Gregory A. Kwiatkowski v. State Board for Community Colleges

• Court: Court of Appeals of Virginia
• Decided: September 5, 2023
• Docket: 1292224
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Humphreys, Ortiz and Senior Judge Annunziata Argued at Fairfax, Virginia

GREGORY A. KWIATKOWSKI, ET AL. MEMORANDUM OPINION* BY v. Record No. 1292-22-4 JUDGE DANIEL E. ORTIZ SEPTEMBER 5, 2023 STATE BOARD FOR COMMUNITY COLLEGES

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Joanne F. Alper, Judge Designate

Bradley G. Pollack for appellants.

Noelle L. Shaw-Bell, Assistant Attorney General & Associate System Counsel (Jason S. Miyares, Attorney General; Charles H. Slemp, III, Chief Deputy Attorney General; Coke M. Stewart, Deputy Attorney General; Mike F. Melis, Senior Assistant Attorney General and Section Chief, on brief), for appellee.

Gregory Kwiatkowski and Wade Guinn (“appellants”) appeal the Shenandoah County

Circuit Court’s dismissal of their petition for appeal of an unlawful “regulation” by the State

Board for Community Colleges (“State Board”). The State Board adopted a resolution and

policy to assist five community colleges with their renaming processes. Appellants claim that

the State Board’s minutes, resolution, and policy were regulations adopted without proper public

notice. After sustaining the State Board’s plea in bar, the trial court dismissed the case due to

sovereign immunity and lack of standing. Because appellants failed to allege proper standing

and offered no evidence to support standing beyond generalized grievances as members of the

public, we affirm.

* This opinion is not designated for publication. See Code § 17.1-413(A). I. BACKGROUND

In July 2020, the State Board, which governs the Commonwealth’s twenty-three

community colleges, adopted a resolution to evaluate the names of its colleges and determine

whether they warranted modification. This resolution stated:

NOW, THEREFORE BE IT RESOLVED, that the State Board ask the local advisory boards of each of our 23 colleges to review the appropriateness of its college, campus(es), and facilities names, and report back on or before the regularly scheduled March 2021 meeting of the State Board for Community Colleges with facility name changes it has made and recommendations regarding college and campus names that should be changed by the State Board.

In March 2021, the State Board received a report identifying five colleges to be reviewed

for a potential name change: Dabney S. Lancaster, John Tyler, Lord Fairfax, Patrick Henry, and

Thomas Nelson. The individual boards of John Tyler, Lord Fairfax, and Thomas Nelson

Community Colleges each “recommended that the name of the college be changed.” The boards

of Patrick Henry and Dabney S. Lancaster Community Colleges did not recommend changing

their names.

In May 2021, the State Board implemented a new policy to assist with the renaming

process (“Naming Policy”). It stated:

The naming of a Virginia community college should reflect the values of inclusive and accessible education articulated in the VCCS mission statement, with special emphasis on diversity, equity, and opportunity, and be relevant to the students it seeks to serve and to the geography of its service region.

The State Board also accepted the individual board recommendations that John Tyler, Lord

Fairfax, and Thomas Nelson Community Colleges change their existing names. At the July 2021

meeting, the State Board approved changing the names of Lord Fairfax, John Tyler, and Thomas

Nelson Community Colleges, and it directed Patrick Henry and Dabney S. Lancaster Community

Colleges to review their existing names under the State Board’s new Naming Policy. -2- On September 22, 2021, appellants1 filed a petition for appeal in Shenandoah County

Circuit Court, alleging that the State Board had adopted a regulation without proper public notice

under the Virginia Register Act and the Virginia Administrative Process Act (“VAPA”) and

seeking declaratory judgment. Appellants specifically alleged that the State Board’s July 2021

minutes—including the July 2020 resolution and May 2021 Naming Policy, contained within

those minutes—were the “regulation” at issue. The petition was devoid of any allegations

connecting the appellants to any of the colleges at issue. Notably, the petition failed to allege

any facts in support of the appellants’ standing. The State Board filed a plea in bar, arguing that

there was no regulation, that the minutes, resolution, and Naming Policy constituted mere

internal management, and that—as a result—sovereign immunity, standing, and Rule 2A barred

the appellants’ suit.2 The trial court sustained the plea in bar, finding that the policy “[did] not

meet the requirements of a regulation as set forth in the law of Virginia,” and dismissed the suit

based on sovereign immunity and lack of standing. This appeal followed.

