United States Court of Appeals For The Fourth Circuit

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 1 of 33 Total Pages:(1 of 35) RECORD NO. 13-7695 In The United States Court of Appeals For The Fourth Circuit SUZANNE BOREN, Guardian of the Person and Conservator of the Estate of Rockie Harold Watts, Plaintiff Appellee, v. NORTHWESTERN REGIONAL JAIL AUTHORITY, Defendant Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA AT HARRISONBURG BRIEF OF AMICUS CURIAE THE LOCAL GOVERNMENT ATTORNEYS OF VIRGINIA, INC. AND THE VIRGINIA MUNICIPAL LEAGUE IN SUPPORT OF APPELLANT AND REVERSAL David P. Corrigan Jeremy D. Capps HARMAN, CLAYTOR, CORRIGAN & WELLMAN Post Office Box 70280 Richmond, Virginia 23255 (804) 747-5200 Counsel for Amicus Curiae THE LEX GROUP 1108 East Main Street Suite 1400 Richmond, VA 23219 (804) 644-4419 (800) 856-4419 Fax: (804) 644-3660 www.thelexgroup.com

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Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 6 of 33 Total Pages:(6 of 35) TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF AMICUS INTEREST... 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW... 2 STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS... 2 STATEMENT OF FACTS... 3 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 I. THE DISTRICT COURT ERRED IN DENYING THE NRJA SOVEREIGN IMMUNITY AND IN DENYING THE MOTION TO DISMISS... 4 A. The Operation Of A Regional Jail Is A Government Function Encouraged By The General Assembly... 4 B. The Doctrine Of Sovereign Immunity Is Alive And Well In Virginia... 5 C. Virginia Law Supports A Balancing Test For Purposes Of Determining Whether The NRJA Was Entitled To Sovereign Immunity... 11 CONCLUSION... 21 REQUEST FOR ORAL ARGUMENT... 21 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE i

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 7 of 33 Total Pages:(7 of 35) CASES TABLE OF AUTHORITIES Page(s) Afzall v. Commonwealth of Virginia, 273 Va. 226, 639 S.E.2d 279 (2007)... 18, 19 Bowman v. Concepcion, 283 Va. 552, 722 S.E.2d 260 (2012)... 9-10 Carter v. Chesterfield County Health Comm n, 259 Va. 588, 527 S.E.2d 783 (2000)... 20 Carter v. Morris, 164 F.3d 215 (4 th Cir. 1999)... 8 City of Chesapeake v. Cunningham, 268 Va. 624, 604 S.E.2d 420 (2004)... 6 City of Richmond v. Richmond Metropolitan Authority, 210 Va. 645, 172 S.E.2d 831 (1970)... 12, 13 City of Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 527 S.E.2d 778 (2000)... 6 Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184 (1991)... 19 Doud v. Commonwealth, 282 Va. 317, 717 S.E.2d 124 (2011)... 7, 9 Franklin v. Richlands, 161 Va. 156, 170 S.E. 718 (1933)... 4, 8 Fry v. County of Albermarle, 86 Va. 195, 9 S.E. 1004 (1889)... 7 ii

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 8 of 33 Total Pages:(8 of 35) Hampton Roads Sanitation District Commission v. Smith, 193 Va. 371, 68 S.E.2d 497 (1952)...passim Heckenlaible v. Virginia Regional Peninsula Jail Authority, No. 4:06cv25, 2006 WL 3196750 (E.D.Va. 2006)... 10, 12 Hoggard v. City of Richmond, 172 Va. 145, 200 S.E. 610 (1939)... 8 Jean Moreau & Associates, Inc. v. Health Center Com n ex rel.county of Chesterfield, 283 Va. 128, 720 S.E.2d 105 (2012)... 8, 11, 20 Ligon v. County of Goochland, 279 Va. 312, 689 S.E.2d 666 (2010)... 6, 18, 19 Mann v. County Bd. of Arlington County, 199 Va. 169, 98 S.E.2d 515 (1957)... 7, 8 Meeks v. Commonwealth, 274 Va. 798, 651 S.E.2d 637 (2007)... 9 Messina v. Burden, 228 Va. 301, 321 S.E.2d 657 (1984)... 6 Niese v. City of Alexandria, 264 Va. 230, 564 S.E.2d 127 (2002)... 6-7, 8 Research Triangle Instite v. Board of Governors of the Fed Reserve System, 132 F.3d 985 (4 th Cir. 1997)... 19 Robertson v. Western Virginia Water Authority, Va., 752 S.E.2d 875 (2014)... 8 Seabolt v. County of Albemarle, 283 Va. 717, 724 S.E.2d 715 (2012)... 7 Slaughter v. Duling, 33 Va. Cir. 476 (City of Richmond 1972)... 8 iii

