VIRGINIA MANUFACTURERS ASSOCIATION, JON TIGGES, ZION SPRINGS, LLC, GRACE CHURCH OF FREDERICKSBURG, JOSH TIGGES, DAVE LaROCK, ANNE WAYNETTE ANDERSON, SPONSOR HOUNDS, LLC, RIVER ROCK ENTERTAINMENT, INC., LINDA PARK, FUJIYA HOUSE, INC., HEIDI BUNDY (INDIVIDUALLY AND ON BEHALF OF “A LITTLE BIT HAPPY“), JEFFREY FREDERICK AND BREW REPUBLIC BIERWORKS v. RALPH S. NORTHAM, GOVERNOR OF VIRGINIA, M. NORMAN OLIVER, STATE HEALTH COMMISSIONER, C. RAY DAVENPORT, STATE COMMISSIONER OF LABOR AND INDUSTRY AND VIRGINIA SAFETY AND HEALTH CODES BOARD, C/O CHARLES L. STIFF, CHAIR
Record No. 0316-21-2
COURT OF APPEALS OF VIRGINIA
DECEMBER 7, 2021
JUDGE MARY GRACE O‘BRIEN
Present: Chief Judge Decker, Judges Humphreys and O‘Brien. Argued by videoconference. FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND, W. Reilly Marchant, Judge. PUBLISHED.
Nandan Kenkeremath (Matthew D. Hardin; Joseph J. Traficanti; Celsius GC, PLC, on briefs), for appellants.
Jerald R. Hess, Assistant Attorney General (Mark R. Herring, Attorney General; Donald D. Anderson, Deputy Attorney General; David C. Grandis, Senior Assistant Attorney General/Section Chief, on brief),
The Virginia Manufacturers Association and other parties (collectively, “appellants“) appeal a circuit court order dismissing their complaint challenging executive actions taken in response to the COVID-19 pandemic: Executive Order (“EO“) 63, which required patrons to wear face coverings inside buildings; EO 67, which placed Virginia in “Phase Three” of its reopening plan; and the Virginia Safety and Health Codes Board‘s Emergency Temporary Standard (“ETS“), which provided certain workplace requirements designed to prevent the spread of disease to and among employees and employers. The EOs received separate numbers as Orders of Public Health Emergency (“OPHE“) and were signed by Governor Ralph Northam and Health Commissioner M. Norman Oliver. EO 63 is also numbered as OPHE 5, and EO 67 is also numbered as OPHE 7.
Appellants challenged the EOs and ETS in a four-count complaint against Governor Northam, Health Commissioner Oliver, Commissioner of Labor and Industry C. Ray Davenport, and the Virginia Safety and Health Codes Board (collectively, “appellees“).
Count I alleged that the EOs and OPHEs violated the Virginia Administrative Process Act (“VAPA“); Count II requested a declaratory order setting aside the ETS; Count III alleged that the EOs, OPHEs, and the ETS imposed restrictions that violated the Virginia Religious Freedom Restoration Act (“VRFRA“); and Count IV alleged that these restrictions violated the separation of powers provisions of the
Appellants assert eight assignments of error on appeal. In the first two, appellants contend the court erred by dismissing Count I and holding that VAPA does not apply to “rules” that are “written into” the EOs. In the third assignment of error, appellants argue the court erred by dismissing the request for declaratory relief in Count II and holding that a vote by the Virginia Safety and Health Codes Board regarding the need for the ETS “satisfied all applicable legal standards and precluded judicial review.” The fourth assignment of error also challenges the court‘s dismissal of Count II on mootness grounds.
In the fifth assignment of error, appellants contend the court used the wrong standard for reviewing a demurrer and based the dismissal of Count III on an “incorrect interpretation of the threshold statutory standard in VRFRA.”
The sixth and seventh assignments of error challenge the court‘s determination that Count IV failed to state a legally cognizable separation of powers claim as to either the Governor or the Health Commissioner. In the eighth assignment of error, appellants argue the court erred by dismissing Count IV claiming infringement of fundamental rights, “including in the context of religious service,” by not properly addressing allegations of infringement nor identifying proper legal standards.
