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: court@LC.org Phone: (407) 875-1776 Fax: (407) 875-0770 Email: dschmid@LC.org

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.