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 9 of 33 Total Pages:(9 of 35) Virginia Elec. and Power. Co. v. Hampton Redevelopment and Housing Authority, 217 Va. 30, 225 S.E.2d 364 (1976)... 10, 20 York County v. Peninsula Airport Com n, 235 Va. 477, 369 S.E.2d 665 (1988)... 15, 16 STATUTES Va. Code 8.01-195.3... 7 Va. Code 15.2-1303... 1 Va. Code 53.1-71... 4 Va. Code 53.1-95.2... 2, 5 Va. Code 53.1-95.7... 17 Va. Code 53.1-95.9... 17 Va. Code 53.1-95.10... 17 Va. Code 53.1-95.15... 17 Va. Code 58-822... 12 RULES Fed. R. App. P. 29(a)... 1 Fed. R. App. P. 29(g)... 21 OTHER AUTHORITIES 1 McQuillan, Municipal Corporations 128 (Smith s ed. 1940)... 14 62 C.J.S. Municipal Corporations, 5... 14 iv

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 10 of 33 Total Pages:(10 of 35) House Document No. 24, 1991, Appx. A Joint House Resolution No. 20, 1990... 4-5 House Document No. 58, 1993... 5 Restatement, Restitution 75... 14 S. J. Res. 30., Reg. Sess. (Va. 2010)(Left in Senate Rules Committee, February, 16, 2010)... 7 The Federalist No. 81 (Alexander Hamilton) (B.F. Wright ed. 1961)... 19 v

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 11 of 33 Total Pages:(11 of 35) STATEMENT OF AMICUS INTEREST The Local Government Attorneys of Virginia, Inc. ( LGA ) and the Virginia Municipal League ( VML ), pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure, file this amicus-curiae brief with the consent of all parties. The LGA is a non-profit corporation with a membership of more than 650 public and private attorneys in Virginia. The LGA is dedicated to promoting education, professional excellence, and collegiality, while serving as a valuable and unique resource on local government law throughout the Commonwealth. The LGA s members include attorneys who advise and represent 61 counties, 37 cities, 46 towns and several authorities and other special units of local government. The LGA provides information and support in order to assist and enable local government attorneys to perform the duties of their positions. The LGA also actively supports both legislation and litigation which are of significance to Virginia local governments. The VML is a nonprofit, nonpartisan association of political subdivisions of the Commonwealth of Virginia, formed and maintained pursuant to Va. Code 15.2-1303 for the purpose of promoting the interest and welfare of its members as may be necessary or beneficial. The VML consists of 38 cities, 162 towns, and 10 counties. The VML was established in 1905 to improve and assist local governments through legislative advocacy, research, education, and other services. 1

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 12 of 33 Total Pages:(12 of 35) All Virginia counties and cities, and many towns, are eligible to become members of regional jail authorities. Va. Code 53.1-95.2. This appeal presents issues that are important to local governments in the performance of their governmental function of providing correctional facilities throughout the Commonwealth of Virginia. This case concerns and implicates not only the rights of the parties to the case, but also the rights of municipalities, the important public policy issue of sovereign immunity, and the future public policy decisions involving the creation of regional jail authorities in the Commonwealth. The LGA and VML write on brief amicus curiae, because this case presents an important opportunity for this Court to articulate the bounds of the doctrine of sovereign immunity in its application to local governmental entities. The LGA and VML affirm that no counsel for a party authored this brief in whole or in part, and that no person other than amicus, its members, and its counsel made a monetary contribution to its preparation or submission. However, counsel for Appellant is a member of the LGA. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW The LGA and VML adopt Appellant s Statement of the Issues Presented for Review. STATEMENT OF THE CASE AND MATERIAL PROCEEDINGS The LGA and VML adopt Appellant s Statement of the Case. 2

