Curtis David Lytle v. City of Suffolk

COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Friedman and Senior Judge Petty

PUBLISHED

Argued at Williamsburg, Virginia

CURTIS DAVID LYTLE

OPINION BY

v. Record No. 1655-24-1 JUDGE FRANK K. FRIEDMAN

SEPTEMBER 16, 2025

CITY OF SUFFOLK

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

Alfred W. Bates, III, Judge

Timothy Anderson (Anderson & Associates, PC, on brief), for

appellant.

Rebecca J. Powers, Assistant City Attorney, for appellee.

This case addresses whether a city’s use of a speed monitoring camera to issue tickets to

drivers is a governmental function sufficient to confer the protections of sovereign immunity on

the municipality. After receiving a speeding ticket in the mail for a fine detected by a photo

speed camera, Curtis Lytle sought a declaratory judgment against the City of Suffolk. He

alleged the speeding ticket was unlawful and that the City was not operating the photo speed

camera system in compliance with Virginia’s statutory scheme. The Circuit Court for the City of

Suffolk granted the City’s plea in bar and dismissed the case, finding the City was engaged in a

governmental function and was thus protected by sovereign immunity. Lytle appeals that ruling.

BACKGROUND1

Pursuant to Code § 46.2-882.1,2 the City adopted Ordinance 23-O-029 which allows the

City to maintain a camera system to monitor driver speed and enforce the speed limit. On June

23, 2023, a vehicle registered to Lytle was photographed traveling at 51 miles per hour in a work

zone. The posted speed limit was 35 miles per hour. On July 17, 2023, the City issued Lytle a

“Notice of Violation/Summons” for speeding, certified by a City law-enforcement officer, with a

demand to pay $100. The Notice included instructions for paying the civil penalty, and

instructions for contesting the Notice, including procedures for requesting a trial date in the

General District Court for the City of Suffolk.

Lytle received the Notice on July 22, 2023. Following receipt of the violation, Lytle

failed to pay the penalty and failed to request a trial date to contest the merits of the Notice.

Instead, many months later, on April 5, 2024, Lytle filed a complaint for a declaratory judgment

and injunctive relief in the Circuit Court for the City of Suffolk. Specifically, Lytle alleged the

City: (1) failed to issue a proper summons, (2) failed to follow the appropriate procedures for

initiating a traffic case, (3) failed to follow procedures for filing an affidavit for non-liability, (4)

committed fraud, and (5) was guilty of maladministration of government. The City responded by

filing a plea in bar, asserting sovereign immunity, and a demurrer. Lytle filed a reply, and the

circuit court heard oral argument on the plea in bar and demurrer.

The circuit court ultimately sustained the City’s plea in bar and dismissed the complaint

with prejudice. Reasoning that maintenance of a photo speed monitoring system fell under the

1

“When the circuit court takes no evidence on the plea in bar, we accept plaintiff’s

allegations in the complaint as true.” Plofchan v. Plofchan, 299 Va. 534, 547-48 (2021) (citing

Station #2, LLC v. Lynch, 280 Va. 166, 169 (2010)).

2

Code § 46.2-882.1 allows local law-enforcement agencies to place photo speed

monitoring systems in school crossing zones, highway work zones, or high-risk intersections.

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governmental function of regulating traffic, the court held: (1) the City was protected by

sovereign immunity, and (2) Code § 8.01-184, the statute on which Lytle relied, did not waive

that immunity. The court did not consider the merits of the City’s demurrer. Lytle now appeals.

ANALYSIS

“We apply a de novo standard of review when ‘[t]here are no disputed facts relevant to

the plea in bar and it presents a pure question of law.’” Smith v. McLaughlin, 289 Va. 241, 251

(2015) (quoting David White Crane Serv. v. Howell, 282 Va. 323, 327 (2011)). Additionally, the

“existence of sovereign immunity is a question of law that is reviewed de novo.” Gray v. Va.

Sec’y of Transp., 276 Va. 93, 97 (2008) (citing City of Chesapeake v. Cunningham, 268 Va. 624,

633 (2004)).

Lytle argues that the circuit court erred in granting the City’s plea in bar. First, Lytle

contends the circuit court erred in ruling the City’s use of the speed monitoring system qualifies

as a governmental function because, he reasons, the City’s use of a third-party private vendor

and its collection of civil fines both indicate the implementation of the photo speed monitoring

system is a proprietary function solely for the City’s benefit. Second, Lytle argues that, even if

the City is engaging in a governmental function, Dillon’s Rule provides an exception to

sovereign immunity by which a plaintiff may challenge a municipal policy.

