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IN THE SUPREME COURT OF VIRGINIA
RECORD NO.
ANDREA LAFFERTY, JACK DOE, a minor, by and through JOHN DOE and JANE DOE, his parents and next friends, JOHN
DOE, individually, and JANE DOE, individually
Plaintiffs-Petitioners,
v.
SCHOOL BOARD OF FAIRFAX COUNTY,
Defendant-Respondent.
PETITION FOR APPEAL
Daniel J. Schmid Horatio G. Mihet* VA. Bar No. 84415 LIBERTY COUNSEL Mary E. McAlister P.O. Box 540774 VA. Bar No. 76057 Orlando, FL 32854 LIBERTY COUNSEL Phone: (470) 875-1776 P.O. Box 11108 Fax: (407) 85-0770 Lynchburg, VA 24502 Email: [email protected] Phone: (407) 875-1776 Fax: (407) 875-0770 Email: [email protected]
Attorneys for Plaintiffs-Appellants
*Application for admission pro hac vice forthcoming
ASSIGNMENTS OF ERROR
1. The Circuit Court erred in failing to give proper inferences and presumptions in favor of the injuries alleged in Plaintiffs’ Complaint.
This error was preserved at pages 29, 31, and 33,
as well as in the signed and objected to Order of the Circuit Court dismissing Plaintiffs’ Complaint.
2. The Circuit Court erred in concluding that Jack Doe
failed to allege an actual controversy sufficient to invoke the Circuit Court’s jurisdiction.
This error was preserved at pages 29, 31, and 33, as well as in the signed and objected to Order of the Circuit Court dismissing Plaintiffs’ Complaint.
3. The Circuit Court erred in concluding that John Doe
and Jane Doe failed to allege an actual controversy as parents and next friends of Jack Doe. This error was preserved at pages 29, 31, and 33, as well as in the signed and objected to Order of the Circuit Court dismissing Plaintiffs’ Complaint.
4. The Circuit Court erred in concluding that John Doe, Jane Doe, and Andrea Lafferty did not have taxpayer standing. This error was preserved at pages 29, 31, and 33, as well as in the signed and objected to Order of the Circuit Court dismissing Plaintiffs’ Complaint.
5. The Circuit Court erred in dismissing the Complaint without ever affording Plaintiffs the opportunity to amend. The error was preserved at page 31 and in the signed and objected to Order dismissing Plaintiffs’ Complaint.
ii
TABLE OF CONTENTS
ASSIGNMENTS OF ERROR .................................i TABLE OF CONTENTS....................................ii TABLE OF AUTHORITIES.................................iv NATURE OF CASE/MATERIAL PROCEEDINGS BELOW.............1 STATEMEMT OF FACTS....................................2 AUTHORITIES AND ARGUMENT..............................7 I. THE CIRCUIT COURT ERRED IN FAILING TO APPLY PROPER
INFERENCES AND PRESUMPTIONS IN FAVOR OF THE INJURIES ALLEGED IN PETITIONER’S COMPLAINT........8
A. The Standard of Review is De Novo.............8 B. Jack Doe’s Alleged Injuries Were Entitled to
the Presumption of Truth with All Reasonable Inferences and Doubts Resolved in His Favor...8
II. THE CIRCUIT COURT ERRED IN HOLDING THAT JACK DOE
DID NOT ALLEGE SUFFICIENT INJURY TO CREATE AN ACTUAL CONTROVERSY...............................15
A. The Standard of Review Is De Novo............15 B. Jack Doe’s Verified Complaint Alleged A
Concrete and Actual Injury Sufficient for Declaratory Relief...........................15
III. THE CIRCUIT COURT ERRED IN CONCLUDING THAT JOHN DOE
AND JANE DOE FAILED TO ALLEGE AN ACTUAL CONTROVERSY AS PARENTS AND NEXT FRIENDS OF JACK DOE..........26
A. The Standard of Review is De Novo............26
iii
B. The Alleged Injuries of Jack Doe in the Complaint Provide An Actual Controversy for John and Jane Doe as Next Friends............26
IV. THE CIRCUIT COURT ERRED IN CONCLUDING THAT JOHN
DOE, JANE DOE, AND ANDREA LAFFERTY DID NOT HAVE TAXPAYER STANDING TO CHALLENGE THE ACTIONS OF THE LOCAL GOVERNMENT SCHOOL BOARD IN THE COUNTY IN WHICH THEY RESIDE AND PAY TAXES..................28
A. The Standard of Review is De Novo............28 B. John Doe, Jane Doe, and Andrea Lafferty Have
Taxpayer Standing to Pursue The Injuries Alleged in their Complaint..................28
V. THE CIRCUIT COURT ERRED IN DISMISSING THE COMPLAINT
WITHOUT EVER AFFORDING PLAINTIFFS THE OPPORTUNITY TO AMEND.........................................33
A. The Standard Of Review Is Abuse Of Discretion...................................33 B. The Circuit Court Abused Its Discretion By
Denying Plaintiffs An Opportunity To Amend the Complaint................................33
CONCLUSION...........................................35 CERTIFICATE PURSUANT TO RULE 5:17(i).................37
iv