On February 7, 2020, Health Commissioner Oliver declared COVID-19 a “Communicable Disease of Public Health Threat for Virginia” as defined in
On March 12, 2020, Governor Northam issued EO 51 stating that the “anticipated effects of COVID-19 constitute a disaster” and declaring a state of emergency pursuant to the Virginia Emergency Services and Disaster Law (“Virginia Emergency Law“),
The Governor subsequently issued a series of EOs designed to slow the spread of COVID-19 in Virginia. These EOs limited public and private gatherings, restricted restaurant and retail businesses, directed schools to cease in-person instruction, and required most recreational and entertainment businesses to temporarily close. Subsequent EOs began a multi-phase reopening process.
A. EO 63 and EO 67
Appellants primarily challenge EO 63 and EO 67. The EOs, signed by the Governor and co-signed by the Health Commissioner, are prefaced with the following statement of statutory authority:
Therefore, by virtue of the authority vested in me by
Article V of the Constitution of Virginia , by§ 44-146.17 of the Code of Virginia , by any other applicable law, and in furtherance of Amended Executive Order 51 (2020), and by virtue of the authority vested in the State Health Commissioner pursuant to§§ 32.1-13 ,32.1-20 , and35.1-10 of the Code of Virginia , the following is ordered: . . . .
EO 63, first issued May 26, 2020, required face coverings for all patrons (over age ten) of certain types of businesses, as well as for employees of essential retail businesses whenever working in customer-facing areas. Violations were punishable as Class 1 misdemeanors pursuant to
EO 67, first issued June 30, 2020, moved Virginia to Phase Three of its reopening plan and eased many restrictions from prior EOs. EO 67 imposed certain obligations on businesses, including requirements to space patrons six feet apart and ensure that employees working in customer-facing areas wore “face coverings over their nose and mouth at all times.” Businesses that could not comply with the requirements were required to close. EO 67 limited all public and private gatherings to 250 people. EO 67 also restricted “religious services” by requiring non-family members to sit six feet apart and mandating single-serving containers for food and drink.
EO 67 imposed additional restrictions on restaurants, farmers’ markets, exercise facilities, and public beaches. EO 67 removed prior maximum-capacity limits for restaurants but still required that tables be spaced six feet apart and “[b]ar seats and congregating areas of restaurants . . . [be closed] except for through-traffic.” Violations of EO 67 also were punishable as Class 1 misdemeanors and subject to injunctive relief.
EO 63 and EO 67 were amended at various times during the state of emergency declared by Governor Northam. The state of emergency expired on June 30, 2021, and all EOs imposing COVID-19 restrictions ceased to have any effect.
B. Emergency Temporary Standard
On July 15, 2020, the Virginia Safety and Health Codes Board (“Board“) adopted the ETS pursuant to
The ETS took effect on July 27, 2020, and was set to expire “within six months of its effective date, upon expiration of the Governor‘s State of Emergency, or when superseded by a permanent standard, whichever occurs first.”
The ETS required employers to take one of two actions. Employers could either undertake certain safety and health precautions based on an assessment of their employees’ risk of contracting COVID-19, or employers could follow CDC guidelines. See
The ETS expired on January 27, 2021, six months after it went into effect, and was replaced by a permanent standard with similar but not identical provisions. Before establishing the permanent standard, the Board conducted sixteen hours of public meetings, made available an online public comment forum from December 10, 2020, to January 9, 2021, and considered new scientific briefings. An economic impact analysis accompanied the permanent standard. On
September 8, 2021, a revised permanent standard took effect following another period for public notice and comment, another economic impact analysis, and review by the Governor.
The revised permanent standard addresses vaccines and updated CDC guidelines, and accordingly it modifies requirements for employers. See, e.g.,
C. Pleadings
Appellants filed their initial complaint September 16, 2020. By agreed order, a first amended complaint adding three plaintiffs was filed on October 26, 2020.