The City contends that use of the speed monitoring system constitutes a governmental

function, and further argues Lytle’s reliance on Dillon’s Rule was not properly preserved below.

We agree with the City.

I. The Circuit Court Correctly Found that the City was Entitled to Sovereign

Immunity

Sovereign immunity protects the state from “burdensome interference” with the

performance of government functions. Cunningham, 268 Va. at 633. Further, “[s]overeign

immunity provides for ‘smooth operation of government’ and prevents citizens from ‘improperly

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influencing the conduct of governmental affairs through the threat or use of vexatious

litigation.’” Newport News Sch. Board v. Z.M., ___ Va. ___, ___ (May 8, 2025) (quoting City of

Virginia Beach v. Carmichael Dev. Co., 259 Va. 493, 499 (2000)). Generally, sovereign

immunity renders the Commonwealth immune from liability for tortious acts, unless an express

statutory or constitutional provision waives immunity. Melanson v. Commonwealth, 261 Va.

178, 181 (2001). Sovereign immunity is implemented to protect “the public purse, [provide] for

smooth operation of government, [eliminate] public inconvenience and danger that might spring

from officials being fearful to act . . . .” Messina v. Burden, 228 Va. 301, 308 (1984). “[I]f

sovereign immunity applies, the court is without subject matter jurisdiction to adjudicate the

claim.” Afzall v. Commonwealth, 273 Va. 226, 230 (2007).

“As a general rule, the sovereign is immune not only from actions at law for damages but

also from suits in equity to restrain the government from acting or to compel it to act.” Gray,

276 Va. at 102 (citation omitted). “Absent an express statutory or constitutional provision

waiving sovereign immunity, the Commonwealth and its agencies are immune from liability for

the tortious acts or omissions of their agents and employees.” Rector & Visitors of the Univ. of

Va. v. Carter, 267 Va. 242, 244 (2004).

A. Municipalities are only Entitled to Sovereign Immunity when they are

Engaging in Governmental Functions

“Virginia has long recognized that local governments share in the Commonwealth’s

sovereign immunity.” Massenburg v. City of Petersburg, 298 Va. 212, 217 (2019) (citing City of

Richmond v. Long, 58 Va. (17 Gratt.) 375, 379 (1867)). However, unlike counties, which enjoy

the full protection of sovereign immunity, municipalities are only entitled to immunity in

instances of “liability arising from governmental functions, but not proprietary functions.” Id. at

217-18. Thus, whether a municipality is entitled to sovereign immunity depends on the type of

function it was exercising when liability arose. Id.; see also Jean Moreau & Assocs. v. Health

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Center Comm’n, 283 Va. 128, 137 (2012) (“The shield of sovereign immunity does not just

apply to the State; it also applies to municipal corporations under certain circumstances . . . .

Municipal corporations are immune from liability when performing governmental functions, but

are not when exercising proprietary functions.”).

“A municipality engages in a governmental function when it exercises powers and duties

exclusively for the public welfare, effectively acting ‘as an agency of the state to enable it to better

govern that portion of its people residing within its corporate limits.’” Patterson v. City of Danville,

301 Va. 181, 189 (2022) (quoting Hoggard v. City of Richmond, 172 Va. 145, 147 (1939)). “A

function is governmental if it is ‘directly tied to the health, safety, and welfare of the citizens.’”

Niese v. City of Alexandria, 264 Va. 230, 239 (2002). The Supreme Court has also observed that “a

governmental function involves ‘the exercise of an entity’s political, discretionary, or legislative

authority.’” Id. (quoting Carter v. Chesterfield Cnty. Health Comm’n, 259 Va. 588, 591 (2000));

see also Page v. Portsmouth Redevelopment & Hous. Auth., ___ Va. ___, ___ (July 3, 2024) (noting

that “[g]overnmental functions have a ‘political, discretionary and legislative’ character, and

typically involve exercises of ‘discretion’ while performing ‘delegated or imposed’ duties” (citation

omitted)). Proprietary functions, conversely, involve a municipality’s exercise of power

primarily for its own benefit. Massenburg, 298 Va. at 218. Furthermore, if a function is solely a

ministerial act and involves no discretion, it is proprietary. Carmichael, 259 Va. at 499.

