Matthew Castillo,etc all v Glenn Youngkin, The Chesapeake School Board et al

MOTION TO DISMISS - For Defendants Gov. Glenn A. Youngkin, Colin Greene and Jillian Balow

Pursuant to Rule 5:7(b)(6), respondents move to dismiss the Verified Petition for Writs of Mandamus and Prohibition because petitioners
lack standing, mandamus and prohibition are improper remedies for
the relief petitioners seek, and petitioners fail to state facts upon which
relief should be granted.
BRIEF IN SUPPORT OF MOTION TO DISMISS
STATEMENT OF THE CASE
The COVID-19 pandemic has posed a significant public health
challenge in our public schools. State and local officials have struggled
to balance the critical importance of in-person education and the fundamental right of all parents to direct the upbringing, care, and education
of their children, see Code § 1-240.1, against mitigating the transmission of the virus. Nowhere have these interests been in greater conflict
than with regard to the decision of some school boards to require children to wear masks in school irrespective of their parents’ wishes.
The General Assembly conferred on the Governor broad authority
to address these challenges. See Code § 44-146.17. On January 15, 2022,
Governor Glenn Youngkin exercised that authority to issue Executive
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Order 2 (EO 2), which allowed parents to “elect for their children not to
be subject to any mask mandate in effect at the child’s school or educational program.” In so doing, EO 2 restores to parents the authority to
assess the risks and benefits COVID-19 poses to their children’s specific
circumstances and to make the best decision for their children based on
current health information.
Petitioners are parents of students enrolled in Chesapeake City
Public Schools who prefer that school boards, rather than parents, decide whether children should wear masks in public schools. On January
18, 2022, petitioners filed a petition for a writ of mandamus and prohibition contending that EO 2 violates Senate Bill 1303, 2021 Acts ch. 456
(Spec. Sess. I), and exceeds the Governor’s executive authority. Pet. 6–7.
Accordingly, petitioners ask this Court to declare EO 2 void and to
“grant prohibition, mandamus and other appropriate relief.”
LEGAL STANDARD
Petitioners seek writs of mandamus and prohibition. These are
both extraordinary remedies and, for that reason, this Court has “carefully scrutinized and imposed limitations upon” their use. Hertz v.
Times-World Corp., 259 Va. 599, 607 (2000). They are not awarded as a
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matter of right; instead, this Court issues them only “in the exercise of
[its] sound judicial discretion.” Richmond-Greyhound Lines v. Davis,
200 Va. 147, 151 (1958).
A. Mandamus
“Mandamus is an extraordinary remedy which may be used to
compel a public official to perform a duty which is purely ministerial
and which is imposed upon the official by law.” Gannon v. State Corp.
Comm’n, 243 Va. 480, 481–82 (1992). This Court does not issue a writ of
mandamus unless (1) the petitioner has a “clear right . . . to the relief
sought,” (2) the respondent had a “legal duty . . . to perform the act
which the petitioner seeks to compel,” and (3) the petitioner has available “no adequate remedy at law.” Bd. of Cnty. Supr’s v. Hylton Enters.,
216 Va. 582, 584 (1976) (citing Richmond-Greyhound Lines, 200 Va. at
152). If the petitioner fails to establish any of these elements, the Court
will not issue the writ. Richmond-Greyhound Lines, 200 Va. at 152. And
even if the petitioner satisfies them all, the Court does not issue the
writ as a matter of right; issuance remains a matter of the Court’s discretion. Id. “In doubtful cases the writ will be denied.” Id. at 151.
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B. Prohibition
Similarly, “[a] writ of prohibition is an extraordinary remedy employed ‘to redress the grievance growing out of an encroachment of jurisdiction.’” In re Commonwealth’s Att’y for City of Roanoke, 265 Va.
313, 316 (2003) (quoting Elliott v. Great Atl. Mgmt. Co., 236 Va. 334,
338 (1988)). The purpose of the writ of prohibition is to supervise courts
and judicial proceedings, not executive officers. See Howell v. McAuliffe,
292 Va. 320, 353 n.19 (2016) (Writs of prohibition “are traditionally issued by ‘superior courts to the inferior courts, to restrain the latter from
excess of jurisdiction.’” (original alterations omitted) (quoting Burch v.
