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Schilling lawsuit challenging governor's mask order hits snag

As the Albemarle County Board of Supervisors passed ordinances making masks mandatory in public spaces, a lawsuit in Albemarle County Circuit Court challenging Gov. Ralph Northam’s executive order requiring masks hit a snag.

On Monday, the supervisors met and approved stricter restrictions intended to slow the spread of the coronavirus. The ordinances make masks mandatory in public, limit restaurants to 50% occupancy indoors and restrict certain public and private in-person gatherings to a maximum of 50 people. The new regulations take effect at 12 a.m. Saturday for a 60-day period.

These ordinances come approximately two months after a lawsuit was filed targeting Northam’s executive order requiring face-coverings to be worn in most indoor settings.

Filed June 1 on behalf of WINA radio host Rob Schilling and Tobey Bouch, owner of Tobey’s Pawn Shop in Albemarle and Charlottesville, the lawsuit specifically argues that Northam’s order contradicts a section of state code that makes it a felony to wear a mask except in certain circumstances.

The lawsuit — which, in addition to Northam, names as defendants state Health Commissioner Dr. Norman Oliver, Virginia Attorney General Mark Herring and Albemarle County Commonwealth’s Attorney Jim Hingeley — sought an injunction preventing the enforcement of the order.

However, in an opinion letter submitted on July 20, Albemarle County Circuit Court Judge Claude Worrell denied the plaintiffs’ request for an injunction as well as a motion for declaratory judgment.

In his six-page letter, Worrell wrote that the state government has sovereign immunity, largely protecting it from motions to enjoin governmental actions. However, this immunity does not protect the government from challenges to the constitutionality of its actions, Worrell wrote.

Despite arguments from the plaintiffs, Worrell wrote that the government has not waived its sovereign immunity in this case.

Additionally, Worrell wrote that the governor’s executive order was properly issued and followed both state code guidelines and addressed a declared public health threat.

“In general, the Governor’s emergency powers are very broad and are only limited by his judgment pursuant to [state code] and the [state constitution section] which states in pertinent part: ‘The Governor shall take care that the laws be faithfully executed,’” Worrell wrote.

Worrell also took issue with claims that Northam’s executive order violates a state code section prohibiting the wearing of masks in certain areas, pointing to a portion of the same code that specifically allows for the exceptions to the code section during the “declaration of a disaster or state of emergency.”

“Further, the orders are not plainly wrong, grossly negligent, executed in bad faith or issued in violation of the United States or Virginia Constitutions and are consistent with Virginia laws in general,” he wrote. “As such, there is no remaining justiciable controversy and even if there was a remaining controversy, Plaintiff has not shown basis to obtain a temporary injunction.”

Attorney Matthew Hardin, who is representing Schilling and Bouch, said the case is still active and they expect to proceed to trial.

“We’re disappointed that we didn’t get the emergency relief we asked for, but we’re confident we will prevail in the end once the court hears all the evidence,” he said.

In light of the Albemarle County Board of Supervisors’ ordinance vote, Hardin said he has received several calls from concerned citizens and business owners.

“The Albemarle ordinance is very concerning because it purports to require citizens to carry a doctor’s note if they have health concerns that make wearing a mask dangerous or medically impossible,” he said. “That requirement to carry a doctor’s note is directly contrary to what [Northam] and [Oliver] ordered statewide and likely violates federal law as well, including both [the Health Insurance Portability and Accountability Act] and the Americans with Disabilities Act.”

Hardin is also representing business owners in the counties of Fluvanna and Fauquier who have filed similar challenges to Northam’s executive order.


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