Rule by Decree has Found a Co-conspirator – Virginia’s Chief Justice

by James C. Sherlock

One of the most clearly illegal court orders in Virginia history was issued on Monday, June 7.

At the request of the Governor, the order suspended the rights of some plaintiffs to access the courts. The order also refers to the fact that the Governor is planning to institute a “comprehensive rent relief program” by the end of the month.

The original sin in all of this is the fact that Governor Northam does not want to call a special session of the General Assembly to write laws to achieve his desired ends.


The order stated that the Supreme Court act “at the request of the Governor to allow the Commonwealth time to implement its comprehensive rent relief program and to help relieve the public health risk associated with evicting Virginians from their places of residence … Effective immediately and for the duration of the Fifth Order, through June 28, 2020, pursuant to Va. Code § 17.1-330, all residential unlawful detainer actions and the issuance of writs of eviction are suspended and continued.”

The law cited by the order, Va. Code § 17.1-330, allows the Supreme court to declare a judicial emergency and close courts. There is nothing in that statute that can be remotely construed as giving the Supreme Court authority to selectively deny access to open courts for plaintiffs in specific types of cases. The Supreme Court exceeded its constitutional and statutory authority in issuing this order.

To achieve their desired public health policy ends, which they are nowhere in the constitution or law authorized to offer an opinion, their option was to leave the courts closed.

Now the Governor’s “comprehensive rent relief program”….

To quote from the Virginian Pilot:

“Northam said in the meantime, he’s working on a rent relief program to help people who are struggling to pay rent during the coronavirus pandemic. He said the program will provide targeted financial assistance to households at risk of eviction and will be complemented by the state’s eviction diversion pilot program, created in 2019 for the cities of Hampton, Danville, Petersburg and Richmond, four cities that in 2016 had some of the highest eviction rates in the country.”

His request to the Chief Justice indicated that program will be in place by the end of this month.

We have to ask. What legislation authorized and what part of the budget approved by the General Assembly funded such a program? The Governor has signaled no intention to call the General Assembly into special session to approve it, so he must think such authority and funding is somewhere in existing law. He should point to it.

The Supreme Court exists to protect the people of Virginia from executive and legislative overreach, not to collaborate with the executive to exclude the General Assembly in a decision denying plaintiffs access to the courts.

The Governor loves rule by executive order. It takes all the messiness out of the constitutional restraints, especially if he can make the Chief Justice a co-conspirator. It has to stop.

Cheering the outcome of this order, as some will, is not nearly enough reason to countenance the trashing of the Constitution of Virginia. What new program will be created out of thin air next? What types of cases will be suspended next?

Who do Virginians see about getting their government back?

Two-thirds of the members of each body of the General Assembly can call themselves into special session.

Now is the time.

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39 responses to “Rule by Decree has Found a Co-conspirator – Virginia’s Chief Justice”

  1. LarrytheG Avatar

    looks like there was substantial bipartisan support in the GA for the intent of the rent relief pilot program:

    01/30/19 Senate: Constitutional reading dispensed (40-Y 0-N)
    02/01/19 Senate: Read third time and passed Senate (40-Y 0-N)
    02/14/19 House: Reported from General Laws (22-Y 0-N)
    02/19/19 House: Passed House BLOCK VOTE (98-Y 0-N)
    02/19/19 House: VOTE: BLOCK VOTE PASSAGE (98-Y 0-N)

    not a single vote against.

    1. sherlockj Avatar

      My point exactly. Call the General Assembly into session and do it legally.

      1. LarrytheG Avatar

        If they voted for the pilot and it’s Constitutionality unanimously – what is the Supreme Court supposed to think about the intent of the legislature?

        All the Supreme Court did was give Northam a short delay not a permanent one , he still has to follow it with legal actions or else they will also be challenged.

        And Jim – you’re attacking the Chief Justice here personally – not the court. This is Trumpian… where he goes after whatever Judge he disagrees with. How “constitutional” is that?

        1. sherlockj Avatar

          It was his order.

          1. LarrytheG Avatar

            No, it was his ROLE as a Chief Judge – not as a person.

            come on Jim, you know better.

