Arlington County v. White

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Compton, Senior Justice

ARLINGTON COUNTY, ET AL.
OPINION BY
v. Record No. 991374 JUSTICE LAWRENCE L. KOONTZ, JR.
April 21, 2000
ANDREW WHITE, ET AL.

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge

In this appeal, we consider whether a local governing

body acted ultra vires in extending coverage under its

self-funded health insurance benefits plan to unmarried

“domestic partners” of its employees.

On March 12, 1998, Andrew White, Diana White, and

Wendell Brown, residents and taxpayers of Arlington County

(the Taxpayers), filed a bill of complaint in the trial

court against Arlington County and its County Board

(collectively, the County). The Taxpayers sought a

declaration that the County lacked the authority to extend

coverage to the newly defined category of domestic partners

under its self-funded health insurance benefits plan. The

Taxpayers also sought to enjoin the County from

implementing the provision of benefits to domestic

partners.

The parties filed cross-motions for summary judgment.

Holding that “Arlington County’s coverage for domestic

partners in its self-funded health benefit plan for County
employees violates the Dillon Rule,” 1 the trial court

granted the Taxpayers’ motion for summary judgment and

denied the County’s motion. We awarded the County this

appeal.

The record shows that in an Employee Relations

Benefits Newsletter, issued in May 1997, the County

announced that, effective July 1, 1997, “[t]he definition

of eligible dependents has been expanded under the

[County’s self-funded] health plan” to allow “for coverage

of one adult dependent, who can be [an employee’s] spouse,

domestic partner, or other adult who is claimed as a

dependent on [the employee’s] federal income tax return.”

The Newsletter listed eight criteria in defining an “adult

dependent” as “[t]he domestic partner . . . who”

- has resided with the employee for a 1 year period;
- shares with the employee the common necessities of
life and basic living expenses;
- is financially interdependent with the employee;
- is involved with the employee in a mutually
exclusive relationship of support and commitment;
- is not related by blood to the employee;
- is not married to anyone;

1
“[T]he powers of boards of supervisors are fixed by
statute and are limited to those conferred expressly or by
necessary implication.” Board of Supervisors v. Horne, 216
Va 113, 117, 215 S.E.2d 453, 455 (1975). This rule is
corollary to the Dillon Rule that municipal corporations
are similarly limited in their powers. Id. at 117, 215
S.E.2d at 455-56. Because the trial court and the parties
refer to the Dillon Rule, we will also in this opinion.

2
 - was mentally competent at time of consent to
relationship;
- is 18 years of age or older.

A stipulation entered into by the parties states that

“[a] ‘domestic partner’ eligible for coverage as an adult

dependent of a County employee under the County’s health

benefits plan may be either a same-sex or opposite-sex

domestic partner of a County employee,” that “[a]n employee

applying for domestic partner coverage must certify that

the employee and the domestic partner meet the criteria

established by the County,” and that “[t]here are

individuals who currently are covered as domestic partners

of County employees under the County’s health benefits

plan, and who have received benefits under the plan.” It

was also stipulated that “[f]unds used by Arlington County

to provide health benefits coverage for County employees

and their adult dependents under the County’s self-funded

plan include local tax dollars.”

Citing Code §§ 15.2-1517(A) and 51.1-801, the County

correctly points out that “[t]he General Assembly

specifically authorizes a local government to provide self-

funded health benefit programs for its employees and their

dependents.” 2 The County notes that neither statute defines

2
Code § 15.2-1517(A) states that “[a]ny locality may
provide . . . health insurance programs for their officers

3
the term “dependent” or refers to other statutory

provisions that define the term for different purposes.

Continuing, the County further notes that no express

statutory provision specifies which employee dependents are

eligible to participate in a locality’s self-funded health

benefits plan or by what method their eligibility is to be

determined.

Under these circumstances, the County correctly

maintains, “[t]he power to determine who is an employee’s

dependent . . . is fairly and necessarily implied.”

