Lawyers, Start Your Engines

by Kerry Dougherty

It’s about time.

Ever since 15-days-to-slow-the-spread in March, some of us have wondered when the lawsuits would start flying.

At what point would the legal community try to stop the governor of Virginia from abusing the vast emergency powers that he grabbed three months ago and shows no signs of relinquishing?

How long would the commonwealth’s legal eagles yawn while the governor picked winners and losers — big box stores were big winners, small businesses were crushed — with his stay-at-home and crowd-limiting orders?

Yes, there was one lawsuit, brought by an indoor gun range in Lynchburg that successfully challenged the shutdown on constitutional grounds. There has also been a challenge to a church closure on the Eastern Shore.

For the most part, though, the commonwealth’s juris doctors sat meekly on the sidelines apparently unconcerned, while the governor issued heavy-handed executive orders that seemingly stomped on rights protected by both the U.S. and Virginia Constitutions.

Enter State Sen. Chap Petersen, a Democrat from Fairfax and an attorney who has been highly critical of Northam’s executive orders. He objects to the duration of the governor’s orders, the uneven application of rules and the fact that the governor has not summoned state legislators to Richmond to weigh in on Northam’s extraordinary exercise of emergency powers.

There is a role for state lawmakers in all this. In Pennsylvania yesterday, the state legislature voted to terminate their governor’s business-killing shutdown.

This week Petersen filed suit against the governor and the state health commissioner on behalf of two clients whose businesses are reeling from Northam’s actions.

One is Jon Tigges, who owns Zion Springs, a 24-acre luxury bed and breakfast spread in Loudoun Country. This bucolic refuge is a popular wedding venue. But the governor’s no-groups-larger-than-10-unless-you’re-protesting-police-brutality-or-Confederate-monuments meant that 16 weddings booked for this spring and summer have been cancelled.

As a result, Tigges lost half his annual income.

Petersen, who represents many Korean small businesses, is also representing Linda Park, whose Fredericksburg restaurant is effectively shut down because the health department will not allow her servers to prepare tableside food.

Petersen has filed suits in both state and federal courts, alleging numerous unconstitutional actions by Northam.

In essence, Petersen argues that the emergency provisions in state law were never intended to be open-ended with the governor controlling all aspects of life in the commonwealth with no expiration date.

He charges that Northam’s limits on gatherings of more than 10 people “have de facto killed the business of Tigges.”

While Tigges continues to hemorrhage money, Petersen points out:

On the weekend of June 6-7, 2020, in the aftermath of the death of George Floyd, Northern Virginia saw at least forty gatherings related to remembering his death and/or protesting the actions leading to it. Nearly all of those gatherings involved large numbers of people in a limited space. For example, the “Black Lives Matter” rally in Fairfax City on June 6, 2020 — which undersigned counsel attended — involved at least three hundred people standing for hours in a downtown park of approximately 1.5 acres. No police were involved and the march was encouraged and authorized by local government.

That double standard, Petersen argues, “is both arbitrary and capricious.”

Hard to argue with that.

Win or lose, Petersen should be applauded for understanding the gravity of what Northam has done and the damage it wrought on ordinary Virginians. Challenging the governor’s authoritarian actions takes courage.

Especially because Petersen — like Northam — is a Democrat.

“I’m an old-school Democrat,” Petersen told listeners on the “Kerry and Mike” radio show on WNIS AM-790 Wednesday morning.

Yes he is. The kind who cares about constitutional rights.

This column was published originally at www.kerrydougherty.com.

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44 responses to “Lawyers, Start Your Engines

  1. Easy solution for Tigges and Park – give every customer a cardboard sign to hold.

    DONE!!!

  2. Quite simply George Floyd’s death and subsequent protests thereof pointed out that there are no limits on Constitutional Civil rights, despite that being the battle cry of those who’ve wished to keep people locked in doors.

    Mr. Petersen is correct with his description of arbitrary and capricious.

    If that wasn’t the case the protests would be limited to take place at Home Depot, Walmart and all other forms of big box stores where COVID-19 won’t go.

  3. Just made a small contribution toward the legal fees. The General Assembly needs to be called back into session, even if just to ratify Northam’s orders.

    Uneven enforcement could be a key issue. Fairfax County firefighters raise money for muscular dystrophy every Labor Day weekend. They stand in the middle islands at big intersections and, well, panhandle, despite the law against this. As a result, Fairfax County district and circuit court judges generally dismiss panhandling charges on other people because of what the county permits the firefighters to do.

    A good judge should be very troubled by ignoring restrictions for protests (favored speech) while enforcing it against small businesses. Literally, my money is on Chap Petersen.

  4. The real answer is to reduce qualified immunity for governments and politicians. Why should the state be immune to civil actions? When the courts can (figuratively speaking) slap the smirk off a tyrant like Ralph Northam’s face maybe it won’t be so much fun to arbitrarily and capriciously ignore the constitution. Of course, after figuratively slapping Northam’s face with monetary damages it would the have to figuratively wipe the shoe polish off its hand.