          2. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            The order says that a majority of the court was in agreement.

      2. Totally in support of you Mr. Sherlock and I have to get back to you on that other issue.

  2. kls59 Avatar

    But if you implement a ‘rent relief’ program, aren’t you obligated to also institute a ‘mortgage relief’ program for the property owners of the apartments and rental units?

  3. Peter Galuszka Avatar
    Peter Galuszka

    Jim S. Points of procedure aside, what are your idess about rent relief. If the GA went back into session, what should they do?

    1. sherlockj Avatar

      Not my call, just like it is not the Governor’s . The Democratic-led General Assembly should do whatever it decides to do.

  4. djrippert Avatar

    More structural corruption in Virginia. The state supreme court is elected by the General Assembly. The justices may serve up to two 12 year terms. Stop right there and think. You are a Virginia state supreme court justice in his or her first 12 year term. You can be re-elected (or not) by the General Assembly. How much scrutiny do you apply to the laws enacted by the legislature that may or may not re-elect you? How easily do you yield to the leader of Virginia’s political establishment (in this case Ralph Northam)? How willing are you to upset the majority in the legislature (in this case the Democrats)?

    Virginia Supreme Court justices should be elected for life or, more accurately, until they reach their mandatory retirement age.

    Have the legislature control the re-election of the supreme court justices who are supposed to provide a check and balance on the legislature? Are you kidding me?

    1. LarrytheG Avatar

      so you think because they are not appointed for life – they can be “beholden?

      How do they do this in Md?

      1. MAdams Avatar

        “so you think because they are not appointed for life – they can be “beholden?”

        That is very much the premise behind why the SCOTUS is elected for life, they don’t have to bend to be reelected.

        What does Maryland have to do with Virginia?

    2. LarrytheG Avatar

      interesting discussion:

      “Keeping independence and accountability in mind, the U.S. Constitution established a system whereby the President would appoint federal judges with U.S. Senate consent. Before the mid-1800s, nearly all states admitted to the Union selected their judges by this method of gubernatorial appointment with legislative confirmation as well, though some opted to select judges by legislative vote alone.[9] Then in 1832, Mississippi became the first state to implement judicial elections. New York followed suit in 1846, and a shift occurred as states adopted the new method. By the time the Civil War began in 1861, 24 of the 34 states had an elected judiciary, and every state that gained statehood after the Civil War provided for the election of some—if not all—of its judges.[7]”

    3. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      This is ironic. The House Democrats opposed the constitutional amendment related to redistricting because it provided for Supreme Court input if there was an impasse on the commission. So, they were afraid the justices, most of whom were elected by a Republican legislature would be biased in favor of Republican favored districts. Don is afraid the justices will be biased in favor of Democrats.

  5. TooManyTaxes Avatar

    File a suit against the Commonwealth in federal court for a declaratory judgment that, absent concomitant mortgage and real estate tax relief, the moratorium constitutes a taking of property.

    1. sherlockj Avatar

      Excellent idea. All landlords are injured parties. The pleading can also show that the order will drive up rents and deposits to account for the increased risk. Do you know how to get this done?

  6. LarrytheG Avatar

    well…maybe… looks like the government CAN define what “rights” you do have – all legal like:

    ” CARES Act Relief Options for all federally backed mortgages
    A new federal law, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, puts in place two protections for homeowners with federally backed mortgages:

    First, your lender or loan servicer may not foreclose on you for 60 days after March 18, 2020. Specifically, the CARES Act prohibits lenders and servicers from beginning a judicial or non-judicial foreclosure against you, or from finalizing a foreclosure judgment or sale, during this period of time.

    Second, if you experience financial hardship due to the coronavirus pandemic, you have a right to request a forbearance for up to 180 days. You also have the right to request an extension for up to another 180 days.,during%20this%20period%20of%20time.

    1. TooManyTaxes Avatar

      Larry, I don’t think most rental properties, even single family homes, involve federally backed mortgages. My wife and I own a single family home in Manassas Park. We were only offered a standard commercial mortgage. I don’t think the federal CARES Act provides any relief to small landlords.

      sherlockj I don’t know any law firms that might do this type of work off the top of my head. But there are a number of property rights firms around.

