On April 11, 2020, this author sent an email to Governor Ralph Northam explaining that his executive orders #53 and #55 violate his oath of office. I explained to Governor Northam that he has taken an oath to “support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia.” § 49-1 Code of Virginia. I explained in detail how his Executive Orders #53 and #55 abridge the freedom of peaceable assembly and freedom of religion. Indeed, his executive orders are the very despotism that is prohibited by the Constitutions of Virginia and the United States. I asked the governor to please tell me how his executive orders comply with the limitations in Article I, Section 12 of the Constitution of Virginia and the First Amendment to the United States Constitution which both prohibit the government from infringing on a person’s right to peaceably assemble.
After having not received a response from the governor to my initial email, I sent the governor another email on April 17, 2020, making the same points with a similar series of interrogatories. I received no response from the governor or his staff. And so, on April 24, 2020, I sent yet another email to the governor. Unsurprisingly, neither he nor his staff has responded to any of my emails.
I further sent to every Virginia State Senator and Virginia State Member of the House of Delegates emails that documented the unconstitutional actions of the Virginia Governor. I received some encouraging responses, one which suggested future efforts to limit the governor’s emergency power. But it was clear to me that no immediate action was going to be taken by the Virginia legislature to do anything to put a stop to the Virginia Governor’s despotism.
This author also contacted my local sheriff and reminded him of his constitutional obligation to support the Virginia and U.S. Constitutions and that his obligation under that oath supersedes enforcement of the unconstitutional executive orders of the governor.
Finally, on May 5, 2020, this author filed a complaint (#18518) with the Virginia Officer of Inspector General (VOIG).
VOIG Refers Complaint to the Virginia Attorney General
On May 7, 2020, the VOIG later notified me that they were forwarding my complaint to the Virginia Attorney General. The VOIG stated:
“The Office of the State Inspector General, which handles the State Fraud, Waste and Abuse Hotline, has received your complaint. In a public health crisis/state of emergency the Governor has certain responsibilities and authority. However, an evaluation of whether these actions violate constitutional rights falls outside the scope of the Fraud, Waste and Abuse Hotline.
“We are forwarding your complaint to the Office of the Attorney General for review.”
Below is the Complaint Filed With the VOIG
The Code of Virginia § 2.2-3009 states that “[i]t shall be the policy of the Commonwealth that citizens of the Commonwealth and employees of governmental agencies be freely able to report instances of wrongdoing or abuse committed by governmental agencies or independent contractors of governmental agencies.”
I fall under the definition of a citizen whistle blower found under Code of Virginia § 2.2-3010, which “includes a citizen of the Commonwealth who witnesses or has evidence of wrongdoing or abuse and who makes or demonstrates by clear and convincing evidence that he is about to make a good faith report of, or testifies or is about to testify to, the wrongdoing or abuse to an appropriate authority.”
The wrongdoing that I am reporting constitutes wrongdoing under the Virginia Code § 2.2-3010 as it involves a violation of the Constitution of Virginia by the Governor of Virginia. This is not merely technical or minimal wrongdoing but is, in fact, a clear violation of the fundamental law of Virginia and the United States, the Virginia and U.S. Constitutions, which are bulwarks to protect the public from governmental overreaching. The Governor’s Executive Orders #53 and #55 violate the fundamental right of the people to peaceably assemble. The right to peaceably assemble is a fundamental right equal in importance to the right to freedom of speech and freedom of the press. “The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” De Jonge v. State of Oregon, 299 U.S. 353, 364 (1937).
As a citizen of Virginia, I have reasonable cause to believe that the Governor of Virginia, Ralph Northam, has violated his oath of office required under the Code of Virginia § 49-1 to “support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia.” Indeed, the governor has violated the clearly stated provisions of the very state and federal constitutions, which he has sworn to support.
The gravamen of my claim involves the terms of Virginia Governor Ralph Northam’s Executive Orders #53 and #55. Both of those orders violate the Virginia and U.S. Constitutions because they abridge the fundamental right of the people to peaceably assemble. I have written directly to Governor Northam on several occasions expressing my opinion, which accompanied with legal authority, delineating his violation of the Virginia and U.S. Constitutions. I have not received any response from the governor or his staff.
Governor’s Northam’s Executive Orders #53 and #55 are not only unconstitutional, but they are also medically unnecessary and counterproductive. Governor Northam is a medical doctor and therefore knows that his Executive Orders #53 and #55 are medically ineffective and counterproductive for their purported purpose.
Please watch the ABC and NBC News press conference held by Dr. Dan Erickson and Dr. Artin Massihi at:
Drs. Dan Erickson and Atin Massihi reveal three crucial facts.
1.) The death rate for COVID-19 is very low. It is equivalent to the seasonal flu: approximately 0.1%.
2.) The response to COVID-19, sheltering in place and social distancing, is counterproductive because it decreases the effectiveness of the immune system.
3.) Doctors are being pressured to falsely ascribe COVID-19 as the cause of death to inflate the COVID-19 death statistics.
