This аppeal involves a constitutional challenge to certain contractual agreements between the Commonwealth of Virginia and the Metropolitan Washington Airports Authority concerning the Dulles Toll Road. The sole issue is whether the circuit court erred in sustaining demurrers and pleas in bar asserting sovereign immunity. Because we conclude that certain constitutional provisions are self-executing and thus waive the Commonwealth's sovereign immunity, we will reverse in part the circuit court's judgment.
A. Standard of Review
"`Where no evidence is taken in support of a plea in bar, the trial court, and the appellate court upon review, consider solely the pleadings in resolving the issue presented.'"
Niese v. City of Alexandria,
B. The Parties 1
The appellants, Patrick R. Gray and James W. Nagle, are both residents of Fairfax County and allege that they are frequent users of the Dulles Toll Road. The appellees include several entities and officials of the Commonwealth: the Commonwealth Transportation Board, the Virginia Department of Transportation (VDOT), thе Virginia Secretary of Transportation, and the Virginia Commissioner of Transportation. For purposes of this opinion, we will refer to these appellees as "the Commonwealth Defendants."
The Metropolitan Washington Airports Authority (MWAA) is also an appellee. The MWAA is a regional public entity established by an interstate compact, which was approved by the United States Congress in 1986.
See
C. Historical Background
On September 7, 1950, the United States Congress enacted legislation authorizing "the construction, protection, operation, and maintenance of a public airport in or in the vicinity of the District of Columbia." Pub. L. 81-762,
On March 24, 2006, the Secretary of Transportation executed a Memorandum of Understanding (MOU) between the Commonwealth of Virginia and the MWAA concerning the Dulles Corridor Metrorail Project 2 (Metrorail Project) and the Dulles Toll Road. The MOU recites that the Dulles Toll Road wаs "constructed upon property owned by the federal government and leased to [the MWAA], pursuant to several deeds of easement to the Commonwealth of Virginia for the construction of the Dulles Toll Road." In the MOU, the parties agreed that the Commonwealth, acting through VDOT and the Commonwealth Transportation Board, "will transfer possession and control over the Dulles Toll Road right-of-way and all improvements thereto to the [MWAA]," that the MWAA will assume all operational, maintenance, toll-setting, toll-collection, debt, and financial responsibility for the Dulles Toll Road, and that the MWAA will construct certain phases of the Metrorail Project. Pursuant to the MOU, the Commonwealth agreed to transfer to the MWAA funds dedicated for the design and construction of the Metrorail Project and revenues collected from operation of the Dulles Toll Road. Finally, the MOU provides that "[r]evenues collected from the Dulles Toll Road shall be used for any and all costs related to the operation, maintenance and debt service of the Dulles Toll Road, and the design, construction and financing of the Dulles Corridor Metrorail Project."
On December 29, 2006, the VDOT and the MWAA entered into the first of several agreements contemplated by the MOU. Among other things, the agreement transferred to the MWAA the authority to set toll rates for the Dulles Toll Road.
D. The Controversy
On January 11, 2007, Gray and Nagle (the Plaintiffs) filed a complaint against the Commonwealth Defendants and the MWAA seeking declaratory and injunctive relief. The Plaintiffs asserted that, without prior authorization from the General Assembly, the Commonwealth Defendants lacked the authority "to convey or transfer valuablе Dulles Toll Road assets ... to MWAA[; and] to delegate or assign to MWAA the responsibility and authority to direct and supervise the operation and maintenance of the Dulles Toll Road," and to "fix[ ] and collect[ ] tolls on the Dulles Toll Road." The Plaintiffs further alleged that "[t]he contracting away, transfer, delegation or assignment ... of taxing power to MWAA pursuant to the December 29, 2006, Agreement [was] an ultra vires act and violates the Constitution of Virginia." They asserted that the power to tax, or in this case, collect tolls, is vested in the General Assembly and that this power may only be delegated "to the governing bodies of counties, cities, towns and regional governments." In support of their position, the Plaintiffs cited Article IV, Section 1 and Article VII, Sections 2, 3, and 7 of the Constitution of Virginia. The Plaintiffs requested that the circuit court declare the MOU and thе December 29, 2006 Agreement "illegal and invalid" and enjoin the implementation of both agreements.
The Commonwealth Defendants and the MWAA responded by filing demurrers and pleas in bar asserting, among other things, that the plaintiffs' claims are barred by the doctrine of sovereign immunity and that the circuit court, therefore, lacked jurisdiction to hear the action. In their memorandum opposing the demurrers and pleas in bar, thе Plaintiffs argued that their complaint alleged *70 not only "violations of the separation of powers clauses of the Virginia Constitution (Article I, [Section] 5 and Article III, [Section] 1)" but also a violation of Article IV, Section 1 pertaining to the delegation of the General Assembly's taxing power. The Plaintiffs claimed that these provisions of the Virginia Constitution are self-executing and thus constitute a waiver of the Commоnwealth's sovereign immunity.
The circuit court sustained the demurrers and pleas in bar and dismissed the complaint. In a letter opinion, which the circuit court incorporated into its final order, the court characterized the Plaintiffs' claims as being rooted in Article IV, Section 1, and Article VII, Sections 2, 3, and 7 of the Virginia Constitution. The circuit court also referenced "the separation of powers clauses of the Virginia Constitution" cited in the Plaintiffs' memorandum in opposition to the pleas in bar, i.e., Article I, Section 5 and Article III, Section 1. The circuit court concluded that these provisions are not self-executing and thus do not constitute a waiver of sovereign immunity. 3
On appeal to this Court, the Plaintiffs assert essentially the same argument as they presented in the circuit court. They contend that the "doctrine [of soverеign immunity] does not bar claims grounded in self-executing provisions of the Constitution." Contrary to the circuit court's holding, the Plaintiffs assert that Article I, Section 5, Article III, Section I, and Article IV, Section 1 of the Virginia Constitution are self-executing provisions and that their claims alleging violations of these constitutional provisions are therefore not barred by the doctrine of sovereign immunity. 4
E. Analysis
"[T]he doctrine of sovereign immunity is `alive аnd well' in Virginia."