Furthermore, the County asserts, “the locality must make

[the] determination itself”; indeed, it “could not carry

out its authority without exercising its discretion.” In

the process, the County submits, the term “dependent”

should be given its plain and ordinary meaning as one

“[r]elying on . . . the aid of another for support.” 3 The

American Heritage Dictionary 501 (2nd College Ed. 1985).

and employees . . . through a program of self-insurance,”
and § 51.1-801 states that a “local governing body may,
through self-funding . . ., provide . . . sickness
insurance coverage for officers and employees . . . and
their dependents.”
3
In this regard, however, we note that a dependant is
also defined as “one not able to exist or sustain oneself
without the power or aid of someone else.” Black’s Law
Dictionary 449 (7th edition 1999). Moreover, as a term of
art, a “legal dependent” is defined as “[a] person who is
dependent according to law; a person who derives principal

4
 In the end, the County opines, the “appropriate

inquiry is whether [its] decision to include domestic

partners as dependents in its plan is a reasonable method

of implementing its authority.” This inquiry, the County

concludes, must be answered in the affirmative.

Under Dillon’s Rule, [local governing bodies]
have only those powers which are expressly granted by
the state legislature, those powers fairly or
necessarily implied from expressly granted powers, and
those powers which are essential and indispensable.
Where the state legislature grants a local government
the power to do something but does not specifically
direct the method of implementing that power, the
choice made by the local government as to how to
implement the conferred power will be upheld as long
as the method selected is reasonable. Any doubt in
the reasonableness of the method selected is resolved
in favor of the locality.

City of Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d

314, 316 (1999)(citations omitted).

In light of these principles, we must decide whether

the County’s inclusion of domestic partners as defined by

the County is a reasonable implementation of the County’s

authority to define an employee’s dependent for purposes of

coverage in the County’s self-funded health benefits plan

pursuant to Code §§ 15.2-1517(A) and 51.1-801. For the

reasons that follow and giving the County the benefit of

support from another.” Id. (emphasis added).
Nevertheless, these definitions do not control our
resolution of this appeal.

5
any doubt, we conclude that the County’s definition of

dependent is not reasonable and, therefore, violates the

Dillon Rule. 4

In 1997, responding to an inquiry from a member of the

General Assembly, the Attorney General issued an opinion

that the statutory scheme which permits local governments

“to provide for their officers and employees [self-funded]

group life, accident, and health insurance programs . . .

[does not] contain any language from which a general

legislative intent to extend insurance coverage to persons

within the definition of ‘domestic partner’ may be

inferred.” 1997 Op. Va. Att’y Gen. 131, 131-32. Citing

prior interpretations applying the Dillon Rule and its

corollary to the statutes at issue, id. at 131 n.8, the

Attorney General concluded that “[i]n the absence of any

statutory authority indicating an intent to permit a local

governing body to extend health insurance coverage provided

employees to persons other than the spouse, children or

dependants of the employee . . . a county lacks the power

to provide such coverage.” Id. at 132. In reaching this

conclusion, the Attorney General expressly noted that the

4
Accordingly, we need not address the Taxpayers’
argument that the County has attempted to legislate in the
field of domestic relations.

6
requirement that the employee be “financially

interdependent” with the “domestic partner” was contrary to

the established definition of a “dependant” as one who

“must receive from the taxpayer over half of his or her

support for the calendar year.” Id.

The County’s benefit plan extends coverage to a County

employee and one other adult, who may be the employee’s

spouse, another adult who is properly claimed as a

dependent on the employee’s federal tax return, or the

employee’s “domestic partner.” The County’s definition of

“domestic partner” includes eight criteria. Only two of

these criteria address financial dependency — sharing

expenses and being “financially interdependent.” Neither

of these criteria is synonymous with “financially

dependent.”

The inclusion of a spouse as a dependent for the

purpose of coverage under the County’s benefit plan does

not eliminate the significance of this distinction. It is

a matter of common knowledge and experience that a spouse

may or may not be financially dependent on the employee-

spouse. However, including a spouse as a dependent for

coverage such as this is of such long standing that, even

in the absence of financial dependence, there can be no

dispute that the General Assembly contemplated that a

7
spouse would be included for coverage under local benefit

plans.

It is, nevertheless, equally clear that the General

Assembly in leaving the definition of dependent to the

local governing bodies which adopt self-funded health

insurance benefit plans did not contemplate adoption of a

definition that does not require some aspect of financial

dependence rather than mere financial interdependence.

