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.

First the Supreme Court order… IN RE: FIFTH ORDER MODIFYING AND EXTENDING DECLARATION OF JUDICIAL EMERGENCY IN RESPONSE TO COVID-19 EMERGENCY.

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.