Virginia Statute Prohibiting Masks Was Amended in 2010
In Virginia, there is a statute, Virginia Code § 18.2-422, that prohibits the wearing of masks in public. Wearing masks in public is serious enough of a concern that the Virginia legislature deems it a felony to do so. That statute has been in effect since 1950.
Suddenly, out of nowhere, in 2010, legislation was introduced to amend that code provision to allow for wearing a mask if the Governor declares a public health emergency where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver.
It is notable that the statute was amended ten years prior to the COVID-19 pandemic. Seemingly, in anticipation of just such a medical emergency. The amended statute with the new medical emergency exception was passed into law on April 8, 2010. How did the drafters of the amendment know that there would be a need for such an exception to the mask-wearing prohibition ten years ago? Obviously, those in the know were tying up the loose ends that would be an impediment to their Orwellian plans.
Sure enough, Virginia Governor Ralph S. Northam declared a state of emergency due to COVID-19 on March 12, 2020, in Executive Order No. 51. The Governor of Virginia further instituted his unconstitutional order #63 on May 26, 2020, that “[a]ll patrons in the Commonwealth aged ten and over shall when entering, exiting, traveling through, and spending time inside the settings listed below cover their mouth and nose with a face covering, as described and recommended by the CDC.” Order #63 in its present form has no termination date. The order provides that it shall remain in full force and effect until rescinded or amended by a further order.
New Law Allows Waiver By Governor
The 2010 amended statute, Virginia Code § 18.2-422, allows the Governor of Virginia to authorize a waiver to the prohibition of wearing a mask. The section expressly states that when the Virginia Governor declares a public health emergency the prohibitions of the statute against wearing a mask in public shall only apply “where the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver.”
Governor’s Waiver Does Not Comply With Statute
Virginia Governor Ralph Northam issued Executive Order #61, which purports to contain a waiver of the mask prohibition contained in § 18.2-422. Executive Order #61 is an ineffective waiver of the prohibition on wearing masks because it does not “provide for the duration of the waiver” as required by § 18.2-422. Duration means “the time during which something exists or lasts.” Arguably, the duration of time could be an indefinite period of time. Even if “duration” could sometimes mean an indefinite period of time, the Virginia legislature certainly did not intend to give the governor the authority to waive the prohibition on mask-wearing in perpetuity. That would be to give the governor unbridled power to amend the statute, which the legislator certainly would not countenance. But the governor’s waiver does not provide for either a specified duration or an indefinite duration. The governor’s presently existing Executive Order #61 only states the effective date of the waiver. Thus his mask waiver does not comply with the law and is consequently ineffective.
The very idea of a perpetual waiver is disfavored under the law. For example, contracts that are written with to terminus are voidable at the discretion of either party to the contract. Williston on Contracts § 4:19, at 442–44 (4th ed.1990). Thus, “contracts which mention no period of duration are construed as terminable at will; for instance, this is generally true of a contract for services which does not specify the duration of the contract.” Plaskitt v. Black Diamond Trailer Co., 209 Va. 460, 465, 164 S.E.2d 645, 649 (1968). That same public policy against contracts with indeterminate lengths has even more compelling basis for application against a statutory waiver.
Virginia Code § 8.01–624 that defines the “duration” of temporary injunctions is instructive. That statute requires that the injunction “prescribe in the injunction order the time during which such injunction shall be effective and at the expiration of that time such injunction shall stand dissolved unless, before the expiration thereof, it be enlarged.” A temporary injunction without a terminus is unlawful. GeoMet Operating Co. v. CNX Gas Co. LLC, 661 S.E.2d 139, 140 (Va. 2007). The governor’s statutory waiver is like a temporary injunction, and as such, the waiver should indicate a specified duration. In the absence of that specified terminus date, the statutory waiver of the governor is effective, just an injunction without a terminus date is unlawful.
