Virginia: In the Circuit Court of the City of Richmond, John Marshall Courts Building

JENNIFER LITTLE, an Individual, ) JAMES MINOR III, an Individual, ) CHARLES CUTHBERT, an Individual, ) JANE VAN OSTERN, an Individual, ) JOHN BRUCE BEAVERS, an Individual,) and CHRISTINA LEE, an Individual, ) ) Plaintiffs, ) ) v. ) ) VIRGINIA STATE BOARD OF ) ELECTIONS, CHARLES JUDD, ) Chairman, KIMBERLY BOWERS, Vice- ) Chairwoman, DON PALMER, Secretary, ) ROBERT F. McDONNELL, Governor of ) Virginia, BILL BOLLING, Lieutenant ) Governor of Virginia, KENNETH T. ) CUCCINELLI II, Attorney General of ) Virginia, ) ) Defendants. ) )

Case No.: CL11-5253

OPINION AND ORDER I. BACKGROUND The Plaintiffs filed suit against the Defendants on November 18, 2011 and requested the Court, inter alia, (1) to declare, pursuant to Code § 8.01-184, that Virginia’s currently enacted congressional reapportionment plan, id. § 24.2-302.1, is unconstitutional, (2) to enjoin, pursuant to Code § 8.01-620, the Defendants from “calling, holding, supervising, or certifying any further elections” under this plan, and (3) to order into effect a new plan in time for the 2012 congressional elections. Compl. at 7-8. On January 12, 2012, the parties appeared by counsel for argument on the Defendants’ Motion to Dismiss and Plea in Bar of Sovereign Immunity,

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which the Court denied and overruled, respectively, in its January 24, 2012 Opinion and Order. Little v. Va. State Bd. of Elections, No. CL11-5253, slip op. at 25 (Va. Cir. Ct. Jan. 24, 2012). The Defendants subsequently filed a Petition for a Writ of Prohibition to this Court, a Petition for Appeal, an Application for Expedited Review, and an Emergency Motion for Stay with the Supreme Court of Virginia on January 26, 2012. The Supreme Court denied the Defendants’ requested relief in two unpublished Orders issued on January 31, 2012, and the matter returned to this Court for argument on the Plaintiffs’ Motion for Partial Summary Judgment and the Defendants’ Cross-Motion for Summary Judgment. II. ANALYSIS a. The legal standard for summary judgment The Supreme Court of Virginia has repeatedly held that summary judgment is a harsh remedy that a trial court may appropriately grant in cases in which no material facts are legitimately in dispute. Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 618, 611 S.E.2d 600, 604 (2005); Thurmond v. Prince William Prof’l Baseball Club, Inc., 265 Va. 59, 64, 574 S.E.2d 246, 250 (2003); Majorana v. Crown Cent. Petroleum Corp., 260 Va. 521, 525, 539 S.E.2d 426, 428 (2000); Smith v. Smith, 254 Va. 99, 103, 487 S.E.2d 212, 215 (1997); Slone v. Gen. Motors Corp., 249 Va. 520, 522, 457 S.E.2d 51, 52 (1995); Turner v. Lotts, 244 Va. 554, 556, 422 S.E.2d 765, 766 (1992). “Thus, if the evidence is conflicting on a material point or if reasonable persons may draw different conclusions from the evidence, summary judgment is not appropriate.” Fultz v. Delhaize Am., Inc., 278 Va. 84, 88, 677 S.E.2d 272, 274 (2009) (citation omitted). In considering a motion for summary judgment, “a trial court must adopt … those inferences from the facts that are most favorable to the nonmoving party, unless the inferences are forced, strained, or contrary to reason.” Id. (citations omitted). If after reviewing the