TABLE OF AUTHORITIES CASES Abi-Najm v. Concord Condo., LLC, 280 Va. 350, 699 S.E.2d 483 (2010)...................10 Arlington Cnty. v. White, 259 Va. 708, 528 S.E.2d 706 (2000)...............30, 31 Bennett v. Sage Payment Solutions, Inc., 282 Va. 49, 710 S.E.2d 736 (2011)....................33 Bd. of Supervisors of James City Cnty. v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975).....21, 22, 25 Bd. of Zoning Appeals of Fairfax Cnty. v. Bd. of Supervisors of Fairfax Cnty., 276 Va. 550, 666 S.E.2d 315 (2008)...................32 Bono Film & Video, Inc. v. Arlington Cnty. Human Rights Comm., 72 Va. Cir. 256 (Va. Cir. Ct. 2006)..................31 CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 431 S.E.2d 277 (1993)....................14 Cline v. Dunlora South, LLC, 284 Va. 102, 726 S.E.2d 14(2012)...............................8, 26 Concerned Taxpayers of Brunswick Cnty. v. Cnty. of Brunswick, 249 Va. 320, 455 S.E.2d 712 (1995)...............10, 31 Cupp v. Bd. of Supervisors of Fairfax Cnty., 227 Va. 580, 318 S.E.2d 407 (1984)...............passim Daniels v. Mobley, 285 Va. 402, 737 S.E.2d 895 (2013)...................17
v
Dunn, McCormack & McPherson v. Connolly, 281 Va. 553, 708 S.E.2d 867 (2011)....................9 Estate of James v. Peyton, 277 Va. 443, 674 S.E.2d 864 (2009)...................27 Fairfax Cnty. v. Southland Corp., 224 Va. 514, 297 S.E.2d 718 (1982)...........22, 23, 25 Friends of Rappahannock v. Caroline Cnty. Bd. of Supervisors, 286 Va. 38, 743 S.E.2d 132 (2013).....9 Ford Motor Co. v. Benitez, 273 Va. 242, 638 S.E.2d 203 (2007)...................33 Garner v. City of Cuyahoga Falls, 311 F. App’x 896 (6th Cir. 2009).....................14 Glazebrook v. Bd. of Supervisors of Spotsylvania Cnty., 266 Va. 550, 587 S.E.2d 589 (2003).............8 Goldman v. Landslide, 262 Va. 364, 552 S.E.2d 67 (2001)....................29 Gordon v. Bd. of Supervisors of Fairfax Cnty., 207 Va. 827, 153 S.E.2d 270 (1967)...................28 Herndon v. St. Mary’s Hospital, Inc., 266 Va. 472, 587 S.E.2d 567 (2003)...............27, 28 Hubbard v. Dresser, Inc., 271 Va. 117, 624 S.E.2d 1 (2006)......................9 Jenkins v. Webb, 47 Va. App. 404, 624 S.E.2d 115 (Va. Ct. App. 2006)..................................34 Karunakarum v. Town of Herndon, 70 Va. Cir. 208 (Va. Cir. Ct. 2006)..................32
vi
Kellam v. Sch. Bd. of City of Norfolk, 202 Va. 252, 117 S.E.2d 96 (1960)....................32 Kelley v. Stamos, 285 Va. 68 737 S.E.2d 218 (2013).....................28 Kole v. City of Chesapeake, 247 Va. 51, 439 S.E.2d 405 (1994)....................33 Liberty Mutual Ins. Co. v. Bishop, 211 Va. 414, 177 S.E.2d 519 (1970)...................19 Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).......................13 Payne v. Fairfax Cnty. Sch. Bd., 288 Va. 432, 764 S.E.2d 40 (2014)....................32 Portsmouth Rest. Ass’n, Inc. v. Hotel & Rest. Emp. Alliance, Local No. 807, 183 Va. 757, 33 S.E.2d 218 (1945)............16, 24, 26 Sch. Bd. of Amherst Cnty. v. Burley, 225 Va. 376, 302 S.E.2d 53 (1983)....................32 Squire v. Va. Housing Dev. Auth., 287 Va. 507, 758 S.E.2d 55 (2014)................10, 15 Steward v. Holland Family Props., LLC, 284 Va. 282, 726 S.E.2d 251(2012)....................10 Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 636 S.E.2d 447, (2006)...........8, 10, 13 Troxel v. Granville, 530 U.S. 57 (2000)...................................30
vii
STATUTES Rule 1:8.............................................33 Va. Code § 2.2-3900................................3, 4 Va. Code §§ 22.1-78...................................3 Va. Code §§ 22.1-79...................................3 Va. Code § 8.01-184..................................15 Va. Code § 8.01-191..................................16 Va. Code § 8.01-8....................................27
1
NATURE OF THE CASE/MATERIAL PROCEEDINGS BELOW
On December 21, 2015, Plaintiffs-Petitioners Jack
Doe, John Doe, Jane Doe, and Andrea Lafferty
(“Petitioners”) filed their Verified Complaint in the
Circuit Court of Fairfax County challenging the ultra
vires and void ab initio actions of the Fairfax County
School Board (“District” or “Board”) in adding the
terms “gender identity,” “gender expression,” and
“sexual orientation” to the District’s non-
discrimination policy and student handbook. Petitioners
brought this challenge under Virginia’s Dillon’s Rule,
alleging that the District unlawfully exceeded its
authority under Va. Code § 22.1-78 by enacting policies
that were inconsistent with, and therefore contrary to,
statutes in the Commonwealth.
Due to the District’s actions, Petitioner Jack Doe,
a minor subject to the Board’s regulations, has
suffered concrete and particularized harm, including
significant distress, anxiety, loss of privacy,
invasion of his religious beliefs, and diminution of
his ability to freely and fairly participate in his
2
constitutionally guaranteed right to education. Jack
Doe continues to suffer those same injuries.
On January 12, 2016, the District filed its Motion
to Dismiss and Demurrer. The Circuit Court subsequently
held a hearing on February 19, 2016. At that hearing,
the Circuit Court dismissed Petitioners’ Complaint with
prejudice, over Petitioners’ objection. On March 17,
2016, Petitioners filed their Notice of Appeal.
STATEMENT OF FACTS
Jack Doe is a student in Fairfax County Public
Schools subject to District policies and regulations.
