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PRESENT: All the Justices
BOARD OF SUPERVISORS OF FLUVANNA COUNTY
JUSTICE LEROY F. MILLETTE, JR.
APRIL 18, 2013
Record No. 121191
DAVENPORT & COMPANY LLC
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
Benjamin N. A. Kendrick, Judge Designate
In this appeal, we consider whether the circuit court
erred when it sustained a demurrer to a complaint filed by the
Board of Supervisors of Fluvanna County (the Board) against a
private financial advisor on the basis that the separation of
powers doctrine prevented the court from resolving the
controversy because the court would have to inquire into the
motives of the Board's legislative decision making.
into the relationship between the separation of powers doctrine
and the motivation of legislators necessarily implicates
For the reasons set forth below, we hold
that the Board effectively waived its common law legislative
immunity from civil liability and the burden of litigation, and
therefore reverse the circuit court judgment sustaining the
demurrer filed by Davenport & Company LLC (Davenport).
The Board filed a complaint against Davenport in the
Circuit Court of Fluvanna County.
The complaint included
allegations of breach of fiduciary duty (Count I), actual fraud
(Count II), gross negligence (Count III), constructive fraud
(Count IV), unjust enrichment or disgorgement (Count V), breach
of contract (Count VI), and breach of the Virginia Securities
Act (Count VII).
In its complaint, the Board claimed that Davenport has
continuously served as the financial advisor to the Board for
more than fifteen years, during which David P. Rose (Rose),
Davenport's Senior Vice President and Manager of Davenport
Public Finance, served as the Board's principal contact person.
The Board asserted that Davenport, as financial advisor, made
knowingly false representations and used its fiduciary position
to persuade the Board to hire Davenport as an advisor regarding
the financing of the construction of a new high school (the
The Board claimed that Davenport made a presentation to
the Board in August 2008 in which it represented the estimated
borrowing cost for stand alone bonds to be 4.87 percent, with
the estimated borrowing cost for the pool of bonds offered by
the Virginia Public School Authority (pool bonds) at 4.81
The Board also alleged that Rose specifically
represented that Fluvanna County could not refinance the bonds
if it participated in the pool bonds, which representation was
made knowingly and was materially false.
The Board asserted
that it reasonably relied upon these representations when it
voted in favor of issuing stand alone bonds.
When the school bonds were issued in December 2008, the
stand alone bonds had reached an interest rate of 5.95 percent.
The pool bonds, issued three weeks earlier, however, carried an
interest rate of 4.75 percent.
The Board alleged that
Davenport also breached its fiduciary duty when it failed to
disclose the significant difference between the interest rates
of the stand alone and pool bonds in August 2008 and the bonds'
interest rates in December 2008, when the bonds were ultimately
The Board claimed that the County incurred nearly $18
million in excess interest payments on the stand alone bonds as
a result of Davenport's malfeasance.
consequential damages in the amount of $18.5 million, $350,000
in punitive damages, attorneys' fees and costs, and
disgorgement of all fees paid to Davenport.
Davenport filed its amended demurrer, plea in bar, answer,
and affirmative defenses with the circuit court.
amended demurrer, Davenport argued that the court should
dismiss the complaint, with the exception of the claim for
unjust enrichment (Count V), as it violated the separation of
powers doctrine because the elements of the claims and
Davenport's defenses required the court to adjudicate issues
not properly before the judiciary.
The circuit court,
following a hearing on the amended demurrer, agreed with
Davenport and held that the separation of powers doctrine
prohibited the court from resolving the dispute because to do
so would require inquiry into the motives of the Board.
court sustained the demurrer with prejudice and refused to
allow the Board the opportunity to amend the pleadings.
Board subsequently filed its timely appeal.
A. Standard of Review
The standard of review applicable to the circuit court's
sustaining of a demurrer is well established:
A demurrer tests the legal sufficiency of a
[complaint] and admits the truth of all
material facts that are properly pleaded.
The facts admitted are those expressly
alleged, those that are impliedly alleged,
and those that may be fairly and justly
inferred from the facts alleged. The trial
court is not permitted on demurrer to
evaluate and decide the merits of the
allegations set forth in a [complaint], but
only may determine whether the factual
allegations of the [complaint] are
sufficient to state a cause of action.