    • Fine with that as long as we the taxpayers are not paying the miscreant officials’ legal bills and paying the amounts juries might award. As long as we are, it gets a bit more complicated. (Now making them personally liable would sure change who might run for office…..) Everybody tends to forget who is ultimately protected financially by sovereign immunity doctrines. Just keep it in mind….

      • I’d like to see them as personally liable for their actions as they want the police to be personally liable for theirs. And their accumulated and unspent campaign contributions are on the table.

        If police can be held personally liable for denying people their constitutional rights – why not governors too?

      • I think the real solution and this is my personal opinion only that the Police should only be enforcing criminal Law. They shouldn’t even been in the world of civil law, that just begs from them to be required to enforce social engineering laws passed by politicians who then throw them under the bus when it’s enforced in the exact manner the politician wished.

        • A valid suggestion.

        • Help me understand the difference. What would constitute the police enforcing civil law? A noise curfew?

          • Speeding, Noise complaints etc. Basically anything that involves a ticket and monetary compensation for breaking such “law”.

            In reality look to NY with Eric Garner, he was being arrested on loose cigarette sales. That is a social engineering law to keep people from smoking.

        • So, you do not want the police to be enforcing speed limits? If that is the case, why have them?

          • TooManyTaxes

            I don’t see enforcing speed limits or noise ordinances as enforcing a civil matter. Other people are often affected by speeding and late-night, loud noises.

            The problem is unequal enforcement of the COVID-19 restrictions by Northam. If the restrictions on size of gatherings are valid because they are based on medical knowledge that large crowds, with or without masks, create a greater risk of spreading the virus, ignoring large demonstrations while prohibiting a smaller size wedding party is arbitrary and capricious as well as discriminatory. Further, it raises the risk of government making decisions based on the content of the speech. Would the Commonwealth have ignored the gathering limitations for a demonstration for or against some other cause? Northam has become very dangerous, much like King George III.

            My money is with Chap Petersen over Mark Herring.

          • It’s called cameras, most civilized nations have them for such a task.

          • I agree. I could make a serious contribution to Virginia’s various Rainy Day Funds if I could pull over everybody going over 80 on the beltway when I am driving there. You can’t be on the beltway for more than half an hour and see fewer than 3 maniacs pretending to be Indy car drivers. I can’t even guess how many people die from the kind of wildly reckless driving I see every day.

            Use cameras?

          • I’m confused how you manage to even go the speed limit on the beltway. The only time in which I have ever achieved that feet on 66, 495 or 95 was at 0430 in the morning.

            Germany uses cameras on the Autobahn, ps high speed chases are more likely to harm other than are speeding drivers.

        • Violation of portions of the Governor’s executive orders relating to COVID-19 is a misdemeanor, punishable by up to 12 months in jail. So, the police are enforcing criminal law in this instance. Furthermore, police do not get involved in civil law cases, except, possibly, when someone is in violation of a court order entered in a civil case.

          • A misdemeanor is a civil punishment that comes with a fine. It’s not a criminal offense as it’s not a felon.

            If the punishment is momentary compensation it is not criminal, it is in fact civil.

            Police get involved in landlord tenant cases all the time.

          • TooManyTaxes

            MAdams, misdemeanors are crimes in Virginia. See Virginia Code § 18.2-11. Punishment for conviction of misdemeanor. Class 1 & 2 misdemeanors permit imprisonment for one year and sixth months respectively. A person who has been convicted of a misdemeanor has a criminal record, albeit for a less serious offense than felony conviction.

          • Virgina code should be corrected, it’s a nonindicitable offense. In the instance of the Governors edict, I would argue an Unconstitutional one at that.

            It’s punishment is either a fine or county jail for a term no more than 1 year (Class 1 only, all others are merely fines).

            Case in point, reckless driving >20 over the posted speed or 80 mph regardless is a class 1 misdemeanor.

            While others include DUI, Petty Larceny, Assault & Battery and Domestic assault.

            All can come with a year in county jail and a fine of up to $2,500.

            That is utter crap. The fact that they lump speeding in with Assault & Battery is a miscarriage of justice.

          • Nancy_Naive

            Being in the country without documentation is a violation of civil law? Well, I guess the police have no business messing with those folks either… I guess holding them for ICE is illegal detention.

            Hmmmm, that goose gravy is tasty.

          • Dick Hall-Sizemore

            There are two levels of criminal offenses–misdemeanors and felonies. A class 1 or a Class 2 misdemeanor carries the possibility of jail time. Conviction of either a misdemeanor or a felony results in a criminal record.

            Speeding is classified as a traffic infraction, below a criminal offense. A speeding conviction does not show up on one’s criminal record. However, more serious traffic offenses, such as reckless driving and DUI are misdemeanors.

