813 S.E.2d 331
Va.2018Background
- Marian M. Bragg filed a FOIA enforcement petition against the Rappahannock County Board of Supervisors alleging five closed meetings unlawfully discussed public business (including hiring the County Attorney) and that post-meeting certifications falsely claimed compliance.
- Bragg’s petition incorporated a notarized, written “Acknowledgment” from Board member Ronald L. Frazier admitting the Board discussed non-exempt matters in the closed sessions.
- Bragg also filed a notarized affidavit swearing the petition allegations were true or believed to be true (stating allegations “on information and belief” were believed true).
- The Board moved to dismiss; the circuit court granted dismissal, holding the petition was not supported by an affidavit showing “good cause” as required by Va. Code § 2.2-3713(A), and that the submitted documents were defective (no jurat on the Frazier statement; Bragg’s affidavit did not satisfy Code § 8.01-280 and failed to identify the basis of her information).
- Bragg appealed; the Supreme Court of Virginia reviewed the dismissal de novo and considered the pleadings and exhibits as true for the motion-to-dismiss standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition was "supported by an affidavit showing good cause" under § 2.2-3713(A) | Bragg: her sworn affidavit (stating she believed allegations on information were true) plus Frazier’s written acknowledgment satisfy the statute | Board: Bragg’s affidavit and Frazier document were defective (no jurat on Frazier; affidavit improperly excluded "information" allegations and did not show basis for information) | Court held the petition satisfied § 2.2-3713(A); Bragg’s affidavit complied with § 8.01-280 and, with Frazier’s acknowledgment as an exhibit, showed good cause. |
| Whether Bragg’s affidavit complied with Code § 8.01-280 when allegations were "on information and belief" | Bragg: § 8.01-280 permits an affiant to swear that she believes allegations to be true; her affidavit did so | Board/circuit court: affidavit excluded allegations "on information" and thus failed statutory oath requirements | Court held Bragg’s affidavit complied with § 8.01-280 because it swore personal-knowledge allegations were true and the others were believed true. |
| Whether the Frazier Acknowledgment could be considered though it lacked a jurat/was not an affidavit | Bragg: the Frazier statement was an exhibit incorporated into the pleading and its admissions must be accepted on a motion to dismiss | Board: the document was not a sworn affidavit (no jurat), so it could not supply good cause | Court held the Frazier Acknowledgment, though not an affidavit, was an exhibit to the petition and its admissions must be considered and accepted as true for a motion to dismiss. |
| Whether Frazier was estopped by his prior roll-call certification under § 2.2-3712(D) from later acknowledging noncompliance | Bragg: later admission can be considered; § 2.2-3713(E) prevents courts from deferring to a public body's determination | Board: prior certifications preclude accepting a later contradiction by Frazier | Court held prior certifications do not preclude Frazier’s subsequent acknowledgment; any conflict is evidentiary and not resolved on a motion to dismiss. |
Key Cases Cited
- Virginia Marine Res. Comm’n v. Clark, 281 Va. 679 (standard for treating allegations as true on demurrer/motion to dismiss)
- Harris v. Kreutzer, 271 Va. 188 (pleading allegations and inferences accepted as true on demurrer)
- Flippo v. F & L Land Co., 241 Va. 15 (accompanying exhibits mentioned in pleading are considered part of the pleading)
- Cumbee v. Myers, 232 Va. 371 (explanation of jurat; meaning of "subscribed and sworn to")
- Shareholder Representative Servs. v. Airbus Americas, Inc., 292 Va. 682 (dispositive assignment of error obviates need to address others)
- City of Chesapeake v. Dominion SecurityPlus Self Storage, 291 Va. 327 (same principle regarding dispositive error)