Hardwicke, 64 Va. 51, 58 (1873))); see also 3 William Blackstone, Commentaries *111–12 (explaining that, at common law, the writ of prohibition was to restrain courts from asserting jurisdiction they did not
have); James L. High, A Treatise on Extraordinary Legal Remedies
§ 762, at 705–06 (3d ed. 1896) (defining the writ of prohibition as “an
extraordinary judicial writ” issued “for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally
vested” (emphasis added)).
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ARGUMENT
The Court should dismiss the petition for three independent reasons. First, petitioners lack standing because they have failed to identify any cognizable injury of any kind, or to explain how any such injury
is particularized to them. Second, the petition seeks relief that is unavailable in this Court’s original jurisdiction, as neither mandamus nor
prohibition is a substitute for the injunctive relief petitioners seek from
this Court. Finally, even if the petitioners had standing and their petition were procedurally proper, this Court should reject their claim on
the merits because they have failed to identify a “clear right . . . to the
relief sought.” Hylton Enters., 216 Va. at 584. Because petitioners’ right
to relief is far from “clear and certain,” they are not entitled to the
“drastic” and “extraordinary” remedy they seek and the petition for
writs of mandamus and prohibition should be dismissed. Gannon, 243
Va. at 482 (quoting Richmond-Greyhound Lines, 200 Va. at 151–52).
I. Petitioners lack standing as they have neither alleged nor
suffered any particularized injuries.
No party may invoke the original jurisdiction of this Court unless
they have standing to do so. Park v. Northam, Record No. 200767, slip
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op. at 5 (Aug. 24, 2020) (unpublished).1 The petitioner “must allege facts
indicating he or she has suffered a ‘particularized’ or ‘personalized’ injury due to [a governmental] action” to have standing to challenge that
action via extraordinary writ. Park, slip op. at 5 (quoting Wilkins v.
West, 264 Va. 447, 460 (2002)); see also Howell, 292 Va. at 330 (“It is incumbent on petitioners to allege facts sufficient to demonstrate standing.”). Simply “taking a position and then challenging the government
to dispute it” is insufficient to establish standing. Lafferty v. Sch. Bd.,
293 Va. 354, 365 (2017) (quoting City of Fairfax v. Shanklin, 205 Va.
227, 231 (1964)). Instead, a petitioner “must demonstrate a ripe justiciable controversy by alleging an ‘actual or potential injury in fact based
on present rather than future or speculative facts.’” Park, slip op. at 5
(quoting Lafferty, 293 Va. at 361).
This Court has recently addressed standing in petitions for extraordinary writs challenging executive actions responding to the
COVID-19 pandemic. In Marrs v. Northam, this Court refused to issue
a writ of mandamus to a voter who challenged the Governor’s executive
1 Unpublished opinions and orders are cited herein as information
pursuant to Rule 5:1(f).
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order halting all in-person instruction in all Virginia public schools.
Marrs v. Northam, Record No. 200573, slip op. at 2, 8 (June 17, 2020)
(unpublished). This Court explained that standing is “a preliminary jurisdictional issue unrelated to the merits of [the] case.” Id. at 4. Where
no evidence is taken, a party’s factual allegations—if any—are “presumed to be true when considering whether he or she has standing to
request the relief sought.” Id. “‘The concept of standing concerns itself
with the characteristics of the [individuals] who file[] suit’ and their interest in the outcome, and the requirements of standing apply to petitioners seeking writs of mandamus.” Park, slip op. at 5 (quoting
Westlake Props., Inc. v. Westlake Pointe Prop. Owners Ass’n, 273 Va.
107, 120 (2007)).2
2 The importance of a case is irrelevant to the standing inquiry.
Regardless of how “interesting and important to the public [a case] may
be,” a court will not hear it unless petitioners show they are “aggrieved
in some manner peculiar unto [themselves], aside and apart from that
of other . . . residents.” Nicholas v. Lawrence, 161 Va. 589, 592–93
(1933). This principle prevents courts from improvidently answering
“abstract questions” that “lack any real ‘errors injuriously affecting’ the
complaining litigants.” Howell, 292 Va. at 335 (quoting Nicholas, 161
Va. at 593).
