Democratic State Sen. Chap Petersen has withdrawn a lawsuit concerning the executive orders that Gov. Ralph Northam issued during this year’s pandemic but now is pressing the matter at the Virginia Supreme Court.
Petersen, who represents a portion of Fairfax County, including Vienna, this spring filed suit on behalf of Fujiya House restaurant in Fredericksburg and Zion Springs vineyard and wedding venue in Hamilton, in Loudoun County, both of which he said effectively had been shut down through Phase 2 of the pandemic because of the governor’s directives.
The senator, who has a law firm in the city of Fairfax, contended Gov. Northam’s executive orders had not gone through legislative or administrative processes and had been handed down in a “dictatorial fashion.”
“These executive ordinances have either got to be approved by the legislature or they’ve got to eventually be vacated,” he said. “At some point, we’ve got to go back to the rule of law. I know that sounds a little bit radical.”
Petersen sought an injunction against the governor’s orders, but federal Judge John Gibney Jr. of the Eastern District of Virginia denied it during a July 21 hearing. Petersen later withdrew that lawsuit, but filed an order of mandamus with the Virginia Supreme Court.
Mandamus orders are an “extraordinary remedy” designed to correct abuses of discretion or command government officials to do their duties, according to the Legal Information Institute.
Northam on March 12 declared a state of emergency in Virginia because of the pandemic and on March 23 issued a stay-at-home order that shut down schools for the remainder of the academic year, imposed restrictions on businesses and restaurants, and prohibited gatherings of more than 10 people.
Phase 2, which the governor authorized in June, expanded the permissible size of gatherings to 50 people. Under Phase 3, which has been in effect since July 1, the maximum group size is 250 people.
“These executive orders are 4 1/2 months old, they didn’t go through any democratic process, they used the statute that enables the governor to pass emergency ordinances,” Petersen said. “But ‘emergency’ is defined as usually within when the legislature cannot be called into session. ‘Emergency’ is not six months, it’s not a year.”
Petersen predicted some legislators would introduce bills next year to rein in the governor’s emergency powers.
“At the end of the day, we’re a democracy,” he said. “If you’re going to have laws that restrict people’s freedoms, restrict their ability to operate a business, restrict the ability to attend school, restrict the ability to appear in public – if there’s not an emergency in the sense that there’s not a flood or some type of clear and present danger that’s going to cost people their lives immediately, I do think that you have to have some type of legislative process.”
COVID-19 likely will continue to exist for months and years into the future, Petersen said.
“Are we going to be ruled by executive order that whole time?” he asked. “That may be OK to some people, but to me it’s not an acceptable result.”
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