This is the essential position of the Attorney General’s

opinion cited above and, in our view, it is sound.

Considering Code §§ 15.2-1517(A) and 51.1-801 and the

Attorney General’s opinion, we are of opinion that the

expanded definition of dependants eligible to receive

coverage under the self-funded health insurance benefits

plan adopted by the County is not a reasonable method of

implementing its implied authority under those statutes and

is, therefore, an ultra vires act. Accordingly, the

judgment below will be affirmed.

Affirmed.

JUSTICE KINSER, concurring.

I join the majority opinion. However, I write

additionally to point out that the central issue presented

in this case is not, as stated in the dissenting opinion,

whether “Arlington County [has] the legal authority to

8
recognize common law marriages or ‘same-sex unions’ by

conferring certain health insurance benefits upon domestic

partners of County employees who are engaged in these

relationships.” Rather, the following comprise the

assignments of error in this appeal:

1. The Court below erred by finding that Arlington
County’s coverage of domestic partners in its
self-funded health benefits plan violates the
Dillon Rule, and in granting Plaintiffs’ Motion
for Summary Judgment.

2. The Court below erred by not finding that the
County has authority to define the term
“dependents” to include domestic partners for its
self-funded health benefits plan for County
employees, and in failing to grant the County’s
Motion for Summary Judgment.

3. The Court below erred in failing to recognize that
the County has authority under the reasonable
selection of method rule to define “dependents” to
include domestic partners for purposes of
administering its self-funded health benefit plan
for County employees, and in failing to grant the
County’s Motion for Summary Judgment.

Furthermore, in the appellee Taxpayers’ brief filed in this

appeal, only one of their three main arguments in support

the circuit court’s judgment addressed the issue that the

dissent calls “fundamental” and “central.” In fact, the

rationale utilized by the majority to affirm the circuit

court’s judgment is the same as that contained in the

Taxpayers’ first argument on brief, i.e, that Arlington

County’s definition of the term “dependent” to include

9
individuals who are merely “interdependent” violates the

Dillon Rule.

If the present case were decided on the basis that
Arlington County’s definition of “dependant” for
purposes of its self-funded health benefit plan is not
a reasonable method of implementing its implied
authority because the definition bestows a
governmental benefit on certain relationships that
contravene Virginia’s public policy concerning
marriage, the same could be said with regard to the
tax benefit conferred pursuant to Code § 58.1-
322(D)(2)(a). 5 Under that section, a Virginia taxpayer
can claim a deduction for each personal exemption
available to the taxpayer for federal income tax
purposes. Under 26 U.S.C. § 151, a federal income tax
exemption is available for each “dependent” of the
taxpayer. The term “dependent” is defined in 26
U.S.C. § 152. In pertinent part, that section states
that the term ‘dependent’ means any of the following
individuals over half of whose support, for the
calendar year in which the taxable year of the
taxpayer begins, was received from the taxpayer: . . .
(9) An individual(other than an individual who at any
time during the taxable year was the spouse . . . of
the taxpayer) who, for the taxable year of the
taxpayer, has as his principal place of abode the home
of the taxpayer and is a member of the taxpayer’s
household.

Subsection (b)(5) of 26 U.S.C. § 152 further states that

“[a]n individual is not a member of the taxpayer’s

household if at any time during the taxable year of the

taxpayer the relationship between such individual and the

taxpayer is in violation of local law.”

5
The Taxpayers argue on brief that Arlington County’s
definition of “dependent” conflicts with the definition of
that term under state and federal income tax laws.

10
 If, as the dissent asserts, “[t]he County’s expanded

definition of eligible dependents is nothing more than a

disguised effort to confer health benefits upon persons who

are involved in either common law marriages or ‘same-sex

unions,’” then the allowance of an income tax deduction in

Virginia based on the Internal Revenue Code’s definition of

“dependent” could also be deemed a “disguised effort” to

confer a governmental benefit on taxpayers involved in the

same kinds of relationships. Aside from the requirement of

financial interdependence, as opposed to dependency, an

individual satisfying Arlington County’s definition of

“domestic partner” could also qualify as a "dependent"

under 26 U.S.C. § 152(a)(9). That fact does not mean that

such an individual can violate Virginia’s criminal statutes

proscribing lewd and lascivious cohabitation, Code § 18.2-

345; fornication, Code § 18.2-344; and consensual sodomy,

Code § 18.2-361.