Messina v. Burden,
Thus, "as a general rule, the sovereign is immune not only from actions at law for damages but also from suits in equity to restrain the government from acting or to compel it to act."
Hinchey,
The Commonwealth, however, can waive sovereign immunity and consent to being sued in its own courts.
See, e.g., Rector & Visitors of the Univ. of Va. v. Carter,
The Plaintiffs acknowledged during oral argument before this Court that if the constitutional provisions upon which they rely, Article I, Section 5; Article III, Section 1; and Article IV, Section 1, are not self-executing, then their claims alleged in this action are bаrred by the doctrine of sovereign immunity. Thus, the dispositive issue before us is whether these constitutional provisions are self-executing. 5
We begin our analysis by examining the constitutional provisions at issue. Article I, Section 5 provides in relevant part: "That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct." Va. Const. art. I, § 5. Article III, Section 1 states in relevant part: "The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time." Va. Const. art. III, § 1. And, Article IV, Section 1 of the Constitution of Virginia provides, in its entirety: "The legislative power of the Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and House of Delegates." Va. Const. art. IV, § 1.
If a constitutional provision is self-executing, no further legislation is required to make it operative.
Gill v. Nickels,
A constitutional provision is self-executing when it expressly so declares. See, e.g., Va. Const. art. I, § 8. Even without benefit of such a declaration, constitutional provisions in bills of rights and those merely declaratory of common law are usually considered self-executing. The same is true of provisions which specifically prohibit particular conduct. Provisions of a Constitution of a negative character are generally, if not universally, construеd to be self-executing....
*72 ....
A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be employed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.
As the Plaintiffs point out, this Court has held in a long line of cаses that the Virginia constitutional provision prohibiting the General Assembly from enacting any law whereby private property is taken or damaged for public uses without just compensation (currently found in Article I, Section 11) is self-executing and that a landowner may enforce the constitutional right to just compensation in a common law action.
Kitchen v. City of Newport News,
In contrast, we held in
Robb
that Article XI, Section 1 of the Virginia Constitution is not self-executing.
§ 1. Natural resources and historical sites of the Commonwealth
To the end that the people have clean air, pure water, and the use and enjoyment for recreation of adequate public lands, waters, and other natural resources, it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings. Further, it shall be the Commonwealth's policy to protect its atmosphere, lands, and waters from pollution, impairment, or dеstruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.
Va. Const. art. XI, § 1. There, the plaintiff sought to enjoin the Governor of Virginia and the Virginia Department of General Services from demolishing certain state-owned buildings.
None of the constitutional provisions at issue in this case invite such questions of substance and procedure. Article I, Section 5 and Article III, Section 1 are the separation of powers provisions cited by the Plaintiffs. Article I, Section 5 is contained in the Bill of Rights, and such constitutional prоvisions are generally considered to be self-executing.
Robb,
Article IV, Section 1, unlike the previous provisions discussed, is neither contained in the Bill of Rights nor cast in a negative character. However, it does provide a clear rule that the General Assembly, consisting of a House of Delegates and a Senate, shall be vested with the legislative power of the Commonwealth. This constitutional provision needs no further legislation to make it oрerative.
Gill,
"The characterization of a constitutional provision as `self-executing' or not, is generally only a conclusion as to whether the constitutional intent is to provide a presently effective rule, by means of which the right given may be enjoyed and protected and the duties imposed may be enforced without supplementary legislation."
Jacobs v. City of Bunkie,
F. Conclusion
We hold that Article I, Section 5; Article III, Section 1; and Article IV, Section 1 are self-executing constitutional provisions and thereby waive the Commonwealth's sovereign immunity. Because the Plaintiffs do not challenge the circuit court's finding that the doctrine of sovereign immunity applies to the MWAA, our conclusion applies only to the Commonwealth Defendants. Thus, we will reverse the judgment of the circuit court with regard to the Commonwealth Defendants and remand this case for further proceedings.
Affirmed in part, reversed in part, and remanded.
Because the cirсuit court decided this case upon demurrers and special pleas in bar of sovereign immunity without an evidentiary hearing, we will recite the facts as alleged in the pleadings.
McMillion v. Dryvit Systems, Inc.,
The Metrorail Project is for the purpose of expanding the existing metrorail system to Dulles Airport.
The circuit court also concluded that the doctrine of sovereign immunity applies to the MWAA. The court found that the MWAA should be treatеd like a municipality and was performing a governmental function for which it is immune. Alternatively, the court concluded that because the MWAA was in privity of contract with the Commonwealth under the December 29, 2006 Agreement, it shared in the Commonwealth's immunity. On appeal to this Court, the Plaintiffs do not assign error to these rulings; therefore, they will not be reviewed on appeal. Rule 5:17(c).
The Plaintiffs do not discuss Article VII, Sections 2, 3, and 7. Thus, we will not consider those constitutional provisions in our analysis.
See
Rule 5:27;
Elliott v. Commonwealth,
The Plaintiffs' standing to bring this action was not challenged in the circuit court and thus is not a question before this Court.
See Martin v. Ziherl,