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 13 of 33 Total Pages:(13 of 35) STATEMENT OF FACTS The LGA and VML adopt Appellant s Statement of Facts. SUMMARY OF THE ARGUMENT The district court erred in denying Northwestern Regional Jail Authority ( NRJA ) sovereign immunity from the tort claims that arose out of the operation of the Northwestern Regional Adult Detention Center. There is no dispute that the operation of a jail is a governmental function. Moreover, there is no dispute that the NRJA is a governmental entity that was created for the sole purpose of constructing and operating a jail. The district court misconstrued Virginia law and applied an overly rigid test for determining whether the NRJA was entitled to sovereign immunity. By denying NRJA sovereign immunity, the district court has created an anomaly where every governmental unit operating a jail in Virginia is entitled to sovereign immunity with the exception of a regional jail authority. This result is contrary to the intent of the Virginia General Assembly in enacting legislation which permits local governments to join together to form a regional jail authority for cost and efficiency purposes. The result reached by the district court effectively abrogates well-established common law sovereign immunity for local governments. When considering whether the NRJA is entitled to sovereign immunity while performing a classic governmental function of 3

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 14 of 33 Total Pages:(14 of 35) operating a jail, this Court should apply the balancing approach recognized by the Supreme Court of Virginia. ARGUMENT I. THE DISTRICT COURT ERRED IN DENYING THE NRJA SOVEREIGN IMMUNITY AND IN DENYING THE MOTION TO DISMISS. A. The Operation Of A Regional Jail Is A Governmental Function Encouraged By The General Assembly. The operation of a jail is an essential and core governmental function. Franklin v. Richlands, 161 Va. 156, 158, 170 S.E. 718, 719 (1933). As part of their governmental obligations, counties and cities must construct and operate jail facilities. In fact, courts have the ability to order these localities to construct a correctional facility. Virginia Code 53.1-71. 1 The Virginia General Assembly, concerned with jail overcrowding and the increasing costs associated with constructing and operating correctional facilities, provided an economic incentive for the construction of regional jails. House Document No. 24, 1991, Appx. A 1 When it shall appear to the circuit court of any county or city that there is no jail therein or that the jail of such county or city is insecure, out of repair or otherwise inadequate, it shall be the duty of such court to award a rule in the name of the Commonwealth against the governing body of the county or city to show cause why a writ of mandamus should not issue commanding the governing body to erect a jail for the county or city, or to cause the existing jail of such county or city to be made secure, put in good repair, or rendered otherwise adequate, as the case may be. Va. Code 53.1-71. 4

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 15 of 33 Total Pages:(15 of 35) Joint House Resolution No. 20, 1990. 2 To reduce the costs and expenses associated with constructing and operating a jail facility, the Virginia General Assembly encouraged localities to pool their resources for the construction and operation of these facilities. House Document No. 58, 1993. 3 Specifically, Virginia Code 53.1-95.2 provides that [T]he governing bodies of two or more counties, cities, or towns or a combination thereof may by concurrent ordinances or resolutions or by agreement, create a jail authority. Following the legislature s directive, the Counties of Clarke, Fauquier, and Frederick and the City of Winchester did just that - - created the Northwestern Regional Jail Authority. B. The Doctrine Of Sovereign Immunity Is Alive And Well In Virginia. Suzanne Boren, guardian and conservator of the Estate of Rockie Watts ( Boren ), filed a complaint against NRJA arising out of the provision of medical care to Mr. Watts while he was incarcerated at the Northwestern Regional Adult Detention Center. (JA 16-42). Boren asserted claims of negligence, gross 2 Whereas, statutes governing reimbursement to localities for construction, enlargement, or renovation of jails provide incentives for construction of regional jails rather than jails serving single jurisdictions... 3 While the joint subcommittee encourages localities to address these issues on a regional basis, the purpose of providing an additional financial incentives (in the form of 50 percent capital cost reimbursement) must be limited to consolidating existing jails into regional facilities or regional systems. In so doing, the highest priority must be to solve the most pressing jail overcrowding problems in our urban areas. House Document 58, 1993, p. 11. The Commonwealth should not encourage localities to avoid working out regional solutions with central cities in the name of regional cooperation. Id., p. 13. 5

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 16 of 33 Total Pages:(16 of 35) negligence and willful and wanton conduct against NRJA. (JA 27-32). Although the NRJA moved to dismiss the Complaint on sovereign immunity grounds, the district court determined that sovereign immunity was not available to this governmental entity. (JA 234-237). Contrary to the court s opinion, NRJA is entitled to sovereign immunity from Boren s claims. Sovereign immunity is a rule of social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property, and instrumentalities. City of Chesapeake v. Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004) (quoting City of Virginia Beach v. Carmichael Development Co., 259 Va. 493, 499, 527 S.E.2d 778, 782 (2000)). The doctrine of sovereign immunity serves many purposes. These purposes include protecting the public purse, ensuring the uninterrupted functioning of government, eliminating any public inconvenience and danger that may result from officials being fearful to act, assuring that citizens will continue to accept public employment, and discouraging individuals from improperly threatening or initiating vexatious litigation. Ligon v. County of Goochland, 279 Va. 312, 316, 689 S.E.2d 666, 668 (2010). Accordingly, the doctrine of sovereign immunity is alive and well in Virginia, and the General Assembly does not want the doctrine abolished. Messina v. Burden, 228 Va. 301, 307, 321 S.E.2d 657, 660 (1984); Niese v. City of Alexandria, 264 Va. 230, 564 6