I do not intend in any way to suggest that I condone

common law marriages or “same-sex unions.” Nor do I

question that such relationships do, indeed, violate the

public policy of Virginia. However, neither my personal

beliefs nor Virginia’s public policy make it necessary to

11
decide this appeal on grounds that could call into question

other sections of Virginia’s laws. 6

JUSTICE HASSELL, with whom CHIEF JUSTICE CARRICO and SENIOR
JUSTICE COMPTON join, dissenting in part, and concurring in
judgment.

I.

I dissent because the majority ignores the fundamental

issue raised in this appeal: Does Arlington County have

the legal authority to recognize common law marriages or

"same-sex unions" by conferring certain health insurance

benefits upon domestic partners of County employees who are

engaged in these relationships? Even though a review of

the briefs and record filed in this appeal demonstrates

that this question is the primary issue raised in this

appeal, the majority decides this case on another legal

basis. Arlington County, the appellant, agreed in its

brief that "[t]he central question in this case is whether

Arlington County's action of including its employees'

6
I also note that under Virginia’s State and Local
Government Conflict of Interests Act, the term “dependent”
is defined as “a son, daughter, father, mother, brother,
sister or other person, whether or not related by blood or
marriage, if such a person receives from the officer or
employee, or provides to the officer or employee, more than
one-half of his financial support.” (Emphasis added.)
Code § 2.1-639.2. See also Code §§ 2.1-639.15, 2.1-
639.15:1, 2.1-639.31, 2.1-639.41, 26-69, 34-4, and 59.1-
365.

12
domestic partners as dependents in the County's self-funded

health benefits plan violates Dillon's Rule."

I respectfully disagree with the majority's decision

to ignore the central issue raised in this appeal. This

Court has a duty, as well as an obligation, to decide

issues of great importance to the citizens of this

Commonwealth when, as here, those issues are properly

presented to this Court.

II.

Arlington County implemented a self-funded health

benefits plan for its employees. Pursuant to the plan,

effective July 1, 1997, County employees were permitted to

"add one adult dependent to their health and/or dental

policy." The County stated, in its Employee Relations

Benefits Newsletter that:

"The adult dependent may be:

"a. The employee's legal spouse;

"- or -

"b. The domestic partner of the employee who:

"- has resided with the employee for a 1
year period;
"- shares with the employee the common
necessities of life and basic living
expenses;
"- is financially interdependent with the
employee;

13
 "- is involved with the employee in a
mutually exclusive relationship of support
and commitment;
"- is not related by blood to the employee;
"- is not married to anyone;
"- was mentally competent at time of consent
to relationship;
"- is 18 years of age or older.

"- or -

"c. Other adult dependent who meets the IRS
definition of dependent and whom the
employee claims as a dependent on his/her
federal income tax return."

The County made the following stipulations of fact in

the circuit court:

"An employee who applies for health
insurance benefits coverage must complete a form
to certify the eligibility of any dependents for
whom coverage is requested. An employee applying
for domestic partner coverage must certify that
the employee and the domestic partner meet the
criteria established by the County. Arlington
County may require documentation to support
eligibility for coverage. Any employee who
provides false information is subject to
disciplinary action and appropriate legal
action."

Andrew White, Diana White, and Wendell Brown,

residents and taxpayers of Arlington County, initiated this

proceeding by filing a bill of complaint in the circuit

court challenging the County's authority to confer health

insurance benefits upon "unmarried domestic partners of its

employees." They sought a declaration that the County

lacked the statutory or constitutional authority to grant

14
health insurance benefits to the unmarried domestic

partners, and that Arlington County's policy of extending

health insurance benefits to the unmarried domestic

partners of Arlington County employees violates state

public policy favoring marriage of two adults over the

unmarried cohabitation of two adults. The taxpayers sought

to enjoin the County from granting health insurance

benefits to the domestic partners of its employees or from

expending any tax money on the health insurance benefits

for domestic partners of Arlington County employees.