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Petitioners claim to have standing to seek relief before this Court
because they are parents and “have constitutionally recognized and protected rights and interests in caring for and protecting their children.”
Pet. 2. That is the sum total of petitioners’ argument on standing. Although respondents agree that parents have a fundamental interest in
the upbringing, education, and care of their children, see infra section
III, this interest alone does not confer standing to sue for three reasons.
First, petitioners have failed entirely to allege any injury at all.
They claim they are “likely to suffer irreparable harm and damage if
this Court declines to grant immediate relief.” Id. at 8. But that is a legal conclusion, not an allegation of fact. Petitioners must allege facts
sufficient to demonstrate how the challenged conduct will invade their
“immediate, pecuniary, and substantial interest,” Westlake Props., 273
Va. at 120 (quoting Harbor Cruises, Inc. v. State Corp. Comm’n, 219 Va.
675, 676 (1979)), which invasion could be redressed by their requested
relief, see Goldman v. Landsidle, 262 Va. 364, 371 (2001). But petitioners do not allege how they will be injured; the nature and scope of those
injuries; or how the injuries would arise in the absence of the requested
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relief. The absence of any factual allegations demonstrating their injuries is fatal to their petition.3
Second, even assuming that the “harm and damage” claimed by
petitioners is an increased risk of COVID-19 transmission caused by
some parents choosing to have their children wear masks for less than
the entire school day, petitioners have failed to allege how any of their
putative injuries are particularized to them. They claim to suffer injury
as “parents of children currently enrolled as students in Chesapeake
City Public Schools.” Pet. 2. But any such injury is shared by every
other parent of public-school students in Chesapeake—and, indeed in
the entire Commonwealth. That is not a “unique injury or potential injury that would provide a basis for standing.” Lafferty, 293 Va. at 364;
3 A petitioner may also establish standing by identifying a statute
by which the General Assembly has created a “statutory right” to recovery. Goldman, 262 Va. at 373. Petitioners have identified no such statutory right in their petition. Although petitioners contend that EO 2 contravenes Senate Bill 1303, 2021 Acts ch. 456 (Spec. Sess. I), they do not
assert that this enactment “gives them a legally enforceable right to
have a court compel the [respondents] to perform [their] duties in the
manner they request.” Goldman, 262 Va. at 374; see also Cherrie v. Va.
Health Servs., Inc., 292 Va. 309, 315 (2016) (discussing the requirements of statutory standing).
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see also Goldman, 262 Va. at 373 (petitioners must allege “a direct interest, pecuniary or otherwise, in the outcome of the controversy that is
separate and distinct from the interest of the public at large”). Petitioners have “merely stated that they are parents of a child in the school
district,” which is insufficient to establish standing. Lafferty, 293 Va. at
364.
Third, even if this Court were to conclude that petitioners have alleged sufficient facts to establish a cognizable injury particularized to
them, that injury is incapable of redress by a judicial order. Hours before respondents filed this response, the Chesapeake School Board voted
7-to-1 to make masking optional in Chesapeake City Public Schools beginning on January 24, 2022. Nathan Crawford, Chesapeake School
Board Votes to Remove Mask in Alignment with Youngkin’s Executive
Order, WAVY (Jan. 20, 2022, 6:35 p.m.), https://tinyurl.com/2p8h4dkz.
The Chesapeake School Board’s independent decision to lift its mask
mandate means that whatever injury petitioners believe they have suffered is not fairly traceable to EO2 and cannot be redressed by the relief
they seek.
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Petitioners’ failure to allege any facts supporting their claim to
standing defeats their entitlement to mandamus. Accordingly, considering the “total absence of any allegation of a particularized injury,” this
Court should hold that petitioners have “not established [their] standing to challenge any of the provisions [they] claim[] are unlawful” and
dismiss the petition. Marrs, slip op. at 4.