(Transcript of February 19, 2016 Proceedings,
“Transcript” at 20-21, 24). Among the regulations to
which Jack Doe is subject, the District has adopted a
non-discrimination policy designed to protect certain
classes of students from various acts of
discrimination. (Id. at 4). On May 7, 2015, despite
substantial opposition from taxpayers, parents, and
students, the District added the terms “gender
identity” to the list of protected categories. (Id. at
4-5). Previously, in November 2014, the District added
3
“sexual orientation” to that policy. (Id.). In addition
to the policy, the District also added the terms
“gender identity” and “gender expression” to the list
of protected categories in the student handbook. (Id.).
Under Virginia law, the District is authorized to
adopt and enforce regulations necessary for the
governing of the public schools in its District. See,
e.g., Va. Code §§ 22.1-78 and 79. However, the
authority granted to the District is restricted by that
statute in one critical respect. “A school board may
adopt bylaws and regulations, not inconsistent with
state statutes and regulations of the Board of
Education.” Id. § 22.1-78 (emphasis added). Despite
that unambiguous restriction on the Board, its recent
additions to the non-discrimination policy
substantially exceed the parameters and bounds of the
Commonwealth’s statutes on similar issues.
Virginia has not adopted the categories of
protection added by the District to the non-
discrimination policy and student handbook. See Va.
Code § 2.2-3900 et seq. Indeed, the Virginia Human
4
Rights Act only prohibits discrimination on the basis
of the familiar and longstanding categories, including
“race, color, religion, national origin, sex,
pregnancy, childbirth or related medical conditions,
age, marital status or disability.” Id. § 2.2-3900.
Notably, Virginia’s non-discrimination statute does not
include sexual orientation, gender identity, or gender
expression among its protected categories. Id.
As a result of the Board’s actions, Jack Doe has
suffered concrete harm to his fundamental rights to
privacy and education. (Transcript at 20). Indeed, Jack
Doe has experienced significant distress and anxiety
due to the recent additions to the policy. (Id. at 20-
21). Petitioner’s Complaint discusses numerous injuries
and harms Jack Doe has suffered as a result of the
District’s ultra vires actions. (Id. at 21) (“And in
paragraphs 73, 74, 75, there is a particular discussion
about how his educational experience is being
diminished, how he is not able to fully and fairly
participate in his constitutional right to
education.”). Jack Doe specifically alleged (1) that he
5
is particularly distressed about the additions to the
non-discrimination policy, (2) that he is terrified and
distressed over the fact that his privacy in the
bathrooms is being invaded by person of the opposite
sex, (3) that his fear and anxiety has adversely
affected his ability to participate in and benefit from
his constitutionally guaranteed right to education, and
(4) that he cannot regard school as a safe place
anymore. (Id. at 24)(discussing paragraphs 70-75 of
Petitioners’ Verified Complaint). As a result, Jack Doe
alleged he is unable to fully and fairly participate in
his constitutional right to education. (Id.).
Petitioners John Doe and Jane Doe are the parents
of Jack Doe and have brought their claims as Jack Doe’s
parents and next friends. (Id. at 4). John and Jane Doe
also brought their claims as taxpayers, residents, and
parents of students in the District, challenging the
District’s ultra vires actions and expenditure of funds
to pay for such unauthorized amendments and revisions.
John and Jane Doe’s injury arises from the substantial
harm and concrete injury suffered by their son, as
6
described above. They are also suffering injury as a
result of the expenditure of taxpayer funds to amend
and implement policies in a manner unauthorized by
Virginia law, and in violation of Dillon’s Rule.
Petitioner Lafferty brought this challenge by
virtue of her status as a citizen, taxpayer, and
resident of Fairfax County with a particularized
interest in the manner in which local taxpayer dollars
are spent in the public education system. Ms.
Lafferty’s injury arises from the expenditure of
taxpayer funds to amend and implement policies and
regulations in a manner unauthorized by Virginia law,
and in violation of Dillon’s Rule.
Despite these substantial allegations of injury and
ultra vires actions of the District, the Circuit Court
dismissed Petitioners’ Complaint with prejudice on the
ground that they lack standing and sufficient injury to
bring suit. (Transcript at 29-32).
7
AUTHORITIES AND ARGUMENT
The Circuit Court erred in failing to apply proper
inferences and presumptions in favor of Petitioners and
the injuries alleged in their Complaint. The Circuit
Court erred in holding that Jack Doe did not allege
sufficient injury to create an actual controversy.
Similarly, the Circuit Court erred in concluding that
John Doe and Jane Doe failed to allege an actual
controversy as parents and next friends of Jack Doe.
The Circuit Court also erred in concluding that John
Doe, Jane Doe, and Andrea Lafferty did not have
taxpayer standing to challenge the actions of the local
government school board in the County in which they
reside and pay taxes.
At the demurrer stage, Plaintiffs should have been
afforded the presumption of truth and should have
received all favorable inferences concerning their
alleged injuries and bases for standing. The Circuit
Court instead improperly discredited their allegations,
and this Court should grant review to correct those
significant errors.
8
I. THE CIRCUIT COURT ERRED IN FAILING TO APPLY PROPER INFERENCES AND PRESUMPTIONS IN FAVOR OF THE INJURIES ALLEGED IN PETITIONER’S COMPLAINT.
(Assignment of Error No. 1)
A. The Standard of Review Is De Novo. “The legal question presented by a circuit court’s
decision to sustain a demurrer requires application of
a de novo standard of review.” Cline v. Dunlora South,
LLC, 284 Va. 102, 106, 726 S.E.2d 14, 16 (2012) (citing
Glazebrook v. Bd. of Supervisors of Spotsylvania Cnty.,
266 Va. 550, 544, 587 S.E.2d 589, 591 (2003)). “On
appeal, a plaintiff attacking a trial court’s judgment
sustaining a demurrer need only show that the court
erred, not that the plaintiff would have prevailed on
the merits of the case.” Tronfeld v. Nationwide Mut.
