In a questionably defiant and unquestionably ill-timed legal move, San Bernardino County has lodged with the California Supreme Court a complaint against Governor Gavin Newsom, contesting what it maintains are his overbearing COVID-19 precaution mandates and stay-at-home orders.
The county’s challenging of the governor’s constitutional authority comes just as the coronavirus pandemic has spiked to unprecedented levels, overwhelming hospitals and medical providers, even as deaths from the condition have increased to the point that Newsom has ordered up 5,000 more body bags for statewide distribution to head off overcrowding within the Golden State’s morgues.
Of substantial note, is that San Bernardino County is pursuing legal relief from the governor’s order while statistics demonstrate that San Bernardino County’s current infection rates on a per capita basis are outrunning those of California’s 57 other counties.
Incomprehensibly, San Bernardino County’s filing asserts communities with fewer COVID-19 infections should have fewer restrictions. Nevertheless, San Bernardino County has recently, and continues to, evince an infection rate unparalleled in the region and the state. Over the last two months, as measured by the state’s statistics relating to the cases of infection and its graduated system of granting counties an exit from the precautionary restrictions, San Bernardino County’s rate for the spread of the COVID-19 contagion has kept it in the state’s most restrictive tier, which does not permit any indoor dining at restaurants, shutters certain types of businesses and disallows worship at churches.
San Bernardino County is collectivized with 11 counties from the Baja California border northward labeled the Southern California Region, which accounts for more than half of the state’s population. The Southern California Region, is subject to a stay-at-home order, which is in effect at least until Christmas. That order, which Governor Newsom was advised to make by the state’s brain trust of medical authorities, was triggered when the occupancy rate within the intensive care units in the region’s hospitals eclipsed 85 percent in the days after Thanksgiving. Newsome cited the California Emergency Services Act in imposing the preventative mandates, which went into effect in the Southern California Region as of Sunday, December 6.
The California Emergency Services Act provides the governor with “complete authority over all agencies of the state government” to “promulgate, issue, and enforce such orders and regulations as he deems necessary.”
As the state’s fifth-most populous county with 2.2 million residents, San Bernardino County has the second-highest number of coronavirus cases among California counties, with only 11.5-million population Los Angeles County having more. In Los Angeles County as of this week, there had been 566,000 confirmed cases of coronavirus infection, a known rate of infection of 5.39 percent among its residents. San Bernardino County as of yesterday, Thursday, December 17, had a reported 144,455 confirmed cases, a known rate of infection of 6.566 percent.
Additionally, yesterday, San Bernardino County experienced its largest single-day increase in the number of reported cases, as the number of known infectees leapt by 9,383, along with 19 reported virus-related deaths. Since the start of the pandemic in February, California has logged 21,194 deaths wholly or partially attributed to COVID-19. Of that number, 1,241 occurred in San Bernardino County.
A critical statistic considered by the state in mandating and maintaining precautionary measures relates to the availability of medical facilities, including both hospital beds overall and intensive care unit capacity specifically. Following the Thanksgiving weekend, the numbers of those hospitalized with COVID-19 symptoms began to steadily climb. On November 30, the number of available beds in the Southern California Region’s hospitals stood at 15 percent. There was a slight respite less than a week thereafter, when 20.3 percent of the intensive care unit beds were unoccupied regionally. By Saturday, December 12, the number of available intensive care unit beds in the Southern California Region hovered at 4 percent, although reportedly at that point the number of intensive care unit beds in San Bernardino County had not dwindled as low as in surrounding counties. Two days a go, on Wednesday, 1.4 percent of the intensive care unit beds in the Southern California Region were unoccupied. As of yesterday three days after San Bernardino County asked the Supreme Court to remove it from the governor’s mandate, every intensive care unit bed in the 11-county Southern California Region was occupied.
San Bernardino County had 1,413 confirmed COVID-19 patients in its hospitals as of yesterday, 94 more than the 1,319 with Coronavirus symptoms hospitalized throughout the county the previous day, Wednesday, December 16. As of yesterday, all 569 of the county’s intensive care unit beds were occupied, 271 of them with those experiencing critical COVID-19 symptoms.
