ANDREA LAFFERTY, ET AL. v. SCHOOL BOARD OF FAIRFAX COUNTY
Record No. 160777
Supreme Court of Virginia
April 13, 2017
OPINION BY SENIOR JUSTICE LEROY F.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Brеtt A. Kassabian, Judge
PRESENT: Lemons, C.J., Mims, Powell, McClanahan, Kelsey, and McCullough, JJ., and Millette, S.J.
This appeal concerns standing under the Declaratory Judgment Act,
I. FACTS AND PROCEEDINGS
As this case was decided on a motion to dismiss for lack of standing, the relevant fаcts are the allegations as pled in the complaint.
This lawsuit was initiated by Andrea Lafferty, John and Jane Doe in their individual capacities, and their minor son, Jack Doe, by and through his parents as next friends. The action sought a declaratory judgment and preliminary and permanent injunctive relief against the Fairfax County School Board (“the Board“) for the allegedly unlawful expansion of its non-discrimination and student code of conduct policies.
On November 6, 2014, the Board voted to add the category of “sexual orientation” to its non-discrimination policy. On May 7, 2015, the Board also voted to add the category of “gender identity” to its non-discrimination policy, and to add “gender identity” and “gender expression” discrimination to the list of offenses in the student handbook for which students can be suspended from school.
Plaintiff Andrea Lafferty is a citizen, taxpayer, and resident of Fairfax County. She is president of the Traditional Values Coalition and “has researched and analyzed Defendant‘s policymaking” and has “provided to Defendant board members the results of her research, including the deleterious consequences of acting without legislative authorization.”
Plaintiff Jack Doe is a minor and is a high school student in the Fairfax County Public Schools, who appears by and through his parents as next friends. Plaintiffs John and Jane Doe are Jack‘s parents, citizens, taxpayers, and residents of Fairfax County.
In describing the “Nature of the Action,” plaintiffs ask “this Court to halt Defendant‘s attempt to introduce a new, undefined, experimental classification into the non-discrimination policy and student handbook” because “Defendant‘s actions were void ab initio under
The complaint alleges Jack Doe is: (1) “distressed” because he “has no idea what words or conduct might be interpreted as discriminating on the basis of ‘gender identity,’ and therefore does not know what
The complaint states that an actual controversy exists “in that Plaintiffs assert that Defendant‘s actions . . . [are] ultra vires and void ab initio while Defendant asserts that it has the authority to expand its non-discrimination policy,” аnd “in that Plaintiffs assert that . . . subjecting students to discipline without proper notice of the conduct for which they can be suspended exceeds Defendant‘s authority under Virginia law, while Defendant asserts that it can consistent with Virginia law insert the terms ‘gender identity’ and ‘gender expression’ into the student handbook and subject students to discipline.”
The Board filed a “Motion to Dismiss and Demurrer,” arguing that the only statute that authorizes a court to determine whether a school board‘s actions comply with Virginia law is
After considering briefs and argument, the circuit court concluded that Andrea Lafferty and the Does individually lacked taxpayer standing, and that Jack Doe lacked standing because the court did “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 a right that gives him access to the declaratory judgment powers and the injunctive relief powers that this court possesses.” The circuit court dismissed without leave to amend, observing that, if Jack was disciplined, he at that time could attempt to appeal any action of the Board to the circuit court as an “aggrieved” party under
II. DISCUSSION
“A plaintiff has standing to institute a declaratory judgment proceeding if it has a ‘justiciable interest’ in the subject matter of the proceeding, either in its own right or in a representative capacity. In order to have a ‘justiciable interest’ in a proceeding, the plaintiff must demonstrate an actual controversy between the plaintiff and the defendant.” W.S. Carnes, Inc. v. Board of Supervisors, 252 Va. 377, 383, 478 S.E.2d 295, 299 (1996) (citations omitted). This requirement is explicitly set forth in the statute authorizing declaratory judgment actions, empowering circuit courts “to make binding adjudications of right” in “cases of actual controversy” where there is an “actual antagonistic assertion and denial of right.”