Ins. Co., 272 Va. 709, 713, 636 S.E.2d 447, 449 (2006).
B. Jack Doe’s Alleged Injuries Were Entitled to the Presumption of Truth with All Reasonable Inferences and Doubts Resolved in His Favor.
“The case involving the son is a closer call in
this case for the court, but I am also going to find
that I am without jurisdiction . . . And I do that with
some hesitation.” (Transcript at 31) (emphasis added).
9
This Court should grant review in this case to review
the Circuit Court’s fundamental and fatal error
concerning the proper inferences and presumptions that
should have been resolved in favor of Jack Doe.
In order to survive demurrer, we have held that a complaint must allege sufficient facts to constitute a foundation in law for the judgment sought, and not merely conclusions of law. To survive a challenge by demurrer, a pleading must be made with sufficient definiteness to enable the court to find the existence of a legal basis for its judgment.
Dunn, McCormack & McPherson v. Connolly, 281 Va. 553,
558, 708 S.E.2d 867, 870 (2011) (quoting Hubbard v.
Dresser, Inc., 271 Va. 117, 122-23, 624 S.E.2d 1, 4
(2006).
“At the demurrer stage, it is not the function of
the trial court to decide the merits of the allegations
set forth in a complaint, but only whether the factual
allegations pled and the reasonable inferences drawn
therefrom are sufficient to state a cause of action.”
Friends of Rappahannock v. Caroline Cnty. Bd. of
Supervisors, 286 Va. 38, 44, 743 S.E.2d 132, 135
(2013). The trial court was required to presume that
10
the injuries alleged by Jack Doe were true, ongoing,
and concrete, and also to read all reasonable
inferences and resolve all doubts in favor of Jack Doe.
See, e.g., Squire v. Va. Housing Dev. Auth., 287 Va.
507, 514, 758 S.E.2d 55, 59 (2014) (“It is well-
established that a demurrer accepts as true all facts
properly pled, as well as reasonable inferences from
those facts.”) (internal quotations omitted) (emphasis
added); Steward v. Holland Family Props., LLC, 284 Va.
282, 286, 726 S.E.2d 251, 253-54 (2012) (same); Abi-
Najm v. Concord Condo., LLC, 280 Va. 350, 356, 699
S.E.2d 483, 496 (2010) (same).
Indeed, it is now axiomatic that the trial court
was required accept Petitioner’s allegations as true
for purposes of determining whether a concrete and
actual injury had been alleged. A circuit court must
“consider as true all the material facts alleged in the
bills of complaint, all facts impliedly alleged, and
all reasonable inferences that may be drawn from the
facts.” Concerned Taxpayers of Brunswick Cnty. v. Cnty.
of Brunswick, 249 Va. 320, 327, 455 S.E.2d 712, 716
11
(1995) (emphasis added); see also Tronfeld, 272 Va. at
713, 636 S.E.2d at 449 (“A demurrer admits the truth
of all properly pleaded material facts. All reasonable
factual inferences fairly and justly drawn from the
facts alleged must be considered in aid of the
pleading.”) (emphasis added).
Here, the Circuit Court failed to presume
Petitioner Jack Doe’s injuries as true, failed to grant
him the reasonable inferences attendant to his
allegations, and failed to consider his allegations in
aid of the pleading, as this Court required in
Tronfeld. Id., 636 S.E.2d at 449. In fact, the Circuit
Court completely ignored several of the injuries
alleged by Jack Doe in his Verified Complaint.
Petitioner’s Complaint alleged numerous injuries and
harms Jack Doe has suffered and is currently suffering
as a result of the District’s ultra vires modification
of its policies. Compare (Transcript at 21) (“And in
paragraphs 73, 74, 75, there is a particular discussion
about how his educational experience is being
diminished, how he is not able to fully and fairly
12
participate in his constitutional right to
education.”), with (id. at 31) (“I do not find that his
disappointment with or anxiety or confusion or distress
over the action of the school board constitutes a case
or controversy or an adjudication of right.”).
In his Complaint, Jack Doe stated plainly that the
ultra vires actions of the Board have caused him injury
by adversely affecting his ability to participate in
and benefit from the educational process and
environment, which is constitutionally guaranteed to
him in Virginia. (See id. at 21). He alleged that his
right to privacy has been significantly invaded as a
result of the Board’s ultra vires actions, in that he
now must share previously private spaces, such as
bathrooms and locker rooms, with members of the
opposite sex. (Id.). He alleged that the Board’s
unauthorized actions caused violations of his religious
and moral values. (Id.). The significant violation to
his privacy and religious beliefs has caused such
injury that he is unable to fully and fairly
participate in his constitutionally guaranteed right to
13
education. (Id. at 24)(discussing paragraphs 70-75 of
Petitioner’s Verified Complaint).
Despite those allegations of ongoing harm, the
court focused entirely on the assertions that Jack Doe
is distressed and anxious over the Board’s changes. The
court completely ignored the allegations – which should
have been presumed as true at this stage – that his
rights to education and privacy have been injured by
the Board’s actions. (Id. at 31).
When such allegations are taken as true and
considered with the fact that all reasonable inferences
must be drawn in Petitioner’s favor and that all doubts
must likewise be resolved in his favor, this should not
have been and is not a “close call,” as the Circuit
Court asserted. (Id. at 31). Nevertheless, even if it
was a “close call,” the demurrer standard requires that
close calls be resolved in Petitioners’ favor.
Tronfeld, 272 Va. at 713, 636 S.E.2d at 449. To borrow
a sandlot baseball analogy, “a tie goes to the runner,”
Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir.
