866 S.E.2d 27
Va. Ct. App.2021Background:
- Appellants (Virginia Manufacturers Assn. and others) challenged Governor Northam’s COVID-19 Executive Orders (EO 63 — face coverings; EO 67 — Phase Three business and gathering restrictions) and the Virginia Safety and Health Codes Board’s Emergency Temporary Standard (ETS).
- EO 63 and EO 67 were issued under the Virginia Emergency Law and also numbered as Orders of Public Health Emergency (OPHEs) co-signed by the State Health Commissioner.
- The Board adopted an ETS July 15, 2020 (effective July 27, 2020), which expired by statute six months later (Jan. 27, 2021) and was later replaced by a substantively different permanent standard following VAPA procedures.
- Appellants asserted four counts: (I) VAPA challenge to EOs/OPHEs; (II) declaratory relief voiding the ETS; (III) violation of the Virginia Religious Freedom Restoration Act (VRFRA); (IV) separation of powers and infringement of fundamental rights.
- The Richmond circuit court: found appellants had standing but dismissed Count I (VAPA inapplicable to emergency EOs), dismissed Count II (ETS claim) as moot/substantively valid, dismissed Count III (no substantial burden under VRFRA) as moot, and dismissed Count IV for failure to state a cognizable separation-of-powers claim.
- The Court of Appeals affirmed dismissal of Counts I–III and transferred the constitutional claims in Count IV to the Virginia Supreme Court for lack of subject-matter jurisdiction.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VAPA review applies to emergency EOs/OPHEs (Count I) | EOs/OPHEs impose rules and therefore are subject to VAPA review | Governor’s authority under the Virginia Emergency Law permits emergency orders without VAPA procedures; OPHE co-signature doesn’t convert EOs into VAPA-covered agency rulemaking | VAPA does not apply to emergency executive orders issued under the Virginia Emergency Law; Count I dismissed |
| Whether ETS declaration challenge remains justiciable and procedurally defective (Count II) | ETS adoption had procedural and substantive defects and should be declared void | ETS expired by statute and was adopted consistent with the emergency standard statute; permanent standard replaced it | Claim moot because ETS expired; permanent standard is a separate regulation and was not challenged below |
| Whether EOs substantially burden free exercise under VRFRA (Count III) | Gathering limits and seating rules for religious services substantially burden religion | Restrictions were temporary emergency measures tied to public health and not shown to be a substantial burden warranting strict scrutiny | Dismissed as moot (EOs expired); no applicable mootness exception because future recurrence is speculative |
| Whether executive actions violated separation of powers and fundamental rights (Count IV) | Executive actions exceeded delegated authority and infringed assembly/religious rights | Actions were taken pursuant to explicit statutory emergency authority to protect public health | Court of Appeals lacks jurisdiction over these common-law/constitutional claims; transferred to Virginia Supreme Court |
Key Cases Cited
- Boyd v. Commonwealth, 216 Va. 16 (Va. 1975) (upheld governor’s emergency order as within broad emergency authority)
- Jacobson v. Massachusetts, 197 U.S. 11 (U.S. 1905) (emergency public-health measures analyzed for relation to public welfare)
- Wal-Mart Stores E., LP v. State Corp. Comm'n, 299 Va. 57 (Va. 2020) (statutory interpretation presumes legislature chose words with care)
- Bragg v. Bd. of Supervisors, 295 Va. 416 (Va. 2018) (standard for reviewing dismissals/demurrers when no evidence taken)
- Foltz v. Dep’t of State Police, 55 Va. App. 182 (Va. Ct. App. 2009) (distinguishing actions that require exhaustion of administrative remedies)
- Ingram v. Commonwealth, 62 Va. App. 14 (Va. Ct. App. 2013) (mootness: short-lived orders and exceptions to mootness doctrine)
- Spencer v. Kemna, 523 U.S. 1 (U.S. 1998) (mootness exception requires reasonable expectation of repetition affecting same party)
- Gray v. Va. Sec’y of Transp., 276 Va. 93 (Va. 2008) (self-executing constitutional provisions enforceable via common-law action)