Indeed, the findings of those doctors confirm the original opinion of Dr. Anthony Fauci. Anthony S. Fauci, M.D., H. Clifford Lane, M.D., and Robert R. Redfield, M.D. in the New England Journal of Medicine stated that “the overall clinical consequences of Covid-19 may ultimately be more akin to those of a severe seasonal influenza (which has a case fatality rate of approximately 0.1%).” Please note that Anthony S. Fauci is the Director of the National Institute of Allergy and Infectious Diseases (NIAID). He is in charge of the federal response to the Covid-19 threat.
New England Journal of Medicine, https://www.nejm.org/doi/full/10.1056/NEJMe2002387
Incidentally, the mortality rate in the United States from all causes is approximately 1%.
U.S. Death Rate 1950-2020, https://www.macrotrends.net/countries/USA/united-states/death-rate
Deborah Birx, M.D. is U.S. Global Aids Coordinator & U.S. Special Representative for Global Health Diplomacy and Physician-Ambassador to the office of the Vice President and the U.S. Government Coronavirus Response Coordinator. She stated during a March 23, 2020, White House press conference: “Death rates escalate with age and pre-existing conditions. So I really want to be clear that although it may be very low if you’re under 40 or very low if you’re under 50 or very low if you’re under 70, there is an inflection curve. The average age of the person is dying in Italy is in the mid-80s. So there is really a significant issue in our older generation.”
Trump and coronavirus task force brief from White House | NBC News (Live Stream Recording), https://www.youtube.com/watch?v=Fx8oJCzRJUk
“The average life expectancy in Western Europe was 79 years for males and 84 years for females in 2019.” So what we know is that, in Italy, the people who are dying from coronavirus are dying at the age of the average mortality rate for older people.
Average life expectancy in Europe for those born in 2019, by gender and region, https://www.statista.com/statistics/274514/life-expectancy-in-europe/
Indeed, Italian authorities have revealed that 99% of all coronavirus deaths are from people with pre-existing conditions. So the people that they are saying are dying from the coronavirus are the older sick people. That is the group of people that one would expect to die each day.
Tommaso Ebhardt, Chiara Remondini, and Marco Bertacche, 99% of Those Who Died From Virus Had Other Illness, Italy Says, Bloomberg, https://www.bloomberg.com/news/articles/2020-03-18/99-of-those-who-died-from-virus-had-other-illness-italy-says
Putting those statistics together, we find that the COVID-19 virus is no more deadly than the ordinary flu. And the people threatened by COVID-19 are the same people threatened by the seasonal flu: older people. Thus, there is no justification for Virginia Governor Ralph Northam’s March 24, 2020, Executive Order Number Fifty-Three and March 30, 2020, Executive Order Number Fifty-Five. Indeed, his orders are counterproductive.
The governor’s Executive Order Number Fifty-Five is in effect until June 10, 2020. On April 15, 2020, the governor extended the expiration of his original order Number Fifty-Three from April 23, 2020, to May 8, 2020. https://www.governor.virginia.gov/ .
My real concern is not that his Executive Orders # 53 and #55 are unnecessary and counterproductive. My principal concern is that the contrived COVID-19 emergency has caused him to violate the Constitutions of Virginia and the United States.
The Virginia Governor’s authority is limited. He has no constitutional authority to issue the restrictions listed in his Executive Orders # 53 and #55.
A judge has now stated the obvious. The Virginia governor has overstepped his authority. His executive orders closing gun ranges was a violation of the U.S. and Virginia Constitutional rights to keep and bear arms.
Matthew Schwartz, Virginia Gun Range Can Reopen — Governor Overstepped His Authority, Judge Rules, NPR, April 27, 2020.
The Governor’s Executive Orders Number Fifty-Five (March 30, 2020) and Number Fifty-Three (March 23, 2020) are violations of the U.S. and Virginia constitutions, not just because they infringe on the right to bear arms, but also because they abridge the freedom of assembly, freedom of religion, and freedom to vote.
In his Executive Order Number Fifty-Five dated March 30, 2020, he ordered all Virginia residents to remain in their places of residence.
Executive Order #55 states that Virginia residents must “maintain social distancing of at least six feet from any other person, with the exception of family or household members or caretakers. Individuals may leave their residences.” That order further provides that “[a]ll public and private in-person gatherings of more than ten individuals are prohibited. This includes parties, celebrations, religious, or other social events, whether they occur indoor or outdoor.” A similar restriction is found in your Executive Order # 53.
Executive Order # 55 is effective until June 10, 2020. The order allows residents to leave for only the specified reasons listed, such as shopping or seeking medical attention. Oddly, there is no allowance for traveling to the polls to vote. How is the governor addressing this? He is encouraging voters to vote via an absentee ballot. And what justification is he advising people to use in the application to vote via an absentee ballot? On his website, he is advising people to lie and state that they must vote using an absentee ballot due to “my disability or illness,” regardless of whether the person is disabled or ill.