Appellants asserted four counts against appellees. Count I sought judicial review of the EOs pursuant to Appellees moved to dismiss on three grounds. First, they contended that appellants lacked standing regarding all four counts; second, they sought dismissal of Count I on the grounds that VAPA did not apply; third, they argued that the request for declaratory relief under Count II was legally deficient. At the hearing, the court took appellees’ motion to dismiss under advisement and granted appellants leave to amend “but only as to factual allegations that relate to standing.” Appellants’ second amended complaint “incorporate[d] by reference” the first amended complaint and added new factual allegations attempting to demonstrate how each party had been adversely affected by the executive actions. The second amended complaint also added allegations describing executive actions that had occurred after the filing of the first amended complaint in October 2020, stating that “[t]he facts relevant to standing, and some other matters, continue to change.” Appellants added that the Governor and Health Commissioner had signed further EOs that were “progeny” of those EOs referenced in the earlier pleading. Specifically, appellants added references to amended versions of EO 63 and 67, as well as references to an entirely new executive order, EO 72, issued on December 14, 2020. The court ruled that appellants had sufficiently alleged direct injury and therefore had standing to sue. The court also denied the motion to strike based on Rule 1:4(d), although it found the second amended complaint “somewhat confusing and extremely long and somewhat intertwining.” However, the court dismissed Count I because “VAPA doesn‘t apply to executive orders.” It dismissed Count II as moot because the ETS had expired in January 2021 and appellants failed to state a claim that the ETS did not meet the requirements of acted pursuant to explicit statutory authority, and because any curtailment of appellants’ freedom of assembly had a “real or substantial relation” to the COVID-19 public health crisis and did not rise to the level of a “plain, palpable invasion of rights secured by the fundamental law,” quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905). “Where, as here, ‘no evidence [has been] taken with regard to [a] motion to dismiss[,] we treat the factual allegations . . . as we do on review of a demurrer.‘” Bragg v. Bd. of Supervisors, 295 Va. 416, 423 (2018) (alterations in original) (quoting Va. Marine Res. Comm‘n v. Clark, 281 Va. 679, 686-87 (2011), overruled in part on other grounds by Woolford v. Va. Dep‘t of Tax‘n, 294 Va. 377, 390 n.4 (2017)). We accept “the truth of all material facts that are . . . expressly alleged, impliedly alleged, and which can be inferred from the facts alleged.” Harris v. Kreutzer, 271 Va. 188, 195-96 (2006). This “inquiry encompasses ‘not only the substantive allegations of the pleading attacked but also any accompanying exhibit mentioned in the pleading.‘” Bragg, 295 Va. at 423 (quoting Flippo v. F & L Land Co., 241 Va. 15, 17 (1991)). Accordingly, in reviewing the court‘s decision, we look solely to the allegations in the pleading and accompanying affidavits. See id. Additionally, because the sufficiency of appellants’ pleading presents “pure questions of law, we do not accord a presumption of correctness to the judgment below, but review the issues de novo.” Philip Morris USA Inc. v. Chesapeake Bay Found., Inc., 273 Va. 564, 572 (2007); see also Bragg, 295 Va. at 423 (“We . . . review the circuit court‘s decision to dismiss the petition, and any corresponding issues of statutory interpretation, de novo.“). Appellants’ first two assignments of error challenge the court‘s dismissal of Count I of the second amended complaint that alleged that EO 63 (also numbered as OPHE 5) and EO 67 (also numbered as OPHE 7) were issued in violation of VAPA. They argue that the court erred in determining that VAPA does not apply to the rules articulated in the EOs that were also issued as OPHEs. The Governor issued EO 63 and EO 67 pursuant to The Governor shall have, in addition to his powers hereinafter or elsewhere prescribed by law, the following powers and duties: (1) To proclaim and publish such rules and regulations and to issue such orders as may, in his judgment, be necessary to accomplish the purposes of this chapter . . . . Executive orders, to include those declaring a state of emergency and directing evacuation, shall 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. . . . (7) Whenever, in the opinion of the Governor, the safety and welfare of the people of the Commonwealth require the exercise of emergency measures due to a threatened or actual disaster, to declare a state of emergency to exist . . . . Therefore, the General Assembly expressly authorized the Governor to declare a state of emergency and