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Judicial Watch • 2005 herndon-transcript121605

2005 herndon-transcript121605

2005 herndon-transcript121605

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Number of Pages:56

Date Created:March 9, 2006

Date Uploaded to the Library:July 29, 2013

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VIR  GINIA  THE  CIRCUIT  COURT  FAIRFAX  COUNTY  KRISH  KARUNAK.ARAM,  et.  al.  Plaintiffs  2005-4013  THE  TOWN  HERNDON,  et.  Defendants.  Friday,  December  2005  Fairfax,  Virginia  The  above-entitled  cause  came  heard  before  the  Honorable  Kathleen MacKay,  Judge  and  for  the  Circuit  Court  Fairfax  County,  courtroom  SF,  Fairfax County  Judicial  Center,  4ll0  Chain  Bridge  Road  Fairfax,  Virginia,  beginning  approximately :00 clock p.m.  when  there  were  present  behalf  the  respective parties  TS05 -l77  
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 
(703) 591-3004  Appearances  For  the  Plaintiffs  WILLIAM HURD,  ESQUIRE  
Troutman  Sanders  LLP  1660  International  Drive  
Suite  600  McLean,  Virginia  22102  
(703)  734-4334  FAX  (703)  734 -4340  
JAMES PETERSON,  ESQUIRE  Judicial  Watch  
501 School  Street  Suite 725  
Washington,  D.C.  20025  (202)  646 -5175  For  the  Defendants:  CORINNE LOCKETT,  ESQUIRE  
MICHAEL  LONG,  ESQUIRE  Assistant  County Attorney  
12000  Government  Center  Parkway  Suite  549  
Fairfax,  Virginia  22035  (703)  324 -4241  FAX  (703)  324 -2675  WALLER DUDLEY,  ESQUIRE  
McGuire  Woods  LLP  1750  Tysons  Boulevard  
Suite  1800  McLean,  Virginia  22102  
(703)  712-5465  FAX  (703)  712-5220  
RICHARD KAUFMAN,  ESQUIRE  Town  Attorney  
730 Elden  Street  Herndon  Virginia  20172  
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 
(703) 591-3004 
(The court reporter was sworn the Court 
THE COURT Okay Would you introduce 
everybody and tell who they are can get good start LOCKETT Your Honor name 
Corinne Lockett I'm with the County Attorney's Office Assistant County Attorney representing the County Fairfax. 
THE COURT Okay DUDLEY Good morning Your Honor 
Waller Dudley from McGuire Woods for the Town Herndon 
With Richard Kaufman, who the town attorney. 
MR. LONG: Michael Long with the County 
Attorney' Office for the County. 
THE COURT: Okay. And for the Defendants? 
MR. HURD: Your Honor, I'm Bill Hurd from 
Troutman Sanders for the Plaintiffs With Jim 
Peterson Judicial Watch, counsel for the Plaintiffs, 
and also one the Plaintiffs, Susan Powell. 
THE COURT: Okay. This the 

MR. DUDLEY: Actually, Your Honor, 
living near some location otherwise how they are 

impacted damaged 

The next point also simple, but 
critical Your Honor Regardless the suits 

clothes, you will, that the Plaintiffs may want put their case, their Amended Bill Complaint makes 
clear that Herndon simply attack the 

granting the conditional use permit Paragraph the Amended Bill they cite that Herndon granted the 
conditional use permit. And Herndon, that alone 
the act that being challenged 
Indeed, Paragraph the Amended 
Bill the Plaintiffs themselves say when municipality' 
grant conditional use permit challenged, they 
are doing, the Plaintiffs must show that arbitrary 
capricious. So, that boiled down what the case against Herndon all about 
The next point would call the Court attention, respectfully, from the Amended Bill 
Complaint itself that there allegation actual funding levying taxes the Town Herndon. An4 point here before move the real arguments that this said so-called taxpayer suit, which 
expect you will here, there facial and, our 
fatal defect that theory, because there 
allegation any such taxes being levied 
Our arguments from the papers Your 
are broken into two parts have some arguments believe run through each the counts the 
Bill and will talk about those first and then few that are count-specific. all four counts 
And should say, course, adopt the arguments our papers may not touch upon each them, but 
rely the papers --and that that declaratory 
judgment not available under this Amended Bill pleaded 
There are four reasons for that valid declaratory judgment, which the case the 
Plaintiffs would like have, the Plaintiffs, these 
individuals, must have personal stake and claim 
the case The cases talk about having specific 
claim against the other party. Stated another way, 
must this actual controversy between the parties 
The next point is, course, under 
Hornbook law there must actual antagonistic phrase that all remember, maybe even from law school And, curiously, the Bill Complaint silent that There allegation that that kind legitimate controversy exists. would like give the Court couple simple illustrations way contrast help Your Honor decide whether are correct saying this not properly brought case Example one would arise the context insurance policy where there carrier and there insured under the policy. The question and the dispute that has boiled over whether there coverage The insured has said there The 
carrier has said, no, there isn' There policy have actual controversy. And those parties come this Court and say sort out, have actual antagonistic assertion and denial rights under this policy, make declaratory judgment The second simple example would where property owners have dispute about access. one says I'm entitled use that road get property and the other says, no, you are not, you have such legal right, declaratory judgment would proper sort that out because there this actual controversy between 

the litigants declaratory judgment, other words, 
cannot based generalities, general complaints, 
speculative facts about what may may not happen the 
future must involve controversy between the 
litigants And that the first basis that claim lacking throughout the Amended Bill Complaint and, 
therefore, the declaratory relief that they seek unavailable them. 
The second point standing have 
pointed out Your Honor, and hope Your Honor's review the papers leads you conclude that I'm right, that 
this attack the granting the conditional use 
permit That what they are complaining about Under 
time honored Virginia law, that what you are doing, 
you have say how you, individual Plaintiff, are 
injured that legislative land use decision. 
THE COURT you not think that there 
something different about this case? Don' you give them 
any credit whatsoever for alleging that the illegal acts 
being, guess, abetted this particular decision, that 
doesn't mean anything you terms your argument? 

