(Posted February 7, 2022) The Supreme Court of Virginia has issued a short, unsigned order that refuses a petition seeking prohibition or mandamus relief against the Governor’s Executive Order 2, which barred mask mandates in local schools. The order comes roughly three weeks after the petitioners filed this original-jurisdiction proceeding.

Parents of several students in the City of Chesapeake filed the petition last month, acting on the first business day after the Governor signed the order. The Attorney General filed a motion to dismiss, and today the court grants that motion. Here are the key rulings:

Prohibition isn’t available here because that lies from a higher tribunal (court) to a lower tribunal, directing the lower court to stop exceeding its jurisdiction. For an easy example, if a juvenile court were to start issuing divorce decrees, a higher court could order it to stop, because circuit courts alone have that power. The Governor isn’t a tribunal, as the justices ruled most recently 5½ years ago in Howell v. McAuliffe, so prohibition is the wrong remedy.

Mandamus is available to compel a state actor to perform a ministerial duty. The parents had asserted that a statute passed last year requires school boards to adhere, “to the maximum extent practicable,” currently applicable CD guidelines. Beyond question, the Governor’s order doesn’t do that; CD guidelines nowadays still call for masking in schools.

But the phrase maximum extent practicable indicates that local school boards will necessarily exercise some discretion in deciding what, precisely, is practicable in their jurisdictions. The need for that discretion is fatal to mandamus, which addresses only ministerial, mandatory actions.

The court goes out of its way not to sanction the executive order. In a closing footnote, it expressly declines to rule on the order’s legality. Elsewhere, it notes that mandamus isn’t available to compel discretionary acts even if they’re unlawful.

So if there’s no mandamus and no prohibition, how can parents like this protect their interest in their children’s health? The opinion offers a broad hint of that, contrasting mandamus with an injunction, which can “restrain motion and enforce inaction.”

That brings us to a separate proceeding up in Northern Virginia, where a judge last week issued a temporary injunction against the executive order. The court ruled that the Governor can’t remove the local discretion that last year’s statute grants to school boards.

What does today’s ruling portend for that injunction? Well, the Code permits the Governor to file a snap appeal – a petition for review that will now go first to the Court of Appeals. I expect the Governor to cite today’s order liberally in such a petition, but the issues are different. The justices specifically rule today that the Chesapeake petitioners’ chosen remedies of mandamus and prohibition didn’t fit this situation. The court expressly didn’t rule on the propriety of injunctive relief.

Reading between the lines, I sense that the Supreme Court may recognize a court’s right to impose an injunction to correct what it sees as unlawful act. Indeed, today’s SCV order uses the word unlawful twice. I tend to doubt that the justices will rule that an unlawful governmental act is wholly beyond the reach of the law.

Today’s order notes that “All the Justices” participated. I don’t know whether that includes Justice Lemons, whose retirement took effect between the petition’s filing date and today. And because it’s unpublished, we don’t know who wrote it. For now at least, the order doesn’t appear on the court’s website; if you’re interested and want a copy, let me know and I’ll forward it.

I offer my gratitude to Ned Oliver of Virginia Mercury, who let me know about an hour ago about this order. Ned’s story on the decision is here.