conferred upon the Governor the broad authority to issue rules, regulations, and executive orders that “in his judgment” are necessary to protect public health and safety in an emergency. See Here, on February 7, 2020, the Health Commissioner identified COVID-19 as a public health threat. The Governor then issued EO 51 stating that the anticipated effects of COVID-19 constituted a disaster and declaring a state of emergency. Subsequent EOs, including EO 63 and EO 67, initiated a response plan and reflected the Governor‘s judgment concerning the actions necessary to accomplish the purposes of the Virginia Emergency Law. VAPA for notice and public comment. See, e.g., Additionally, actions taken pursuant to the Virginia Emergency Law are required to be temporary and must be accompanied by notice to the legislature. See Appellants contend that the EOs are subject to judicial review under VAPA because VAPA provides for emergency rulemaking in Although the EOs set forth rules for wearing face coverings and maintaining physical distances in public areas, they did not therefore constitute agency regulations subject to VAPA. Nothing required appellants to pursue administrative remedies prior to filing their action in circuit court challenging the EOs, a prerequisite for judicial review under VAPA, and they in fact did not pursue any preliminary administrative remedies. See Foltz v. Dep‘t of State Police, 55 Va. App. 182, 185-89 (2009) (finding that VAPA did not apply where the complaining party was not first required to pursue administrative remedies prior to filing suit). The EOs were issued pursuant to the Governor‘s delegated authority to take prompt action under the Virginia Emergency Law. Requiring EOs to comply with VAPA would undermine the legislative purpose of the Virginia Emergency Law to confer exigent rulemaking authority upon the Governor. Appellants also challenge the court‘s determination that VAPA does not apply to OPHEs. The EOs received OPHE numbers and were co-signed by the Health Commissioner pursuant to However, the OPHEs are precisely the same documents as the EOs: EO 63 is subtitled as OPHE 5, and EO 67 is subtitled as OPHE 7. VAPA, which does not apply to EOs, does not automatically apply merely because the EOs were co-signed by the Health Commissioner and given separate OPHE numbers. Emergency executive actions are not immune from judicial review. For example, in separate lawsuits filed in both state and federal court, many appellants sought to enjoin enforcement of the executive actions and received hearings on the merits of their claims. See, e.g., Tigges v. Northam, 473 F. Supp. 3d 559 (E.D. Va. 2020). However, a request for judicial review under VAPA is not the proper mechanism for challenging executive orders issued pursuant to the Virginia Emergency Law. Therefore, because Count I sought judicial review under VAPA, the court did not err in finding that appellants failed to state a claim and dismissing that count. Count II of the second amended complaint requested a declaratory judgment pursuant to issue moot. Because we agree with appellees’ contention that the issue was moot, we affirm the court‘s ruling on that basis. Although Count II sought a declaration that “the ETS is void,” the ETS expired January 27, 2021, and no longer had any effect when the parties appeared in court on appellees’ motion to dismiss in February 2021. See Appellees now claim that their challenge to ETS is not moot because the Board‘s adoption of a permanent standard was a “form over substance change” and “most” of the ETS “remain[s] substantially ‘on the books.‘” However, the permanent standard was both adopted and revised through a separate rulemaking process distinct from the procedure for adopting an ETS. The process for a permanent standard provides for a public notice and comment period, economic impact analysis, and public Board meetings to consider its substance. See, e.g., Appellants never challenged the permanent standard in the court below and are precluded from doing so for the first time on appeal. See Rule 5A:18. Appellants could conceivably initiate a new lawsuit seeking judicial review of the permanent standard under “Generally, a case is moot and must be dismissed when the controversy that existed between litigants has ceased to exist.” Daily Press, Inc. v. Commonwealth, 285 Va. 447, 452 (2013). “No matter how vehemently the parties continue to dispute the lawfulness of the conduct that precipitated the lawsuit, the case is moot if the dispute ‘is no longer embedded in any actual controversy about [appellants‘] particular legal rights.