      1. LarrytheG Avatar

        No, you’re right. Rental policies are usually at the state level. Mortgages are often Federally insured and that’s where the Feds have some role.

        But the real point here is that it’s Congress that passed the LAWS that did put limits on mortgages…. during COVID-19.

        And it does appear that the Va Legislature DID – unanimously put some restrictions on evictions… it was not a debate… it was unanimous both GOP and Dems.

        So both the Feds AND the State CAN put restrictions on repossessions and evictions… it’s all quite “legal”…

        1. TooManyTaxes Avatar

          No argument that a short-term prohibition on evictions during a pandemic is likely to stand up. The 1934 SCOTUS case of Home Building & Loan Association v. Blaisdell, 290 U.S. 398 (1934) upheld a Minnesota statute that extended the time available for mortgagors to redeem their mortgages from foreclosure. The extension had the effect of enlarging the mortgagor’s estate contrary to the terms of the contract. The law primarily affected farm mortgages, required the mortgagor to meet certain criteria and expired after WW2 began.

          But SCOTUS has also struck statutes that imposed a moratorium on the issuance of building permits to address growth outstripping infrastructure as a taking of property. First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987).

          As time extends and a landlord must pay mortgage payments, taxes, insurance, operating costs and, sometimes, utilities, I’d argue the legislation would become an unconstitutional taking. At some point, the inability to collect rent from someone threatens the ability of the landlord to retain the property against foreclosure or tax sale.

  7. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    First of all, I agree with Jim Sherlock that the Supreme Court ruling extending the judicial emergency to suspend the issuance of detainer and eviction orders is a stretch of the court’s statutory authority. But, this court is hardly a bunch of wild-eyed liberals.

    Second, as far as the rent assistance program is concerned, everyone needs to take a deep breath. No one is talking about rent moratoriums or rent controls. The Governor is talking about providing assistance to renters so that they can avoid evictions. Many times people get eviction notices after being a few days late on their rent, for example. Then after late fees and court costs are added in, the financial burden is too much and they get kicked out. The 2019 General Assembly directed a pilot study (Chapter 356 of the 2019 Acts of Assembly) to look at these problems. The 2020 General Assembly appropriated $3.3 million for each year of the upcoming biennium to “establish a competitive Eviction Prevention and Diversion Pilot Program that will support local or regional eviction prevention and diversion programs that utilize a systems approach with linkages to local departments of social services and legal aid resources.” (Item 113) The 2020 Appropriation Act, and hence this appropriation, will not be effective until July 1. The Governor has authorization to use this money, in conjunction with the findings from the pilot program authorized in 2019 to set up a rent assistance program. I think there is also CARES money available for rent assistance. This is not “governing by decree” or “making programs up out of thin air”. The General Assembly has authorized; the Governor is executing what has been authorized.

    1. LarrytheG Avatar

      Yep. You speak with a moderate voice but the folks on the right are not having it… I note that this kind of thing appears to not be happening in GOP-controlled states and strongly suspect it’s got a partisan flavor to it.

      For instance, this is what is happening in Maryland with a GOP Governor:

      “Rent, Utilities, and Eviction
      Governor Larry Hogan issued an emergency order that prohibits Maryland courts from ordering the eviction of any tenant who can show that their failure to pay rent was the result of the coronavirus disease 2019 (COVID-19). Examples include losing employment, needing to care for a school-aged child,or being diagnosed with COVID-19. An additional emergency order prohibits electric, gas, water, sewage, phone, cable TV, and internet service provider companies from shutting off any residential customer’s service or charging any late fees. ”

      Jim Sherlock and others on the right in Virginia would be all over Northam if he does that.

  8. sherlockj Avatar

    The not yet in force law at issue is § 55.1-1262. (Effective July 1, 2020; Expires July 1, 2023) Eviction Diversion Pilot Program; process; court-ordered payment plan.

    What is in that law is beside the point. It does not go into effect until July 1. That is the core of legal problem. The Supreme Court decided that they could deny plaintiffs access to the courts until it became law. They simply do not have the constitutional or legal authority to do that.