“Governor Northam Postpones Upcoming May Elections in Response to COVID-19: Virginians encouraged to vote absentee by mail” https://www.governor.virginia.gov/newsroom/all-releases/2020/april/headline-856329-en.html
All other reasons for travel not expressly listed in his order are a violation of his order and constitute a class 1 misdemeanor, which subjects the person to arrest, prosecution, and imprisonment for up to one year and a fine up to $2,500.
In Governor Northam’s capacity as the Governor of Virginia, his authority is limited. He has no constitutional authority to issue the restrictions listed in his Executive Orders Number Fifty-Three and Number Fifty-Five.
The Virginia Governor’s Executive Order Number Fifty-Three provides, in pertinent part, that “all public and private in person gatherings of 10 or more individuals are prohibited.” There are other restrictions on the freedoms of citizens of Virginia, which include the complete closure of dining and congregation areas, recreational and entertainment businesses, and severe restrictions of other brick and mortar business operations. Indeed, if a business is not mandated to be closed outright in your order, it must close anyway if it cannot limit in-person shopping to 10 persons or less per establishment. There is a list of exempt “essential” businesses, which may remain open during their regular business hours. The governor has included Beer, wine, and liquor stores among one of the essential businesses that are exempt from any restrictions under Executive Order # 53.
The governor cites as his authority for his orders: “Article V, Section 7 of the Constitution of Virginia, by § 44-146.17 of the Code of Virginia.” Article V, Section 7 of the Virginia Constitution provides, in pertinent part, that he is to faithfully execute the laws of Virginia.
I have asked the governor to please cite for me the provision of the Virginia statute that grants him the powers enumerated in his order. He has not responded. I further asked the governor, assuming, arguendo, that § 44-146.17 of the Code of Virginia grants him the power to issue Executive Order Numbers Fifty-Three and Fifty-Five that he claims, to please tell me how the orders so construed comply with the limitations in Article I, Section 12 of the Constitution of Virginia and the First Amendment to the United States Constitution. Unsurprisingly, he has not responded.
Article I, Section 12 of the Constitution of Virginia provides that “the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people peaceably to assemble, and to petition the government for the redress of grievances.”
Article I, Section 17 of the Constitution of Virginia provides, in pertinent part, that “[t]he rights enumerated in this Bill of Rights shall not be construed to limit other rights of the people not therein expressed.”
The United States Supreme Court has ruled that the First Amendment to the U.S. Constitution limits the authority of state governments to infringe on the right of the people to assemble peaceably. See De Jonge v. Oregon, 299 U.S. 353 (1937). The First Amendment to the U.S. Constitution prohibits “any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const., Amend. I.
The U.S. Supreme Court has found that freedom of assembly “cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.” DeJonge, 299 U.S. at 364. Indeed, the U.S. Supreme Court recognized, as should you, that “[t]he very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably.” Id. at 364.
The Ninth Amendment to the U.S. Constitution provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const., Amend. IX.
As you know, the Constitution of Virginia is the fundamental (i.e., supreme) law of the State of Virginia. “[T]he Virginia Constitution is a restriction of powers, establishing the limits of governmental action.” Town of Madison, Inc. v. Ford, 255 Va. 429, 432, 498 S.E.2d 235, 236 (1998). Any law that violates the restrictions in the constitution is, of course, by definition unconstitutional. Curtis v. Hiden, 117 Va. 289 (1915). A court will not void a statute without good cause. Indeed, “[a]cts of the legislature are presumed to be constitutional unless illegality appears upon their face.”Dean v. Paolicelli, 194 Va. 219, 227, 72 S.E.2d 506, 511 (1952), quoting Joyner v. Centre Motor Co., 192 Va. 627, 635, 66 S.E.(2d) 469. But that is what we have here. Governor Northam’s order is illegal on its face. He has prohibited outright the peaceable assembly of people in groups of more than 10. That is facially unconstitutional in direct violation of Article I, Section 12 of the Constitution of Virginia and the First Amendment to the U.S. Constitution. “An act is unconstitutional if it is expressly prohibited or is prohibited by necessary implication based upon the provisions of the Constitution of Virginia or the United States Constitution.” Marshall v. N. Virginia Transp. Auth., 275 Va. 419, 428, 657 S.E.2d 71, 75 (2008).
Article I, Section 12 expressly states that “the freedoms of speech and of the press are among the great bulwarks of liberty, and can never be restrained except by despotic governments.” That very section of the Virginia Constitution prohibits the General Assembly from passing despotic laws abridging the right of the people to assemble peaceably.
Governor Northam has taken an oath to “support the Constitution of the United States, and the Constitution of the Commonwealth of Virginia.” § 49-1 Code of Virginia. His Executive Orders Number Fifty-Three and Number Fifty-Five are violations of the governor’s oath of office. His orders are the very despotism that is prohibited by the Constitution of Virginia and the Constitution of the United States.
I will leave you with a quote from a speech by William Pitt the Younger made in the British House of Commons on November 18, 1783. “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”