Nevertheless, on Monday, San Bernardino County had lodged a filing with the California Supreme Court claiming that Governor Newsom and the state government were being unduly alarmist in applying stay-at-home-orders and other restrictions to San Bernardino County, its residents and its businesses. It sought an exemption from the regional guidelines pertaining to itself as well as Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Diego, San Luis Obispo, Santa Barbara and Ventura counties, and a decree from the Supreme Court that the county would be able to ascertain what restrictions should be applied to residents and businesses within its jurisdiction without interference from the governor.
The county said it should be allowed to reclaim “its constitutional authority to tailor regulations and orders which are specific to its residents based on facts which are unique to their locations rather than subject its residents to overbroad multi-county, governor-implemented, regionalized lockdowns.”
Chairman of the San Bernardino County Board of Supervisors Curt Hagman said Newsom has overstepped his authority. “The governor is not permitted to act as both the executive and legislative branch for nine months under the California Emergency Services Act,” Hagman said. “If it is concluded that the act allows him to do so, the act is unconstitutional as it permits the delegation of the legislature’s powers to the executive branch in violation of the California Constitution.”
County officials have said they should be able to fine-tune the governmental regulations pertaining to the health threat that will be imposed locally rather than having the county, its residents and businesses subject to an edict from on high in Sacramento.
According to the lawsuit, San Bernardino County has squandered considerable resources in enforcing the governor’s order, including expending 117,281.5 sheriff’s department man-hours, including 24,356.5 overtime hours on COVID-19-related activities. Furthermore, according to the suit, the San Bernardino County Department of Public Health has seen its attention diverted from the provision of other critical services to county residents, such as public health education, family services, nutrition and animal control. “The respondents subjectively decided that these services were secondary to the enforcement of their stay-at-home laws, requiring the San Bernardino County Department of Public Health to enforce respondents’ legislative acts instead of allowing the San Bernardino County Department of Public Health to provide important services to county residents,” according to the lawsuit.
Forcing the San Bernardino County Department of Public Health to focus on the state’s priorities will be counterproductive, according to the lawsuit, now that inoculating the county’s population with the coronavirus vaccine is a task that should be undertaken.
The lawsuit was not lodged at the level of the Superior Court or with any appellate districts, but rather directly to the California Supreme Court on December 14. It maintains that Governor Newsom does not have the legal or constitutional authority to ban gatherings, close businesses deemed nonessential, curtail dining at restaurants or prevent a restaurant’s occupancy from exceeding 20 percent of normal capacity set by an applicable local fire code. The filing requested that the Supreme Court render a decision on the request by Monday, December 28, at which time the three-week stay-at-home order is set to elapse, with an option for Newsom to extend it. The county began preparations to file the lawsuit in November, prior to Newsom’s order going into effect on December 6.
The county board of supervisors had contemplated, when the concept of a lawsuit against the state was first being discussed in November, of joining in with the region’s other counties in filing the suit. That approach fell apart, however, when the counties of Ventura, Santa Barbara, and San Luis Obispo themselves approached the state, saying they should be excused from the order because it was unfair for them to be lumped in with counties experiencing high rates of infection such as San Bernardino County.
The county is hoping to replicate the success achieved in Michigan in October when the Michigan Supreme Court struck down COVID-19 precautionary orders put into effect by Democratic Governor Gretchen Whitmer after Michigan’s Republican state state legislators challenged her authority at the trial court and appellate court levels.
Most legal observers rate the prospect of San Bernardino County prevailing in its action as low, given the blanket nature of the authority invested in the governor by the California Emergency Services Act and the escalating COVID-19 infection rates and COVID-19-related deaths in the county.
A telling indicator is that the county is represented in the action by the Murrieta-based law firm of Tyler & Bursch, whose principal, Robert Tyler, in Southern California is known as the patron saint of lost legal causes. In 2016, the Chino Valley School District, having already been rebuffed by the federal court in Riverside over its policy of engaging in prayer, specifically evangelical Christian prayer at public meetings, appealed the ruling, with Tyler as its legal representative. Ultimately, the District Court’s ruling was upheld and the school district, which had already been ordered in 2016 to pay $202,971.70 to the Freedom From Religion Foundation for its attorney’s fees and other costs, was called upon once more in 2019 to cover the Freedom From Religion Foundation’s roughly $147,000 in legal costs accruing during the appeal.