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pleadings and the admissions thereto the Court determines “that the moving party is entitled to judgment, the [C]ourt shall enter judgment in that party’s favor.” VA. SUP. CT. R. 3:20. Here, the parties agree that there are no facts in dispute and that the question of whether the General Assembly’s failure to reapportion Virginia’s congressional districts in 2011, the year following the federal decennial census, is a bar to its doing so in 2012 is purely a legal one of first impression1 that is ripe for judgment. b. The Plaintiffs continue to have standing to bring this action, and this matter is still ripe for decision and is not moot. The Defendants maintain that “[n]ow that an act with equal lines has passed, Plaintiffs lack standing to challenge the enactment because they have not been injured by the failure to redistrict in 2011 in any way that sets them apart from the interest of the general public in seeing that the laws are enforced.” Defs.’ Supplemental Resp. at 2 (citations omitted). Moreover, they assert that “[b]ecause Va. Code Ann. § 24.2-302.1 has been repealed, no live controversy exists over its constitutionality.” Id. at 4. In its January 24, 2012 Opinion and Order, the Court found that the Plaintiffs have standing to bring this action and that this matter is ripe for decision and is not moot. These dispositions have not changed because the General Assembly enacted and the Governor signed legislation to reapportion Virginia’s congressional districts. As the Plaintiffs correctly note, “[U]nless and until Virginia receives Section 5 preclearance of its purported new redistricting plan from the Attorney General or the federal court in Washington D.C., Virginia’s currently malapportioned districts remain in effect.” Pls.’ Resp. to Amici Curiae’s Br. in Supp. of Defs.’ Cross-Mot. for Summ. J. at 3 n.1. Thus, any injury or hardship to the Plaintiffs will not be cured

Since the Constitution of Virginia’s recent revision in 1971, the General Assembly, until 2011, has never failed to reapportion Virginia’s electoral districts in the year following the federal decennial census, even if some of these plans subsequently failed constitutional muster.

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until and unless the appropriate authorities preclear this plan. Likewise, because the Plaintiffs are residents of and qualified voters in the congressional districts alleged to be unconstitutionally apportioned, they have standing to bring this action. And given that the question to be resolved by the Court is whether the General Assembly forfeited its authority to reapportion Virginia’s congressional districts by its failure to do so in 2011, this matter is not rendered moot even if the plan is precleared. See Defs.’ Cross-Mot. for Summ. J. at ¶ 3 (“This moots Plaintiffs’ claims unless this Court rules that the General Assembly has been divested of power to redistrict in 2012.”). c. The word, “shall,” in Article II, Section 6, of the Constitution of Virginia speaks in mandatory, not directory, terms, and an Opinion of the Attorney General issued not more than nine months ago affirms and is consistent with this finding. The Court found in its January 24, 2012 Opinion and Order that the word “shall” in Article II, Section 6, of the Constitution of Virginia speaks in mandatory, not directory, terms. See 1 A.E. DICK HOWARD, COMMENTARIES ON THE CONSTITUTION OF VIRGINIA 417 (Univ. Press of Va. ed., 1974) (“Should the Assembly fail to reapportion itself in 1981, it will have violated the constitutional mandate”) (emphasis added) (footnote omitted). Since that time, the Court has become aware of an Opinion issued by the Attorney General in 2011 that speaks to precisely this issue. See Op. Va. Att’y Gen., 2011 Va. AG LEXIS 36 (June 22, 2011). In that Opinion, the County Attorney of Wise County inquired of the Attorney General “as to the status of voting districts in [the] County in light of the fact that the Wise County Board of Supervisors has not adopted a reapportionment plan following the 2010 decennial census.” Id. at *1. The Attorney General responded “that Article VII, § 5 of the Virginia Constitution … mandate[s] that the Board take affirmative action to reapportion the magisterial districts for Wise County in this tenth year since the last reapportionment using the most recent decennial

