McClary v. Jenkins

PRESENT: All the Justices

                                                                     OPINION BY
v. Record No. 191132                                        JUSTICE S. BERNARD GOODWYN
                                                                    October 22, 2020

                             Paul M. Peatross, Jr., Judge Designate
       In this appeal, we consider whether the circuit court erred in dismissing a suit by local

taxpayers for declaratory and injunctive relief, filed against a sheriff and a locality concerning

the sheriff’s cooperation agreement with the federal government, regarding the enforcement of

federal immigration laws.


       On April 24, 2018, the sheriff of Culpeper County, Scott H. Jenkins (Sheriff Jenkins),

entered into an agreement with the United States Immigration and Customs Enforcement (ICE),

a component of the Department of Homeland Security, pursuant to 8 U.S.C. § 1357(g) (the

287(g) Agreement 1). The 287(g) Agreement authorizes Sheriff Jenkins, and his officers, to

interrogate any person they detain about the person’s right to be or remain in the United States,

to serve warrants for immigration violations, to administer oaths and take evidence to complete

alien processing, to prepare charging documents, to issue immigration detainers, and to detain

and transport arrested aliens who are subject to removal to an ICE-approved detention facility.

The 287(g) Agreement also provides that those officers in the Culpeper County Sheriff’s Office

          These agreements are often called “287(g)” agreements because Section 287(g) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, codified at 8 U.S.C.
§ 1357, as amended, authorizes such agreements. See Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996); see also
Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
participating in the operation of the 287(g) Agreement “will exercise their immigration-related

authorities only during the course of their normal duties.”

       On November 28, 2018, having learned that Sheriff Jenkins entered into the 287(g)

Agreement with ICE to enforce federal immigration law, Michael V. McClary (McClary) and

Christina Stockton (Stockton), as residents and taxpayers of Culpeper County, filed a complaint

in the Circuit Court of Culpeper County against Sheriff Jenkins and the Board of Supervisors of

Culpeper County (the Board), seeking declaratory and injunctive relief.

       McClary and Stockton seek to have the courts prohibit the alleged use of local tax

revenue to enforce federal immigration law and assert that use of local funds for that purpose is

unlawful. They state, in their complaint, that the Board “appropriates certain funds” from its

general fund to the sheriff’s office. No specific appropriation regarding the 287(g) Agreement is

alleged, but they assert that the Board had knowledge of Sheriff Jenkins’ intention to enter into

the 287(g) Agreement, and the Board “[did] not restrict[] Sheriff Jenkins’ use of any previous,

current, or future appropriations to prevent him from using local tax revenue to pay for salaries,

costs, and expenses related to the unlawful 287(g) Agreement.”

       In their complaint, McClary and Stockton seek declaratory judgments against Sheriff

Jenkins and the Board. Regarding Sheriff Jenkins, they request that the circuit court declare that

the Sheriff’s entry into the 287(g) Agreement and his use of local funds from Culpeper County in

relation to the 287(g) Agreement are unconstitutional, unlawful, ultra vires, and void ab initio.

Regarding the Board, McClary and Stockton ask the circuit court to declare the Board’s

“appropriation of funds, including local tax revenue,” to Sheriff Jenkins, without any condition

prohibiting those funds being used for enforcement of federal immigration law, to likewise be

unconstitutional, unlawful, ultra vires, and void ab initio. Further, they request that the circuit

court enter preliminary and permanent injunctions preventing Sheriff Jenkins from acting

pursuant to the 287(g) Agreement and enjoining the Board from appropriating funds to his office

without attaching conditions prohibiting the use of such funds for expenses related to the 287(g)


       Sheriff Jenkins and the Board both filed demurrers. In his demurrer, Sheriff Jenkins

argues three reasons as to why McClary and Stockton’s complaint should be dismissed:

(1) federal law preempts state law regarding immigration, (2) McClary and Stockton lack

standing to bring the suit, and (3) McClary and Stockton cannot show that Sheriff Jenkins acted

outside the scope of his duty and authority. The Board argues in its demurrer that McClary and

Stockton lack standing because they failed to identify any specific expenditures or costs, relating

to the 287(g) Agreement, allegedly paid by the Board. The Board also asserts that Sheriff

Jenkins had authority, under federal and state law, to enter into the 287(g) Agreement.

       McClary and Stockton filed pleadings in response to the demurrers. In the conclusions of

both pleadings in response, McClary and Stockton request that the circuit court deny the

demurrers, but ask that if the circuit court grants the demurrers, they be given leave to “file an

amended complaint . . . to address any infirmities the [c]ourt identifies.”

