Court of Appeals Issues Administrative Law Opinion — Now that I’ve Lost Your Attention,
Anyone who reads this blog with any regularity knows that the one topic quicker to put your humble correspondent off his feed than any other is Administrative Law. It’s just not his cup of tea and never has been. So naturally when I saw that the appellant in today’s one published opinion from the Court of Appeals of Virginia was Virginia Manufacturers Association, Et Al., I was prepared for a big ol’ yawn fest. The VMA was suing, let’s see . . .Ralph S. Northam, Governor of Virginia, Et Al.? Now, typically, in Administrative Law cases the government entity is some board or agency, not the Governor. Also, the “Et Al.” in each case piqued my interest, especially as it turned out to be “et als.” (We’ll address the square brackets and the added “s” at the end of the post.)
In addition to the VMA, the appellants included Jon Tigges, Zion Springs, LLC, Grace Church of Fredericksburg, Josh Tigges, Dave Larock, Anne Waynette Anderson, Sponsor Hounds, LLC, River Rock Entertainment, Inc., Linda Park, Fujiya House, Inc., Heidi Bundy (Individually, and on Behalf of “A Little Bit H[i]ppy”), Jeffrey Frederick and Brew Republic Bierworks. There were fewer appellees beside the Governor, but they made up for it in the length of their titles: M. Norman Oliver, State Health Commissioner, C. Ray Davenport, State Commissioner of Labor and Industry, and Virginia Safety and Health Codes Board, C/O Charles L. Stiff, Chair.
[N.B. The opinion lists as one of the appellants, “Heidi Bundy (Individually, and on Behalf of ‘A Little Bit Happy’)” – however, Ms. Bundy is a Roanoke merchant, and I happen to know that the name of her establishment is “A Little Bit Hippy” – a reference to the sixties fashion styles purveyed therein, not the size of the patrons. I do not know where the error in transcribing the name occurred or at whose hands.]
The appeal involves the dismissal of the appellant’s suit by the Circuit Court of the City of Richmond challenge two of the Governor’s COIVD-19 Executive Orders. Specifically, EO 63, which required patrons to wear face coverings inside buildings; EO 67, which placed Virginia in “Phase Three” of its reopening plan. The suit also challenged the Virginia Safety and Health Codes Board’s Emergency Temporary Standard (“ETS”), which provided certain workplace requirements designed to prevent the spread of disease to and among employees and employers.
There were four claims asserted in the suit: Count I alleged that the EOs and OPHEs violated the Virginia Administrative Process Act (“VAPA”); Count II requested a declaratory order setting aside the ETS; Count III alleged that the EOs, OPHEs, and the ETS imposed restrictions that violated the Virginia Religious Freedom Restoration Act (“VRFRA”); and Count IV alleged that these restrictions violated the separation of powers provisions of the Virginia Constitution and impermissibly infringed on rights of assembly and association and the free exercise of religion. The suit was filed over a year ago in September of 2020.
The circuit court found that the appellants had alleged a sufficiently specific harm to give them standing to sue, but dismissed their complaint finding that 1) the VAPA did not apply the Executive Orders, 2) any claim regarding the ETS was moot because it had already expired, 3) the appellants had not alleged a “substantial burden” on free exercise as required by the VRFRA, and 4) because any curtailment of appellants’ freedom of assembly had a “real or substantial relation” to the COVID-19 public health crisis and did not rise to the level of a “plain, palpable invasion of rights secured by the fundamental law,” quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).
From these four rulings, the appellants managed to find eight assignments of error. Frequent visitors to this space are familiar with Koehler’s Theorem of Assignment of Error Density, which is that the merit of appeal declines proportionally to the rate on increase in assignments of error asserted therein.
The Court of Appeals makes short work of three of the eight assignments of error, finding that it lacks jurisdiction (at least until January 1, 2022) to review the dismissal of the claim of violations of separation of powers, which “are enforceable, if at all, as common law actions,” and, thus, fall under the jurisdiction of the Supreme Court of Virginia. These issues will be transferred to the Supreme Court where the appellants will have to seek a writ of error by petition.