    The order referred to authority granted under a law that lets them close courts in an emergency. They could have left the courts closed until July 1 without any legal problem. That is not what they did.

    The precedent they set in denying an unfavored class of plaintiffs access to the courts is utterly unacceptable and has potentially horrible consequences. It really must be unacceptable to all Virginians. What if you or your family members are in a disfavored class next time?

    The law itself, not yet in force, has not been tested against the following constitutional restrictions on the power of government. The Court Order surely violates them.

    Virginia Constitution Bill of Rights:
    Section 7. Laws should not be suspended.
    That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.

    The Supreme Court order unquestionably suspended current law.
    Section 11. Due process of law; obligation of contracts; taking or damaging of private property; prohibited discrimination; jury trial in civil cases.
    That no person shall be deprived of his life, liberty, or property without due process of law; that the General Assembly shall not pass any law impairing the obligation of contracts; …

    The Supreme Court order and perhaps the new law certainly impairs the obligation of contracts.

    Please be serious in thinking about this issue.

  9. Dick Hall-Sizemore Avatar
    Dick Hall-Sizemore

    Here is the authority for the Supreme Court’s action, it was not arbitrary:
    1. Sec. 17.1-330 authorizes the Chief Justice to declare a Judicial Emergency. Among other things, the order “ may suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders in any court processes” (Emphasis added.)
    2. The Chief Justice modified the Emergency Order to provide that “all residential unlawful detainer actions and the issuance of writs of eviction are suspended and continued.” Landlords are not denied access to court to file writs of unlawful detainment. However, the timelines for execution of those writs are suspended and continued.

    The Court has the authority to suspend the timelines applicable to any court process. In this situation, it has declared that any residential unlawful detainer action or the issuance of writs of eviction (court processes) are suspended and continued (in legal terms, means to be taken up later). The Emergency order expires after 21 days.

    One may not like this authority or may think it has been abused in this situation, and I might agree with you. But I think the General Assembly has given the Court the authority to take this action.

  10. sherlockj Avatar

    However, the Chief Justice picked his choice of law – favoring a not-yet-in-force law over existing law.
    His reference was Virginia law on emergencies, not the Constitution of Virginia’s Bill of Rights.
    The law to which you refer says that the Court can suspend laws. The Constitution says it cannot.
    The Court interprets the emergency law as permitting it to impair contracts. The constitution says it cannot.
    The Court should have appealed to the higher authority of the constitution, as is its job.
    If the emergency powers laws come before the Court, they should be found unconstitutional.
    The General Assembly must participate in such decisions as, instead, the Governor and the Chief Justice made together.
    If the Court cannot recognize that principle, then we do not have the republic guaranteed to us by the United States Constitution.

    1. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      Suspend laws–You claim that the Constitution says the Court cannot suspend laws. However, the Constitution says that any suspension ought not be done “without consent of representatives of the people”. Those representatives of the people enacted Sec. 17.1-330 to authorize the Court specifically to suspend some aspects of law.

      As for the impairment of contracts, the law does not impair contracts. The Court’s emergency action does nothing to diminish, or impair, the amount of rent owed by the tenant to the landlord (the contract). Rather, it affects the timing of the statutory remedies available to the landlord.

      1. LarrytheG Avatar

        One might think that those who would want to sue – e.g. Judicial Watch and the like – would have competent lawyers who would also understand the law and perhaps that’s why they are not challenging?

        Dick -you certainly are quite knowledgeable and/or are knowledgeable enough to know where to go look to ascertain the law -Sherlock might want to turn his columns by you first before he posts some of that stuff that seems that he does not know the law.

        No disrespect Jim… but I do wonder if the premise of your post is still valid given what Dick is saying.

        1. sherlockj Avatar

          See my reply to Dick.

      2. sherlockj Avatar

        The order states that it is “pursuant to Va. Code § 17.1-330” You contend that statute gave the Court the authority to suspend existing laws. I disagree.

        The clear intent of the General Assembly in Sections A and D of § 17.1-330 was to preserve access to the courts.