“[P]roprietary functions generally involve nondiscretionary duties such as those imposed by the

common law on private parties.” Page, ___ Va. at ___. Notably, in situations “where

governmental and proprietary functions coincide, the governmental function is the overriding

factor.” Taylor v. Newport News, 214 Va. 9, 10 (1973).

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B. Operating a Photo Speed Monitoring System is a Governmental Function

Under Code § 46.2-882.1, the General Assembly confers to state and local

law-enforcement agencies the ability to operate photo speed monitoring systems. The City is

only authorized to install the speed monitoring devices in areas where there are significant

concerns related to traffic accidents. The authority to operate the speed monitoring systems is

limited to school crossing zones, highway work zones, or high-risk intersections. Code

§ 46.2-882.1(B). The City, itself, must determine which areas qualify for—and require—camera

coverage. Additionally, while municipalities may delegate maintenance of the systems to

third-party private vendors, they must, according to the statute, maintain discretionary authority

over ticketing. See Code § 46.2-882.1(H). Every violation pursued under the authority

conferred by Code § 46.2-882.1 must be certified by a law-enforcement officer who has

inspected the images recorded by the speed monitoring system. Id.

Here, the City used its photo speed monitoring systems to regulate traffic, placing the

systems in work zones as allowed under the statutory framework. Lytle received his ticket for

speeding in a work zone. Lytle argues, however, that the City should not be entitled to the

protections of sovereign immunity because the City was fundamentally engaged in a proprietary

rather than governmental function in its operation of the speed monitoring system.

1. The Fact that a Third-Party Entity Plays a Role in the Ticketing

Process does not Deprive the City of the Sovereign Immunity

Defense

Lytle first contends that the City’s reliance on a third-party vendor implies that the use of

the system is for the City’s benefit and thus proprietary. Yet as noted above, under Code

§ 46.2-882.1(H), municipalities may contract with private vendors to provide speed monitoring

devices and other related support services, including administration. While the City contracted

with a third-party private vendor to mail a “Notice of Violation/Summons” following alleged

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violations, each Notice is certified by a City law-enforcement officer who reviews the images

recorded by the cameras. Thus, the operation remains discretionary because a law-enforcement

officer reviews the photos and determines whether to issue a summons based on the photo and

information gathered by the camera. See Carter, 259 Va. at 591 (“A function is considered

governmental if it is the exercise of an entity’s political, discretionary, or legislative authority.”).

Furthermore, the fact that a third-party entity plays a role in the process does not prohibit

application of sovereign immunity—our courts have applied governmental immunity in matters

involving contracts with third parties. See Edwards v. City of Portsmouth, 237 Va. 167, 172

(1989) (providing ambulance services through the use of a private company was a governmental

function). We reject Lytle’s suggestion that the City’s use of a third-party private vendor

automatically renders the operation of the system proprietary.

2. Virginia Case Law Demonstrates that Traffic Regulation Presents a

Governmental Function

Lytle also argues that because the City collects civil fines resulting from violations

captured via the photo speed monitoring devices, it necessarily means the program is a

non-discretionary ministerial act performed for a pecuniary benefit, amounting to a proprietary

function. Lytle likens the City’s use of the speed monitoring system to sidewalk and road

maintenance, which are proprietary functions, as opposed to cases involving police powers, a

governmental function. See, e.g., City of Va. Beach v. Flippen, 251 Va. 358, 362 (1996) (“The

maintenance of sidewalks is a proprietary, not a governmental, function of a municipal

corporation[.]”); see also Norfolk v. Hall, 175 Va. 545, 553-54 (1940) (holding that the repair of

a road is a proprietary function).3

3

Lytle also compares the operation of a speed monitoring system to the collection of tolls

at tollbooths. To support his argument, Lytle cites Hobbs v. Richmond Metropolitan Authority,

36 Va. Cir. 488 (1995), a circuit court case finding the operation of a tollgate is a proprietary

function and thus the municipality in that case was not entitled to sovereign immunity. Id. at