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 17 of 33 Total Pages:(17 of 35) S.E.2d 127 (2002). In fact, as recently as 2010, the Virginia Senate declined to authorize a study by the Joint Legislative Audit and Review Commission of the advisability of partially abrogating the sovereign immunity of Virginia local governments, by making them subject to the Tort Claims Act. See, S. J. Res. 30., Reg. Sess. (Va. 2010) (Left in Senate Rules Committee, February, 16, 2010). At common law, the Commonwealth was immune from liability for torts committed by its officers, employees and agents... [T]hat immunity continues to apply in the absence of a legislative waiver by which the Commonwealth consents to be sued in its own courts. Doud v. Com., 282 Va. 317, 320, 717 S.E.2d 124, 125 (2011) (citations omitted). 4 Counties, as political subdivisions of the Commonwealth, enjoy the same tort immunity as does the Commonwealth. Mann v. County Bd. of Arlington County, 199 Va. 169, 175, 98 S.E.2d 515, 519 (1957); Fry v. Albemarle County, 86 Va. 195, 197-99, 9 S.E. 1004, 1005-1006 (1889). Consequently, a county cannot be sued unless and until that right and liability be conferred by law. Mann, 199 Va. at 174; Seabolt v. County of Albemarle, 283 Va. 717, 724 S.E.2d 715 (2012). Accordingly, it is clearly established in Virginia that 4 In Doud, the Court recognized that with the enactment of the Virginia Tort Claims Act the Commonwealth has waived its sovereign immunity for tort claims in the circumstances to which the statute applies, but the waiver is a limited one. Doud, 282 Va. at 320. However, the Virginia Tort Claims Act, by its express terms, excludes counties and cities from its limited abrogation of immunity. Code 8.01-195.3. 7

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 18 of 33 Total Pages:(18 of 35) the County of Clarke, County of Fauquier and County of Frederick are entitled to sovereign immunity for claims sounding in tort. Similarly, the City of Winchester is also entitled to sovereign immunity for negligence claims arising out of the exercise of governmental functions. See e.g., Robertson v. Western Virginia Water Authority, Va., 752 S.E.2d 875 (2014); Jean Moreau & Associates, Inc. v. Health Center Com n ex rel. County of Chesterfield, 283 Va. 128, 137-140, 720 S.E.2d 105, 110-111 (2012); Niese, 264 Va. 230. When a governmental function is involved, a city is not liable for personal injuries caused by the negligence of the city s officers, agents or employees. Mann, 199 Va. at 174; Niese, 264 Va. at 239. Additionally, the law is settled that a city is immune from liability while performing a governmental function even for acts of gross negligence or intentional torts on the part of its employees. Niese, 264 Va. at 239-40 (holding that municipality is immune from the intentional torts committed by its police officer); Carter v. Morris, 164 F.3d 215, 221 (4 th Cir. 1999). The Supreme Court of Virginia has held that the operation of a jail is a purely governmental function. As such, counties and cities have equal sovereign immunity from claims of injuries to an inmate confined in the jail. Franklin, 161 Va. at 158; see also, Hoggard v. City of Richmond, 172 Va. 145, 200 S.E. 610 (1939); Slaughter v. Duling, 33 Va. Cir. 476 (City of Richmond 1972) (holding 8

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 19 of 33 Total Pages:(19 of 35) City is immune from allegations of negligence in operation of City Jail). Under these well-established principles of sovereign immunity, there is no dispute that Boren could not sue the Counties of Clark, Fauquier or Frederick, or the City of Winchester for the allegations set forth in her Complaint, because each of these entities would be entitled to sovereign immunity. Similarly, a sheriff is entitled to sovereign immunity in the operation of a jail in Virginia. Doud, 282 Va. 317. Except to the limited extent it is abrogated by the Tort Claims Act, the Commonwealth likewise has sovereign immunity from claims arising out of the operation of a correctional facility. Despite the fact that each of these governmental entities is entitled to sovereign immunity for the operation of a jail, the district court held that a regional jail authority is not entitled to the same immunity. The district court s opinion creates a dichotomy in sovereign immunity law and local government liability where the only entity not entitled to sovereign immunity for the operation of a jail facility is a regional jail authority. This is an anomaly that the General Assembly never intended to create through its legislation to encourage localities to create regional jail authorities, and was reached through an overly strict interpretation of Virginia case law. See e.g., Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) ( a statute should never be construed in a way that leads to absurd results. ); Bowman v. Concepcion, 283 Va. 552, 564, 722 9

