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EDITORIAL: Case probes limits of executive orders

THE NOVEL coronavirus has created a whole slew of new problems that nobody anticipated, much less planned for, leaving even public officials in a state of confusion about how best to keep Virginians safe without causing unnecessary collateral damage. Gov. Ralph Northam’s now-they’re-open, now-they’re-closed reactions to changes in the number of reported COVID-19 cases in the commonwealth is just one example.

But so far, the question of how far the governor’s authority goes to quarantine individuals who are not sick and have not infected anybody else remains unanswered.

Last June, state Sen. Chap Petersen, D–Fairfax, filed a lawsuit on behalf of a Spotsylvania restaurant owner, claiming that Northam’s executive orders exceeded the emergency authority granted to him under state law because he did not seek or obtain consent from the state legislature. But instead of setting some limits, the General Assembly killed a bill that would have required the state Board of Health to approve such emergency orders within 30 days of issuance and renew them every 30 days thereafter.

Then the Virginia Supreme Court dismissed Petersen’s lawsuit based on plaintiffs’ “lack of standing” and “failure to demonstrate a relevant injury.” But the court evaded the larger question of whether the governor has the authority “to suspend the laws of the commonwealth and announce unilateral edicts limiting civil and constitutional rights for an indefinite period of time … without any consultation, much less a recorded vote, by the General Assembly.”

Now another restaurant in Spotsylvania is asking the same question. But Circuit Judge Ricardo Rigual is at least willing to hear the case.

On March 12, the State Board of Health asked Judge Rigual to issue a temporary injunction against the co-owners of Gourmeltz, claiming that they violated Northam’s Executive Order 72, which was extended on Jan. 27, and contained a number of restrictions for restaurants operating during the pandemic.

Court documents allege that the Rappahannock Area Health District received over 20 complaints that Gourmeltz was not in compliance with EO 72’s mask and social distancing mandates, and after an on-site inspection, suspended its operating license on the grounds that the restaurant posed a danger to public health. But the owners refused to close.

However, the judge refused to issue the temporary injunction, stating in a March 22 ruling that “the Court is keenly concerned about the deprivation of the defendant’s due process right to be heard,” and that “given the significant constitutional issues raised by the defense … [they] are entitled to a hearing to fully address whether the State Dept. of Health’s actions, in this case, are lawful.”

The ruling was based on the fact that “there is no evidence before the court that [the present status quo] has resulted in the harm claimed by the Plaintiffs.”

In fact, the judge continued, “the only evidence before the court regarding the health risk to patrons of defendant’s restaurant came from [RAHD environmental health manager Brent] McCord, who testified that there are no known cases of COVID-19 traced to the defendant’s restaurant.”

Judge Rigual noted that Gov. Northam’s “broad authority” to order quarantines and other measures to prevent the spread of communicable diseases “enjoys the presumption of constitutionality.” But, he added, Gourmeltz has also raised “significant constitutional issues” that “require careful consideration”—specifically whether Northam’s EOs “are a form of commandeering private businesses ‘to act as the new enforcement arm of its executive policy mandates.’ ”

This is new territory into which neither the governor, the General Assembly, nor the Virginia Supreme Court has been willing to venture. Kudos to Judge Rigual for having the courage to allow what could be a landmark case to go to trial. It will hopefully draw a clear line to determine just how far the governor’s emergency powers can go without violating Virginians’ constitutional rights.

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