The primary issue that the taxpayers raised in the

circuit court was that the County had violated the Dillon

Rule because the General Assembly had not conferred upon

the County the power to grant health insurance benefits to

domestic partners of County employees. The circuit court

entered a judgment in favor of the taxpayers which states

in relevant part that "Arlington County's coverage for

domestic partners in its self-funded health benefit plan

for County employees violates the Dillon Rule." The

circuit court, however, did not articulate the precise

reasons it relied upon in reaching its conclusion.

On appeal, the County argues that the circuit court

erred because the County's health insurance coverage for

its employees' domestic partners in its self-funded benefit

15
plan does not violate the Dillon Rule. The County also

argues that it has authority to determine which dependents

are eligible for coverage and that its decision to include

domestic partners of County employees as dependents in the

County's self-funded health benefits plan must be approved

as long as the County's action is reasonable.

We stated in City of Chesapeake v. Gardner

Enterprises, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997),

that

"[t]he Dillon Rule of strict construction
controls our determination of the powers of local
governing bodies. This rule provides that
municipal corporations have only those powers
that are expressly granted, those necessarily or
fairly implied from expressly granted powers, and
those that are essential and indispensable.
Ticonderoga Farms v. County of Loudoun, 242 Va.
170, 173-74, 409 S.E.2d 446, 448 (1991); City of
Richmond v. Confrere Club of Richmond, 239 Va.
77, 79, 387 S.E.2d 471, 473 (1990)."

Accord Board of Supervisors v. Countryside Inv. Co., 258

Va. 497, 503, 522 S.E.2d 610, 612-13 (1999); City of

Virginia Beach v. Hay, 258 Va. 217, 221, 518 S.E.2d 314,

316 (1999). We specifically discussed the application of

the Dillon Rule to counties in Board of Supervisors v.

Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455-56 (1975):

"In Virginia the powers of boards of
supervisors are fixed by statute and are limited
to those conferred expressly or by necessary
implication. Gordon v. Fairfax County, 207 Va.
827, 832, 153 S.E.2d 270, 274 (1967); Johnson v.

16
 Goochland County, 206 Va. 235, 237, 142 S.E.2d
501, 502 (1965). This rule is a corollary to
Dillon's Rule that municipal corporations have
only those powers expressly granted, those
necessarily or fairly implied therefrom, and
those that are essential and indispensable. City
of Richmond v. County Board, 199 Va. 679, 684-85,
101 S.E.2d 641, 644-45 (1958)."

Code § 15.2-1517(A), which permits a locality to

provide health insurance programs, states in relevant part

that "[a]ny locality may provide . . . health insurance

programs for their officers and employees . . . through a

program of self-insurance." Code § 51.1-801 provides in

relevant part that a "local governing body may, through

self-funding . . . provide . . . sickness insurance

coverage for officers and employees . . . and their

dependents." The General Assembly, however, did not define

the word "dependents." The County argues that the

"appropriate inquiry is whether [its] decision to include

domestic partners as dependents in its plan is a reasonable

method of implementing its authority."

We have stated the following principles that we must

apply when ascertaining whether a power may be implied from

a statutory grant to a county:

"In questions of implied power, the answer is to
be found in legislative intent. To imply a
particular power from a power expressly granted,
it must be found that the legislature intended
that the grant of the express also would confer
the implied.

17
 "In determining legislative intent, the rule
is clear that where a power is conferred and the
mode of its execution is specified, no other
method may be selected; any other means would be
contrary to legislative intent and, therefore,
unreasonable. A necessary corollary is that
where a grant of power is silent upon its mode of
execution, a method of exercise clearly contrary
to legislative intent, or inappropriate to the
ends sought to be accomplished by the grant, also
would be unreasonable.
"Consistent with the necessity to uphold
legislative intent, the doctrine of implied
powers should never be applied to create a power
that does not exist or to expand an existing
power beyond rational limits. Always, the test
in application of the doctrine is reasonableness,
in which concern for what is necessary to promote
the public interest is a key element."

Commonwealth v. Arlington County Board, 217 Va. 558, 577,

232 S.E.2d 30, 42 (1977) (citations omitted); accord

Tidewater Ass'n of Homebuilders, Inc. v. City of Virginia

Beach, 241 Va. 114, 119, 400 S.E.2d 523, 526 (1991).