A trial court's decision sustaining a
demurrer presents a question of law which we
review de novo. Furthermore, like the trial
court, we are confined to those facts that
are expressly alleged, impliedly alleged,
and which can be inferred from the facts
Harris v. Kreutzer, 271 Va. 188, 195-96, 624 S.E.2d 24, 28
(2006) (internal citations and quotation marks omitted).
Issue of First Impression
In reviewing these arguments, we acknowledge that the
particular issue presented regarding Constitutional and common
law legislative immunity is one of first impression.
the United States District Court for the Eastern District of
Virginia recognized the lack of precedent on the issue, stating
that "the Virginia Supreme Court has not had occasion to
construe the scope of the Virginia speech or debate clause."
Greenberg v. Collier, 482 F.Supp. 200, 202 (E.D. Va. 1979).
the absence of any Virginia precedent on the issue, the court
turned to the "considerable authority applying and interpreting
the speech or debate clause of the United States Constitution"
in other jurisdictions.
It did so because "state and
federal immunities are very similar in their wording[, and]
they appear to be based upon the same historical and public
Today, the Court has occasion to
evaluate the scope of the Constitutional legislative immunity
and its counterpart in common law.
We, as the court in
Greenberg, will do so in reliance on state and federal case
Separation of Powers
The Board first assigns error to the circuit court's
dismissal of the complaint based on the separation of powers
It argues that the controversy at bar is not one
that would require the circuit court to interfere with other
branches of government.
The Board claims that the court would
not be evaluating legislative motivation for the purpose of
overturning or invalidating legislation, but would instead be
receiving evidence of the motivations solely to assist in
establishing the elements of professional duty, reliance, and
damages caused by Davenport's breach.
The Board asks the Court
to reverse the ruling of the circuit court and allow the case
Davenport disagrees, pointing out that elements of the
Board's claims, such as reliance and damages, would require an
evaluation of the motivation behind legislative action.
Davenport argues that the circuit court correctly dismissed the
case in its entirety because to prove or defend elements of the
claims involved requires an evaluation of the Board members'
motivations in voting for the issuance of stand alone bonds.
Davenport contends that such inquiry would violate the
separation of powers doctrine.
Constitutional Legislative Immunity
Article III, Section 1 of the Constitution of Virginia
mandates that "legislative, executive, and judicial departments
shall be separate and distinct, so that none exercise the
powers properly belonging to the others."
The principles of
separation of powers generally "preclude judicial inquiry
into the motives of legislative bodies elected by the people."
Ames v. Painter, 239 Va. 343, 349, 389 S.E.2d 702, 705 (1990);
see also Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998).
Justice Marshall recognized the danger of such an inquiry more
than a hundred years ago when he wrote:
It may well be doubted how far the validity
of a law depends upon the motives of its
framers, and how far the particular
inducements, operating on members of the
supreme sovereign power of a state, to the
formation of a contract by that power, are
examinable in a court of justice. If the
principle be conceded, that an act of the
supreme sovereign power might be declared
null by a court, in consequence of the means
which procured it, still would there be much
difficulty in saying to what extent those
means must be applied to produce this
Fletcher v. Peck, 10 U.S. 87, 130 (1810).
Chief Justice Marshall's concerns are recognized in
Article IV, Section 9 of the Constitution of Virginia, which
grants "[m]embers of the General Assembly . . . , in all cases
except treason, felony, or breach of the peace . . .
privilege from arrest during the sessions of their respective
houses; and for any speech or debate in either house [such
members] shall not be questioned in any other place."
provision, which is derived from the Speech or Debate Clause of
the United States Constitution, affords General Assembly
members with immunity that protects them from being called into
an outside forum to defend their legislative actions.
Const., art. I, § 6.
By its terms, the Speech or Debate Clause of the United
States Constitution, although similar in content to Article IV,
Section 9 of the Constitution of Virginia, does not apply to
Lake Country Estates, Inc. v. Tahoe Reg'l Planning
Agency, 440 U.S. 391, 404 (1979).
The immunity provided under
the terms of Article IV, Section 9 of the Constitution of
Virginia is also restricted in application, providing immunity
only to the General Assembly.
See Doe v. Pittsylvania County,
842 F.Supp.2d 906, 916 (W.D. Va. 2012).
As a result, members
of a board of supervisors, legislators of a municipality, are
outside the scope of both federal and state Constitutional
legislative immunity provisions.
