Some businesses test executive authority

By Brandon Martin

As the economic strain of mandatory closures in the midst of coronavirus (COVID-19) bears down on small business owners across the state, some owners are beginning to test the constitutionality of Executive Order (EO) 53 and EO55 by Gov. Ralph Northam.

So far in Virginia, three preliminary injunctions have been sought against the executive order – each with varying outcomes. So just how broad is executive authority?

The shooting range SafeSide was the first to challenge Northam’s authority by stating that EO53 infringed on Second Amendment rights.

Lynchburg Circuit Court Judge F. Patrick Yeatts ruled in favor of SafeSide and prohibited law enforcement from blocking citizens’ access to the gun range.

“The purpose of the right is to have a population trained with firearms in order to defend the Commonwealth,” Yeatts said, adding that proper training and practice at a range “is fundamental to the right to keep and bear arms.”

Attorney General Mark Herring issued a statement criticizing the court challenge and saying that his office is looking for ways to respond.

“Unfortunately, the gun lobby believes the ability to shoot a gun indoors during this pandemic is worth risking further spread of the virus and making Virginia communities and families less safe,” he told the Associated Press.

As of now, the ruling only applies to SafeSide, according to University of Virginia (UVA) law professor Richard Schragger, who told The Virginian Pilot that the reasoning could be applied to subsequent lawsuits brought by others in the state.

The second challenge to EO53 came in a Culpeper County Circuit Court where Judge Claude Worrell denied Merrill C. “Sandy” Hall’s injunction to keep his Gold’s Gym facilities in Henrico County, Chesterfield County and other parts of Virginia, open.

Sens. Bill Stanley, R-Moneta, and Ryan McDougle, R-Hanover, represented Hall, and said that they planned on challenging the judge’s ruling.

Stanley said that it was “necessary and essential” to appeal the decision because Hall and all Virginians’ rights were being infringed due to the executive order implementing criminal penalties on those seeking to remain open to protect their livelihood.

McDougle argued the judge’s ruling contradicted the Virginia Supreme Court’s decision in 2016 that overturned former Gov. Terry McAuliffe’s executive order, which restored voting and civil rights to felons who had served the terms of their convictions.

“The Supreme Court in Howell v. McAuliffe clearly ruled gubernatorial power is not absolute,” McDougle said. “If the only limit on a governor’s power is his own judgment, it is effectively absolute.”

The preambles of EO53 and EO55 address Northam’s reasoning. He cites the authority granted to him by the General Assembly pursuant to Virginia Code § 44-146.17.

Under the clause, a governor acting as the Director of Emergency Management shall “take such action from time to time as is necessary for the adequate promotion and coordination of state and local emergency services activities relating to the safety and welfare of the Commonwealth in time of disasters.”

The powers vested to the governor all for them to issue orders in their judgement “required to control, restrict, allocate or regulate the use, sale, production and distribution of food, fuel, clothing and other commodities, materials, goods, services and resources under any state or federal emergency services programs,” according to § 44-146.17.

“He may direct and compel evacuation of all or part of the populace from any stricken or threatened area if this action is deemed necessary for the preservation of life, implement emergency mitigation, preparedness, response or recovery actions; prescribe routes, modes of transportation and destination in connection with evacuation; and control ingress and egress at an emergency area, including the movement of persons within the area and the occupancy of premises therein,” it stated.

Further in the subsection, executive orders declaring a state of emergency may address “exceptional circumstances that exist relating to an order of quarantine or an order of isolation concerning a communicable disease of public health threat that is issued by the State Health Commissioner for an affected area of the Commonwealth pursuant to Article 3.02 (§ 32.1-48.05 et seq.) of Chapter 2 of Title 32.1.”

So if the governor has the authority to close establishments with his executive order, then why was SafeSide granted a preliminary injunction?

The law also states that nothing in the chapter shall be construed to “empower the Governor, any political subdivision, or any other governmental authority to in any way limit or prohibit the rights of the people to keep and bear arms as guaranteed by Article I, Section 13 of the Constitution of Virginia or the Second Amendment of the Constitution of the United States, including the otherwise lawful possession, carrying, transportation, sale, or transfer of firearms except to the extent necessary to ensure public safety in any place or facility.”

The difference between the two outcomes may also come down to the importance of business rights versus constitutional rights.

While SafeSide’s injunction was granted based on constitutional rights, the injunction by Gold’s Gym was denied because Worrell said “we’re not talking about a fundamental constitutional right” when discussing fitness centers.

This may provide some hope to the third individual seeking an injunction against the executive orders.

The Lighthouse Fellowship Church on Chincoteague Island is arguing that its First Amendment rights have been violated by the order banning gatherings of more than 10 which applies to churches but not some secular businesses such as liquor stores and professional offices.

The Department of Justice filed a statement on May 3 supporting the church.

“For many people of faith, exercising religion is essential, especially during a crisis,” Assistant Attorney General Eric Dreiband said in a statement. “The Commonwealth of Virginia has offered no good reason for refusing to trust congregants who promise to use care in worship the same way it trusts accountants, lawyers and other workers to do the same.”

In late April, Pastor Kevin Wilson was issued a citation for holding a service with 16 people on Palm Sunday, according to the suit.

Micah Schwartzman, another professor at UVA, said that the First Amendment case may not conclude the same way as the Second Amendment argument.

“The church has to argue the state is engaged in discriminating against the church,” he said. “I don’t think that’s plausible in what’s happened here.”

Northam’s executive orders “have the force and effect of law and the violation thereof shall be punishable as a Class 1 misdemeanor in every case where the executive order declares that its violation shall have such force and effect,” according to § 44-146.17.

The executive orders will remain in effect until June 30, unless otherwise extended.

Some business owners are testing the constitutionality of Executive Orders issued by Gov. Ralph Northam, with three preliminary injunctions sought so far.

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