2001), and at the motion to dismiss stage, the runner
14
is the plaintiff and close calls must be resolved in
his favor. See, e.g., Garner v. City of Cuyahoga Falls,
311 F. App’x 896, 900 (6th Cir. 2009). The Circuit
Court’s statement, that it was “a close call” and that
it was “hesitant” to issue such a ruling should have
signaled that an actual controversy does indeed exist.
When presumed true – as they must at this stage –
the allegations of Petitioner Jack Doe’s Complaint
establish beyond peradventure that he was suffering
concrete and immediate injury sufficient to establish
an actual controversy for purposes of obtaining
declaratory relief. The Circuit Court’s failure to
presume the truth of his allegations and read all
inferences in his favor was plainly in error. Indeed,
even though a “complaint may be imperfect, when it is
drafted so that a defendant cannot mistake the true
nature of the claim, the trial court should overrule
the demurrer.” CaterCorp, Inc. v. Catering Concepts,
Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993). The
Circuit Court failed to apply the proper presumptions
15
and inferences in Jack Doe’s favor, and this Court
should grant review to correct that error.
II. THE CIRCUIT COURT ERRED IN HOLDING THAT JACK DOE DID NOT ALLEGE SUFFICIENT INJURY TO CREATE AN ACTUAL CONTROVERSY.
(Assignment of Error No. 2) A. The Standard of Review Is De Novo.
“A trial court’s decisions sustaining a demurrer
present a question of law which we review de novo.”
Squire v. Va. Housing Dev. Auth., 287 Va. 507, 514, 758
S.E.2d 55, 59 (2014).
B. Jack Doe’s Verified Complaint Alleged A Concrete and Actual Injury Sufficient for Declaratory Relief.
Virginia’s declaratory judgment statute states:
In cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have the power to make binding adjudications of rights, whether or not consequential relief is, or at the time could be, claimed and no action or proceeding shall be open to objection on the ground that a judgment order or decree merely declaratory of right is prayed for. Controversies involving the interpretation of . . . municipal ordinances and other government regulations may be so determined.
Va. Code § 8.01-184 (emphasis added).
16
This Court has unequivocally expressed that the
declaratory judgment statute “is to be liberally
interpreted and administered. It does not require one
to wait until a right has been violated to seek
judicial relief. Preventative relief is the moving
purpose.” Portsmouth Rest. Ass’n, Inc. v. Hotel & Rest.
Emp. Alliance, Local No. 807, 183 Va. 757, 763, 33
S.E.2d 218, 221 (1945) (emphasis added). The General
Assembly has also codified this requirement. Va. Code
§ 8.01-191 (“Its purpose is to afford relief from the
uncertainty and insecurity attendant upon controversies
over legal rights, without requiring one of the parties
interested so to invade the rights asserted by the
other as to entitle him to maintain an ordinary action
therefor. It is to be liberally interpreted and
administered with a view to making the courts more
serviceable to the people.”) (emphasis added).
The Circuit Court erred in holding that Jack Doe
suffered no concrete injury and thus that no case or
controversy existed. (Transcript at 31). “For a
justiciable controversy to exist, it must be possible
17
for the circuit court to render a decree yielding
specific relief, such that the plaintiffs’ rights will
be thereby affected.” Daniels v. Mobley, 285 Va. 402,
405, 737 S.E.2d 895, 898 (2013). “[I]t is not every
case that can be reviewed in a declaratory judgment
proceeding. Review is limited to ‘cases of actual
controversy,’ which are described later in the same
provision as instances of ‘actual antagonistic
assertion and denial of right.’” Cupp v. Bd. of
Supervisors of Fairfax Cnty., 227 Va. 580, 591, 318
S.E.2d 407, 412 (1984).
This Court’s decision in Cupp reveals the error of
the Circuit Court and the necessity of review. There,
the government was attempting to impose new regulations
and requirements on the Cupp’s business. Id. at 586-88,
318 S.E.2d at 409-11. The Cupp’s counsel and the local
government body engaged in several rounds of
negotiations concerning the permissibility of the
requirements and also a special use exception for the
Cupp’s business. Id., 318 S.E.2d at 409-11. After
realizing that the Cupp’s business was not going to
18
receive the special exception from the government, and
knowing that a failure to obtain it would cost the
Cupps much more than maintaining their grandfathered
status, the Cupp’s requested that the government deny
their own special use request. Id. at 591, 318 S.E.2d
at 412. The Cupps then filed suit challenging the
government’s authority to enact the new regulation.
Id., at 318 S.E.2d at 412.
As a result of the Cupp’s decision to request
denial of their own application, the government argued
– as the Board did below here – that the Cupp’s suit
should be dismissed because no actual controversy could
exist. Id. at 591-92, 318 S.E.2d at 413. The Cupps
responded by noting that “[t]heir request that their
application be denied never was intended to end the
controversy . . . but to lay the predicate for court
review.” Id., 318 S.E.2d at 413.
Despite the fact that the Cupps requested denial of
their own application, this Court held that “this [was]
a classic example of a case contemplated by the
Declaratory Judgment Act.” Id. at 592, 318 S.E.2d at
19
413. “[T]he Cupps were uncertain about what would
happen the moment their application was approved” and
“did not want to run the risk of losing” their
grandfathered status. Id., 318 S.E.2d at 413. “Such a
situation is what declaratory judgment is aimed at
avoiding.” Id., 318 S.E.2d at 413. Indeed, “the intent
of the act is to have courts render declaratory
judgments which may guide parties in their future
conduct in relation to each other.” Id., 318 S.E.2d at
413 (quoting Liberty Mutual Ins. Co. v. Bishop, 211 Va.
414, 421, 177 S.E.2d 519, 524 (1970)) (emphasis
original). In short, declaratory judgment “permit[s]
the declaration of those rights before they mature.”
Id., 318 S.E.2d at 413.