Common Law Legislative Immunity
Despite the inapplicability of Constitutional legislative
immunity to the case at bar, state and local legislators have
nevertheless been found to be protected because "common law
legislative immunity . . . protect[s] the integrity of the
legislative process by [e]nsuring the independence of
Miles-Un-Ltd. v. Town of New
Shoreham, 917 F.Supp. 91, 98 (D.N.H. 1996) (quoting United
States v. Brewster, 408 U.S. 501, 507 (1972)); see also Steiner
v. Superior Court, 58 Cal.Rptr.2d 668, 677 (Cal. Ct. App. 1996)
(stating that "[t]hese corollaries of the separation of powers
doctrine regarding legislative acts apply to local government
bodies, including boards of supervisors, when they act in a
legislative capacity"); Montgomery Cnty. v. Schooley, 627 A.2d
69, 73 (Md. Ct. Spec. App. 1993) (applying to members of local
legislative bodies as a matter of "common law doctrine of
The United States Supreme Court has held
that local legislators are protected under common law
legislative immunity to the same extent as legislators
protected under Constitutional legislative immunity provisions
because "[t]he rationales for according absolute legislative
immunity to federal, state, and regional legislators apply [to
local legislators] with equal force."
Bogan, 523 U.S. at 52.
The immunity provided by common law is "similar in origin
and rationale to that accorded Congressmen under the Speech or
Debate Clause," and was adopted to safeguard the performance of
legislative duties from "fear of outside interference."
Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446
U.S. 719, 731-32 (1980).
Thus, it "is much more than
protection against liability."
Lewis v. Legislature of the
Virgin Islands, 44 V.I. 162, 166 (V.I. Terr. Ct. 2002).
It "prevent[s] legislators from having to testify regarding
matters of legislative conduct, whether or not they are
testifying to defend themselves," Schlitz v. Virginia, 854 F.2d
43, 46 (4th Cir. 1988), and "frees legislators from the costs
Lewis, 44 V.I. at 166.
Common law legislative immunity applies to municipal
legislators when they are "acting [with]in the sphere of
legitimate legislative activity."
894 F.2d 679, 681 (4th Cir. 1990).
Baker v. Mayor of Baltimore,
include, but are not limited to, "delivering an opinion,
uttering a speech, or haranguing in debate; proposing
legislation; voting on legislation; making, publishing,
presenting, and using legislative reports; authorizing
investigations and issuing subpoenas; and holding hearings and
introducing material at Committee hearings."
Fields v. Office
of Johnson, 459 F.3d 1, 10-11 (D.C. Cir. 2006) (internal
quotation marks and footnotes omitted).
In the present case, it is clear that the motivations of
and discussions between Board members surrounding their vote on
the stand alone bonds fall within the scope of legislative
In a trial between the Board and Davenport, the
fraud claims, Counts II and IV, would require proof of the
element of reasonable reliance for the Board to establish the
The claims of breach of fiduciary duty (Count I),
gross negligence (Count III), unjust enrichment (Count V),
breach of contract (Count VI), and breach of the Virginia
Securities Act (Count VII) would require the Board to prove
that it reasonably relied upon Davenport and that this
reasonable reliance resulted in provable damages.
evaluation of whether the Board members relied upon Davenport's
allegedly misleading statements in their discussions concerning
the bonds requires testimonial probing into the basis for the
Board's vote on the bond issue.
As a result, the circuit court
correctly held that the separation of powers doctrine was
Waiver of Board's Legislative Immunity
The circuit court erred, however, in dismissing the claim
because the Board effectively waived the protection of
Legislative immunity can be waived only
by an "explicit and unequivocal renunciation of the
United States v. Helstoski, 442 U.S. 477, 491
The Board fulfilled this requirement by: (1) declining
to assert legislative immunity, (2) voluntarily filing a
complaint that, due to the Board's burden of proof, involves
issues protected by legislative immunity, and (3) making an
unequivocal waiver of protection from inquiry into legislative
motivation in the text of its complaint.
The first action evidencing the Board's voluntary waiver
is its failure to assert the protection of legislative
When legislators are protected under the scope of
legislative immunity, the legislators must "at a proper time,
and in a proper manner, claim the benefit of [the] privilege."
Geyer's Lessee v. Irwin, 4 U.S. 107, 107-08 (1790).
Lessee, the defendant's attorney failed to raise the
defendant's privilege when he was tending to public business as
a member of the state legislature.
Id. at 107.
In the case at
bar, the Board has not asserted legislative immunity at any
time during the proceedings and, in fact, is asking for leave
to pursue its claim.
