WATER WAR: Showdown Begins in Circuit Court

Trial began Monday in Fairfax Circuit Court in the case of Fairfax County Water Authority (FCWA) versus the City of Falls Church.  At issue is the constitutionality of the City’s rates, fees and charges for public water.

After ruling on preliminary motions Judge R. Terrence Ney heard opening statements from attorneys for Fairfax Water and Falls Church.

Stuart Raphael, relying heavily on visuals featuring charts and tables, presented the case for FCWA.  Fairfax Water contends that the City’s practice of transferring water system profits to its General Fund effectively subsidizes its government and allows Falls Church to lower its property tax rate.

Sandy Thomas responded for the City, arguing that the issue before the Court is political, not legal.   Falls Church maintains that other Virginia localities operate their water systems in a similar manner with the consent of the General Assembly.  Mr. Thomas also noted the City has followed this practice for decades and that if FCWA thought it improper it should have filed well before 2009.

Perhaps the most significant exchanges took place prior to the opening statements when the counsels argued whether Fairfax Water could introduce historical data on water system profits.

Mr. Raphael intends to introduce data from as far back as 1981.  Mr. Thomas stated that any data prior to 2005 should be excluded from the trial and that a pattern of practice had no bearing on the issue.  In response, Mr. Raphael insisted it would be a huge error to exclude the earlier data, especially that for the years just prior to 2005.

Judge Ney deferred a ruling until such evidence is offered by the plaintiff, but advised Mr. Raphael that he felt Mr. Thomas had presented the better argument.  However, Mr.  Raphael was able to include some of this data in his opening statement.

In his opening remarks Judge Ney opined that the case is not all that complicated.  Certainly it is not nearly as extensive as Fairfax Water’s initial claim against the City, as the remaining counts in that filing have been stayed until February.

However, both parties have marshaled more than 60 exhibits.  Many thick binders share the counsels’ tables and over a dozen large file boxes command the first row of courtroom benches.  Each side plans to call several supporting witnesses, a number of whom were present today.

The Court has allocated two weeks for the trial.  City Attorney John Foster recently stated to the News-Press that he doubted it would take that long.  However, judging from the “ammunition” stockpiled in the courtroom, plaintiff and defendant clearly are well prepared for an intense and protracted struggle.

The Counsels -  Lead counsel for the plaintiff is Stuart Raphael of Hunton and Williams.  He has served as counsel for Fairfax Water since 2000 and successfully argued a water rights case before the United States Supreme Court in 2003.  Assisting Mr. Raphael is Hunton and Williams associate Patricia Moody.

Heading the defense team is Alexander (Sandy) Thomas of Reed Smith, who specializes in antitrust counseling and litigation.  Richard Holzheimer, Jr. of Reed Smith and Falls Church City Attorney John Foster are assisting Mr. Thomas.

The City has switched outside counsel since losing the appeal of its action against FCWA in federal court in 2008.   In that case Falls Church was represented by the District firm of McCarthy, Sweeney, and Harkaway.

Both Reed Smith and Hunton and Williams are large, multi-national law firms that are accustomed to working on cases involving high-stakes litigation.  Each has been in business for over 100 years.

The Judge - R. Terrence Ney has served on the Circuit Court since 1999.  He is also an adjunct professor at George Mason University Law School.

In his best known ruling, Judge Ney decided that a man who left his 21 month old son in a locked car in July 2008 was not guilty of involuntary manslaughter.

Judge Ney was nearly appointed to the Virginia Court of Appeals in 2006 but his nomination was defeated.   A Fairfax delegate attributed this to “regionalism.”