Stanfield <jstanfield@gmail.com> Sun, May 14, 2023 at 12:03 PM
To: "richard.cullen@governor.virginia.gov" <richard.cullen@governor.virginia.gov>
Cc: jeffrey.goettman@governor.virginia.gov, "jesse.lynch@governor.virginia.gov" <jesse.lynch@governor.virginia.gov>,
"Bernhardt, Christopher P." <CBernhardt@oag.state.va.us>, "McEntee III, Robert B." <RMcEnteeIII@oag.state.va.us>

Good afternoon,

I'm not sure who in the Office of the Governor is best equipped to deal with this request, so forgive me if this isn't your
concern and please forward it to the appropriate official. Below please also find my request to Governor Youngkin
regarding the issuance of an exemption order concerning my FOIA case in York-Poquoson Circuit Court. 

Thank you,

Josh Stanfield
Yorktown, Va.
757.364.8401

------------------------------------------------

Good afternoon, Governor Youngkin.

My name is Josh Stanfield and I live in Yorktown. I come to you as a citizen of the Commonwealth of Virginia with the
understanding that you "shall take care that the laws be faithfully executed" (Va. Const. Art. V, § 7) and that "all power is
vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times
amenable to them" (Va. Const. Art. I, § 2). 

On May 9, 2023, I filed my Petition and Affidavit in a FOIA case against State Senator David Marsden in York-Poquoson
Circuit Court (CL23003390). I was informed on April 25, 2023, that if I filed this Petition, Senator Marsden would be
represented by the Office of the Attorney General, specifically by Mr. Christopher Bernhardt and/or Mr. Robert McEntee.
Indeed, the Office of the Attorney General has been communicating with me and the Clerk regarding this case, and we
will have a hearing this coming Friday, May 19, 2023 at 9am in Yorktown. 

Pursuant to the Governor's authority under Va. Code § 2.2-510(1), I humbly request for the reasons below that you issue
an exemption order determining the Office of the Attorney General is unable to represent Senator Marsden in my civil
case and then employ a special counsel to represent the Senator, the cost of which will be borne by the Legislative
Branch.

Separation of Powers

Although I understand why the Attorney General's Office might have reflexively believed, based on Va. Code § 2.2-507(B)
(14), that they should represent Senator Marsen in this FOIA case, in the instant matter I believe such representation
would stretch the acceptable intermingling of Virginia's branches of government as articulated by the Supreme Court of
Virginia in Baliles v. Mazur (1982), Roach v. Commonwealth (1996), and In re Phillips (2003).

I believe the scenario at hand is more in line with the framework provided by the Supreme Court of Virginia in Taylor v.
Worrell Enterprises, Inc. (1991), a case in which the Court decided FOIA did not require Governor Wilder to disclose
phone logs. The Court found "a legislatively imposed disclosure requirement would constitute a violation of the separation
of powers doctrine because disclosure of the information in question would unduly interfere with the Chief Executive
Officer's ability to perform his duties."

In my case, I believe Va. Code § 2.2-507(B)(14) as applied unduly interferes with the ability of members of the Executive
Branch to perform their duties.

Fiscal Responsibility in the Executive Branch

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5/16/23, 9:57 AM Gmail - Request for Exemption Order in Stanfield v. Marsden, York-Poquoson Circuit Court (CL23003390)
As it stands, the Executive Branch (via the Office of the Attorney General) is on the hook for the costs associated with
representing Senator Marsden in this matter. It appears to me fiscally irresponsible and inappropriate for the Executive
Branch to pick up the attorney's costs for perhaps the purest embodiment of the Legislative Branch, a sitting legislator
himself, as a result of his wanton disregard for the Virginia Freedom of Information Act.

Va. Code § 2.2-510(1) states: "When the Governor determines that, because of the nature of the legal service to be
performed, the Attorney General's office is unable to render such service, then the Governor shall issue an exemption
order stating with particularity the facts and reasons leading to the conclusion that the Attorney General's office is unable
to render such service. The Governor may then employ special counsel to render such service as he may deem
necessary and proper. The compensation for such special counsel shall be paid out of the funds appropriated for the
administration of the board, commission, division, or department to be represented or whose members, officers,
inspectors, investigators, or other employees are to be represented pursuant to this section."

My reading of this provision suggests you have the ability, by issuing an exemption order and employing a special
counsel, to force the Legislative Branch to pay for Senator Marsden's representation, an act of fiscal responsibility on
behalf of the Executive Branch.

Fairness to the AG's Office

The Office of the Attorney General is surely busy with legitimate case work, and it seems unfair to burden them with
representing a legislator in a FOIA case in York County. In my particular case, I believe at least one of the alleged
violations cannot be countered with any non-frivolous argument, perhaps putting the AG's attorneys in an ethical bind. 

Even more, the Office of the Attorney General routinely goes before members of the General Assembly in committee and
opines on legislation, the Office of the Attorney General releases public legislative agendas, and the Attorney General
himself (as a former legislator) may or may not have a preexisting relationship with Senator Marsden, having served
concurrently in the General Assembly.

There is more than enough reason for you to issue an exemption order pursuant to your authority under Va. Code § 2.2-
510(1) and following the logic and opinion of the Supreme Court of Virginia in Wilder v. Attorney General of Virginia
(1994).

Fairness to Citizens

Finally, and fundamentally, it's unfair for two of the three branches of Virginia government to cooperate in opposition to a
citizen enforcing his FOIA rights under the law. In my case, I am litigating pro se, without any law degree or legal
education, and without a vehicle due to a recent car accident. I'm already on the hook for hundreds of dollars in costs and
inconvenience - without even going to Court yet - while Senator Marsden can sit back and let the AG's office do all the
work, free of charge. 

The implications are depressing: legislators can ignore citizens' FOIA requests and, if the rare citizen decides to spend
the significant time and money to litigate, the legislators simply push the costs and burden entirely onto the Office of the
Attorney General. This creates a perverse incentive for legislators to ignore FOIA while co-opting the Executive Branch
into laborious complicity.

Under no interpretation can this be considered fair or just, and I believe the law provides you with a means to at least
mitigate the unfairness in my situation.

For the reasons above, and in an effort to resolve these concerns without involving the Court, I request you issue an
exemption order in this case in line with the Constitution of Virginia and in the interest of justice.

Thank you,

Joshua Stanfield
208 Crestwood Court
Yorktown, Va.
757.364.8401

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