The remaining five assignments of error get a longer treatment, taking up eleven of the opinion nineteen pages, but I shall not belabor the result — the appellants lose on every argument. The reasons are straightforward and parallel the circuit court’s judgment. The very nature of executive orders issued under an emergency declaration makes their being subject to the APA almost laughable. Considering processes that adherence to the APA would require, it’s a fair bet that most EOs involving emergencies — such as hurricanes, winter storms, and civil unrest — would be past long before the first notice of publication was out. Granted an ongoing pandemic might allow for a more deliberative process, but the law authorizing the declaration of a state of emergency simply does not require that to be done.
Similarly, when the government is no longer enforcing an administrative regulation, whether an emergency one or not, any challenge to it prior enforcement which seeks only its discontinuation is the very definition of mootness. It so happens that the ETS was subsequently followed by the adoption of permanent standards that were substantially the same as the emergency standards, and the appellants argued that the Court could thus offer its opinion on the validity of the former as a test of the enforceability of the latter. The Court correctly noted that this argument was not asserted in the trial court and could not be raised for the first time on appeal. In any case, the result would have been an advisory opinion, which the appellate courts of Virginia are not empowered to give.
Mootness was also at issue with respect to the challenges to the Governor’s actions under the VRFRA because neither EO was any longer in effect at the time of the appeal. The appellants make a play for getting a review arguing that the harm is capable of repetition while evading review, but the Court of Appeals is having none of that, finding that any future EOs that might impermissibly burden religious freedom would not likely be sufficiently similar to those that had expired and, thus, any opinion of the validity of such future EOs would be an advisory opinion, which, supra, the appellate courts do not give.
Now for those of you who read (or skipped) to the end, what’s all the who-hah with the square brackets and the add “s” on the “et al.” The square brackets removed unnecessary periods following the “et” in each party name on the Court’s website. The “et” in “et al.” is not an abbreviation, it’s simple that Latin for “and” with the “al.” meaning “others” as most first year law students know even if they did study Latin in grammar school as young boys (mostly) did from the Renaissance until the mid-twentieth century. Hence, when you have more than one party on a side of case and you don’t want to list more than the first, you simply tack on an “et al.” and the problem is solved. Except, if “al,” means “others” is it correct to use it where there are just two parties? Curiously, the answer is both yes and no. Therein lies a tale that is too long here to recount, but can be summarized as follows:
The letters “al” begin every form of the Latin noun alius — singular and plural nominative, genitive, dative, accusative, ablative and vocative — so “al.” could, in fact, stand for any of these. However, in the context of a series of names in a title, which is essential what a case name is, you would use the nominative case, alius, alia, aliud, aliī, aliae, alia, respectively the masculine, feminine and neuter forms of the nominative singular and plural of alius. So, is et al. short for “and another” or “and others”? As the yes and no answer suggests, it stands for both now. However, in the past, it stood only for “and others,” and the rule was that the case name (or any other nominative list) could be shortened to the first plus “et al.” only if there where at least three individuals. If there were only two, then you didn’t get to emendate by using the abbreviation.
However, as this antiquated rule was ignored or forgotten, “et al.” was increasingly used to simply indicate that there were one or more additional parties. Except, then someone pointed out that this was inaccurate, or at least lacked clarity. However, this someone, not knowing about the former rule or perhaps not wanting to alienate those who had become used to shorter case names, suggested that “et als.” should be used when there were more than two parties. Adding the “s” to pluralize a noun was, of course, proper English, it was not proper in Latin grammar, and this caused something of a backlash among traditionalists (or purists) of the use of Latin in the law. Nonetheless, “et als.” gained a fair number of followers and can still be found in many reporters and other sources where a case name is truncated to just the first party.
We will save the discussion of how &c was replaced by “etc.” instead of “et cet.” for another day.