they see looking ahead say may turn out that 
what are found illegal activities may take place 
this site. But the law when one challenges the granting permit these Plaintiffs usually say applied for 
the permit, property, they won't give me, hurt me, and individual claim There 
are cases can find when this sort political 
debate, our view, converted somehow into standing attack the granting the conditional use permit 
And keep mind, I've pointed out, 
there allegation this Amended Bill Complaint 
that any their specific personal real property has 
been damaged some way. our view, Your Honor, these 
two fundamental defects end the inquiry, and the Court 
need not further determine whether Herndon 
demurrer should sustained because these points are dispositive have additional points, and will turn those, related the specific counts the Amended 
Bill. Count have, course, argued there private cause action under the federal immigration 
laws. Now, the Plaintiffs say, think, wait minute, 

assert private cause action under the federal 
immigration laws. And way illustrating that they 
are wrong, Your Honor, ask the Court what 
have done. you delete those references those 
federal statutes and those concepts from the Amended 
Bill there simply nothing left way their claim 
under Count That what about. 
inextricably claim that there violation the federal statutes 
.And, indeed, this sharpens the problem 
that the Plaintiffs have, Your Honor. precisely 
that they not have and have not alleged, 
explained moment ago, proper basis challenge the 
granting the permit. They try vain, view, 
reach out federal statute and say that gives 
basis mount traditional Virginia land use challenge the granting the permit. And can't find any case 
that authorizes that approach.  
The next illustration is, Your Honor, 
you look the Town ordinance 7891 and the resolution 
which the permit was granted brings into focus this 
defect. Why? Because 7891, which they would like  kind  permit  And  you  will  not  surprised  know,  course  those  relate  health,  safety,  wel fare  There  are  three  prongs  won'  burden  the  record reading  them but  that  the  Town'  ordinance  There  allegation  this  Amended  Bill  Complaint  that  any  those  were  violated,  and  the  reason  could  hardly  more  persuasive  exactly because  you  look  the  resolution  granting  the  permit  the  Town  Council  expressly  found  that  those  things  were  met  and  granted  the  permit  So,  small  wonder  that  the  Plaintiffs  not  one  normally  does  this  kind  case  point  the  ordinance,  point  the  terms  and  say  this  one  has  been  violated  not  there  Count  the  Virginia  statutory  claim  know  Lockett  going  address  that  will  simply  say  not  the  most  experienced  guy  around,  but  have  never  heard  case  which  claim  goes  forward  the  basis  statute  that  not  yet  law  don'  have  anything  else  add  that  theory  That  Count  II,  and  dispositive  Count  III  far  can  tell,  attempt  make  out  Dillon'  Rule  challenge  And  this  
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 
(703) 591-3004 remarkable theory advanced the Plaintiffs, here what they are asking the Court make the argument that because the Virginia Code not expressly list this kind permit being one can passed, is, therefore, ultra vires you it. So, Your Honor, not hard follow through and see where would take would into two huge problems First all, even they concede that Rule has always included the granting implied localities So, that alone disposes the that because there Virginia Code section says you can enact this kind conditional use invalid. And they are right, Your Honor, are going have rewrite the land use the Code over every imaginable circumstance submit you, with all due respect, that simply be. Now, that not enough, have also 15.2-1100. there any doubt, that statute because apparently predicted this argumnt the Plaintiffs certainly point and says enumeration specific powers not exclusive, nor limitation what localities can So, for  those reasons Count III goes away not valid  Dillon' Rule challenge  Count have two points The first  and this labelled ultra vires action -Again, time hard distinguish from Count III but  they are basically saying you exceeded your authority  doing this; ultra vires; arbitrary and  capricious The foundation for that claim does not exist  because, its own terms the Amended Bill Complaint  Count based again entirely the federal  immigration statutes and the Virginia statute not yet  effect you cover that with post-it note speak there nothing there and Count fails that basis  The second defect Count that  you are trying plead this kind claim you must  allege facts which the Court could find that the  granting the CUP was arbitrary capricious The  case point Your Honor called Taxpayers  Brunswick County against Brunswick County, found 249  Virginia 320 And the Virginia Supreme Court said very  simply conclusory allegations that the County Board acted  
Anita Glover Associates, Ltd.  
10521 West Drive  
Fairfax, Virginia 22030  
(703) 591-3004  

arbitrary and capriciously and violation of, that case, Your Honor, the Waste Management Act, approving conditional use permit for landfill did not state cause action, period. And this because Virginia, even the demurrer stage, pure conclusory allegations are not enough, and there are facts Count which provide the necessary support sum and conclusion, Your Honor, the case has been thoroughly briefed goes without saying that there lot attention being paid the matter There certainly lot notoriety the broader issues And will say this conclusion, Your Honor There are federal laws which regulate immigration There are laws which speak the hiring undocumented workers There Congress and there are many political and legislative forums open anyone who wants heard issues immigration and policy None that, Your Honor, our view, impacts the ability the Town Herndon what all towns deal with their purely local concerns --and this case, their land use issues --after careful procedures were followed, extensive public hearings and debate, and vote was taken And that all that 
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 