II. ANALYSIS

Appellants argue that the State Board’s July 2021 minutes, July 2020 resolution, and May

2021 Naming Policy constituted an unlawful “regulation.” Because appellants failed to allege

standing or provide any evidence that would confer standing to sue, we affirm the trial court’s

judgment.

Standing is a threshold “jurisdictional issue.” Morgan v. Bd. of Supervisors of Hanover

Cnty., __ Va. __, __ (Feb. 2, 2023). A plaintiff must have “standing to sue” for a case to be

justiciable. Id. at __ (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998)).

1 Appellants were joined by two individuals, William Holtzman and Randall Hamman, in their circuit court petition for appeal. Holtzman and Hamman withdrew their appeals to our Court. 2 The State Board also filed a demurrer, which was not addressed. -3- Standing protects constitutional “separation-of-powers principles” and prevents the judiciary

from being used as “an open forum for the resolution of political or ideological disputes about

the performance of government.” Id. at __ (quoting Town of Chester v. Laroe Ests., Inc., 581

U.S. 433, 438 (2017); United States v. Richardson, 418 U.S. 166, 192 (1974) (Powell, J.,

concurring)). It deals only with “the characteristics of the person or entity who files suit” and

has “no relation to the substantive merits of an action.” Id. at __ (quoting Anders Larsen Tr. v.

Board of Supervisors of Fairfax Cnty., 301 Va. 116, 120 (2022); McClary v. Jenkins, 299 Va.

216, 221 (2020)). Instead, it “asks only whether the claimant truly has ‘a personal stake in the

outcome of the controversy.’” Id. at __ (quoting McClary, 299 Va. at 221-22).

The VAPA contains a statutory standing requirement: “[a]ny person affected by and

claiming the unlawfulness of any regulation or party aggrieved by and claiming unlawfulness of

a case decision . . . shall have a right to the direct review thereof by an appropriate and timely

court action against the agency or its officers or agents . . . .” Code § 2.2-4026(A) (emphases

added).3 Though broad, this interest must still be non-generalized; generalized grievances do not

confer standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 571-74 (1992); see also Owens v. City

of Virginia Beach, No. 1707-17-1, slip op. at 11 (Va. Ct. App. Aug. 7, 2018) (“Absent such a

direct, non-generalized interest, a party lacks standing under VAPA.”).

A party is “aggrieved” by a VAPA case decision when they have “an immediate,

pecuniary and substantial interest in the [case decision], and not a remote or indirect interest.”

Reston Hosp. Ctr., LLC v. Remley, 59 Va. App. 96, 107-08 (2011). “[I]t is not sufficient that the

sole interest of the [aggrieved] petitioner is to advance some perceived public right . . . .” Id. at

108.

3 The Virginia Register Act does not contain a similar statute conferring standing or allowing suit against a state agency. -4- This case is simple. Appellants’ notice of appeal and petition for appeal failed to allege

standing. And appellants have offered no evidence that would confer standing to sue, beyond

mere generalizations as members of the public. In their opening brief, appellants state only that

their “rights, as part of the public . . . were violated by the State Board.” At trial, appellants

stated only that: “standing . . . shouldn’t be analyzed until we have a regulation” and “[a]ll

members of the public are surely aggrieved when a state agency fails to do the statutorily

required notice by publication.”

Although a “person affected by” an unlawful regulation is broad under the VAPA, it is

not all-encompassing. The person must still be affected by the matter in some way. But

appellants failed to allege any interest in this suit, even as basic as alumni status. As such, the

circuit court properly held that it had no jurisdiction to hear the matter.

III. CONCLUSION

Appellants failed to allege any non-generalized interest in their petition for appeal and

thus lacked standing. As a threshold issue, the circuit court properly held that it did not have

jurisdiction to hear the case.4 We affirm.

Affirmed.

4 We decline to analyze the issue of sovereign immunity or the merits of the appeal. The doctrine of judicial restraint requires us to “decide cases ‘on the best and narrowest grounds available.’” Commonwealth v. White, 293 Va. 411, 419 (2017) (quoting Commonwealth v. Swann, 290 Va. 194, 196 (2015)); see also Spruill v. Garcia, 298 Va. 120, 127 (2019). -5-