DeSteph’s Lawsuit Switches to Federal Court

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By Brian Carlton

December 15, 2020

State senator argues Constitutional rights are violated by keeping the Pocahontas Building closed to the public.

RICHMOND-Will Virginia’s General Assembly be open to the public next month? That depends on what a federal judge says. 

A week ago, Virginia State Senator William DeSteph filed a lawsuit in Richmond Circuit Court, with the goal of opening state offices to the public. He wants in-person meetings allowed, arguing that keeping state offices closed is a violation of the First Amendment. 

In that fight, he named Sen. Mamie Locke and Speaker of the House Eileen Filler-Corn, as well as the Capitol Police, as defendants. On Monday, DeSteph’s lawsuit was moved to federal court. Now you can only move a case to federal court in certain circumstances. This case met the criteria because it involves the First Amendment.

This is about the Pocahontas Building. Located right next to the Capitol, it houses the offices for all House and Senate members. In November, Filler-Corn announced that due to constantly rising COVID-19 cases, the building would be closed to the public when the next General Assembly session starts in January. Even then, only credentialed staff and lawmakers will be allowed in. As of December 14, the Virginia Dept. of Health reported 285,149 cases of the virus since March. By comparison, on Dec. 8, it stood at 262,730. That’s an increase of 22,419 over a six day period. Deaths rose as well during that period, going from 4,260 to 4,414. 

RELATED: Virginia Counties Fight Northam’s Shutdown Orders

Where’s the First Amendment Come In? 

DeSteph’s attorney Tim Anderson of Virginia Beach-based Anderson Law, argues that keeping the building closed violates the constitutional rights of both his client and local residents. In this case, that includes the right to free speech, the right to peaceably assemble and the right to petition the government. 

If people can go to grocery stores, Anderson argues, if they can go to court or anywhere else and not violate the governor’s orders, then why can’t the building stay open?

“Less restrictive options exist,” Anderson wrote, “ such as requiring appointments and capacity restrictions to the building. If a constituent can contest a speeding ticket in the Commonwealth in person, then that same constituent should be able to exercise their right to freedom of speech.” 

History, however, would seem to be on the defendants’ side. Since the pandemic started in March, Attorney General Mark Herring has successfully defended the Commonwealth’s lockdown measures 13 times. One example came in November, when a judge shut down The Nation’s Gun Show. Even if he doesn’t take this case, each of those prior wins set a precedent for future lawsuits.

It’s also unclear what’s different between the upcoming session and the one that just finished. The Pocahontas Building was closed to the public during the three month special session. No one in the House or Senate filed a lawsuit against the decision then.

The next session of the General Assembly starts Jan. 13, 2021. Just as in the special session, the Virginia Senate will meet in person, while the House of Delegates will handle business remotely.

Brian Carlton is Dogwood’s managing editor. You can reach him at [email protected].

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