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Our case law demonstrates that the distinction between whether a municipality’s

roadway-related actions fall under governmental or proprietary functions generally lies in

whether the municipality is engaging in a judgmental or discretionary action for the public

welfare (which is protected under sovereign immunity), or acting in a purely ministerial or

maintenance-related capacity. See Hall, 175 Va. at 551-52 (“A municipality in selecting and

adopting a plan for the construction of its public streets and drains acts in a governmental

capacity; but in caring for and maintaining such public works after their completion it acts

merely in a ministerial capacity.”).4

Virginia case law confirms that a municipality engages in a governmental function when

it exercises its police powers. Lee v. City of Norfolk, 281 Va. 423, 493 (2011) (citing

Cunningham, 268 Va. at 633). Police powers include regulating traffic. Freeman v. Norfolk,

221 Va. 57, 59 (1980) (“The rule Virginia follows is that the regulation by municipalities of

traffic on their streets constitutes the exercise of a governmental function.”); see also Transp.,

Inc. v. Falls Church, 219 Va. 1004, 1006 (1979) (holding that in maintaining traffic signals, a

municipality is engaged in a governmental function, making the City immune from liability).

Thus, traffic regulation is a governmental function, and, similarly, configuration of traffic signals

489-90. We first note that circuit court opinions are not binding on this Court. See McGinnis v.

McGinnis, 69 Va. App. 572, 580 (2018) (noting circuit court opinions not binding on the Court

of Appeals of Virginia). Even so, Lytle’s argument is unpersuasive. The collection of tolls at

tollbooths is wholly distinct from the operation of speed monitoring systems here. The

collection of tolls requires no discretion; the toll is set, and the collection of that toll is

compulsory. If the toll is not paid, the gate does not raise. Some tolls are manned by individuals

working for the state, others are automatic and run by machines; regardless, there is no discretion

by the tollbooth worker or the machine whether to increase the toll, or whether to raise the gate if

the toll is paid. Here, the law-enforcement officer possesses the ultimate discretion to issue a

ticket or not based on information provided by the speed monitoring camera. By statute, no

ticket can be issued without review by law enforcement. Code § 46.2-882.1(H).

4

See also Cunningham, 268 Va. at 640 (holding “that the City’s redesign and planning of

the [water] Plant and its public information campaign regarding temporary risks associated with

consuming City water were governmental functions” and thus sovereign immunity applied).

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and planning traffic flow is a governmental function. See Falls Church, 219 Va. at 1006; Hall,

175 Va. at 551-52; Freeman, 221 Va. at 59-60. Even roadway maintenance decisions can be

governmental functions where they involve judgment and discretion; for example, after a storm

which has created hazardous road conditions such as felled trees or snowdrifts, deciding which

roadways to clear first is a governmental function. Bialk v. Hampton, 242 Va. 56, 59 (1991)

(holding that city’s snow-removal, done for the common good, is a governmental function);

Fenon v. City of Norfolk, 203 Va. 551, 556 (1962) (finding that the removal of downed trees

after a hurricane is a governmental function).

By contrast, routine repair or maintenance of existing roadways is generally proprietary.

City of Richmond v. Branch, 205 Va. 424, 428 (1964). The same is true of the ministerial role of

routine maintenance of sidewalks. Hall, 175 Va. at 551-52; Flippen, 251 Va. at 362.

Thus, a review of Virginia precedent on roadway-related claims involving sovereign

immunity leads to the inevitable conclusion that the City’s use of speed monitoring cameras

pursuant to Code § 46.2-882.1 involves a governmental function. Here, the intent of the photo

speed monitoring program is to attempt to control the speed and flow of traffic and prevent

traffic accidents in areas where pedestrians or road workers are particularly vulnerable; and the

imposition of civil fines for violations captured via the photo speed monitoring devices acts as a

deterrent for speeding motorists. The Code of Virginia contains numerous grants of authority to

localities that enable them to collect civil fines to act as deterrence mechanisms for the protection

of the public.5 The City, while collecting fines, is doing so as an exercise of its power for the

5

For example, Code § 15.2-1429 grants localities the general power to prescribe fines

and other punishments for violations of ordinances, enforceable as if such violations were

misdemeanors. Code § 15.2-2209 authorizes localities to adopt ordinances establishing a

uniform schedule of civil penalties for specified zoning ordinance violations. Code § 15.2-980

permits localities to adopt a uniform schedule of civil penalties for violations of noise

ordinances. Code § 15.2-907.1 allows localities with real estate tax abatement programs to adopt

