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Meanwhile, Back in Court
By Stephen J. Rossie

Square2017 imageRICHMOND, VA – Virginia government these days seems more like a movie chronicling a surreal drama, cutting back and forth between seemingly unrelated scenes. There’s the high profile special session of the General Assembly, but there is also a largely unreported milestone legal challenge in the Henrico Circuit Court of Judge John Marshall.

That’s right. John Marshall. His name only adds to the serendipity of it all.

Late last week, after hearing oral arguments on April 20, Judge Marshall ruled against a motion by the office of Attorney General Mark Herring to dismiss a case challenging the process by which the Department of Health and the Board of Health made their decision to water down Virginia’s law placing certain safety standards (such as inspections and previously not-required surgical center norms) on abortion centers. It was the second major decision against Herring and the abortion industry he represents — at least politically. He ostensibly represents Virginia citizens but only when it’s convenient for him and doesn’t conflict with his left wing base.

It was the second ruling against Herring by Judge Marshall who, last year, denied Herring’s challenge to the standing of the plaintiffs who brought the challenge — Megan Getter of Williamsburg, who is a former member of the Board of Health, and Isabel Melendez of Richmond. In essence, Herring claimed that citizens of Virginia do not have legal recourse to redress actions by their own government that affect, or are detrimental, to them.

At issue is whether the VDH and the BOH violated the Administrative Process Act, which outlines how the commonwealth’s regulatory bodies must promulgate and implement not only regulations they create, but the actions they take to formulate those policies, especially in receiving input from the public. Throughout the process, which took place during the last two years of the McAuliffe administration, the two bodies repeatedly flouted the law, including ignoring the proper procedures for receiving public comment, then stonewalling, even after watchdog groups and legislative commissions warned them.

Herring’s attorneys plainly argued that it does not matter if the regulatory bodies violated the law, because the administration can police itself. Not surprising coming from the man who has chosen to oppose in court the laws he swore to defend.

While the VDH listed six specific sections of the abortion center safety standards it planned to amend, it and the board went well beyond what they set forth in the required Notice of Intended Regulatory Action Agency Background Document. The NOIRA sets the parameters of what an agency plans to amend, but the VDH and BOH blew that up to 21 separate sections. That precluded adequate, if any, public notification and comment.

That is government secrecy, obfuscation, cover up and unelected bureaucrats run amok — Virginia’s version of the Deep State. After all, this was done during Clinton Best Friend McAuliffe’s reign, the student learning from the master.

The ramifications if the administration prevails are chilling. It would give free rein to any governor to regulate and mandate without limit or checks on its power, and to do so behind closed doors, without respect to the rule of law. If you think legislation by regulation is bad now . . . .

Stephen J. (Steve) Rossie is a Richmond-based public and government relations consultant. He has been a General Assembly lobbyist since 2006 and has written about Virginia government since 2007.


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InBrief 13dec18

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