In Cupp, the government’s position was similar to
that put forward by the Board here, which the Circuit
Court erred in accepting, that a plaintiff could not
challenge the government actions or authority to enact
something unless the government had imposed some
restriction or applied some punishment for violation of
the challenged law or policy. Id. at 593, 318 S.E.2d at
20
413-14. This Court rejected that precise conclusion in
Cupp. “[A]lthough the Board is correct in stating that
it had not yet imposed the restrictions and conditions
on the Cupps, it claimed it had the power to do so and
this claim of power threatened the Cupps. Thus, a
controversy, within the contemplation of the
Declaratory Judgment Act, existed.” Id., 318 S.E.2d at
413 (emphasis added).
Jack Doe’s claims are virtually identical to those
this Court found sufficient for declaratory relief in
Cupp. Indeed, his claims are even stronger. The Board
not only claimed it had the authority to enact its
revisions to the non-discrimination policy and student
handbook – revisions which are contrary to state law in
violation of Dillon’s Rule – but it actually did enact
such revisions. (Transcript at 4-5). As a result, Jack
Doe suffered significant injury and harm to his
constitutional right to education and privacy to the
point he alleged that he could not fully and fairly
participate in his education. (Id. at 21, 24).
21
Yet, just as the government did in Cupp, the Board
claims that any challenge to its authority is purely
speculative and hypothetical until the Board actually
imposes some sort of punishment on Jack Doe under the
new and unauthorized revisions. (Id. at 14). But,
Petitioners challenged the very authority the Board
claims it has and upon which the Board revised the non-
discrimination policy. Thus, just as in Cupp, “although
the Board is correct in stating that it had not yet
imposed the restrictions and conditions on [Jack Doe],
it claimed it had the authority to do so and this claim
of power threatened [and immediately harmed] [Jack
Doe].” Cupp, 227 Va. at 593, 318 S.E.2d at 413.
The Circuit Court’s error is also made plain by
this Court’s decision in Bd. of Supervisors of James
City Cnty. v. Rowe, 216 Va. 128, 216 S.E.2d 199 (1975).
There, the County enacted new zoning regulations
imposing severe restrictions on the property of certain
landowners. Rowe, 216 Va. at 130-31, 216 S.E.2d at 203.
The Rowes challenged the enactments as unconstitutional
and ultra vires. Id., 216 S.E.2d at 204.
22
As the Board did here, the County argued that such
an action failed to state an actual controversy because
no action had been taken against the landowners yet.
Nevertheless, as in Cupp, this Court stated that such a
claim was squarely within the contemplation of the
declaratory judgment statute. Id. at 132, 216 S.E.2d at
205. Indeed, “[t]he legality of an ordinance is tested
not only by what has been done under its provisions,
but what may be done thereunder.” Id., 216 S.E.2d at
205. (emphasis added). When a plaintiff challenges a
local government’s enactment as unconstitutional and
ultra vires, and alleges that he has suffered injury by
virtue of such an enactment, “he has stated a case of
actual controversy.” Id., 216 S.E.2d at 205.
That the Circuit Court erred concerning the actual
controversy between Jack Doe and the Board is made even
more evident by Fairfax Cnty. v. Southland Corp., 224
Va. 514, 297 S.E.2d 718 (1982). There, this Court held
that Southland could litigate the constitutionality of
an ordinance despite never having made any application
under its provisions. Id. at 520, 297 S.E.2d at 721. As
23
did the Board below, the county contended that such a
failure to apply for a special use permit made any such
suit merely a request for an advisory opinion
containing no actual controversy between the parties.
Id., 297 S.E.2d at 720. This Court held that
Southland’s position that is was suffering injury
“simply by being compelled” to comply with an
unconstitutional and unauthorized ordinance was
sufficient to constitute an actual controversy ripe for
declaratory relief. Id. at 520, 297 S.E.2d at 721.
Here, as in Southland, Jack Doe alleged that the
mere existence of the amended non-discrimination policy
– to which the Board admits Jack Doe is subject – has
caused him significant injury in his constitutional
right to education and privacy. (Transcript at 21, 24).
Jack Doe alleged that he is particularly distressed
about the additions to the non-discrimination policy,
that he is terrified and distressed over the fact that
his privacy in the bathrooms is being invaded, that his
fear and anxiety has adversely affected his ability to
participate in and benefit from his constitutional
24
right to education, that his fear has made him believe
that he can no longer regard school as a safe place,
and that because of all of this he is unable to fully
participate in his constitutionally guaranteed right to
education. (Id. at 24)(discussing paragraphs 70-75 of
Petitioner’s Verified Complaint).
Petitioners’ claims also mirror those in Portsmouth
Restaurant Association. There, “the plaintiff claim[ed]
the arbitration award and the order of the War Labor
Board [were] without force and effect. The defendant
has asked the Labor Board to give them force and
effect.” Portsmouth, 183 Va. at 762-63, 33 S.E.2d at
221. In effect, the entire dispute concerned the
authority of the Board to issue a certain order, with
one side claiming the authority was valid and the other
claiming it was invalid. Id., 33 S.E.2d at 221. This
Court held that such a claim “constitutes an actual
antagonistic assertion and denial of a right” and
therefore “alleges an actual controversy between them.”
Id., 33 S.E.2d at 221.
25
Petitioners’ claims are unquestionably comparable
to those at issue in Cupp, Rowe, Southland Corporation,
and Portsmouth. Jack Doe is challenging the Board’s
authority to enact the regulations to which he is
subject and to impose any punishments or restrictions
on him as a result of the amendments, which this Court
held sufficient to establish an actual controversy in
Cupp. Cupp, 227 Va. at 593, 318 S.E.2d at 414. Jack Doe
is challenging not what has been done under the Board’s
amendments, but what may be done thereunder, which
creates an actual controversy sufficient for
declaratory relief under this Court’s holding in Rowe.