The action of the Board in filing its complaint, which
initiated litigation on matters surrounding its legislative
actions, also supports a waiver of legislative immunity.
Legislative immunity will not "protect [legislators] when they
step outside the function for which their immunity was
May v. Cooperman, 578 F.Supp. 1308, 1317 (D.N.J.
In May, New Jersey legislators interjected themselves
into a lawsuit as defendants when they were not originally
named as such.
By choosing to participate in the
proceeding, the legislators waived the protection of
Similarly, the Board filed suit
against Davenport and voluntarily undertook a course of action
that will require the Board to address issues concerning
motivation of the legislators that are ordinarily immune from
Thus, the Board, like the legislators
in May, effectively waived its immunity.
Finally, the Board waived legislative immunity by its
unequivocal rejection of the protections of the privilege.
Kingman Park Civic Ass'n v. Williams, 348 F.3d 1033, 1039 (D.C.
Cir. 2003), the defendant mayor, a city official, effectively
waived legislative immunity when his counsel "disavowed any
claim to legislative immunity" before the district court.
Likewise, the Board in the present case waived its immunity
when it supported its complaint with statements of reliance on
Davenport's alleged misrepresentations in the Board's vote for
the stand alone bonds, which will necessarily require inquiry
into its motivations in passing the legislation:
The Board reasonably relied on Davenport's
written and verbal representations in
selecting Davenport. It later learned that
many of these representations were knowingly
false and were made solely for the purpose
of securing Fluvanna County's business and
enriching Davenport and Rose.
. . . .
At Rose's urging, the Board issued stand
alone bonds to finance the Project . . .
rather than participating in the pool of
bonds . . . offered by the Virginia Public
. . . .
Rose intended that the Board rely on all of
his statements and the Board reasonably did
. . . .
Fluvanna County has been financially damaged
by Davenport's actions and inactions.
. . . .
Davenport has breached the . . . contract
and proximately caused Fluvanna County's
Through the language of its complaint, which will necessarily
require inquiry into its motivations, the Board has rejected the
protection that legislative immunity provides from inquiry into
Thus, by failing to assert legislative immunity, by filing
its complaint, and by including statements in support of the
complaint that of necessity waive protection from inquiry, the
Board has waived legislative immunity and the burden of
Because the Board has explicitly and unequivocally
waived its privilege of legislative immunity, the circuit court
erred in sustaining Davenport's demurrer and dismissing the
In light of this conclusion and the circuit court's final
order, we will not reach assignments of error two, three, and
Assignment of error three contends that the specific
arguments Davenport raised in support of its demurrer are
without merit, specifically that: (1) Counts II, III and IV of
the Board's complaint were barred by the economic loss rule,
and (2) Count V did not allege a substantive cause of action.
Because the circuit court did not base its ruling on these
portions of Davenport's demurrer, any "opinion we might express
at this time would be premature and merely advisory."
Steel-Virginia, Inc. v. Teig, 229 Va. 95, 105, 327 S.E.2d 87,
We need not reach the merits of assignment of error
two, arguing that the trial court improperly considered
documents outside the complaint on demurrer, or four,
contending that the trial court erred by denying the Board
leave to amend the complaint, because our conclusion regarding
assignment of error one is dispositive.
For the foregoing reasons, we will reverse the decision of
the circuit court and remand the case for further proceedings.
Reversed and remanded.
JUSTICE McCLANAHAN, concurring.
While I agree that the circuit court erred in sustaining
Davenport's demurrer, I would hold that the separation of powers
doctrine is not implicated by the claims made in this action.
In my view, the majority opinion conflates the concepts of
legislative immunity and separation of powers by invoking
legislative immunity to conclude the complaint implicates the
separation of powers doctrine and holding that waiver of
legislative immunity would alleviate any separation of powers
The Constitution of Virginia explicitly sets forth the
structure of the branches of the Commonwealth and the exclusive
powers of each branch while also granting protections to
legislators who seek to prevent interference with their duties.
The Board has not invoked legislative immunity on behalf of its
Rather, the question presented in this case, and
unanswered by the majority, is whether, by adjudicating the
case before it, the circuit court would impermissibly be
exercising legislative power in direct violation of this
Because the circuit court would not
be exercising legislative power to adjudicate the case before
it, I would answer this question in the negative.