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 20 of 33 Total Pages:(20 of 35) S.E.2d 260, 267 (2012) (holding we do not believe that the legislature could have intended such a result where the interpretation would effectively defeat the purpose of the code sections at issue as statutes should never be construed in a way that leads to absurd results. ) Governmental entities entitled to the status of municipal corporations are protected by the doctrine of sovereign immunity from tort liability while performing a governmental function. Virginia Elec. & Power Co. v. Hampton Redevelopment and Housing Authority, 217 Va. 30, 33, 225 S.E.2d 364, 367 (1976). The District Court erred when it held that NRJA should not be treated as a municipal corporation for purposes of sovereign immunity. (JA 235, 237). The Court based its decision on the determination that the NRJA did not possess all six attributes of a municipal corporation. (JA 237). 5 The Court relied on Heckenlaible v. Virginia Regional Peninsula Jail Authority, No. 4:06cv25, 2006 WL 3196750, at *1 (E.D.Va. 2006) in reaching its decision. This inflexible approach is contrary to Virginia law and has effectively stripped localities that 5 The six attributes identified include: (1) Creation as a body corporate and politic and as a political subdivision of the Commonwealth; (2) Creation to serve a public purpose; (3) Power to have a common seal, to sue and be sued, to enter into contracts, to acquire, hold and dispose of its revenue, personal and real property; (4) Possession of the power of eminent domain; (5) Power to borrow money and issue bonds which are tax exempt, with interest on such bonds enjoying the same status under tax laws as the interest on bonds of other political subdivisions of the state; (6) Management of the corporation vested in a board of directors or a commission. 10

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 21 of 33 Total Pages:(21 of 35) chose to create a regional jail authority of sovereign immunity in the operation of a governmental function. This decision is a disincentive for local governments to participate in regional jail facilities, and creates a result that is contrary to the intent of the legislature. 6 C. Virginia Law Supports A Balancing Test For Purposes Of Determining Whether The NRJA Was Entitled To Sovereign Immunity. In determining whether NRJA was entitled to sovereign immunity, the district court focused its decision on whether NRJA had six attributes that are essential to viability as a municipal corporation. (JA 236). This focus strictly construes Virginia law on sovereign immunity unnecessarily. The Supreme Court of Virginia has held that instrumentalities of a municipality do not need to be a municipal corporation to receive immunity. Instead, an instrumentality only needs to be entitled to the status of a municipal corporation to receive immunity. Jean Moreau & Assoc., Inc., 283 Va. at 137-38 ( There is no dispute that HCC is entitled to the status of a municipal corporation, and we have previously treated it as such. ) (emphasis added). As the NRJA rightly points out in its opening brief, the Supreme Court of Virginia has never held that a governmental entity must have all six attributes 6 In fact, having closed their local jails and incurring bond indebtedness through regional jail authorities to build regional jail facilities, most localities do not have the option of withdrawing from a regional jail authority to avoid the liability the district court has imposed upon them. 11

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 22 of 33 Total Pages:(22 of 35) identified in Heckenlaible in order to be entitled to the status of a municipal corporation for purposes of sovereign immunity. Heckenlaible seized on language in City of Richmond v. Richmond Metropolitan Authority, 210 Va. 645, 172 S.E.2d 831 (1970) to create an exacting standard for determining whether a governmental entity is eligible for sovereign immunity that was never intended by the Supreme Court of Virginia. Heckenlaible interpreted Richmond Metropolitan Authority for the proposition that a government entity must have all six essential attributes of a municipal corporation identified in the opinion in order to enjoy sovereign immunity. Richmond Metropolitan Authority, however, was not concerned with sovereign immunity. Instead, it was a tax case where the issue was whether the Richmond Metropolitan Authority was a municipal corporation so as to be a municipality providing tax relief to taxpayers under the Proration Act (Va. Code 58-822). As such, the social policy considerations for determining whether the Metropolitan Authority should be treated as a municipal corporation were entirely different than whether a government entity is entitled to the protection of sovereign immunity. Moreover, a close examination of the Richmond Metropolitan Authority opinion reveals that the Supreme Court of Virginia was not mandating that all government entities must have the specific six attributes espoused therein in order 12