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population figures.” Id. (emphasis added). Article VII, Section 5, provides, in relevant part: “[T]he governing body of any county, city, or town … shall in 1971 and every ten years thereafter … reapportion the representation in the governing body among the districts in a manner provided by law.” VA. CONST. art. VII, § 5 (emphasis added). In interpreting this constitutional provision, the Attorney General determined that “[t]he use of the word ‘shall’ in the Constitution … generally indicates that the procedures are intended to be mandatory, rather than permissive or directive.” Op. Va. Att’y Gen., 2011 Va. AG LEXIS 36, at *4 (June 22, 2011) (emphasis added) (footnote omitted). Furthermore, the Attorney General opined that [t]he language in Article VII, § 5 plainly and unambiguously mandates that the governing body of any county, city or town whose members are elected by district “shall in 1971 and every ten years thereafter … reapportion the representation in the governing body among the districts in a manner provided by law.” Id. (emphasis added). The language contained in Article VII, Section 5, of the Constitution is strikingly similar to that used in Article II, Section 6: “The General Assembly shall reapportion the Commonwealth into electoral districts … in the year 2011 and every ten years thereafter.” VA. CONST. art. II, § 6 (emphasis added). Both constitutional provisions employ the word “shall,” both mandate that reapportionment legislation be enacted in the year following the federal decennial census, and both mandate that this be accomplished by a governing body. Yet, despite these parallels, the Attorney General, in his pleadings and at argument in this case, has consistently asserted that the word “shall” in Article II, Section 6, speaks in directory, not mandatory, terms. See, e.g., Defs.’ Br. in Supp. of Mot. to Dismiss ¶ 6; Defs.’ Supplemental Br. in Supp. of Mot. to Dismiss at 4-6; Defs.’ Supplemental Resp. at 5-6.

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This assertion entirely contradicts the Attorney General’s Opinion, issued mere months before, that “[t]he use of the word ‘shall’ in the Constitution” “plainly and unambiguously mandates that the governing body … ‘shall in 1971 and every ten years thereafter … reapportion the representation in the governing body.’” Op. Va. Att’y Gen., 2011 Va. AG LEXIS 36, at *4 (June 22, 2011) (emphasis added). The Court acknowledges that Article II, Section 6, speaks to the reapportionment of state and federal electoral districts by the General Assembly and that Article VII, Section 5, speaks to the reapportionment of local electoral districts by a local governing body. This disparity is purely technical because, clearly, the Constitution does not speak one way about a local governing body and another way about the General Assembly. The substance remains the same: the word “shall” in Article II, Section 6, and Article VII, Section 5, speaks in mandatory, not directory, terms. The Court found as such in its January 24, 2012 Opinion and Order, and the Attorney General did as well in his June 22, 2011 Opinion. d. Article II, Section 6, of the Constitution of Virginia mandates that the General Assembly enact decennial reapportionment legislation in 2011, but does not foreclose it from enacting such legislation in 2012. The Plaintiffs aver that because the word, “shall,” in Article II, Section 6, of the Constitution of Virginia speaks in mandatory, not directory, terms, “the General Assembly was constitutionally required to reapportion Virginia into new electoral districts ‘in the year 2011,’ and it has no authority to reapportion in 2012.” Pls.’ Br. in Supp. of Mot. for Partial Summ. J. at 4. Furthermore, as to the 2004 amendments to Article II, Section 6, the Plaintiffs maintain that “by replacing ‘1971’ with ‘2011,’ … the General Assembly was required to enact new electoral districts in 2011 and cannot enact them in 2012.” Id. at 5. They also argue that “[b]y including ‘decennial’ multiple times in the [] amendments …, the Virginia voters and the General

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Assembly again made it clear that the General Assembly’s authority to enact electoral districts is limited to ‘2011 and every ten years thereafter.’” Id. at 6. The Defendants, however, assert that “the General Assembly had and has the power to redistrict in 2012,” Defs.’ Supplemental Resp. at 6, and that these amendments did not foreclose the Assembly from enacting decennial reapportionment legislation in 2012; rather, for example, “[t]he added word[, ‘decennial,’] can have no purpose or effect except to make only decennial[, not mid-decade,] redistricting effective immediately,” id. at 8 (emphasis added). The Constitution of Virginia dictates that “[t]he authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted; and a specific grant of authority in this Constitution upon a subject shall not work a restriction of its authority upon the same or any other subject.” VA. CONST. art. IV, § 14. The Plaintiffs’ claim that the General Assembly “has exceeded its powers and that a statute is unconstitutional always presents a question for serious consideration.” Harrison v. Day, 201 Va. 386, 396, 111 S.E.2d 504, 511 (1959). Unlike the U.S. Constitution, the Constitution of Virginia “is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and … the legislative powers of the General Assembly are without limit.” Id.; see Strawberry Hill Land Corp. v. Starbuck, 124 Va. 71, 77, 97 S.E. 362, 364 (1918) (“[T]he State Constitution is not a grant of power, but only the restriction of powers otherwise practically unlimited, that, except so far as restrained by the Constitution, the legislature has plenary power, and that every fair doubt must be resolved in favor of the constitutionality of an act of the General Assembly.”) (citations omitted). Every presumption, therefore, is to be made in favor of the constitutionality of a statute, and it will never be declared to be unconstitutional unless it is plainly and clearly so. If any reasonable doubt exists as to its constitutionality, the act will be upheld. To doubt is to affirm. The mere passage of a statute is an affirmance by