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general well-being and benefit of its citizens. See Harrell, 265 Va. at 504 (operating “a system

of signals is designed to regulate traffic, and its dominant purpose is to reduce loss of life, limb,

and property by preventing vehicular and pedestrian accidents at intersections”). By

implementing the speed photo system, the City is protecting the general health and safety of

pedestrians, workers, and other motorists in high-risk areas, a touchstone of a governmental

function. In doing so, the City is also exercising judgment and discretion for the welfare of the

public. Thus, we hold that the circuit court correctly determined that the City’s implementation

of a speed monitoring system designed for the purpose of preventing accidents in high-risk zones

qualifies as a governmental function. Consequently, the circuit court properly granted the City’s

plea in bar of sovereign immunity. Id.

II. Lytle Failed to Preserve his Argument that Dillon’s Rule Provides a Waiver of

Sovereign Immunity for the City

Sovereign immunity may bar a declaratory judgment proceeding against the

Commonwealth. Sch. Bd. of Stafford Cnty. v. Sumner Falls Run, LLC, ___ Va. ___ (July 3,

2024). Lytle argues on appeal that there is an exception to sovereign immunity, under Dillon’s

Rule, by which a plaintiff may seek declaratory judgment against a municipality. Under Dillon’s

Rule, localities may exercise only those powers or adopt ordinances that the General Assembly

expressly authorizes by statute or are conferred by necessary implication. Amin v. Cnty. of

Henrico, 63 Va. App. 203, 208 (2014) (citing Lawless v. Cnty. of Chesterfield, 21 Va. App. 495,

499 (1995)).6

ordinances requiring the removal, repair, or rehabilitation of derelict buildings, with associated

civil penalties for non-compliance.

6

Virginia’s Declaratory Judgment Act, Code § 8.01-184, allows a litigant to file a claim

without the requirement of an actual injury, but it does “not create or change any substantive

rights, or bring into being or modify any relationships, or alter the character of controversies,

which are subject to judicial power.” Sumner Falls Run, LLC, ___Va. at ___ (quoting Williams

v. Southern Bank of Norfolk, 203 Va. 657, 662 (1962)). “[S]overeign immunity can bar a

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However, Rule 5A:18 of the Rules of the Supreme Court of Virginia bars consideration

of appeals not properly preserved at the circuit court:

No ruling of the [circuit] court . . . will be considered as a basis

for reversal unless an objection was stated with reasonable

certainty at the time of the ruling . . . . A mere statement that the

judgment or award is contrary to the law and evidence is not

sufficient to preserve the issue for appellate review.

Consequently, this Court may not reverse the circuit court for a reason not raised by the parties

below. Harris v. Howard, ___ Va. ___ (Apr. 3, 2025). Lytle did not raise his argument relying

on Dillon’s Rule in the circuit court.7 Indeed, Lytle concedes in his opening brief that he “never

specifically used the term ‘Dillon Rule’ in the complaint . . . .” Given that Lytle first raises his

argument relying on Dillon’s Rule in this appeal, the issue is waived.

Finally, we address Lytle’s suggestion that if Dillon’s Rule does not allow review of the

speed monitoring cameras, he is without recourse to challenge the process involved in assessing

his violation. Notably, Code § 46.2-882.1(G) requires localities to enforce violations under the

statute by executing a summons for the violation. In that process, there are instructions outlining

the summoned person’s ability to dispute the ticket. Lytle had an opportunity to challenge the

validity of the violation which he failed to utilize. Instead, Lytle chose not to pay the fine, nor to

seek a court date to challenge the ticket. Lytle’s claim that he was denied recourse for disputing

the ticket is wholly without merit.

declaratory judgment action against the Commonwealth unless the General Assembly has

made its intent clear that sovereign immunity is waived and, therefore, a declaratory

judgment action can proceed against the Commonwealth.” Id. at ___; see Va. Bd. of

Medicine v. Va. Physical Therapy Ass’n, 245 Va. 125 (1993) (analyzing the Virginia

Administrative Process Act).

7

Lytle did argue in his reply to the City’s plea in bar that Code § 8.01-184 permitted a

plaintiff to ask the court for a determination whether a municipality is complying with existing

law, and following the circuit court’s ruling. Lytle also objected to “the Court’s findings that

Sovereign Immunity divests the Court of jurisdiction to adjudicate Plaintiff’s claims.”

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CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.

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