A. Individual Standing: Jack Doe, by and through John Doe and Jane Doe, his parents as next friends
As an initial matter, the plaintiffs allege that fair inferences were not taken in favor of
“The declaratory judgment acts do not create or change any substantive rights, or bring into being or mоdify any relationships, or alter the character of controversies, which are the subject of judicial power.” Williams v. Southern Bank of Norfolk, 203 Va. 657, 662, 125 S.E.2d 803, 807 (1962) (citation omitted). “The intent of the declaratory judgment statutes is not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature.” Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414, 421, 177 S.E.2d 519, 524 (1970). However, when the “actual оbjective in the declaratory judgment proceeding is a determination of a disputed issue rather than an adjudication of the parties’ rights, the case is not one for declaratory judgment.” Charlottesville Area Fitness Club Operators Ass‘n v. Albemarle Cnty. Bd. of Supervisors, 285 Va. 87, 99, 737 S.E.2d 1, 7 (2013) (internal quotation marks, alterations, and citation omitted).
This complaint fails to set forth a controversy “that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment.” Id. at 98, 737 S.E.2d at 6-7 (citation omitted) (emphases added).
First, the complaint fails to allege actual or potential injury in fact based on “present rather than future or speculative facts.” Id. The complaint alleges only that Jack Dоe fears that the policy might involve the use of his bathroom or locker room by a transgender student. Jack‘s sharing of a bathroom or locker room by a transgender student is, however, a purely speculative fact. It is not clear what, if any, bathroom policies are being implemented, or even that Jack attends school with a single transgender student. Similarly, Jack alleges that he is “distressed” about how his words might be misinterpreted and thinks cautiously about his speech. Yet Jack does not allege any present facts that would place him in violation of the policy, rendering any injury purely speculative. While Jack alleges general “distress” in his educational environment, this “distress” appears to be due to the еxistence of the policy out of a general fear that he might be disciplined for an inadvertent action. There is no connection with an articulated injury that Jack is suffering or will suffer based on the present facts as pled. We are left with Jack‘s bald assertion of fear of discipline without any alleged predicate facts to form the basis for such а fear. While we do not reach the question of what must be pled to establish an actual controversy, the injury pled here is insufficient because general distress over a general policy does not alone allege injury sufficient for standing, even in a declaratory judgment action.
Additionally, the complaint fails to assert “specific adverse clаims” of right: the complaint did not seek a declaration of a specifically identified or actionable right belonging to Jack Doe. None of the cited education statutes relating to the authority of the school board under Title 22.1 provide a private right of action. “When a statute is silent . . . we have no authority to infer a statutory private right of aсtion without demonstrable evidence that the statutory scheme necessarily implies it.” Cherrie v. Virginia Health Services, 292 Va. 309, 315, 787 S.E.2d 855, 858 (2016). Similarly, “we do not infer a private right of action when the General Assembly expressly provides for a different method of judicial enforcement.” Id.
If Jack Doe had standing, his parents could bring the action as next friends of their son, as Jack Doe would be the party in interest. Estate of James v. Peyton, 277 Va. 443, 454, 674 S.E.2d 864, 869 (2009). In this case, however, the complaint as pled failed to allege an actual controversy, and Jack Doe therefore lacked standing to bring a declaratory judgment action in the circuit court.
B. Taxpayer Standing: Lafferty and the Does
Both Lafferty and the Does in their individual capacity are identified as residents and taxpayers, and they seek to bring the action based upon taxpayer standing.
In Goldman v. Landsidle, 262 Va. 364, 552 S.E.2d 67 (2001), this Court considered the issue of local taxpayer standing when no individual injury was alleged separate from the public at large. This Court recognized such taxpayer standing is “premised on the peculiar relationship of the taxpayer to the local government that makes the taxpayer‘s interest in the application of municipal revenues direct and immediate,” giving local taxpayers a personal stake in the outcome of the controversy. Id. at 372, 552 S.E.2d at 71 (internal quotation marks and citation omitted). As a result, local taxpayers possess the common law right “to challenge the legality of expenditures by local governments,” distinct from federal or state standing requirements. Id.