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 23 of 33 Total Pages:(23 of 35) to enjoy municipal corporate status for every purpose. Instead, the Supreme Court in characterizing its previous opinion in Hampton Roads Sanitation Dist. Commission v. Smith, 193 Va. 371, 376, 68 S.E.2d 497, 500 (1952), stated: This court then went on to list those attributes of a municipal corporation which we deemed essential to viability as a municipal corporation in that instance. Richmond Metropolitan Authority, 210 Va. at 647. The Court then held that because the Richmond Metropolitan Authority had the same characteristics as in Hampton Roads, it was a municipal corporation for purposes of the proration act. The Supreme Court of Virginia did not hold that the six attributes identified in Hampton Roads must be met in every case in order for an entity to be entitled to municipal corporate status. The framework for why the NRJA is entitled to sovereign immunity is set out in the Hampton Roads Sanitation District case. There, in considering whether the commission was entitled to collect a toll, the Court explained the complexities of determining whether local governmental subdivisions are entitled to the status of municipal corporations. There is considerable lack of harmony in the decisions from various States concerning which local governmental subdivisions are included within the term municipal corporation. Some of these entities are almost perfect in their organization and can scarcely be distinguished from municipal corporations proper; others are hardly worthy of the designation corporation as they are imperfectly organized and have very few powers. Between these two clearly-differentiated extremes, there are a large number of governmental agencies variously 13

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 24 of 33 Total Pages:(24 of 35) described as political, public, civil, or otherwise, including drainage districts, fire districts, irrigation districts, sanitary districts, and so on ad infinitum. These organizations are sometimes declared by statute to be corporations, and court decisions and text-writers often recognize them as a peculiar class of public institutions and generally refer to them as quasi-corporations, quasi-municipal corporations, or quasi-municipalities. Such entities are not municipal corporations in the strict sense of the term, but where it appears that the legislature intended that they should be so construed, the designation municipal corporation is often used in a broad or generic sense to include those quasi-municipal corporations which are created to perform an essentially public service. See 1 McQuillan, Municipal Corporations 128 (Smith s ed. 1940); Restatement, Restitution 75; 62 C.J.S. Municipal Corporations 5. Hampton Roads Sanitation District, 193 Va. at 374. (emphasis added). The Court then explained, that these apparent contradictions and conflicts can be resolved by a concentration on two basic factors. The first is, how many attributes of a municipal corporation does the entity in dispute possess? The second is, in the light of this initial consideration, what is the particular purpose for which it is sought to determine whether or not a municipal corporation is present? Id., at 376 (emphasis added). Accordingly, the appropriate test for considering whether a governmental entity is entitled to the status of a municipal corporation is not the rigid test employed by the district court, but a balancing test that considers the attributes possessed by the entity and the particular reason the entity was created and seeking municipal status. 14

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 25 of 33 Total Pages:(25 of 35) Contrary to the decision by the district court, the Supreme Court of Virginia did not hold that a governmental entity (the commission) must possess all six attributes that were identified in Hampton Roads. Instead, the Hampton Roads Court emphasized: While it is true that the more attributes of a municipal corporation an agency has the more likely it is to be treated as a municipal corporation, the final decision rests on the specific issue of each case. Our analysis of the plethora of decisions on this subject is that a commission, such as that before us, may be held to be a municipal corporation for some purposes, but not for others. Id., at 377. If the Supreme Court of Virginia had intended to employ a rigid six factor test adopted by the district court, it simply would have done so by announcing that government entities must have those six specific attributes in order to qualify for municipal corporate status. Instead, the Court declined to do so and adopted a test that weighs the number of attributes held by the governmental entity with the purpose for which it was created and seeks municipal status. The Supreme Court of Virginia confirmed this interpretation of Hampton Roads in York County v. Peninsula Airport Com n, 235 Va. 477, 369 S.E.2d 665 (1988). In York County, another tax case, the Court again reiterated that while certain commissions and authorities are not municipal corporations in the strict sense of the term, they should nonetheless be recognized as having the status of a municipal corporation, where it appears that the legislature intended that they 15