(703) 591-3004 happened here, Your Honor. And for the reasons advanced our papers and this morning, ask you sustain the Town' demurrer and dismiss the Amended Bill THE COURT Let ask you question before you yield the floor What you make the Goldman case terms standing? MR. DUDLEY: think addressed that our papers, Your Honor. The Goldman case actually was decided against the Plaintiffs there who were trying 
say want writ mandamus against the comptroller, recall it, because approving unauthorized expenditures. And the Court said, no, that not available you 
THE COURT: But Justice Keenan went 
through long analysis the right taxpayers 
challenge the legality expenditures local 
governments, and she went through whole bunch 
different instances where that approved, she 
differentiated between the taxpayers' relationship the 
local government and the state government and the federal 21" government 
MR. DUDLEY: That's correct, Your Honor. 23 But, remember, way back the beginning pointed out  that under this Amended Bill there allegation  such expenditure  THE COURT that how you  differentiate it? They are supplying building; right? DUDLEY: They are allowing the  nonprofit group operate the site what was the  Town' police station that now vacant That all  So, yes, that certainly critical difference And  think can sure that were more than that that  allegation would the Amended Bill, and isn yes understand that thre are some cases -and  our reply brief went through seriatim the ones cited the Plaintiffs their opposition papers and  explained why -and think this what Your Honor  saying -yes some cases where there are certain  allegations this kind of, quote taxpayer suit might  proper This challenge the granting permit not that kind taxpayer suit, and that our  position  THE COURT Let ask you question  may odd, but wonder -are you saying that  concerned about the illegalities the activities that  they are concerned about So, there were drug dealing  
Anita Glover Associates, Ltd.  
10521 West Drive  
Fairfax, Virginia 22030  
(703) 591-3004 the building that were given over group, 
prostitution, any other crime that you could think 
your argument would the same? The taxpayers would 
have the basis ask the Town Herndon stop building someone who was conducting criminal 
activity out the building? mean, that 
case but 

MR. DUDLEY: certainly 
THE COURT: mean, isn1t this case. I1m trying think where your argument --where you would that point 
MR. DUDLEY: Well, Your Honor, think, actually, you point out something that helps the Town Herndon, because the kind case you are describing would based present existing facts allegations that kind conduct, presumably proof it, who doing what and who not doing what And whether the Town would susceptible suit for that kind activity would raise new questions sovereign immunity, cetera, cetera. But you are looking things 
may happen the future ,under hypothetical And this case directly devoted August you granted the permit, and that the act that was invalid. So, not addressed --nor could THE COURT But they make allegations there was survey, and that people understood that the people that were going using that center were people who were documented. you think all that speculative --Is that what your argument is? MR. DUDLEY: speculative this context you, the Town, unlawfully granted the permit under the way those cases get decided. And, Your Honor, don' fail understand why you are asking those questions and why number the folks the audience here are concerned about immigration. But are Virginia state court challenging the granting this kind particular permit and there are rules and are decisional cases that relate those. But don't want anybody misunderstand that just don' see broader national immigration issue that raging, according some, across the country. there, that not what this Amended Bill properly about THE COURT Thank you DUDLEY Thank you Your Honor LOCKETT Corinne Lockett behalf the County going best not reiterate  what Dudley has already eloquently argued  THE COURT: Let ask you quick  question LOCKETT: Certainly  THE COURT Why your brief did you  procedurally through everything demurrer and  plea bar, demurrer and plea bar, demurrer and plea bar? What was the rationale behind that  organization? LOCKETT Your Honor, wanted not  only -We believe that the portions that argued  the plea bar also bring facts that were not part  the suit demurrer, you are restricted assuming  that all what the Plaintiff has alleged are true; that  there still -that they can' prove their cause  action Under plea bar, course, submitted  some additional facts for you consider which wouldn' appropriate include demurrer So, split  them that way that one could argue that were  trying insert additional facts into our demurrer  arguments.  THE COURT Okay  
Anita Glover Associates, Ltd.  
10521 West Drive  
Fairfax, Virginia 22030  
(703) 591-3004 LOCKETT Your Honor, was saying, will try not reiterate what Dudley has said. 
The County, course, comes this from slightly 
different perspective than Herndon does Herndon does 
come this from more land use type perspective Fairfax County has been 
THE COURT: Making expenditures. LOCKETT Allegedly --allegedly 
making expenditures elicit illegal purposes, and 
will start with that little bit not what 
intended start with, but let just give you broad 
based picture based upon the questions that you've already asked. 
The expenditures have been made But 
you look the Bill Complaint very carefully, the 
Bill Complaint --the Amended Bill Complaint 
this their second bite the apple --they forgot 
include the first time The Amended Bill 
Complaint fails tie any their allegations 
Fairfax County through the way that they have set their counts 
Count you look carefully, 
Count specifically alleges that the County has violated 

various criminal statutes They list whole bunch 
immigration statutes that allegedly this funding will 
lead the violation The first point that 
could possibly lead the violation those statutes 
There factual allegation that will lead the 
violation any those statutes. survey was done, 
possibly some people that may coming this site will 
not documented workers and may get services that 
otherwise they shouldn' get under the statutes. 
speculation. allegation without any backing 
the Bill Complaint itself. And specifically says 
that are violating federal criminal --criminal 
statutes. 

