747 S.E.2d 817
Va.2013Background
- Small, in official capacity as clerk of the Circuit Court of Fredericksburg, filed a putative class action in federal court against Fannie Mae and Freddie Mac seeking to enforce Virginia real estate transfer taxes (Code §§ 58.1-801, -802).
- Plaintiff purportedly sought to represent all clerks of court in the Commonwealth and requested, among other relief, a declaratory judgment that defendants are not exempt governmental entities.
- The federal district court certified two questions of Virginia law under Rule 5:40 to determine clerk standing and class representation.
- Code § 58.1-812 requires clerks to collect transfer taxes and Code § 58.1-813 assigns unpaid taxes to the Department for collection; the Department has enforcement powers under Subtitle I, Chapter 18.
- The majority answered the first certified question in the negative, holding clerks lack statutory standing to initiate enforcement actions; the second question was not reached.
- Justice McClanahan concurred in part and dissented in part, proposing that a clerk might have standing to pursue declaratory relief on exemption status, depending on the statutory language and the issue's framing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a clerk of court has statutory standing to sue to enforce real estate transfer taxes | Small claimed authority from 58.1-801/802 and 58.1-812 to collect taxes; asserted ministerial duty plus exemption determination authority | Department has exclusive enforcement authority; clerk collection is ministerial and lacks standing to sue | No; clerk lacks statutory standing to initiate enforcement actions |
Key Cases Cited
- City of Richmond v. SunTrust Bank, 283 Va. 439 (Va. 2012) (tax collection must follow express statutory authority)
- P. Lorillard Co. v. Commonwealth, 129 Va. 74 (Va. 1921) (tax machinery and enforcement delineated by statute)
- First American Title Ins. Co. v. Western Surety Co., 283 Va. 389 (Va. 2012) (exclusive remedies; no implied action beyond statute)
- Giannoutsos (Board of City Norfolk), 238 Va. 144 (Va. 1989) (statutory remedies and standing principles)
- Charlottesville Area Fitness Club Operators Ass'n v. Albemarle Cnty., 285 Va. 87 (Va. 2013) (declaratory relief when rights mature to injury)