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ARLINGTON COUNTY, et al.
WHITE, et al.
April 21, 2000
Record No. 991374
ARLINGTON COUNTY, ET AL.
ANDREW WHITE, ET AL.
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Compton, Senior Justice
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
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
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," 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
shares with the employee the common necessities
of life and basic living expenses;
is financially interdependent with the
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
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
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." The County notes that neither statute defines 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."  The
American Heritage Dictionary 501 (2nd College Ed.
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 any doubt, we conclude that the County’s
definition of dependent is not reasonable and, therefore,
violates the Dillon Rule. 
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 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 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.
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 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
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.
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 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).  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."
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 decide
this appeal on grounds that could call into question other
sections of Virginia’s laws.
JUSTICE HASSELL, with whom CHIEF JUSTICE
CARRICO and SENIOR JUSTICE COMPTON join, dissenting in part, and
concurring in judgment.
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’ 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.
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
"- has resided with the employee for a 1
"- shares with the employee the common
necessities of life and basic living expenses;
"- is financially interdependent with the
"- is involved with the employee in a
mutually exclusive relationship of support and commitment;
"- is not related by blood to the
"- 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 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
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 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
We stated in City of Chesapeake v. Gardner
Enterprises, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997),
"[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. 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.
"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
"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
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. 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
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 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, 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 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.
 "[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.
 Code ? 15.2-1517(A) states
that "[a]ny locality may provide . . . health insurance
programs for their officers 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."
 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
support from another." Id. (emphasis added).
Nevertheless, these definitions do not control our resolution of
 Accordingly, we need not address the Taxpayers’
argument that the County has attempted to legislate in the field
of domestic relations.
 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
 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.