Governor Northam knows that he is required to provide for the duration of the waiver. He, in fact, provided for a duration of the waiver in his initial version of his Executive Order #61. The mask waiver was first mentioned by the Virginia governor in his Executive Order #53. In that order, he provided “for the duration of the waiver.” His Executive Order #53 stated: “This waiver is effective as of March 12, 2020 until 11:59 p.m. on Wednesday, June 10, 2020.”
But in Governor Northam’s June 5, 2020, Executive Order #61 he removed the June 10, 2020 expiration date for the waiver. When he did that he removed the required “duration of the waiver.” Doing that voided the waiver because it did not provide “for the duration of the waiver” as required by § 18.2-422. Executive Order #61 presently states in pertinent part:
“The waiver of § 18.2-422 of the Code of Virginia is continued, so as to allow the wearing of a medical mask, respirator, or any other protective face covering for the purpose of facilitating the protection of one’s personal health in response to the COVID-19 public health emergency declared by the State Health Commissioner on February 7, 2020, and reflected in Executive Order 51 declaring a state of emergency in the Commonwealth. Executive Order 51 remains so amended. This waiver is effective as of March 12, 2020.”
That statement in his waiver provision contained in Executive Order #61 states that “[t]his waiver is effective as of March 12, 2020”. That only tells the reader when the waiver starts. There is no end date and thus no statement of “duration of the waiver” as required under Virginia Code § 18.2-422. That renders his waiver in Executive Order #61 ineffective because it does not comply with the law. The initial waiver contained in Executive Order #53 expired on June 10, 2020. As a result, there is no waiver of the law that prohibits the wearing of masks in public. That means that at the present time it is against the law in Virginia to wear a mask in public.
The Governor’s Expected Argument
The governor could try to argue that Executive Oder #61 itself contains a duration clause and that clause should apply to the waiver section in the order. The problem with that argument is that Virginia Code § 18.2-422 specifically requires “the emergency declaration expressly waives this section, defines the mask appropriate for the emergency, and provides for the duration of the waiver.” That language clearly implies that the waiver section itself contained in the emergency declaration must expressly waive the statutory section and provide for the duration of the waiver. Notice that the statute requires that the emergency order provides for the duration of the “waiver” and not the duration of the “order.” The duration of the order itself is a different matter. Indeed, Governor Northam knows this distinction because he made that very distinction in his amended Executive Order #53 where he stated that the order “shall remain in full force and in effect according to the expiration dates included herein or amended or rescinded by further executive order.”
Indeed, § 18.2-422 makes it clear that the emergency declaration must “expressly” waive the prohibition in the statutes by, in pertinent part, “expressly” providing for “the duration of the waiver.” That means that the governor must expressly provide for the duration of the waiver in the waiver clause itself. Simply putting a waive provision in an emergency order without a duration clause and then putting a duration clause covering the entire order is insufficient to comply with the law. Furthermore, the indefinite duration in perpetuity stated at the end of Executive Order #61 is not the kind of duration that was contemplated by the Virginia legislature for the waiver under § 18.2-422.
Initially, Executive Order #61, by its terms was set to expire on June 10, 2020. But Executive Order #61 was amended three times. In the second and third amendments, the governor removed the expiration date for the order itself, which had the effect of also removing the expiration date for the waiver contained in the order. The second and third amended Executive Orders #61 simply indicated that his amended order was to remain in effect indefinitely until it is amended or rescinded.
The governor could argue that the indefinite termination of the Executive Order #61 constitutes a duration for the waiver provision contained in the order. But that assumes that an indefinite period is sufficient to comply with the duration requirement under the mask statute. An indefinite period for a waiver really acts as an amendment of the statute, and that is certainly not what the Virginia legislature intended. Arguably, that indefinite effect provision makes the attempted mask waiver pursuant to the requirements of § 18.2-422 contained in Executive Order #61 ineffective. Section 18.2-422 specifically mandates that the governor explicitly provide “for the duration of the waiver” of the mask prohibition under that statute. The governor’s third amended Executive Order #61 does not do that.