       On July 8, 2019, the circuit court entered a final order sustaining Sheriff Jenkins’ and the

Board’s demurrers, without granting McClary and Stockton leave to amend. In a letter opinion,

the circuit court explained that it was sustaining Sheriff Jenkins’ demurrer because McClary and

Stockton could not demonstrate that the Sheriff acted outside the scope of his duty and authority

in entering into the 287(g) Agreement and taking action under the same. The circuit court relied

on Code §§ 15.2-1609, 15.2-1730.1, and 19.2-81.6, stating that Virginia law authorized Sheriff

Jenkins to enter into the 287(g) Agreement. The circuit court also mentioned that federal law

expressly authorizes such agreements and cited recent Virginia Attorney General opinions as

further support for its ruling. The circuit court stated that because it had found Sheriff Jenkins

acted lawfully, any appropriation by the Board to Sheriff Jenkins was likewise lawful.

       McClary and Stockton appeal.


       As a threshold issue, we will address McClary and Stockton’s standing to maintain the

action they filed. “[A]n action filed by a party who lacks standing is a legal nullity.” Kocher v.

Campbell, 282 Va. 113, 119 (2011). As such, “[s]tanding to maintain an action is a preliminary

jurisdictional issue having no relation to the substantive merits of an action.” Andrews v.

American Health & Life Ins. Co., 236 Va. 221, 226 (1988). Thus, we must analyze whether

McClary and Stockton have standing before considering the merits of their appeal.

       McClary and Stockton argue that they have standing to maintain their suit against Sheriff

Jenkins and the Board because their complaint alleged facts sufficient to establish local taxpayer

standing. They assert that there are no special pleading requirements for local taxpayer suits and

that, like any plaintiff’s complaint, their complaint only has to be made with “sufficient


       McClary and Stockton recognize that local taxpayer suits must make “allegations of

[local] government costs or expenditures connected to” the challenged government action.

Lafferty v. School Bd., 293 Va. 354, 363 (2017). They contend that their complaint satisfies this

“minimal requirement.” McClary and Stockton assert that their complaint sufficiently “explains

how the Board collects their taxes and voluntarily appropriates that local tax money to Sheriff

Jenkins with knowledge that he will use it to enforce federal civil immigration law.” They argue

that they do not need to allege specific local costs or expenditures to establish standing and

contend that such a requirement would be too “hyper-specific” of a standard. We disagree.

       Jurisdictional issues are questions of law, which we review de novo. Westlake Legal

Grp. v. Flynn, 293 Va. 344, 349 (2017).

       Standing requires that a party must show “a personal stake in the outcome of the

controversy.” Goldman v. Landsidle, 262 Va. 364, 371 (2001); Cupp v. Board of Supervisors,

227 Va. 580, 589 (1984) (citation omitted) (“The essence of the standing inquiry is whether the

parties seeking to invoke the court’s jurisdiction have ‘alleged such a personal stake in the

outcome of the controversy . . . .’”). Typically, to establish standing a plaintiff must allege a

particularized injury that is separate from the public at large. See e.g., Friends of the

Rappahannock v. Caroline Cty. Bd. of Supervisors, 286 Va. 38, 48 (2013). However, we have

recognized the existence of local taxpayer standing to challenge expenditures by local

governments, even when no such injury is alleged. See Lafferty, 293 Va. at 363; Burk v. Porter,

222 Va. 795, 797 (1981); Gordon v. Board of Supervisors, 207 Va. 827, 831 (1967).

       We have previously explained that local taxpayer standing in actions against the local

government is permissible because it 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.” Lafferty, 293 Va. at 363 (quoting Goldman, 262 Va. at 372). Thus, local

taxpayers have the common law right “to challenge the legality of expenditures by local

governments.” 2 Id.

         For the purposes of our analysis, we assume without deciding that it is possible for a
taxpayer to maintain an action against a sheriff based solely upon local taxpayer standing.
However, sheriffs are constitutional officers and “[t]heir offices and powers exist independent

       A local taxpayer’s standing is directly tied to the expenditures of the local government.

Id. at 363-64. Consequently, there must be a connection between a local taxpayer’s complaint

and government expenditures for the local taxpayer to have standing to sue. Id.

