Editor’s note: Meeting during a rare special session, Virginia lawmakers on July 13 corrected a legislative mistake that gave all workers the right to take a day of rest on the weekends. The bill was approved 36-0 in the Senate and 79-1 in the House of Delegates. Gov. Mark R. Warner, who convened the special session, then signed the measure into law; it took effect immediately because of an emergency clause.
RICHMOND, Va. — A judge on July 2 reluctantly approved an emergency request by several Virginia corporations to block a legislative glitch that guaranteed workers across the state a "day of rest" on the weekends.
Circuit Court Judge T.J. Markow granted a 90-day injunction, voicing serious misgivings about encroaching on the Legislature's prerogatives. By saying that he would not wait the full 90 days to revisit his action, Markow left open the need for a special legislative session.
"The gun has at least been removed from their hand and put back in the holster," said Hugh Keough, president of the Virginia Chamber of Commerce. The organization was a plaintiff in the lawsuit along with four corporations with substantial operations in Virginia.
"There is time for employers to reorganize themselves but we believe we need a special session to remove all doubt," Keough said.
House Speaker William J. Howell said he wanted to briefly reconvene the House and Senate to properly clean up the legislation.
"Obviously, you'd want to get this done before the injunction runs out," said Howell, R-Stafford, the state's most powerful legislator. "Sure, it's embarrassing and there's plenty of blame to go around, but we don't need to play the blame game. We just need to come in and get the job done."
Gov. Mark R. Warner has resisted calling lawmakers back to Richmond, preferring legal maneuvers such as the July 2 injunction to keep the law from doing harm until the 2005 General Assembly convenes in January.
Warner, vacationing with his family in Idaho, issued a two-sentence statement saying the injunction "allows everyone to take a deep breath. We will continue to work with leaders of the legislature on this issue."
The chamber and the companies took legal action to reverse an unintended consequence of a bill Virginia's General Assembly approved this year wiping out antiquated "blue laws" that once mandated business closings on Sundays.
A provision mistakenly stricken from the books was a decades-old exemption for private businesses from a "day of rest" law that dates to shortly after the establishment of the first permanent English settlement at Jamestown in 1607. The mistake went unnoticed and Warner signed it into law.
The new law entitles workers at factories, eateries, hotels, movie theaters and private hospitals to take off Saturday or Sunday — their chosen day of worship.
Penalties against businesses that refuse their employees' wishes include a fine of up to $500 for each offense. Also, an employer that forces an employee to work on a day of rest may have to pay triple the worker's regular pay.
Businesses began scrambling this week after they learned of the mistake, desperate to make sure their holiday weekend operations weren't disrupted by workers taking advantage of the loophole.
Plaintiffs' attorney William Broaddus argued that the law violates the Constitution's principle of church-state separation by specifying days as the Sabbath.
He also contended that the law breaches the state Constitution because the legislation creating it violated the "single-purpose rule." In Virginia, a bill is restricted to a single purpose which must be stated in its title, and there was nothing in the title of Senate Bill 659 about the effect on employee-employer relations that the mistake has caused, Broaddus said.
The judge granted the order, but added, "I do so with some great reluctance."
"There may be some constitutional impediments ... but my reluctance is that this really is treading on the legislative prerogative," Markow said. "The legislative process, like the judicial process, is sacred. To say 'We didn't mean to do it and the court needs to come in and fix it,' well, it's not as simple as that."
The state, also alarmed at the chaos the mistake could cause to the state's commerce, offered no defense to the lawsuit.
Even with a temporary reprieve, Attorney General Jerry W. Kilgore believes the only sure resolution to the legal quandary is for the General Assembly to convene in a one-day special session.
"Absolutely, the governor should come back and call a special session," said Kilgore's spokesman, Tim Murtaugh. "The judge clearly expressed the view that the legislative process is sacred. The judge said this bought us some time, but we're not sure how much."
The plaintiffs included the company that owns the state's dominant electrical utility, Richmond-based Dominion Resources Inc.; Smithfield Packing Co., one of the nation's largest meat producers; International Paper, with holdings in at least 13 Virginia localities; and Klockner-Pentaplast of America Inc., which makes protective films for food, pharmaceuticals and other consumer goods at sites in Gordonsville and Rural Retreat.
The companies would suffer irreparable harm without the injunction, Broaddus told Markow. It could cripple Smithfield's ability to meet its timetables for processing and shipping fresh meat, he said, and it could threaten the state's power supply.
Dominion Resources spokesman Jim Norvelle said on July 2 that none of the company's 9,100 Virginia employees had tried to invoke the flawed law. The company joined in the lawsuit, however, because the stakes were so high.
"We have power stations, operations centers; we perform reliable services that are important to the state's economy. We'd just like a little common sense in play here to get us back to the status quo that existed before yesterday," Norvelle said.