Arguably, the governor’s Executive Order does not provide for a duration for the waiver. He simply states that his order shall be effective until he rescinds or amends it by another executive order. That indefinite length is not a waiver for a specified duration as required by the statute. To treat it as such is to treat it as an attempt by the executive to amend a statute passed by the legislature. By not providing any time duration in his attempted waiver in Executive Order #61, the governor did not comply with the conditions for a valid waiver contained in § 18.2-422, which requires the governor to “provide for the duration of the waiver.”
We know that the Virginia legislature intended a specific time period as the duration for the waiver because there was already a medical mask exception contained in § 18.2-422. In that statutory exception, the person wearing a medical mask was required to have a doctor’s affidavit on his person attesting to the necessity of the mask and “the date on which the wearing of the device will no longer be necessary.” So, we know that the legislature had at the forefront of its consideration of a medical waiver provided by the governor an end-date to the “duration of the waiver.” The Executive Order #61 does not have the required end-date.
Mask Mandate in Executive Order #63
Furthermore, Executive Order #63 goes beyond Executive Order #61 and mandates people to wear masks. But the governor can only mandate masks if those masks are lawful. The provisions of Executive Order #63 are not adequate in and of themselves as a waiver of the mask prohibition under § 18.2-422 because that statute requires that the governor specifically waive the statute and “provide for the duration of the waiver.” But the governor did not specifically waive the statute in Executive Order #63. Indeed, he did not even mention the statute in Executive Order #63. That is required under Virginia Code § 18.2-422. Thus, Executive Order #63 cannot act as a back-door waiver of the mask prohibition contained in Virginia Code § 18.2-422.
A further problem with Governor’s Executive Order #63 is that it goes beyond what is allowed under the statute at Virginia Code § 18.2-422. His prior Executive Order #61 purported to allow for a waiver of the mask prohibition under § 18.2-422. His Executive Order #63 goes beyond that and mandates that people wear masks. The Virginia Governor has no authority, be it constitutional or statutory, to mandate the wearing of a mask.
Virginia Is Now Populated By Masked Felons
Since the mask waiver provision in Governor Northam’s Executive Order #61 does not “provide for the duration of the waiver” as required by the enabling statute, Virginia Code § 18.2-422, the purported waiver of the public mask-wearing during the COVID-19 emergency is ineffective. That means that anyone who wears a mask in public is in violation of the public mask wearing prohibition contained in Virginia Code § 18.2-422. A violation of § 18.2-422 is a class 6 felony. The governor’s mask mandate contained in his Executive Order #63 does not change that fact. Indeed, his mandate to wear a mask is a mandate to violate Virginia Code § 18.2-422. It is, in essence, requiring the population of Virginia to commit a felony under Virginia law by mandating that they wear a mask over their face in violation of Virginia Code § 18.2-422.
The Mandate is Only for Non-Medical Masks
Section 18.2-422 requires that the governor specifically define “the mask appropriate for the emergency.” In his Executive Order #61, the governor allowed “the wearing of a medical mask, respirator, or any other protective face covering for the purpose of facilitating the protection of one’s personal health.”
In contrast to Executive Order #61, the governor’s Executive Order #63 has mandated that persons “cover their mouth and nose with a face covering, as described and recommended by the CDC.”
When looking at the recommendation of the CDC we find that the CDC specifically advises against wearing medical masks: “Do NOT wear masks intended for healthcare workers, for example, N95 respirators.” (emphasis in original) Indeed, the Virginia Governor has also specifically stated in his Executive Order #63 that “[m]edical-grade masks and personal protective equipment should be reserved for medical personnel.”
What that means is that the governor has waived the enforcement of § 18.2-422 regarding the wearing of medical masks by non-medical workers, but his mandate to wear a mask is limited only to wearing masks that are not “masks intended for healthcare workers.” Thus Virginia residents are not required to wear a medical mask.