And you look the criminal statutes 
and the remedies thereunder, the remedies under those 
criminal statutes are jail time and fines That not 
what they are looking for here All what they are 
asking for here is, specifically, the declaratory 
judgment enj oin from continuing give those 
funds the statutes that they are asking you 
enforce, you know, through their pleadings, you can' 
enforce them the way they want them enforced 
because the remedies that they are asking for under those statutes are criminal remedies and they are not asking for those So, argument there vehicle get these taxpayers from point being taxpayers who pay taxes the County having you enforce federal statutes really the job federal and state prosecutors enforce those Those are criminal acts that they are talking about They are trying enjoin from expending money program help needy people. And they are taking large jump from that stance to, okay, now the Circuit Court should keep the County from spending that money because that money could possibly towards illegal acts when that not this Court position under this type of. case The Plaintiffs after filed our demurrer and plea bar, they back and their reply brief for the very first time allege that under Section 1-248 the Code that gives them somehow the legal vehicle have you enforce these criminal 

have you enforce the imposition these criminal laws --federal criminal laws --in this case. And I'm hoping that you have had chance take look 1-248 introductory Code section dating back 1887 prior 

the formal adoption the Dillon Rule generic 
catch-all stating that --stating the obvious; i.e. that 
local money and expenditures and laws shouldn't violate state and federal law. 
There nothing that Code section, 
anything tied that Code section, which gives them the 
remedies that they seek There nothing that Code 
section any the cases that are cited thereunder 
that tie all the fact that they are trying 
take introductory section that gives them --that 
specifically gives them absolutely remedies cause action 

and tying that saying, okay, 
that what are suing under; are suing under that 
one section Because their reply brief they all but 
concede that they don' have any rights under the federal 
statues. They all but concede and say, well, really, 
what are doing, even though did not include 
Count what are really doing are suing under 
1-248 Well you look 1-248 there nothing 
sue under there. is, said, simply introductory 
paragraph and has nothing --it legal vehicle 
for them take suit against us, the Town 
Herndon, for that matter. 
And you think about their interpretation how 1-248 gets them 

gives them the standing that they need file suit comes with totally ludicrous result The ludicrous result that what they are saying, you expound upon that any taxpayer citizen Fairfax County, any time that they dislike the way that expenditure has been approved the Board Supervisors, the Town, the City Fairfax, they can file suit Can you think the thousands lawsuits that would coming
THE COURT: Well, has unlawful activity result it; right? LOCKETT Well all they have allege that unlawful. They have say, well, think that this going lead unlawful activity; wherefore are going file lawsuit and are going stop you What they are doing they are putting themselves policing mode They are now policing and making sure that everyone following the state and federal laws. Isn' that what the AG's office for? That the job for federal prosecutors. That not the job for individual citizens take local government every time they disagree with them believe 
passed Code Section 63.2-503.1, which states that person who not United States citizen legally present the United States shall receive state local public assistance pursuant this Subtitle, except for state local public assistance that mandated federal law pursuant USC 16-21. THE COURT That was interesting argument MS. LOCKETT: you look THE COURT very specific LOCKETT --it very specific Count the Complaint must fail because not only does the statute --has not gone into effect yet --aside from the fact THE COURT: going effect about, what, two weeks? LOCKETT Right THE COURT: don't know what the date that LOCKETT Aside from the fact that the time the filing the Complaint and the time you are hearing this argument not effect, not going apply the day laborer program any 
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 

(703) 591-3004 
case, because Fairfax County's actual spending authority fund and support the employment services, such day 
laborers, such others need public assistance, 

that authority that grants the right make this 

expenditure not found the Subtitle 63.2-5031. found Subtitle under Section .2-314 314 
not part Subtitle And you read subtitle, there reason they put there. wasn't typo. specifically says subtitle. 

And the reason that are arguing that not subtitle the legislative history, which 
set forth our brief, this statute. bears out 
this narrow application. The statute was enacted just 
the last year --the 2005 General Assembly --and the 
Acts were introduced 2005 House Bill 1798 and 2005 
Senate Bill 1141. you look the original introduction those bills they are considerably 
different and vastly broader than the two identical bills 
that were actually enacted and that into effect 
next month. This narrowing scope, the fact that was 
narrowed down where is, gives you some legislative 
history and some intent from the legislature that really 
they are there restrict our expenditures under  Subtitle  And said, all the power and  authority that use enact and prove these  expenditures came under Subtitle just doesn  affect this program, any case So, are asking that  you sustain our demurrer that count Even were  arguing this February, would have the same argument just doesn't apply  Now, Count III explained  Count II, Fairfax County specifically authorized  receive and disburse funds provide public assistance  for the purpose aiding needy people pursuant  Virginia Code Section 2-314. The Plaintiffs sole  response our demurrer -or our plea bar this  -is that the statutory authority implied, best  and that the statute does not address implementing the  funding And, such, they argue pursuant Arlington  County White that Fairfax County needs demonstrate  that the method implementation this funding this  program must reasonable, which would require hearing the facts argument that don' even get  that point because the statute rather specific about  how the funds -what happens with the funding and how  
Anita Glover Associates, Ltd.  
10521 West Drive  
Fairfax, Virginia 22030  
(703) 591-3004  implemented  So,  don'  need  get  the  point  whether  not  must  done  responsibly,  because  don'  get  past  step  one  though  way  concede  that  are  not  doing  reasonably  don'  want  you  get  that  impression.  The  statute  sets  forth where  the  funding  can  received,  from  where,  and  how,  either  from  public  grants  from  listed  variety  private  sources  also  specifically  sets  out  how  the  funds  should  distributed authorizing  public body  make  public  grants  respective public  boards  The  statute  further  specifically  sets  out  that  eligibility  for  the  aid  not  limited  that  public  assistance  programs  the  Commonwealth  So,  due  the  fact  that  there  are  many  specific  restrictions  and  explanations  how  that  money  should  come  in,  where  should  sit,  where  should  funded,  and  who  should  funded  to,  don'  get  the  reasonableness  argument,  because  specific  grant  authority  grant  that  money  So,  are  asking  that  sustained  that  count,  well  would  happy  answer  any  questions  that  you  have  
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 
(703) 591-3004 