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 26 of 33 Total Pages:(26 of 35) should be so construed. Id., at 480. After acknowledging the standard set out in Hampton Roads 7, the Court stated we have identified six attributes pertinent to that inquiry. Id. (emphasis added). When the County asserted that the Commission should not be given the status of a municipal corporation, because the enabling legislation authorizing the creation of the commission did not expressly label the commission as a political subdivision, the Court rejected this rigid approach. Id., at 481 ( The County asks us to elevate form over substance. We decline to do so ). Instead, the Court looked to the original act and enabling act and determined that the General Assembly meant for PAC to occupy the status of a political subdivision. Id. In reaching this conclusion, the Supreme Court emphasized in a footnote that a governmental entity should be entitled to the status of a municipal corporation if it possesses enough of the essential attributes. Id., at 481 n.1 (emphasis added). As NRJA aptly explains in its brief, the enabling language authorizing the creation of a regional jail authority establishes that regional jail authorities like NRJA possesses enough of the attributes of a municipal corporation to be entitled to the status of municipal corporation. (Doc. 37, p. 11-17). Specifically, a regional jail authority is created to serve a public purpose; has the power to have a common 7 York County reiterated that in determining municipal corporate status it should consider how many attributes of a municipal corporation does the entity possess. Id., at 480. 16

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 27 of 33 Total Pages:(27 of 35) seal, to sue and be sued, to enter into contracts, to acquire, hold and dispose of its revenue, personal and real property; can borrow money and issue bonds which are tax exempt; and its management is vested in a board of directors. See, Va. Code 53.1-95.7 8, 53.1-95.9, 53.1-95.10. While the enabling legislation does not specifically state that a regional jail authority is a political subdivision, the enabling legislation does identify regional jail authorities as instrumentalities of the government. Additionally, the General Assembly has exempted regional jail authorities from taxes because their operation and maintenance of correctional facilities constitutes the performance of an essential governmental function. This further supports its municipal corporation status. See, Va. Code 53.1-95.15. 9 Moreover, as pointed out by the NRJA, the power of eminent domain is not necessary to affect the authority s public purpose, because the legislature specifically granted regional jail authorities the right to acquire public lands from the Commonwealth, any agencies of the Commonwealth or its member jurisdictions. Va. Code 53.1-95.7, 53.1-95.9. 8 This statute lists all of the powers that a regional jail authority possesses, in addition to the attributes set out in Hampton Roads. 9 The exercise of the powers granted by this article shall be in all respects for the benefit of the inhabitants of the Commonwealth, for the increase of their commerce, and for the promotion of their safety, health, welfare, convenience, and prosperity, and as the operation and maintenance of the project by an authority created pursuant to this article will constitute the performance of essential governmental functions, the authority shall not be required to pay any taxes or assessments Va. Code 53.1-95.15. 17

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 28 of 33 Total Pages:(28 of 35) When considering the number of attributes possessed by regional jail authorities in their totality with the public purpose for which regional jail authorities were created, it becomes apparent that NRJA should be given the status of a municipal corporation for purposes of sovereign immunity. As set out above, local governments have an obligation to establish and operate jails. In fact, it is a core governmental obligation. In an effort to ease the financial burden on these localities, as well as the Commonwealth, the General Assembly enacted legislation that permitted local governments to join together to create regional jail authorities to operate their detention centers. There is certainly no doubt about the important public purpose served in constructing and operating these detention centers. Moreover, the fact that the entities authorized to create a regional jail authority are entitled to sovereign immunity themselves in operating a jail is further support for the conclusion that the General Assembly intended a regional jail authority to have the status of a municipal corporation for sovereign immunity purposes. Exposing a regional jail authority to liability for the operation of a jail is inconsistent with the legislative intent to reduce the costs of constructing and operating detention centers. In that regard, it is well-recognized that only the legislature acting in its policy making capacity can abrogate sovereign immunity. Ligon, 279 Va. at 317; Afzall ex rel. Afzall v. Com., 273 Va. 226, 230, 639 S.E.2d 279, 281 (2007). When 18

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 29 of 33 Total Pages:(29 of 35) doing so, legislative abrogation of the common law doctrine of sovereign immunity must be explicit and will not be found by implication. Colby v. Boyden, 241 Va. 125, 132, 400 S.E.2d 184, 188 (1991). A waiver of immunity cannot be implied from general statutory language but must be explicitly and expressly announced in the statute. Afzall, 273 Va. at 230. In reviewing a statute, courts will conclude that the General Assembly has taken action abrogating the Commonwealth s sovereign immunity only when the statutory language has explicitly and expressly announced such a waiver. Ligon, 279 Va. at 317. There is no indication in the enabling legislation or legislative history, let alone an explicit or express announcement that the General Assembly intended to abrogate sovereign immunity in the operation of a regional jail. Indeed, as this Court has observed: The jealous protection of the sovereign from suit is deeply rooted in the common law and has been considered a part of the plan of our Constitution since before its ratification. In arguing for the Constitution s organization of the judicial branch, Alexander Hamilton wrote that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. Research Triangle Institute v. Board of Governors of the Federal Reserve System, 132 F.3d 985, 987 (4 th Cir. 1997) (footnotes omitted) (quoting The Federalist No. 81, at 511 (Alexander Hamilton) (B.F. Wright ed. 1961)). In fact, the Supreme Court of Virginia has recognized that for purposes of uniformity in determining tort immunity, an authority should be held to occupy 19