          • “Being in the country without documentation is a violation of civil law? Well, I guess the police have no business messing with those folks either… I guess holding them for ICE is illegal detention.

            Hmmmm, that goose gravy is tasty.”

            Umm that’s a completely separate subject, you’re discussing Federal crime vs state crime. I think it’s also a miscarriage of Justice that illegally violating sovereign soil is only a misdemeanor. Considering upon the second offense it’s a felony.

          • Reckless driving 20 over or 80 and above is a Misdemeanor Class I in Virginia. It is categorized the same as Domestic Assault.

            Reckless driving is a speeding infraction with an arbitrary value to classify otherwise.

            DUI is only about making money, hence why it’s a monetary penalty until you’ve done it 3 times.

  5. I am getting tired of this amateur epidemiology. Many states have had lockdowns. They have been a major success in stemming the pandemic although 21 states are now reporting increases. Singling out Northam makes no sense and must be related to other political issues. As I have said before, Virginia is the middle of the pack.

    • That is not a quantifiable statement, several measures we taken at the same time. There is no way to determine what was and what was not an effective mitigation action. Plus actions like social distancing would only truly be effective if you know when and where the infection arrived. Since we don’t know when nor do we know where, we have no idea where it’s already spread.

      • “Many states have had lockdowns. They have been a major success in stemming the pandemic although 21 states are now reporting increases.”

        Reply: “That is not a quantifiable statement, several measures we taken at the same time. There is no way to determine what was and what was not an effective mitigation action.”

        Yes, MAdams’ reply is quite true. Indeed there is much evidence that lock–downs at best bring no medical benefit (while otherwise doing much other economic and social damage), and/or actually in some places may have done much medical harm, NY, N Jersey, Britain possible examples. Instead those places should have protected the densely packed elderly which they grossly failed to do, and often endangered instead.

        Government wise, this has been a series of mistakes, omissions, and over-reactions by those in charge at the top, causing much damage below.

        • The real heroes here in this covid-19 scare are the first responders, front line docs and nurses, and US military in a variety of support rolls.

          Most everyone else in charge has egg all over their faces, and have much to be sorry for, especially the “experts”.

          And, of course, the self inflicted damages continue apace, hitting the poor and disadvantaged the hardest, like most always is the case.

    • This is a blog about Virginia. Of course Northam gets the most attention of any governor. Having said that, Northam’s reopening is in the middle of the pack.

  6. Well gee. Let’s do nothing because it’s not “quantifiable.”

  7. When I first heard about this suit, I hoped, for the sake of his clients, that Sen. Petersen was taking the case pro bono or on a contingency basis. Given the decision of the state and federal courts, the executive will likely win. In the earlier Virginia Gold’s Gym case (with representation by two Republican state senators), which challenged the Governor’s emergency actions, the Virginia Supreme Court would not even hear an appeal by the company from a lower court ruling against. Then there is the U.S. Supreme Court refusing to hear an appeal involving the California governor’s order restricting the number of people at church services. Chief Justice Roberts said that responding to the threat of COVID-19 – an “area[] fraught with medical and scientific uncertainties” – should be left to political officials, not an unelected federal judiciary.

    • Dick – Northam’s selective enforcement will be a problem for the Commonwealth. In the California house of worship case, churches/mosques/synagogues were treated the same as other entities for COVID-19 restrictions and regulations.

      Northam has moved from the incompetent to the dangerous.

      • Mr. Petersen certainly chose the right wording with Arbitrary and Capricious with the Gov.’s application.

      • I think it would be hard to demonstrate “selective enforcement” on the part of the Governor. It is the responsibility of the police in the various localities, answering to the mayors of those localities, to enforce the law, not the Governor.

        The Governor’s official COVID-19 executive order did not include an exemption for mass protests.

        • Dick – Northam did nothing in the face of the demonstrations. He’s ruling by edict. Why shouldn’t he be held responsible? No one else in the state makes and enforces the rules.

          • Dick Hall-Sizemore

            And the law, for good or bad, authorizes him to “rule by edict”. I have long wondered at the power given the Governor in emergency situations. Until now, we only had short-lived emergencies, such as hurricanes. This relatively long-lived emergency may be incentive for the GA to revisit the emergency and disaster laws.

  8. Given the demonstrable record of rot in Virginia’s ruling elite driven by pay to play and grievance politics, and the spread of that rot to several of its key bureaucratic agencies (health, education, and justice), the great surprise here is the rise of a political leader of real stature, including now demonstrable courage and integrity shown by action against dangerous trends, in lieu of cheap words fueling those trends for private advantage.

    Let us hope Chap Peterson’s example spreads far and wide across the Commonwealth, catches fire so to speak, to reunite and empower Virginians to put their state and its people on a far better course.

  9. Dick – Northam did nothing in the face of the demonstrations. He’s ruling by edict. Why shouldn’t he be held responsible? No one else in the state makes and enforces the rules. It’s either provide some means of seeking relief or it’s time to take to the streets as well.

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