I. DISTINCTION BETWEEN SEPARATION OF POWERS
AND LEGISLATIVE IMMUNITY
Although legislative immunity may act as a corollary to
the separation of powers doctrine, legislative immunity lies
outside the patent statement of the separation of powers found
in the Constitution, and each concept protects a different
entity and its interests.
Article I, Section 5 of the
Constitution of Virginia states that "the legislative,
executive, and judicial departments of the Commonwealth should
be separate and distinct."
Our Constitution iterates this idea
in Article III, stating that "[t]he legislative, executive, and
judicial departments shall be separate and distinct, so that
none exercise the powers properly belonging to the others, nor
any person exercise the power of more than one of them at the
Furthermore, the Constitution establishes that our form of
government and its strictures arise from the people and act for
the benefit of the people.
Article I, Section 2 states that
"all power is vested in, and consequently derived from, the
people, that magistrates are their trustees and servants, and
at all times amenable to them."
See also Carter v.
Commonwealth, 96 Va. 791, 812, 32 S.E. 780, 784 (1899) ("In our
system of government all power and authority are derived from
They have seen fit by organic law to distribute
the powers of government among three great co-ordinate
departments - the executive, the legislative, and the
Additionally, Article I, Section 3 states that
the government is formed by the people and "[t]hat government
is, or ought to be, instituted for the common benefit,
protection, and security of the people, nation, or community,"
and that the right to "reform, alter, or abolish" the current
system of government, including the separation of powers,
resides with the people.
As James Madison recognized, the
separation of powers protects against "[t]he accumulation of
all powers, [l]egislative, [e]xecutive, and [j]udiciary, in the
same hands, whether of one, a few, or many, and whether
hereditary, self-appointed, or elective, [that] may justly be
pronounced the very definition of tyranny."
The Federalist No.
47, at 266 (James Madison) (E.H. Scott ed. 1898).
All of these
passages emphasize the fact that the separation of powers
inherent in our form of government exists not "to protect the
other branches, but rather to protect the populace."
Redish & Elizabeth J. Cisar, "If Angels Were to Govern": The
Need for Pragmatic Formalism in Separation of Powers Theory, 41
Duke L.J. 449, 486-87 (1991).
A corollary to the separation of powers doctrine is the
concept of legislative immunity.
As the majority notes, this
concept is enshrined in Article IV, Section 9 of the
Constitution of Virginia.
However, rather than establishing
the form and structure of our government, this section ensures
that "legislators are not distracted from or hindered in the
performance of their legislative tasks by being called into
court to defend their actions."
486, 505 (1969).
Powell v. McCormack, 395 U.S.
The protection of legislative immunity lies
with the individual legislators "to insure that the legislative
function may be performed independently without fear of outside
Supreme Court of Va. v. Consumers Union of the
U.S., Inc., 446 U.S. 719, 731 (1980) (citing Eastland v. United
States Servicemen's Fund, 421 U.S. 491, 502-03 (1975)).
a right held by each legislator in order that he or she may
independently and without interference conduct his or her
Thus the separation of powers doctrine and legislative
immunity are distinct concepts lying with separate entities:
the first establishing our form of government and ensuring the
protection of the people against aggrandizement leading to
tyranny, and the second ensuring the independence of a
One belongs to and is for the benefit of the
people while the other belongs to and is for the benefit of the
For these reasons, while an individual
legislator may be able to waive his protective rights, no
individual or even entire branch of government has the power to
waive a protection for the benefit of the people.
In this case, Davenport argues that the separation of
powers doctrine "makes this case non-justiciable."
to Davenport, "[t]his is a lawsuit for wrongful legislation"
I agree that legislative immunity can be waived in the
manner described in the majority opinion; however, any waiver
must be made on an individual basis in the circuit court and
not based solely on the Board's complaint and lack of asserting
legislative immunity. Since I believe the issue before us is
whether separation of powers precludes adjudication of the
Board's complaint, and I further believe that legislative
immunity has not been invoked in this case, I do not address
whether any members of the Board have waived its protection.
and the Board is asking the court "to fix that legislation" in
violation of the doctrine of separation of powers.
has not attempted to invoke the principle of legislative
immunity on behalf of the members of the Board or suggested
that it may invoke such immunity for its own benefit to
preclude the Board's claims.2
EXERCISE OF JUDICIAL POWER
Therefore, the issue before us is whether the circuit
court was correct in holding that because "judges cannot
inquire into the motive of legislators and why they did what
they did," the case before it is not justiciable under the
separation of powers doctrine.