THE COURT Thank you Hurd? 
MR. HURD: May please the Court. 
America nation immigrants, but America also 
nation laws What issue here whether 
America' laws immigration are being flouted the 
Town Herndon and the County Fairfax 
They have filed their demurrers and they 
have filed their pleas bar, but nowhere those 
pleadings they say that the Complaint fails state 
violation them federal immigration law. That 
the allegation They failed say the Complaint states 
one 
What they say that the taxpayers not 
have standing; that they cannot come court and 
anything about But nowhere they deny their 
pleadings that they are violating federal immigration 
law, nowhere they say their pleadings that the 
Complaint falls short that regard, and that 
extremely important point that runs throughout the argument this morning 
They say that these taxpayers not have. 
standing complain about the alleged violation 
federal law, but that argument based least two 
basic mistakes The first mistake they make that they 
confuse the rules taxpayer standing. Many the 
cases they cite deal with challenging the actions 
state government and agree that there standing 
limited. The Supreme Court said the Goldman case. 
But the Goldman case the Supreme Court also said that different set rules apply when local taxpayers 
challenge the actions local government may, Your Honor, hand copy 
Goldman. The key passages, Your Honor, page 372, the 
right taxpayers challenge the legality 
expenditures local governments right permitted 

almost every state, the Court said. This right 
premised the particular relationship the taxpayer the local government that makes the taxpayer' 
interest the application revenues direct and 
immediate The same conclusion does not apply for 
federal and state taxpayers Thus the Court went 
that citizen taxpayer may challenge the legality certain actions local government and its 
expenditures because the interest citizen 
matters local government direct and immediate 
passage, the direct and immediate interest the citizen the operation local government whether based issues arising from local election local government's exercise its fiscal authority, permits these citizen taxpayer challenges Now, opposing counsel said something that found little unusual; that there was allegation taxes being paid. But the Complaint makes very clear allege these are taxpayers Herndon. they are taxpayers they are paying taxes THE COURT thought said that there was allegation that expenditures were being made MR. HURD: made that allegation his argument, well, Your Honor, and that, too, fellatios for reasons that will into moment. also said there was actual antagonistic assertion and denial right Those words not appear that order the Complaint but those are not magic words that must appear the Complaint order invoke the declaratory judgment statute Instead, the Supreme Court said the City Fairfax versus Shanklin, case which actually they cite, must 
appear that there actual controversy existing 
Anita Glover Associates, Ltd. 
10521 West Drive 
Fairfax, Virginia 22030 

(703) 591-3004 

between the parties based upon actual antagonistic 
assertion and denial right 
Herndon asserts that they may give this 
land rent -free this group for two years The 
taxpayers deny assertion denial right 
Fairfax asserts they can appropriate this money. The 
taxpayers deny it, again, assertion and denial 
right 
THE COURT You have admit much 
broader statement than the usual case that comes where 
someone directly aggrieved some particular state action 
MR. HURD: Your Honor 
THE COURT You have address that 
point much different HURD That Your Honor next 
point And this the second mistake they make They 
approach this case --they want the Court approach 
this case --as the only action issue here were zoning decision 
THE COURT Yes 
MR. HURD: But that not the case. spending money. And the action Herndon tantamount the same thing. Here Herndon did not act zone somebody else's land. They did not give special use permit for some private land. What Herndon did was take real estate belonging the Town, real estate bought with taxpayer money, and turn over private group rent-free for period two years That the expenditure the public resource They cite case, Your Honor, Stockman Loudoun where the Plaintiff was denied standing challenge zoning decision But there the Court recognized the very distinction that opposing counsel wants this Court ignore. denying standing that case the Court said that the case, quote, the rezoning tract land privately owned and expenditures private funds does not challenge the use public property revenues. THE COURT: I'm sorry. missed when you said the case. Which case that? MR. HURD: Stockman Loudoun. one the cases cited opposing counsel footnote THE COURT believe have pile. That's fine. HURD Thank you Your Honor 
that case recognizes the distinction between normal 
zoning action where the Town affecting the ability private party use private land certain way, and 
this case where they are giving interest the land public property --an interest public property this group for period two years. fact what 
 most interesting about their argument that 
directly contradicts the argument that they make --that 
Herndon makes its reply brief their reply 
brief Page their reply memo --this the 314 
statute that they have both referred --they argue 
that this gift taxpayer resources tantamount the 
disbursement public funds which what that statute authorizes 
So, seems they are hoisted their own 
petard admitting, effect that when you give the 
private group public resources use for two years 
the kind action that subject challenge 
taxpayers. Whether cash land, whether the 