II. Petitioners inappropriately invoke this Court’s original jurisdiction to seek injunctive relief under the guise of mandamus and prohibition.
Although presented as a petition for writs of mandamus and prohibition, petitioner in fact seeks traditional injunctive relief. “[M]andamus is always granted to compel the performance of some duty which
has not been done” rather than as “a preventive remedy”; “its purpose
and object is to command performance, not desistance.” Bd. of Supr’s v.
Combs, 160 Va. 487, 498 (1933). The “function of an injunction is ‘to restrain motion and enforce inaction,’” whereas “the function of mandamus is ‘to set in motion and compel action.’” Adkins v. Va. Redistricting
Comm’n, Record No. 210770, slip op. at 6 (Sept. 22, 2021) (unpublished)
(quoting James L. High, A Treatise on Extraordinary Legal Remedies
§ 6, at 10 (1874)). “An injunction preserves the status quo, while ‘the
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very object of [mandamus] is to change the status of affairs and to substitute action for inactivity.’” Id. (original alterations omitted) (quoting
High, A Treatise on Extraordinary Legal Remedies § 6, at 10).
Petitioners’ objective here is not to compel respondents to take any
action. Petitioners readily acknowledge that they “are seeking to restrain, invalidate and prevent” respondents from “engag[ing] in certain
actions that are opposed by petitioners.” Pet. 3. As this Court held in
Adkins, “asking the Court to prevent the respondents from taking certain actions” is an improper “attempt to use mandamus as a substitute
for injunction,” which this Court lacks original jurisdiction to issue. Adkins, slip op. at 6, 8. Accordingly, mandamus does not lie for the relief
petitioners seek.
Petitioners also improperly invoke the writ of prohibition as a substitute for injunctive relief. The petition asks this Court to award “writs
of prohibition to prevent and restrain the respondents from taking action based on” the directive portion of EO 2 or in violation of Senate Bill
1303, 2021 Acts ch. 456 (Spec. Sess. I). Pet. 9–10 (emphasis added). Prohibition, however, is not a synonym for injunction. It is instead a nar-
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row extraordinary remedy available only to restrain a judicial act exceeding the tribunal’s authority. See In re Commonwealth’s Att’y, 265
Va. at 316–17. A writ of prohibition may issue to restrain courts and
quasi-judicial bodies attempting to exceed their judicial powers, but it is
unavailable outside the judicial context. Bee Hive Mining Co. v. Indus.
Comm’n of Va., 144 Va. 240, 242–43 (1926). Because “this matter does
not involve the use of judicial powers . . . prohibition does not lie.” Adkins, slip op. at 7.
III. Petitioners have not identified a clear right to relief.
Even if petitioners could establish that they have standing and
that they are seeking an appropriate remedy, this Court should decline
to issue the relief requested for several reasons. First, EO 2 does not
conflict with Senate Bill 1303, 2021 Acts ch. 456 (Spec. Sess. I), as petitioners claim. Pet. 6. Senate Bill 1303 directs schools to follow the
guidelines recommended by the federal Centers for Disease Control and
Prevention (CDC), see Senate Bill 1303, § 2 (Spec. Sess. I); neither it nor
those guidelines impose a “mask mandate[],” Pet. 6.4
4 E.g., CDC, Omicron Variant: What You Need to Know (Dec. 20,
2021), https://tinyurl.com/2kyzk62e; CDC, Guidance for COVID-19 Prevention in K-12 Schools (Jan. 13, 2022), https://tinyurl.com/yutek7ne.
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And even if the CDC issued something other than recommendations, Senate Bill 1303 would not require rigid adherence to every CDC
promulgation; instead, the bill explicitly provides that in-person instruction should be provided in a manner which adheres “to the maximum extent practicable, to any currently applicable mitigation strategies” provided by the CDC for childcare and education programs. Senate
Bill 1303, § 2 (Spec. Sess. I) (emphasis added). It does not (and could
not) require schools unthinkingly to adopt every item on the vast menu
of options that exist for warding off COVID-19 in schools, a list starting
at social distancing and extending all the way to “replacement and upgrades of equipment to improve the indoor air quality in school facilities, including . . . ventilation, and air conditioning systems, filtering
purification, fans, [and] control systems.”5 EO 2.
