Virginia Supreme Court agrees to hear Rappahannock FOIA case

Justices in Richmond grant writ of appeal to attorney David Konick

The Supreme Court of Virginia has granted a writ of appeal sought by Washington attorney David L. Konick on behalf of his client Marian Bragg surrounding a Freedom of Information Act (FOIA) case against the Rappahannock County government.

Bragg’s original petition, filed earlier this year in Rappahannock County Circuit Court, declared that certain actions taken by the Rappahannock County Board of Supervisors [BOS] during the closed portion of several supervisor meetings in the summer and fall of 2016 violated Virginia’s FOIA.

Alfred D. Swersky, a substitute judge in Rappahannock’s 20th Judicial Circuit, denied Bragg’s petition, finding that certain procedural aspects of the complaint had not been met.

As a result, Konick filed a petition for appeal to the Virginia Supreme Court, and on Dec. 5 personally appeared before a three-justice writ panel — Senior Justice Charles S. Russell, Justice S. Bernard Goodwyn, and Justice D. Arthur Kelly — in Richmond.

The writ was granted on Monday of this week on all five assignments of error that Konick argued before the bench.

“Obviously it is gratifying to Mrs. Bragg and to me that two or more out of three Supreme Court justices concluded there was reversible error on all five of the exceptions detailed in our Petition for Appeal that was filed back in August and argued in Richmond on December 5,” Konick told the Rappahannock News yesterday.

“We look forward to filing briefs and arguing the case before all seven justices, and ultimately, their decision,” he added.

Konick said it was “the first time since 1995 the Supreme Court has granted a writ on a civil case out of Rappahannock County.”

The BOS had convened a special meeting on August 11 and voted unanimously to authorize the appointment of a lawyer to defend the board in Bragg’s appeal to the Supreme Court, allocating up to $7,000 for legal fees.

Local attorneys representing the BOS, now appellees in this case, are listed as Jonathan P. Lienhard and Michael T. Brown of the Warrenton based law firm of Walker Jones, and Rappahannock County Commonwealth’s Attorney Art Goff.

Phone calls to Walker Jones and Goff were not returned by press time yesterday.

As for subsequent legal proceedings, Konick will now likely submit an opening brief with the Supreme Court, at which point the lawyers representing the BOS would have 25 days to file a reply brief, followed by a reply brief from Konick. The full Supreme Court of seven justices would then hear the appeal and following discussion among themselves issue a ruling.

Bragg, a Washington llama farmer, argued in her original petition before the Supreme Court: “The Trial Court’s narrow and restrictive construction of FOIA in this case is not in accord with a long line of cases decided by this [Virginia Supreme] Court that carry into effect the General Assembly’s dictate that the Freedom of Information Act be liberally construed.”

The petition asked that the court “issue a writ of appeal in this case,” which it now has done this week, “to reverse the Trial Court’s May 30, 2017 order dismissing the [petition] with prejudice, and to remand this case to the Trial Court for further proceedings.”

— Patty Hardee contributed to this report

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John McCaslin is the editor of the Rappahannock News. Email him at