As noted above, the
Constitution of Virginia forbids one branch, in this case the
judicial, from exercising the powers of another branch, in this
case the legislative.
As such, the judicial branch would only
To be sure, Davenport has cited to the principle of
legislative immunity as one example of the "practical problems"
the circuit court may encounter if this case is determined to
be justiciable and a current or former member of the Board
"attempts to invoke immunity." Indeed, such "practical
problems" may occur in the circuit court if a member of the
Board chooses to invoke immunity. However, the potential
hurdles the Board may or may not face in trying to prove its
claims does not affect the determination of whether the Board
has stated a justiciable claim. Kurpiel v. Hicks, 284 Va. 347,
353, 731 S.E.2d 921, 925 (2012) (a demurrer tests the legal
sufficiency of the facts alleged not the strength of proof).
Nevertheless, even if Davenport was relying upon legislative
immunity to support its demurrer, such argument would
necessarily fail since only an individual protected by immunity
may invoke its protections.
violate the separation of powers doctrine if it were to
exercise the legislative power held by the General Assembly.
Va. Const. art. IV, § 1.
But in the case before us, the
circuit court was presented with a question well within the
powers vested in the judiciary.
Va. Const. art. VI, § 1 ("The
judicial power of the Commonwealth shall be vested in a Supreme
Court and in such other courts of original or appellate
jurisdiction subordinate to the Supreme Court as the General
Assembly may from time to time establish.").
Taking, as we must for the purposes of a demurrer, the
allegations of the complaint as true, Harris v. Kreutzer, 271
Va. 188, 195-96, 624 S.E.2d 24, 28 (2006), Davenport committed
fraud and gross negligence, breached its contracts, fiduciary
duty, the Virginia Securities Act, and was unjustly enriched.
The Board is seeking monetary and punitive damages.
circuit court were to find for the Board on all counts and
award the full damages sought by the Board, no legislative act
It would be exercising "the essential function of
the judiciary -- the act of rendering judgment in matters
properly before it" and not "the function of statutory
enactment, a power unique to the legislative function."
v. Fuller, 276 Va. 127, 136, 661 S.E.2d 841, 846 (2008).
Although the Board's claims involve the enactment of a
bond resolution as a factual matter, the circuit court has not
been asked by the Board to repeal or alter that resolution; it
has only been asked to adjudicate whether Davenport has
committed the alleged acts to the detriment of the Board.
support its demurrer, Davenport has characterized the Board's
action as an attempt to undo the bond resolution.3
characterization is rejected, as it must be, it is evident that
the separation of powers doctrine is not implicated.
because the Board does not seek to invalidate its bond
resolution, the circuit court would not be exercising
legislative powers in violation of the separation of powers
doctrine by adjudicating the claims asserted in the Board's
Therefore, the circuit court erred in sustaining
Davenport's demurrer on those grounds.
While Davenport principally relies upon the Court's
refusal to inquire into the motives of legislative bodies when
asked to determine the validity of legislation, no such
determination is involved here, notwithstanding Davenport's
efforts to characterize the action as an attempt to
"retroactively change the 2008 Board's bond Resolution." Cf.
Chesapeake & Potomac Tel. Co. v. City of Newport News, 196 Va.
627, 639-40, 85 S.E.2d 345, 352 (1955) ("No principle of our
constitution is more firmly established than that this court
may not, in passing upon the validity of a statute, inquire
into the motives of Congress. Nor may the Court inquire into
the wisdom of the legislation. Nor may it pass upon the
necessity for the exercise of a power possessed, since the
possible abuse of a power is not an argument against its
existence.") (emphasis added) (internal quotation marks
The Board of Supervisors of Fluvanna County filed a complaint against Davenport & Company asserting that Davenport, which served as the financial advisor to the Board, knowingly made false representations and used its fiduciary position to persuade the Board to hire Davenport as an advisor regarding the financing of the construction of a new high school. Davenport filed a demurrer to the complaint, which the circuit court granted on the basis that the separation of powers doctrine prevented the court from resolving the controversy because the court would have to inquire into the motives of the Board's legislative decision making. The Supreme Court reversed, holding that the Board effectively waived its common law legislative immunity from civil liability and the burden of litigation, and therefore the circuit court erred in sustaining Davenport's demurrer on these grounds.Receive FREE Daily Opinion Summaries by Email