land given away for two years twenty years fee simple 
taxpayers Now, they also say that there federal cause action here, but that really entirely misses the point are not bringing federal cause action. are bringing taxpayer cause action, have the right under state law, alleging that the actions these local governments are unlawful And let digress for moment, Your Honor, make clear that are not simply alleging that the actions Herndon and Fairfax may could lead violation federal law others are alleging that the acts Herndon and Fairfax are violation federal law, because done order facilitate the unlawful hiring illegal aliens, contrary 
federal law. And they not anywhere their pleadings contend that have failed make out case for their violating federal law. 
Let move on. know from Goldman that taxpayers are entitled challenge the unlawfulness 
expenditures money sources local governments The Supreme Court has not placed any limit the sort unlawfulness locality that taxpayers may bring forward reason for overturning that illegal action. 

They want you adopt the rule that says that the 
action the locality unlawful because violates 
federal law, then the taxpayers can nothing about 
Federal law supposed the supreme law the 
land, and they are taking that principle and turning its head not, course, allege 
our brief --and not new our reply brief, 
actually the Complaint --Paragraph point out 
that under Virginia Code Section 1-248 the Virginia 
General Assembly has given localities specific 
instructions; obey the federal law. This not some 
generic introductory language uses the mandatory 
word "shall" says that the Constitution and laws 
the United States shall supreme and that any 
ordinance, resolution, bylaw, rule, regulation, order 

shall any governing body --and that includes them 
not inconsistent with the Constitution and laws the United States 
Here the problem that the actions taken the governing bodies Herndon and Fairfax are 
inconsistent with the laws the United States and they 
are also, therefore, unlawful matter Virginia law virtue that statute, and these taxpayers have 

standing challenge that action. So, sum, have two things. First, have case where taxpayers have standing challenge the actions their local government unlawful they have standing challenge the appropriation money, they have standing challenge the donation public resources the Town Herndon Second, have allegation that this appropriation and this donation violate federal law. And this stage the proceeding, given their demurrer and plea bar, reading them very carefully, nothing there challenges the sufficiency the allegation that they are violation federal law. Surely, this enough overrule the plea bar, require them file answer, and let the case proceed 
Before sit down, let address briefly the allegation that Count III and are conclusory nature They are not They incorporate all the allegations about the violations federal law, all the allegations about the violations the Virginia Welfare Statute, and all those facts are laid out. agree with Lockett one point 
Anita Glover Associates, Ltd 
10521 West Drive 
Fairfax, Virginia 22030 

(703) 591-3004 
Count III, ultra vires, she said that whether the method discharging their duty reasonable would require 
hearing the facts Fine Let's have hearing the 
facts, Your Honor. Overrule the demurrer and let's 

proceed the merits the case ultra vires because 

unreasonable? Given the way they did it, ultra 

vires because violates federal lawi therefore 
per unreasonable And the same thing true with the 
arbitrary and capricious language Count IV. 
Let turn, finally, Count II. 
the Virginia Welfare Statute count which they raise some additional points. They say that suit cannot 
brought because the law not yet effect But 
lawsuits are brought all the time before -16 
THE COURT Let ask you question 
before you get that the Town Herndon's 
emphasis always make this narrow case them 
granting permit then there was nothing wrong with the 
way they granted the permit Under ordinary 
circumstances, that probably truei right? I'm not 
trying get into semantic argument. But, mean, 
there wasn' this issue unlawful undocumented workers 

using the site, wouldn't have case here. 
MR. HURD: Your Honor, there are two 
things --and that one them --that make this case 
stand out from the normal conditional use permit case 
One that they are not granting permit for some 
private person use his her land particular 
way. They are, essence, smuggling lease into the 
guise the conditional use permit and giving possession the land, control the land, used this 
group. That not normal kind zoning decision, not normal kind conditional use permit decision 
And what makes reasonable, what makes 
arbitrary, what makes ultra vires what makes 
illegal that being done violation federal 
law. being done with the purpose aid and abet 
the violations federal immigration law. That the 
purpose being done That what allege and 
should have chance prove that 
THE COURT I'm going ask you what 
appears obvious question. the County 
Fairfax and Town Herndon built recreation center, 
which they always do, and maybe they lease somebody 
else, whatever they --I mean, I've had case 

this Court where they have made special deal with the 
YMCA Reston and they built particular youth center, 
and there was some confusion about --some legal contest 
about that But the thing that gets you angry, that 
makes this case different, that that facility used 
for some unlawful purpose HURD That correct Your Honor 
THE COURT: mean, isn't that true? 
MR. HURD: That's correct. being 
used for some unlawful purpose And here the action being taken the Town being taken with the knowledge and with the purpose facilitating 

THE COURT: So, little bit different than that You are saying that they deliberately did this with the knowledge that was going used for unlawful purpose? 
MR. HURD: Absolutely, Your Honor. That part why they did because they believe that these services ought provided Town property those who are not lawfully present And that for worse, violation federal immigration laws 
THE COURT: So, the fact that was used for unlawful purpose was accidental then your 
case would different? 