The County's expanded definition of the word

"dependents" clearly and unequivocally violates the Dillon

Rule. This definition is an unreasonable method of

implementing the power granted to the County under Code

§§ 15.2-1517(A) and 51.1-801. The County's expanded

definition of eligible dependents is nothing more than a

disguised effort to confer health benefits upon persons who

are involved in either common law marriages or "same-sex

unions," which are not recognized in this Commonwealth and

are violative of the public policy of this Commonwealth.

18
The General Assembly, by enacting Code § 20-45.2, expressly

prohibited marriage between persons of the same sex. This

Code provision states in relevant part that "[a] marriage

between persons of the same sex is prohibited." Also, we

have held that Virginia does not recognize common law

marriages. Murphy v. Holland, 237 Va. 212, 219-220, 377

S.E.2d 363, 367-68 (1989).

Furthermore, and just as important, the County's

expanded definition of dependents is inappropriate because

it permits the County to legislate in the area of domestic

relations, a prerogative that lies within the exclusive

domain of the General Assembly of this Commonwealth. See

Cramer v. Commonwealth, 214 Va. 561, 564-65, 202 S.E.2d

911, 914, cert. denied, 419 U.S. 875 (1974). The General

Assembly, not a county, is entrusted with the

responsibility of recognizing and defining marital

relationships.

Certainly, the General Assembly did not intend, by its

enactment of Code §§ 15.2-1517(A) and 51.1-801, to grant

counties, like Arlington, the power to recognize common law

marriages or "same-sex unions." Even a cursory review of

Arlington County's eligibility criteria demonstrates that

Arlington County seeks to recognize such relationships

because the criteria require that the employee, who seeks

19
to add a non-employee as a dependent in the County's health

plan, certify that the employee has resided with his or her

domestic partner for a period of one year, "not [be]

married to anyone," "[share] with the employee the common

necessities of life and basic living expenses," "[be]

financially interdependent with the employee," "not [be]

related by blood to the employee," and "[be] involved with

the employee in a mutually exclusive relationship of

support and commitment." There can be no question or doubt

that Arlington County seeks to recognize, tacitly,

relationships that are violative of the public policy of

this Commonwealth.

The County states, in a footnote in its reply brief

filed in this Court, that "Virginia['s] state tax law

permits one member of an unmarried couple living together

to claim the other as a dependent for individual tax return

purposes." The County relies upon an Attorney General's

opinion as authority for this proposition. See 1985-1986

Att'y. Gen. 278, 279. Continuing, the County says that "if

state tax law permits this, then it does not contravene

state public policy for the County to provide health

benefits to an employee's domestic partner." The County's

contention is neither persuasive nor meritorious. The

General Assembly did not, in the State's taxation statutes,

20
alter Virginia's public policy prohibition against common

law marriages or "same-sex unions." Moreover, the state

taxation statutes do not confer upon a county in this

Commonwealth the authority to recognize, tacitly, common

law marriages or "same-sex unions."

The majority holds that Arlington County's decision to

provide health benefits to domestic partners of County

employees violates the Dillon Rule only because the

County's health benefits plan requires that the domestic

partner be "financially interdependent with the employee."

As I have already stated, the majority's opinion ignores

the central issue in this appeal. The majority's decision

to do so is troublesome because if the Arlington County

Board of Supervisors deletes from its health benefits plan

the provision that the majority finds offensive, and

implements a health benefits plan that confers benefits

upon partners of County employees who are involved in

common law marriages or "same-sex unions," the taxpayers

will be compelled to file another lawsuit to challenge the

legality of the County's actions.

I think that a purpose of the appellate process is to

render decisions that will adjudicate the primary

principles of an appeal, thereby ending the litigation when

possible. Unfortunately, because the majority has chosen

21
to ignore the primary issue in this appeal, the taxpayers

and the County may incur additional legal fees to

relitigate an issue that is already before the Court. The

majority's decision to ignore this issue may also result in

a waste of judicial resources because, presumably, the

circuit court and this Court will confront this issue

again. For these reasons, I cannot join in the opinion of

the majority.

22