        “A. A judicial emergency may be declared as provided in this section when a disaster, as defined in § 44-146.16, substantially endangers or impedes the operation of a court, the ability of persons to avail themselves of the court, or the ability of litigants or others to have access to the court or to meet schedules or time deadlines imposed by court order, rule, or statute.”

        “D. Notwithstanding any other provision of law, such order may suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders in any court processes and proceedings, including all appellate court time limitations.”

        The order instead denies access to the courts.

        If the Court had stuck with the part of the order that suspended the issuance of writs of eviction, it would have been OK. That is basically a stay. The suspension of writs of eviction would also have achieved the public health concerns expressed by the Governor.

        But very unfortunately it also suspended residential unlawful detainer actions, which is an unconstitutional bridge too far.

        There is nothing in the order that “grants relief from deadlines, time schedules, or filing requirements.” Instead it suspends existing law and denies access to the court for enforcement of existing law.

        There is nothing in that statute that can be construed as giving the Supreme Court authority to selectively deny access to open courts for a specific class of plaintiffs in this case residential landlords.

        There will be a lot of victims of this order if it stands as a precedent. The costs of rental housing and deposits will soar as the owners of the properties have to account for the greatly increased risk.

        Dick you said earlier “No one is talking about rent moratoriums or rent controls.” Really? Wait until the rents go up to account for the risk that the Supreme Court has inserted into the business of residential rental properties.

        1. Dick Hall-Sizemore Avatar
          Dick Hall-Sizemore

          Civil procedure is not something I dealt with in my years in state government. That being said, as I understand the statutes, “unlawful detainer” is a filing by a landlord in a situation in which the he alleges that the tenant has not fulfilled the terms of his rental agreement but is still occupying the property. If the court finds in favor of the landlord and the tenant still does not leave, then a notice of eviction is issued. The statute provides certain time frames in which the tenant may respond and in which the the order may be carried out. The Court order suspended those processes. It does not prevent the landlord from filing for a unlawful detainer, assuming the courthouse is open.

          1. sherlockj Avatar

            Dick, you are correct. An unlawful detainer action is a court action by the landlord that determines who has right to the property. The tenant has a right to answer. The judicial determination follows. A finding that the landlord is entitled to the property is normally followed by an eviction order. My contention is that the landlord has been denied his day in court. The public health issue was solved by blocking – staying – the issuance of the eviction orders. The denial of due process was an unnecessary and unconstitutional step.

          2. Dick Hall-Sizemore Avatar
            Dick Hall-Sizemore

            Then it would seem that Sec. 17.1-330 authorizes the “suspension” or “tolling” of the eviction order. As in some other instances, we are probably at an impasse. It would be helpful if one of the attorneys on this blog (TBill or TooManyTaxes?) would jump in and point out my errors in interpretation.

          3. LarrytheG Avatar

            Acbar is an attorney also… I believe.

  11. TooManyTaxes Avatar

    Two business owners have hired Chap Petersen as their attorney who has filed a state and a federal suit against Northam’s governing by edict. One of his arguments is Northam’s selective enforcement, imposing strict limits on business customers while ignoring the recent protests.

  12. VDOTyranny Avatar

    “the Supreme Court exists to protect the people of Virginia from executive and legislative overreach”… funny. Left or right, they are all statists, appointed by the politicians to further their political interests.

    1. Reed Fawell 3rd Avatar
      Reed Fawell 3rd

      This is the real problem, the political appointment term limited nature of judgeships on highest court in Virginia.

  13. sherlockj Avatar

    Dick, We are not at an impasse. We agree. The suspension – staying- of eviction orders is well within judicial authority. The denial by judicial order of access to the court process that determines who has the right to the property is not, and is in fact unconstitutional under both the United States and Virginia Constitutions.
    “Effective immediately and for the duration of the Fifth Order, through June 28, 2020, pursuant to Va. Code § 17.1-330, all residential unlawful detainer actions and the issuance of writs of eviction areis suspended and continued.” is a legal order that accomplishes the health safety objectives. I yesterday wrote a letter to the Chief Justice that expressed that opinion and recommended the change.

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