‘” Ingram v. Commonwealth, 62 Va. App. 14, 21-22 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)). There are limited exceptions to this mootness doctrine. For example, an issue is not moot when a proceeding is “short-lived by nature” or “when the underlying controversy is one capable of repetition, yet evading Here, the ETS expired both by its express language and by statute, and therefore the precise relief requested by appellants — to declare the ETS void — is unavailable. Moreover, no exception to the mootness doctrine applies: the six-month duration of the ETS was adequate time for appellants to seek injunctive relief, and appellants’ claims are not “capable of repetition” because the ETS has been replaced by a substantively distinct permanent standard pursuant to VAPA‘s requirements for public notice and comment. See id. There is no “reasonable expectation that the same complaining party [will] be subject to the same action again,” a requirement for this mootness exception to apply. See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (alteration in original) (quoting Lewis v. Cont‘l Bank Corp., 494 U.S. 472, 481 (1990)). Therefore, the court did not err in dismissing Count II as moot. Appellants contend the court erred in dismissing Count III, which alleged that the restrictions imposed by EO 63 and EO 67 substantially burdened the free exercise of religion in violation of VRFRA. VRFRA provides in relevant part as follows: No government entity shall substantially burden a person‘s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to the person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest. In Count III, certain appellants alleged that the EOs impermissibly limited their religious practices. For example, they alleged that limitations on public gatherings and seating arrangements interfered with church attendance, created difficulties in ministering to families, and hampered weddings and funerals. However, the state of emergency expired on June 30, 2021, and all EOs imposing COVID-19 restrictions terminated. Nevertheless, citing Commonwealth ex rel. State Water Control Board v. Appalachian Power Co., 12 Va. App. 73, 76 (1991) (en banc), appellants argue that although the restrictions challenged in Count III have expired, the harm involved falls under the “capable of repetition, but evading review” exception to the mootness doctrine. See Salvatierra v. City of Falls Church, 35 Va. App. 453, 456-57 (2001) (applying mootness exception when the defendant‘s commitment to the Department of Juvenile Justice “was too short to fully litigate the issues through an appeal” and the ruling could impact his future probation status). Cf. Ingram, 62 Va. App. at 21-22. Further, the exception requires a “reasonable expectation that the same complaining party [will] be subject to the same action again.” Spencer, 523 U.S. at 17 (alteration in original) (quoting Lewis, 494 U.S. at 481). This exception to the mootness doctrine does not apply here. Count III challenged the substance of the EOs and alleged that they burdened the free exercise of religion. Because the EOs have expired by operation of law and are not currently in effect, we cannot speculate on how or whether the content of future EOs might substantively affect religious rights, if at all. To do so would be to render an impermissible advisory opinion. See Elliott, 48 Va. App. at 554 (noting the Therefore, because the executive actions that appellants claimed violated VRFRA have expired by operation of law, and we cannot speculate on whether appellants will be subject to the same action again, see Spencer, 523 U.S. at 17, we dismiss assignment of error 5 as moot. Appellants’ remaining assignments of error challenge the court‘s dismissal of Count IV, which alleged that the executive actions violated the separation of powers provisions of the state constitution and infringed on fundamental rights including the freedom of assembly and free exercise of religion. Appellants argue that the court erred in finding no legally cognizable constitutional claims in Count IV. However, our limited jurisdiction does not include the issues raised in assignments of error 6, 7, and 8. Likewise, nothing required appellants to pursue administrative remedies as a precursor to bringing the constitutional claims in Count IV, and they in fact did not pursue any. Therefore, it was not an “appeal” from an administrative agency‘s decision within the meaning of 276 Va. 93, 106 (2008) (stating that “self-executing” constitutional provisions, such as the separation of powers, are “operative without the need for supplemental legislation” and are therefore “enforceable in a common law action“). Accordingly, assignments of error 6, 7, and 8 are not subject to this Court‘s statutory jurisdiction under We affirm the court‘s decisions dismissing Count I because VAPA does not apply to Affirmed in part, transferred in part.D. The Court‘s Ruling
ANALYSIS
A. Standard of Review
B. Assignments of Error 1 and 2: Judicial Review under VAPA
C. Assignments of Error 3 and 4: ETS claims
D. Assignment of Error 5: VRFRA claims
E. Assignments of Error 6, 7, and 8: Constitutional claims
CONCLUSION