5 Indeed, a wide range of studies demonstrate that the benefits of
compelling children to wear masks in school remain unclear. At least
one study concluded that compulsory mask mandates for students had
no statistically significant effect on the transmission of the virus. Jenna
Gettings, et al., Mask Use and Ventilation Improvements to Reduce
COVID-19 Incidence in Elementary Schools — Georgia, November 16–
December 11, 2020, CDC (May 28, 2021) https://tinyurl.com/nhbb8cud.
On the other hand, the masks most commonly used by school children have been shown to pose serious health risks rather than protection. See ScienceDaily, Cloth Masks: Dangerous to Your Health? (Apr.
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Second, contrary to petitioners’ contention that “primary responsibility for public school education” is shared by only the General Assembly and local school boards, Pet. 6–7, parents play a fundamental role in
the education of their children. Indeed, the General Assembly has statutorily enshrined each parent’s “fundamental right to make decisions
concerning the upbringing, education, and care of the parent’s child.”
Code § 1-240.1. The Virginia Constitution directs the Governor to “take
care that the laws,” including Section 1-240.1, “be faithfully executed,”
22, 2015), https://tinyurl.com/mr3m7tuc. At least one study from members of Brown University has concluded that “masks worn in public settings and in school or daycare settings may impact a range of early developing skills, such as attachment, facial processing, and socioemotional processing.” Sean CL Deoni, et al., Impact of the COVID-19 Pandemic on Early Child Cognitive Development: Initial Findings in a Longitudinal Observational Study of Child Health (Aug. 11, 2021),
https://tinyurl.com/rn4zdf5n. A professor of psychology, despite concluding that the benefits of wearing masks for children outweigh the costs of
the overall pandemic, even expressed concern that mask wearing especially negatively affects those “kids whose lingual or social development
is atypical.” Kristen Rogers, Does Mask Wearing Harm Your Child’s Development? Experts Weigh In, CNN (Aug. 11, 2021), https://tinyurl.com/479f4y7k. And those costs are especially alarming given multiple observations regarding the “dubious findings” on which these mandates rest. See David Zweig, The CDC’s Flawed Case for Wearing Masks
in School, The Atlantic (Dec. 16, 2021), https://tinyurl.com/5n73wd8e.
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Va. Const. art. V, § 7, and EO 2 does just that, see EO 2 (“Under Virginia law, parents, not the government, have the fundamental right to
make decisions concerning the care of their children.”).
Last, it is exactly because, as petitioners note, “COVID-19 has
proved to be a deadly and highly destructive virus with high transmissibility and constantly evolving variants that have made it difficult to
control and protect against,” Pet. 7–8, that the General Assembly bestowed broad emergency powers on the Governor. Code § 44-146.17. Indeed, the previous Governor invoked this emergency authority to order
sweeping measures ostensibly directed toward reducing transmission of
COVID-19 by forbidding Virginians from leaving their homes for any
other than a small number of enumerated reasons, Executive Order 55
(2020); halting all-in person education across the entire Commonwealth,
Executive Order 53 (2020) (Amended); ordering all Virginians to wear
masks in public, Executive Order 63 (2020); and ordering all schools to
impose mandatory mask mandates, Executive Order 79 (2021). Governor Youngkin has invoked these same powers to remove requirements
that have proven ineffective in combatting transmission of COVID-19
and instead focus on more practical methods for reducing the spread of
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the disease, such as improving inspection, testing, maintenance, repair,
replacement, and upgrades of equipment to improve the indoor air quality in school facilities. These actions are assuredly within powers the
same emergency power previously invoked to compel the donning of
masks and to forbid in-person education.

CONCLUSION

For the foregoing reasons, the petition for writs of mandamus and
prohibition should be dismissed.

Respectfully submitted,
Glenn A. Youngkin
Colin Greene
Jillian Balow