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 30 of 33 Total Pages:(30 of 35) the same status as the municipality which brings it into existence and oversees its activities. Virginia Elec. & Power Co., 217 Va. at 33; Jean Moreau & Assoc., Inc., 283 Va. at 137-38; Carter v. Chesterfield County Health Comm n, 259 Va. 588, 527 S.E.2d 783 (2000) (noting that Hampton Redevelopment did not support contention that entities such as the Commission should be afforded less protection than municipalities in matters of tort immunity, and the Commission was entitled to protection from tort liability, because its operation of a nursing home was a governmental function.) In sum, it is undisputed that the allegations in the Complaint arise out of NRJA s performance of a governmental function in the operation of the Northwestern Regional Adult Detention Center. In balancing the municipal attributes attributed to regional jail authorities through the legislature s enabling legislation, with the very purpose for which the General Assembly permitted the creation of regional jail authorities, NRJA should be treated as a municipal corporation for purposes of sovereign immunity. Therefore, the NRJA is entitled to sovereign immunity from Boren s Complaint. The District Court erred in not utilizing this balancing approach to NRJA s assertion of sovereign immunity, and in denying NRJA s Motion to Dismiss. 20

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 31 of 33 Total Pages:(31 of 35) CONCLUSION The LGA and VML request that this Court reverse the Order of the district court denying NRJA sovereign immunity and its motion to dismiss, dismiss the Plaintiff s case in its entirety against NRJA, and award NRJA such other and further relief as this Court deems just. REQUEST FOR ORAL ARGUMENT The issues presented involve a complex analysis of sovereign immunity under Virginia law where there appears to be no controlling precedent on point. For that reason, pursuant to Rule 29(g), oral argument is respectfully requested. Local Government Attorneys of Virginia, Inc. Virginia Municipal League By: Counsel /s/ Jeremy D. Capps David P. Corrigan (VSB No. 26341) Jeremy D. Capps (VSB No. 43909) Harman, Claytor, Corrigan & Wellman P. O. Box 70280 Richmond, VA 23255 804-747-5200 Phone 804-747-6085 Fax dcorrigan@hccw.com jcapps@hccw.com Counsel for Local Government Attorneys of Virginia, Inc. and The Virginia Municipal League 21

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 32 of 33 Total Pages:(32 of 35) CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 28.1(e)(2) or 32(a)(7)(B) because: [ X ] this brief contains [5,029] words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or [ ] this brief uses a monospaced typeface and contains [state the number of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: [ X ] this brief has been prepared in a proportionally spaced typeface using [Microsoft Word 2007] in [14pt Times New Roman]; or [ ] this brief has been prepared in a monospaced typeface using [state name and version of word processing program] with [state number of characters per inch and name of type style]. Dated: March 21, 2014 /s/ Jeremy D. Capps Counsel for Amicus Curiae

Appeal: 13-7695 Doc: 42-1 Filed: 03/21/2014 Pg: 33 of 33 Total Pages:(33 of 35) CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 21 st day of March, 2014, I caused this Brief of Amicus Curiae to be filed electronically with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to the following registered CM/ECF users: Rosalie Fessier TIMBERLAKE, SMITH, THOMAS & MOSES, PC 25 North Central Avenue P. O. Box 108 Staunton, VA 24402 (540) 885-1517 Counsel for Appellant Elliott M. Buckner CANTOR STONEBURNER FORD GRANA & BUCKNER 7130 Glen Forest Drive, Suite 400 Richmond, VA 23226 (804) 644-1400 Counsel for Appellee Mark D. Dix BUCCI & DIX 11449 Robious Road Richmond, VA 23235 (804) 888-9500 Counsel for Appellee I further certify that on this 21 st day of March, 2014, I caused the required copies of the Brief of Amicus Curiae to be hand filed with the Clerk of the Court. /s/ Jeremy D. Capps Counsel for Amicus Curiae

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