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the General Assembly of its constitutional power to adopt it, and the case must be plain indeed before a court will declare a statute null and void. Harrison, 201 Va. at 396-97, 111 S.E.2d at 511. The Supreme Court of Virginia has “repeatedly announced” “[t]hese principles … from a very early date.” Id. (citations omitted). Among the powers of the General Assembly expressly recognized by the U.S. and Virginia Constitutions is the authority to reapportion Virginia’s electoral districts. U.S. CONST. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for … Representatives, shall be prescribed in each State by the Legislature thereof”); VA. CONST. art. II, § 4 (“The General Assembly shall … regulate the time, place, manner, conduct, and administration of primary, general, and special elections”); id. art. II, § 6 (“Members of the House of Representatives of the United States … shall be elected from electoral districts established by the General Assembly.”). The Court is unable construe Article II, Section 6, as cabining the General Assembly’s authority to enact decennial reapportionment legislation to 2011 and foreclosing the enactment of such legislation in 2012. Moreover, the 2004 amendments to this provision, specifically the addition of the word, “decennial,” and the replacement of the date in a section containing two-hundred-fifty-one words, do not support a finding that these revisions divested the General Assembly of its authority to enact decennial reapportionment legislation in 2012 after it failed to do so in 2011. The Defendants correctly argue, for example, that the word, “decennial,” that was inserted in the second paragraph of Article II, Section 6, underscores the immediate effect of decennial, not mid-decade, reapportionment legislation.2 Supplemental Resp. at 8. Defs.’

Compare VA. CONST. art. II, § 6 (“Any such decennial

reapportionment law shall take effect immediately and not be subject to the limitations contained
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Although the Court distinguishes decennial and mid-decade reapportionment legislation, as only the former is at issue here, the Court does not decide whether the General Assembly may constitutionally enact the latter. Therefore, it is of no note that “[a]s a matter of historical practice, the General Assembly can and has redistricted in non-decennial years.” Defs.’ Supplemental Resp. at 6.

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in Article IV, Section 13, of this Constitution.”) (emphasis added), with id. art. IV, § 13 (“All laws enacted at a regular session … shall take effect on the first day of July following the adjournment of the session of the General Assembly at which it has been enacted.”) (emphasis added). Furthermore, Article IV, Section 14, “Powers of General Assembly; limitations,” contains twenty cases curbing the General Assembly’s authority to enact legislation, specifically, “any local, special, or private law.” Id. art. IV, § 14 (“The General Assembly shall not enact …”). Likewise, Article I, Section 16, prohibits the General Assembly from prescrib[ing] any religious test whatever, or confer[ring] any peculiar privileges or advantages on any sect or denomination, or pass[ing] any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry. Id. art. I, § 16 (“And the General Assembly shall not prescribe …, [] confer …, or pass …”). Similar phrasing is found in Article I, Sections 9, 11, and 12, Article IV, Section 16, and Article VII, Section 10(b). Although the Court is not inclined to routinely find that the General