       We have previously held that local taxpayers have standing to bring suit seeking an

accounting and reimbursement where members of a county’s board of supervisors allegedly

financed an unauthorized cross-country trip from Virginia to California. Burk, 222 Va. at 796-

97. There, the plaintiff-taxpayer identified the illegal expenditures as withdrawals of county

funds to pay for expenses related to the trip. Id. at 797. We have also previously decided that

local taxpayers have standing to bring suit to prevent their county’s board of supervisors from

lending money ($20,000) to the county’s airport authority for preliminary costs related to the

construction of an airport. Gordon, 207 Va. at 828, 831. In more than one instance, we have

also ruled that local taxpayers have standing to challenge the legality regarding a locality’s

issuance of bonds. See Armstrong v. Henrico Cty., 212 Va. 66, 76 (1971) (holding that taxpayers

had standing to challenge an agreement regarding issuance of bonds to finance certain sanitary

district expenditures); Appalachian Elec. Power Co. v. Town of Galax, 173 Va. 329, 333 (1939)

(finding that local taxpayers had standing to prevent the issuance of bonds to finance the

construction of an electric generating plant).

       When a taxpayer challenges a policy, the complaint must do more than identify a policy

that the plaintiff disagrees with. Lafferty, 293 Va. at 364-65. The complaint must contain

“allegations of costs or expenditures connected to the policies implemented” for there to be local

taxpayer standing. Id.

from the local government and they do not derive their existence or their power from it.” Roop
v. Whitt, 289 Va. 274, 280 (2015). Constitutional officers are not agents of nor are they
subordinate to the local government.

       Notably, in Lafferty, a case with striking similarities to the one at hand, we held that

plaintiffs did not have local taxpayer standing to challenge a policy where they did not identify

specific expenditures related to the policy. Id. at 363-65. In that case, a student and his parents

sought a declaratory injunction against the school board for “unlawful expansion of its non-

discrimination and student code of conduct policies.” Id. at 358. However, the student and his

parents failed to identify any costs or expenditures related to the policies complained of; the only

financial costs mentioned by plaintiffs were the costs of defending the Board in court, which we

ruled were insufficient. Id. at 363. There, we ruled that the plaintiffs lacked standing because

they merely “[took] a position and then challeng[ed] the government to dispute it.” Id. at 365.

       Here, the question is whether McClary and Stockton’s allegations that the Board

appropriated funds to the Sheriff generally, and that some of those funds contributed in some

nonspecific and undifferentiated amount in assisting the Sheriff in his execution of the 287(g)

Agreement, are sufficient to establish local taxpayer standing. We find they are not.

       The core of a local taxpayer suit is an expenditure appropriated by the local government

connected to an objectionable act or policy. As discussed above, local taxpayers have an interest

in the application of their revenue and have the common law right to challenge expenditures.

McClary and Stockton have not identified, with sufficient specificity, any additional

expenditures, costs, or appropriations by the local government that would give rise to local

taxpayer standing in this instance. McClary and Stockton do not point to a discrete event,

appropriation or withdrawal, or expenditure of funds, as the plaintiffs did in Burk. There are no

allegations regarding a certain dollar amount or specifics concerning the appropriation of local

tax revenues, which were present in Gordon. Also, there are no bonds at issue, resulting in

ongoing financial obligations, like in Armstrong and Appalachian Electric Power.

       Unlike the plaintiffs in Lafferty, McClary and Stockton do mention costs and

expenditures related to the 287(g) Agreement, but only in broad strokes, without identifying any

discrete appropriation or payment by the local government in support of the policy or actions

they seek to prohibit. McClary and Stockton argue that they pointed to costs and expenditures

with “sufficient definiteness” to survive demurrer, but we find that they did not.

       While Virginia does have minimal requirements for pleading claims in a complaint,

McClary and Stockton merely identified a policy they disagree with and stated that any

expenditures related to that policy were unlawful. We conclude that such vague, speculative,

and conclusory allegations of a connection between the expenditure of local funds and the policy

or action the taxpayer seeks to prohibit do not meet the requirements to establish local taxpayer

standing. Therefore, McClary and Stockton lack standing to initiate this proceeding and we

affirm the circuit court’s dismissal under the right-result-different-reason doctrine. 3 See e.g.,

Haynes v. Haggerty, 291 Va. 301, 305 (2016).


       For the reasons stated, McClary and Stockton lack standing to file this action.

Accordingly, we will affirm the circuit court’s dismissal of the action, without prejudice to any

future action on such a claim if brought by a plaintiff with standing.


          Given our ruling regarding standing, the action filed by McClary and Stockton is a legal
nullity, and the appellants’ assignment of error concerning the circuit court’s failure to grant
them leave to amend that action is moot.

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