MR. HURD: would different, Your 

Honor. the unlawfulness were accidental, the 

unlawfulness perhaps were even incidental, would 
different case But here purposeful and the 
predominant purpose the day laborer site 

Your Honor, Count II, lawsuits are 

often brought challenge law before the law goes into 
effect, and this just the other side the same coin. 
Opposing counsel said knew statute that 

excuse --knew case where that had been done cited one our brief Richmond Medical Center 
Gilmore. one standard, garden variety type 
constitutional challenge where you think the law inappropriate, you challenge before goes into 
effect They had misunderstood that precedent The 
point there was not that the doctors were allowed 
bring the charge before they were prosecuted. The point the doctors were allowed bring the challenge 
against the law before the law went into effect There nothing unusual about that happens all the time 
This the flip side that 
THE COURT kind moot anywayi isn't it? MR. HURD: think so, Your Honor. THE COURT mean, this point gave you days amend your Complaint, something, would over the new year MR. HURD: Your Honor, think that exactly right THE COURT think Lockett argument about Title and Title more interesting. HURD Well, was interesting argument, but let' look that statute The statute authorizes local boards disburse funds for the purpose aiding any persons within their respective counties, cities districts the way, does not say towns; says counties and cities. So, don' know insofar Herndon trying grab hold that statute, they their reply brief, they have the ability But beyond that, the statute does not say applies Herndon and Fairfax The statute does say that the aid may given needy persons 
respective counties, cities and districts, end quote. 
Now, this particular day laborer site 
smack dab the County line set serve 
people wherever they may come from, not just those who 
come from within the County Fairfax. More the 
point when the law says needy persons within the County, 
surely means --surely they meant --any persons who 
are lawfully within the County. Surely when the Assembly 
meant authorize services people who are within the 
County, did not mean authorize services subsidize unlawful conduct 
And when you read Section 314 this way, 
harmonizes perfectly with section 503. which says quite 
explicitly that employment services cannot provided 
persons who are the country unlawfully. So, demurrer Count should also overruled 
THE COURT: So, you are saying that 
despite the fact that the provision says applies only Title that you think reasonably also applies 
Title because the lawful presumed? 
MR. HURD: understand their argument 
they said, okay, you say 503.1 but we've 
got this 
loophole --they don't use that word, but that what --that what they allege --it loophole, 
they say, and can proceed under this and not worry 
about 503.1. argument that you look those 
words and you try harmonize those words that 
statute with the statute that allege, the only way 
harmonize take the words "within the County" and construe them mean lawfully within the County. And you limit resources those who are lawfully within 
the County, then you are not able justify under 314 
the appropriation Fairfax. 
Moreover, Your Honor, there another 
reason why 314 does not give them the loophole. And that matter how you read these two statutes, 314 and 
503.1 together, 314, the one they cite, surely trumped federal law. 
THE COURT: That the statute you cited; isn't it? 
MR. HURD: I'm sorry? 
THE COURT The statute that you relied 
upon the statute they are talking about; right? The 
special statute that goes into effect January 1st? 
MR. HURD: cite 503.1. That the 
January 1st statute They cite 314 which they present kind loophole 503. 314 the older 

statute. 503.1 the newer statute. So, even 

didn' have 503. and need reconcile the two, 

would still have the fact that federal law trumps state 
law where says not provide welfare benefits 

those who are not here lawfully. 

Before sit down, Your Honor, would 

like underscore three points One that the 

Defendants have not denied that the Complaint 
sufficiently alleges violation federal immigration 
law Herndon and Fairfax. They may say when they 
stand here again, but not the demurrer, 
not the plea bar, and those pleadings that 
are before the Court this morning. Secondly, this issue, obviously, 
which there are strong feelings both sides And 

precisely this sort case where there the greatest 
need for the rule law. These taxpayers believe their 
local governments were violating the law and have come 
this Court for ruling that question The Defendants not want ruling the merits. They want you 
turn these taxpayers away the threshold. The Supreme 
Court has made clear, believe, that they have standing But there any doubt the Court mind that question, then dismissing this case would premature The case should allowed forward 

Finally, Herndon and Fairfax suggest that they have authority enforce immigration law don' necessarily agree with that But whether not they have authority enforce the law, they certainly have authority flaunt That why are here ask the demurrers and pleas bar overruled and the case allowed move forward. 
THE COURT Thank you guess you have 
the last word DUDLEY Thank you THE COURT: You don't need long you did. MR. DUDLEY: certainly will not, Your Honor, the great relief those attendance. THE COURT: The last word usually kind
MR. DUDLEY: understand, Your Honor. hope now that I've learned the meaning rebuttal well will shrink and try only rebut The issue authority what did, 

the brief mentions 15.2-2286 which, course, the express authority for this kind legislative action, including the granting CUP here 2-2280 gives the right decide what with our property Hurd said his pleading doesn't use the magic words actual antagonistic assertion, cetera right And I'm sure there reason for that but that isn' really the point Under the cases there does have actual controversy between these parties You can' just say live here and I'm unhappy with what you are doing interesting that would direct the Court Stockman, decided Loudoun County. would note for Your Honor the Court there adopted toto the argument making. said, Mr. Stockman, you cannot proceed because you haven't alleged any facts sufficient give you standing. The demurrer sustained. Likewise Your Honor talking about Goldman, would suggest, with all due respect Mr. Hurd, referred you page 372, but very interesting see what the cases that that case talked about were dealing with and how they are very different from this one. just said, trust me, 