Assembly’s authority to enact legislation is not cabined where such language is not present, the fact that seven constitutional provisions include this language weighs against a finding that Article II, Section 6, which lacks this phrasing, is restrictive. If the ratifiers and the framers of the Constitution explicitly intended to foreclose the General Assembly from enacting decennial reapportionment legislation in 2012, then they would have included language to this effect. See Pine v. Commonwealth, 121 Va. 812, 827, 93 S.E. 652, 656 (1917) (“If the [constitutional] convention had desired to restrain the legislature in this matter, … we are satisfied it would have done so in express terms. Certainly we are unwilling to imply such restraint. Generally, when the convention has desired to place a restraint upon the legislature, it has done so expressly, as by

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providing that the General Assembly shall not charter a church, pass a bill of attainder, ex post facto law, law impairing the obligation of a contract, applying a religious test, authorizing a lottery or the like.”) (emphasis added). Because they did not, the Court is constrained to adhere to the plain meaning of Article II, Section 6, which, although establishing the mandate that the General Assembly may not abstain from reapportioning Virginia’s electoral districts, does not bar the Assembly from enacting decennial reapportionment legislation in 2012. See Dean v. Paolicelli, 194 Va. 219, 226, 72 S.E.2d 506, 511 (1952) (“The constitution must be viewed and construed as a whole, and every section, phrase and word given effect and harmonized if possible.”) (citations omitted). Consequently, the Court rejects both parties’ contention that because it found that the word, “shall,” in Article II, Section 6, speaks in mandatory, not directory, terms, then it necessarily also determined that the General Assembly forfeited its constitutional responsibility to reapportion Virginia’s congressional districts. In fact, until this writing, the Court expressly refrained from deciding this question, in part, because, unlike other provisions in the Constitution, Article II, Section 6, does not speak to the consequences of the General Assembly’s failure to reapportion at the constitutionally designated time. Cf. VA. CONST. art. V, § 6(b) (“During a regular or special session, the Governor shall have seven days in which to act on the bill after it is presented to him and to exercise one of the three options set out below. If the Governor does not act on the bill, it shall become law without his signature.”). There are two mandates in Article II, Section 6. They are, respectively, to reapportion and to do so “in the year 2011 and every ten years thereafter.” Id. art. II, § 6. The Court must, therefore, ascertain “the implied intendment in respect of the first mandate in the event, uncontemplated by the framers [and the ratifiers], that the [General Assembly] does not act at the

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constitutionally specified time.” Lamson v. Sec’y of the Commonwealth, 341 Mass. 264, 269, 168 N.E.2d 480, 483 (1960). The Court finds that the first mandate is fundamental; it is devised to secure a Virginian’s constitutional right to the equal apportionment of the Commonwealth’s electoral districts, “and the implication is that the duty and the power to act under [this mandate] continue, pending a succeeding enumeration, until the power is exercised and discharged.” Id. (citations omitted); see also Selzer v. Synhorst, 253 Iowa 936, 952, 113 N.W.2d 724, 733 (1962) (“A failure to act does not bar subsequent legislatures from acting. The power is a continuing one until the duty is performed.”); Harris v. Shanahan, 192 Kan. 183, 213, 387 P.2d 771, 795 (1963) (“[T]he duty to properly apportion legislative districts is a continuing one, imposed by constitutional mandate upon the legislature, not withstanding the failure of any previous session to make such a lawful apportionment”); State v. Weatherill, 125 Minn. 336, 340-41, 147 N.W. 105, 106 (1914) (“The purpose and object in view is the same, namely, to secure such rearrangement of legislative districts as will extend equal representation to all parts of the state. And the theory that the Constitution imposes that as a duty and not as a mere prohibition against reapportionment at some time other than at the first session after a census, seems most consistent with the manifest purpose to be attained.”); Opinion to the Governor, 95 R.I. 109, 121, 185 A.2d 111, 117 (1962) (“[W]e agree with those courts which have held that legislative inaction as to the correction of malapportionment casts the continuing burden upon successive legislatures to accomplish such a correction of the malapportionment.”). The patent purpose of Article II, Section 6, is for the General Assembly’s prompt reapportionment of Virginia’s electoral districts following the federal decennial census so as to be in force for impending elections. This purpose would be thwarted by a construction that would permit only one session of the General Assembly to enact decennial reapportionment