Rowe, 216 Va. at 132, 216 S.E.2d at 205.
Additionally, Jack Doe alleges that the mere
existence of such modifications to the non-
discrimination policy and student handbook are causing
him injury (Transcript at 24), which this Court held
was sufficient to create an actual controversy in
Southland Corporation. Southland, 224 Va. at 520, 297
S.E.2d at 721. Finally, Petitioners have asserted a
claim that the Board was without authority to enact the
26
revisions to the policy, which this Court held in
Portsmouth was sufficient to constitute an actual
controversy. Portsmouth, 183 Va. at 762-63, 33 S.E.2d
at 221. As these cases demonstrate, the Circuit Court
erred in finding that Jack Doe’s allegations failed to
create an actual controversy. This Court should grant
review to correct the Circuit Court’s error.
III. THE CIRCUIT COURT ERRED IN CONCLUDING THAT JOHN DOE AND JANE DOE FAILED TO ALLEGE AN ACTUAL CONTROVERSY AS PARENTS AND NEXT FRIENDS OF JACK DOE.
(Assignment of Error No. 3)
A. The Standard of Review is De Novo.
As was true of the other assignments or error, the
standard of review is de novo. Cline v. Dunlora South,
LLC, 284 Va. 102, 106, 726 S.E.2d 14, 16 (2012).
B. The Alleged Injuries of Jack Doe in the Complaint Provide An Actual Controversy for John and Jane Doe as Next Friends.
The Circuit Court erred by failing to recognize the
independent and sufficient basis for the standing of
John and Jane Doe as next friends and parents of Jack
Doe. In fact, the Circuit Court focused only on their
status as taxpayers, and dismissed their claims without
27
any mention of their independent claim to standing via
their status as next friends. (Transcript at 30).
Virginia’s next friend statute provides that “[a]ny
minor entitled to sue may do so by his next friend.
Either or both parents may sue on behalf of a minor as
his next friend.” Va. Code § 8.01-8; Herndon v. St.
Mary’s Hospital, Inc., 266 Va. 472, 477, 587 S.E.2d
567, 570 (2003) (“parents may initiate a single action
as their child’s next friend”). As this Court has
noted, “an action for the benefit of a minor child must
be brought in the name of the child by a next friend
because the established rule is that the minor child,
not the next friend, is the real party in interest in
such an action.” Estate of James v. Peyton, 277 Va.
443, 454, 674 S.E.2d 864, 869 (2009) (internal
quotation marks omitted).
Here, the Circuit Court’s only basis for dismissing
the claims of the next friends and parents of Jack Doe
was their separate taxpayer standing claims.
(Transcript at 30). But, John and Jane Doe’s injuries
as next friends arise directly from the injuries of
28
Jack Doe, the real party in interest. Herndon, 266 Va.
at 477, 587 S.E.2d at 570. This Court should grant
review to correct the Circuit Court’s error.
IV. THE CIRCUIT COURT ERRED IN CONCLUDING THAT JOHN DOE, JANE DOE, AND ANDREA LAFFERTY DID NOT HAVE TAXPAYER STANDING TO CHALLENGE THE ACTIONS OF THE LOCAL GOVERNMENT SCHOOL BOARD IN THE COUNTY IN WHICH THEY RESIDE AND PAY TAXES.
(Assignment of Error No. 4) A. The Standard of Review is De Novo.
Issues of standing, including a litigant’s standing
as a taxpayer/citizen, are questions of law that this
Court reviews de novo. See, e.g., Kelley v. Stamos, 285
Va. 68, 73 737 S.E.2d 218, 220 (2013).
B. John Doe, Jane Doe, and Andrea Lafferty Have Taxpayer Standing to Pursue The Injuries Alleged in their Complaint.
As this Court has recognized numerous times,
“taxpayers have the right to resort to equity to
restrain local government officials from exceeding
their powers in any way which will injuriously affect
the taxpayers.” Gordon v. Bd. of Supervisors of Fairfax
Cnty., 207 Va. 827, 830, 153 S.E.2d 270, 273 (1967).
”Taxpayer’s suits to test the legality of expenditures
29
by local governments are permitted in virtually every
state.” Id. at 831, 153 S.E.2d at 273.
The Circuit Court erred by failing to recognize the
sufficient interest that Petitioners have in the
expense of local taxpayer funds in the District. “[A]
party has standing to initiate litigation if the party
has sufficient interest in the subject matter to ensure
that the litigants will be actual adversaries and that
the issues will be fully and faithfully developed.”
Goldman v. Landslide, 262 Va. 364, 371, 552 S.E.2d 67,
71 (2001).
Petitioners here are taxpayers and citizens of the
District with a sufficient interest in the outcome of
this case involving their local school board. Indeed,
taxpayers “may challenge the legality of certain
actions of a local government and its expenditures,
because the interest of a citizen in matters of local
government is direct and immediate, rather than remote
and minute.” Id. at 373, 552 S.E.2d at 72. (emphasis
added). It is this “direct and immediate interest of
the citizen in the operation of local government [that]
30
permits these citizen or taxpayer challenges.” Id., 552
S.E.2d at 72. Here, given that their son is a student
in the District and is directly impacted by all
decisions of the Board, it would be virtually
impossible to find a more directly interested party
than John and Jane Doe. The Does’ fundamental rights as
parents 1 are unquestionably impacted by the decisions
affecting the educational system in which their son is
a student, which clearly makes them sufficiently
interested and directly impacted to merit taxpayer
standing. The Circuit Court erred by failing to
recognize John and Jane Doe’s standing.