taxpayers can proceed with this kind case Well, here what the Court was talking about expenditures made County Board finance allegedly unauthorized travel, 
issuance local government bonds finance sanitary 
district, lending government funds build facility 
connection with the construction airport and, 
finally, another case the alleged issuance illegal 
bonds finance something other. really points 
out this critical difference the cases the standing point 
The point are making about the 
conclusory allegations issue which you asked Hurd 
about think affirmed the point are making 
Because when you asked him tell you what the facts 
were, here what did. said, wait minute, 
have referred and incorporated --and then hope with 
all due respect you caught what said --he said 
have incorporated all the allegations the federal 
law violation. Okay? So, think the correct word 
tautological --I'm not English teacher --but 
certainly circular. just says keep pointing the 
federal statutes, and that enough. That's very here how I've been hurt property And that point, Your Honor, exactly what was addressed the Brunswick case, and didn't hear anything about the Court sustaining the demurrer there and dismissing because only conclusory allegation And, finally, Your Honor, they have referred and attached the resolution which the was granted. want the Court sure know that paragraph that action the Town Herndon the resolution says all activities shall carried lawful manner determined the appropriate authorities Now, wouldn't strange the Town were now subj ect lawsuit because their theory when, fact the action taken the Town which rely says must lawful, and that condition the permit that give you. just too bizarre for explanation, Your Honor. They can't make that link between not only have the right this kind thing, but when did said and addressed their point THE COURT was very clear his argument that thought the Town Herndon had acted 

purposefully and with knowledge that federal laws were 
going broken the center Would you agree with me? 
MR. DUDLEY: think that certainly 
THE COURT And you are saying the Town 
Herndon the resolution said that they were only 
contemplating lawful activities going the center? 
MR. DUDLEY: look this way, Your Honor 
THE COURT that kind pushing the mean, who going determine whether the activities are lawful, not? DUDLEY think Lockett 
THE COURT may asking you something 
you think too far along the case, but DUDLEY Well, think this Your 
Honor. don't hear anything from the Plaintiffs about 
whether they have private cause action enforce 
the immigration laws Certainly, they don' the 
federal statutes They don' even talk about that 
their brief. They just ask you say that's not really 
what our case about That given. They don't 
create any number examples whether was federal 

taxation, something else that uniquely committed 
the federal government, you know, they would like 

overlook that point 

Now, federal officials and those who 

are granted the authority deal with alleged violations immigration law have such authority? Yes, they 

And that, fact, draws the right line between town 

which says this nonprofit may use this property. That's 
all are doing. And, the way, because this 
conditional use permit, the condition speaks the 
issue that the Plaintiffs would like complain about 
So, doing it, dealt with the problem they say have. don't have problem. 
Thank Your Honor 
THE COURT Did you want say something? 
MS. LOCKETT: do. I'll very, very 
brief assure you 
Three quick points The first 
Plaintiffs make --spent quite bit time indicating you that never denied factual allegations that were 
set forth the Bill Complaint. Well, course, 
didn' This demurrer. are riot here debate 

whether not factual allegations are true not are here debate whether not the pleadings rise the standard that they need rise order for them move forward with cause action So, would ask you disregard any arguments that line because, obviously, didn' make denials any factual allegations That not the purpose that are here for today I'm going argue, too, that Plaintiffs take pretty big leap here from the allegations that are set forth the 60-some paragraphs their Amended Bill Complaint the fact that Fairfax County knowingly providing services violation --or funding services violation --of federal immigration laws Really, that quite big leap for them from the allegations they' set forth the Complaint their conclusions today that Fairfax County knowingly funding illegal -18 violations illegal immigration laws There way they can get from point point What they have alleged that have funded nonprofit provide services the needy -22 i.e. employment services the needy --at site that set the Town Herndon. did. 

Appropriations went out --I think some $170,000, per 
their Complaint --to Proj ect Hope and Harmony, 
nonprofit who providing these services They are 
assuming that those services are going illegal 
immigrants. There factual basis for that They are just assuming 
Now, the Bill Complaint sets forth that study was done Fairfax County that some percentage workers were undocumented. out there That was 
the study. doesn't --Without stretching too far, doesn't show why they are undocumented, doesn't 
show what the documentation issues are, doesn't show 
-that study doesn't get there --get that point from 
where are simply says some the workers are 
undocumented and this issue 
But they can't tie study that was done 
two years ago whether not some workers were 
documented the fact that Fairfax County intentionally violating any federal laws Are workers who are 
undocumented getting services this site? Who know? 
They could be, they could not be, but are not 
intentionally violating any laws And think 
big stretch get from the pleadings the way that they 

are written the Amended Bill Complaint that argument Count 

THE COURT Are going through all your argument again? 
MS. LOCKETT: No, just this one little point 
THE COURT Okay LOCKETT They assume that should 
all assume Count that the word lawfully would 
there Well you assume that the word lawfully should written in, then there really need for 
5031 there? Because are going assume that 
all the services are only going lawful then they 
didn't need pass the statute the first place, and 
just wanted point that out 
THE COURT: Thank you. I'm going take 
the matter under advisement and write opinion, 
hopefully the not too distant future 
(Whereupon, approximately 1:20 o'clock, 
p.m. the hearing the above-entitled matter was concluded CERTIFICATE COURT REPORTER Terrie Stipes, hereby certify that took the stenographic notes the foregoing proceedings and the same were reduced typewriting under direction; that the foregoing true record said proceedings 

that neither related nor employed any the 

parties the action herein; and, further, that not relative employee any attorney counsel 

employed the parties hereto, nor financially 
otherwise interested the outcome the action ......"
...... .,... 
/'.-., 1:. :.-
Terrie Stipes 
Certified Verbatim Reporter