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legislation and foreclose the next session from enacting such legislation. However, this purpose would also be thwarted by a construction that would permit, without judicial intervention, the General Assembly to reapportion at the time of its choosing. The Court is unable to affirm such a cavalier approach to reapportionment, especially when doing so would contravene a constitutional mandate and jeopardize a Virginian’s constitutional right to equal apportionment. Rather, in order to effectuate the purpose of Article II, Section 6, the present session of the General Assembly has an affirmative and continuing obligation to timely correct the constitutional failings of the preceding session and to enact decennial reapportionment legislation. See 1 HOWARD, supra, at 417 (“Assuming no reapportionment and no suit to correct the situation, the next Assembly would have the duty of rearranging districts thrust upon it.”) (footnote omitted). Simply put, there comes a time when a constitutional mandate is not

promptly discharged; when the General Assembly has waited too long to act and when the Court must compel it to do so.3 Because the General Assembly has already acted, the possible remedy issued by the Court will have no effect. If the Court imposes its own reapportionment plan after one was enacted by the General Assembly, signed into law by the Governor, and submitted to the U.S. Department of Justice and the U.S. District Court for the District of Columbia for preclearance, then the Plaintiffs would be substantially prejudiced. Specifically, they would be precluded from “exercis[ing] their rights to participate in the election of their congressional representatives,” Pls.’ Resp. to Defs.’ CrossBecause the Court has found that the General Assembly is not foreclosed from enacting decennial reapportionment legislation in 2012, whether a Virginia state court may constitutionally reapportion Virginia’s electoral districts in light of the Assembly’s failure to timely do so is not decided here. In fact, Virginia jurisprudence suggests that the appropriate remedy is an Order directing the General Assembly to act. See, e.g., West v. Gilmore, No. CL01-84, 2002 Va. Cir. LEXIS 37, at *80 (Cir. Ct. Mar. 10, 2002) (“It is further ADJUDGED, ORDERED, AND DECREED that Defendants … are enjoined from conducting any election of any persons as a representative from any presently enacted electoral district to serve as a member of the Virginia House of Delegates or the Senate of Virginia until the General Assembly of Virginia enacts and the Governor signs new redistricting statutes for the House of Delegates and the Senate Districts that abide by all of the requirements of the Constitution of the United States and Constitution of Virginia … and the other laws of the Commonwealth.”).
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Mot. for Summ. J. at 11, because a reapportionment plan fashioned by the Court is subject to the same preclearance review as the plan enacted by the General Assembly, Branch v. Smith, 538 U.S. 254, 262 (2003). In fact, given that the General Assembly’s plan has been submitted for preclearance and will be approved, if at all, prior to the submission of the Court’s plan, intervention by the Court at this time will only have the effect of prolonging the electoral vacuity within which the Plaintiffs find themselves. III. CONCLUSION For the reasons previously stated, the Court GRANTS the Defendants’ Cross-Motion for Summary Judgment, DENIES the Plaintiffs’ Motion for Partial Summary Judgment,4 and DISMISSES WITH PREJUDICE the Plaintiffs’ Complaint. The Court waives the parties’ endorsement of this Order pursuant to Rule 1:13 of the Supreme Court of Virginia. The Clerk is directed to forward a certified copy of this Order to the parties. IT IS SO ORDERED. ENTERED:___/___/___ _________________________________ Richard D. Taylor, Jr., Judge

The Plaintiffs also maintain that “[t]he General Assembly waived its authority, and ignored its constitutional obligations, when it failed to complete—and affirmatively abandoned—redistricting before the new year.” Pls.’ Resp. to Defs.’ Cross-Mot. for Summ. J. at 14 (citation omitted). Because waiver may not “be raised to bar the government from exercising its governmental functions,” Brunty v. Smith, 22 Va. App. 191, 196 n.5, 468 S.E.2d 161, 164 n.4 (Ct. App. 1996), the Court rejects the Plaintiffs’ argument.

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