Moreover, this Court has specifically acknowledged
and permitted plaintiffs to bring Dillon’s Rule
challenges to the actions of local government solely on
the basis of their taxpayer standing. See, e.g.,
Arlington Cnty. v. White, 259 Va. 708, 528 S.E.2d 706
(2000) (determining a Dillon’s Rule challenge against a
1 See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000) (noting that parents have a fundamental right to direct the upbringing and education of their child, and that this “is perhaps the oldest of the fundamental liberty interests recognized by this Court”).
31
local government body based solely on plaintiffs’
standing as taxpayers); id. at 711; 528 S.E.2d at 708
(“Holding that Arlington County’s coverage for domestic
partners in its self-funded health benefit plan for
County employees violates the Dillon Rule, the trial
court granted the Taxpayer’s motion for summary
judgment); see also Concerned Taxpayers of Brunswick
Cnty. v. Cnty. of Brunswick, 249 Va. 320, 331, 455
S.E.2d 712, 718 (1995) (noting that taxpayers have
standing to challenge ultra vires government actions
under the Dillon’s Rule if the complaint alleges that
government exceeded its authority).
Other Virginia courts, including the Circuit Court
from which this Petition arises, have also entertained
or allowed Dillon’s Rule challenges by taxpayers. See,
e.g., Bono Film & Video, Inc. v. Arlington Cnty. Human
Rights Comm., 72 Va. Cir. 256 (Va. Cir. Ct. 2006)
(declining to exercise jurisdiction over the taxpayer
plaintiffs’ Dillon’s Rule challenge, but only because
the government had voluntarily revoked the non-
discrimination ordinance prior to the circuit court’s
32
adjudication of the merits of the challenge);
Karunakarum v. Town of Herndon, 70 Va. Cir. 208 (Va.
Cir. Ct. 2006) (permitting a challenge to a town’s
actions to be brought in the Circuit Court of Fairfax
County based solely on taxpayer standing).
Moreover, as this Court has repeatedly held,
including in a lawsuit brought against Respondent here,
local school boards are subject to Dillon’s Rule
challenges. See, e.g., Payne v. Fairfax Cnty. Sch. Bd.,
288 Va. 432, 437-38, 764 S.E.2d 40, 44 (2014); Bd. of
Zoning Appeals of Fairfax Cnty. v. Bd. of Supervisors
of Fairfax Cnty., 276 Va. 550, 554, 666 S.E.2d 315, 317
(2008); Sch. Bd. of Amherst Cnty. v. Burley, 225 Va.
376, 302 S.E.2d 53 (1983); Kellam v. Sch. Bd. of City
of Norfolk, 202 Va. 252, 117 S.E.2d 96 (1960).
Thus, if this Court permits taxpayer Dillon’s Rule
challenges, and Dillon’s Rule is applicable to school
boards, then Dillon’s Rule challenges to school board
actions based on taxpayer standing must be permissible
as well. The Circuit Court’s contrary finding was in
error, and this Court should grant review.
33
V. THE CIRCUIT COURT ERRED IN DISMISSING THE COMPLAINT WITHOUT EVER AFFORDING PLAINTIFFS THE OPPORTUNITY TO AMEND.
(Assignment of Error No. 5)
A. The Standard Of Review Is Abuse Of Discretion. A circuit court’s decision to deny leave to amend a
complaint is reviewed for an abuse of discretion. See
Bennett v. Sage Payment Solutions, Inc., 282 Va. 49,
55, 710 S.E.2d 736, 739 (2011).
B. The Circuit Court Abused Its Discretion By Denying Plaintiffs An Opportunity To Amend the Complaint.
“Leave to amend shall be liberally granted in
furtherance of the ends of justice.” Rule 1:8 (emphasis
added). While leave to amend rests in the discretion of
the trial court, failure to grant leave is an abuse of
discretion if the other party would not be prejudiced
by the filing of such an amendment. Kole v. City of
Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409 (1994);
Ford Motor Co. v. Benitez, 273 Va. 242, 252, 638 S.E.2d
203, 208 (2007) (“[A]mendments are not a matter of
right, but a trial court’s decision refusing leave to
34
amend after a showing of good cause is, in ordinary
circumstances, an abuse of discretion.).
Indeed, “[d]ismissal of an action with prejudice is
a drastic punishment.” See, e.g., Jenkins v. Webb, 47
Va. App. 404, 410, 624 S.E.2d 115, 118 (Va. Ct. App.
2006). Despite all of this, the Circuit Court refused
to grant Petitioners any opportunity to amend.
(Transcript at 31). In fact, the Circuit Court’s
transgression of these entrenched principles was worse
than simply denying leave to amend. Here, the Circuit
Court dismissed Petitioners’ Complaint with prejudice
and then declined to even afford Petitioners the
opportunity to file a motion for leave to amend. (Id.)
(“I am going to decline to give you the opportunity to
file a motion to amend in this case.”). Thus, not only
were Petitioners not afforded an opportunity to amend –
which should be liberally granted – but the Circuit
Court failed to even give Petitioners an opportunity to
ask for leave to amend their Complaint. (Id.)
If, as this Court has made evident in Kole and
Benitez, refusal to grant leave to amend is an abuse of
35
discretion after a showing of good cause, then
certainly failure to give a party an opportunity to
even file a motion requesting leave to amend must
exceed the scope of the Circuit Court’s discretion. If
the Circuit Court believed that Petitioners’
allegations regarding standing and injury were
insufficient, the remedy should have been leave to
amend, buttress, and clarify those allegations, which
Petitioners can and stand ready to do. Instead, the
Circuit Court erred by imposing the drastic punishment
of dismissal with prejudice of a first Complaint, as a
first, not last resort, without leave to amend even
once. This Court should grant review to correct that
substantial and prejudicial error.
CONCLUSION
For the foregoing reasons, this Court should grant
review to correct the errors of the Circuit Court.