Importantly, the common thread in the line of precedent cited in Goldman relies on that key element: the connection to government expenditures. See, e.g., Burk v. Porter, 222 Va. 795, 798, 284 S.E.2d 602, 604 (1981); Armstrong v. County of Henrico, 212 Va. 66, 76, 182 S.E.2d 35, 42 (1971); Gordon v. Board of Supervisors of Fairfax Cnty., 207 Va. 827, 830-31, 153 S.E.2d 270, 273 (1967); Appalachian Elec. Power Co. v. Town of Galax, 173 Va. 329, 332-33, 4 S.E.2d 390, 392 (1939) (all allowing taxpayer standing to challenge local government expenditures or agreements concerning expenditures). The complaint in the instant case lacks allegations of costs or expenditures connected to the policies implemented by the Board. Indeed, the sole reference to monetary costs can be found where the complaint states that Lafferty presented evidence to the school board of the costs of defending the Board‘s actions in court. The cost of potential litigation to vindicate a policy, while a potential expense related to any action by a school board, is not a government expenditure authorized by the policy itself.
The plaintiffs request that this Court infer costs accompanying a policy change, and to consider сosts of implementing the policy. This we cannot do. First, allegations of revenue expenditures have not been pled, and any inferences as to revenue expenditures would be wholly speculative on the part of this Court. Furthermore, under such a theory, any government policy would be subject to challenge by any taxpayer due to even nominal costs of implementation. Taxpayer standing is based on a special relationship between local taxpayers and local revenue expenditures, thereby creating a “direct and immediate” relationship; taxpayer standing does not open the door to challenge any local government action. Goldman, 262 Va. at 372, 552 S.E.2d at 71 (citations omitted).
We have said that tаxpayer standing does not provide a plaintiff standing “upon his bare position as a taxpayer of the city and his assertion that the zoning ordinance was invalid vis-a-vis the city‘s claim that it was valid.” City of Fairfax v. Shanklin, 205 Va. 227, 230, 135 S.E.2d 773, 776 (1964). Here, the complaint makes clear that the standing of Lafferty and the Does in their individual capacity would be based on nothing other than their “bare position as . . . taxpayer[s]” and their assertion that the policy of the Board is invalid—in this case, ultra vires—vis-à-vis the Board‘s claim that it was valid. Id. In Shanklin, this Court went on to conclude that the “situation presented . . . is nothing more than a difference of opinion between a taxpayer and his government,” and not an actual controversy. Id. at 231, 135 S.E.2d at 777. The same is true here.
Furthermore, the various additional facts claimed by Lafferty and the Does individually—that Lafferty was involved in providing information to the Board in its decision making
In Shanklin, this Court stated that “the plaintiff‘s case, revealed in its true nature, is but a wholesale, broadside assault upon the city‘s zoning ordinance, bereft of a single real complaint of injury, or threatened injury.” Shanklin, 205 Va. at 230, 135 S.E.2d at 776. Here, as in Shanklin, “[a] controversy is not created by taking a position and then challenging the government to dispute it.” Id. at 231, 135 S.E.2d at 777. Neither Lafferty nor the Does may claim taxpayer standing.
C. Dismissal without Leave to Amend
The final assignment of error granted by this Court was that “The Circuit Court erred in dismissing the Complaint without ever affording Plaintiffs the opportunity to amend.”
Plaintiffs do not mention leave to amend in thеir opening brief nor advance any explanation as to how they would have amended their complaint to allege a justiciable controversy in which a specific adverse claim based upon present facts would make their case ripe for judicial determination. Instead, they argue, under this assignment of error, that they are entitled to a merits analysis before this Court despite the fact that the merits of the case were not adjudicated by the trial court. The reply brief merely reiterates the position of the opening brief.
This Court requires that “[t]he opening brief . . . must contain,” among other elements, “[t]he standard of review, the argument, and the authorities relating to each assignment of error.” Rule 5:27(d). Absent argument and authority, an assignment of error is deemed to be abandoned. Andrews v. Commonwealth, 280 Va. 231, 252, 699 S.E.2d 237, 249 (2010); Teleguz v. Commonwealth, 273 Va. 458, 471, 643 S.E.2d 708, 717 (2007). Accordingly, we find this assignment of error abandoned, and will not consider it.
III. CONCLUSION
As the parties failed to allege an actual controversy sufficient to bring a declaratory judgment action, they likewise may not recover the injunctive relief requested therein. For the reasons stated, we will affirm the judgment of the circuit court.
Affirmed.