San Bernardino County’s lawsuit to eradicate Governor Gavin Newsom’s mandates issued in November and December intended to slow the progression in the rate of coronavirus infection, a legal effort that appeared moribund from the outset, was officially pronounced dead by the California Supreme Court on Wednesday, January 13.
On November 16, 2020, Governor Newsom ordered a large number of the state’s counties, including San Bernardino County, into the most restrictive tier of regulations relating to the functioning of businesses, effective November 17. On December 3, Newsom ordered residents of the state’s counties experiencing the sharpest increase in the virus’s infection rates to “stay home or at their place of residence except as necessary to conduct activities associated with the operation, maintenance, or usage of critical infrastructure” and that “all retailers may operate indoors at no more than 20 percent capacity and must follow the guidance for retailers. All access to retail must be strictly metered to ensure compliance with the limit on capacity. The sale of food, beverages, and alcohol for instore consumption is prohibited.” The mandate also ended outdoor dining at restaurants.
In announcing the stay-at-home order, Governor Newsom said the restrictions were necessary because in those areas where they went into effect, regional hospitals had intensive care unit capacity which had dwindled to less than 15 percent of available beds. The preventative measures he was calling for, Newsom said, were intended to slow the spread of the virus.
After that order went into effect in San Bernardino County on December 7, San Bernardino County’s governmental structure, represented by attorney Robert Tyler, drew up legal papers and on December 14 lodged a lawsuit filed directly with the California Supreme Court, asserting that Governor Newsom did not possess the authority to ban all gatherings except protests and religious services, close businesses he deemed to be nonessential, end in-person dining at restaurants or cap a restaurant’s occupancy at 20 percent.
The county contended that the forced closures lacked a legal basis and that they were wreaking substantial economic harm to the county’s residents and businesses. Moreover, according to the county, the state was usurping the authority that better would have been exercised by the county and its department of public health. A consequence of the governor’s mandates, the county suggested, was that the restrictions were forcing people indoors, where there was a concentration of people that increased the likelihood of contagion.
The timing of the county’s legal action was execrable. At the time the county was before the Supreme Court arguing that it should not be subject to the precautions Newsom had put in place, San Bernardino County was experiencing the highest level of COVID-19 infection rates among all counties in the state. Between the day Tyler made the filing with the California Supreme Court, December 14, and December 21 inclusive, 134 deaths of San Bernardino County residents were attributed to the disease. That included 52 deaths over a 48-hour period on December 19 and 20. Deaths wholly or partially attributable to COVID-19 in San Bernardino County reached their apex on December 16, when 63 people died.
Three of the county’s cities – Yucaipa, Chino Hills and Rancho Cucamonga – filed amicus curiae – friend of the court – briefs in support of the county’s legal action.
On December 29, California Attorney General Xavier Becerra, representing Newsom, submitted a response to San Bernardino County’s filing with the Supreme Court, stating, “Amid an unprecedented surge in the COVID-19 pandemic, petitioners ask this court to exercise its original jurisdiction to strike down public health orders seeking to contain that pandemic.”
The deaths and a burgeoning infection rate demonstrated the need for public safeguards, Becerra maintained, and he said Newsom was acting within the scope of his authority as governor, and responsibly meeting his duty as the state’s highest elected official.
“The challenged public health orders are authorized not only by the Emergency Services Act, but also by additional, unchallenged provisions of the Health and Safety Code,” Becerra propounded.
This week, five of the California Supreme Court’s members – Chief Justice Tani Cantil-Sakauye and associate justices Carol Corrigan, Mariano-Florentino Cuéllar, Leondra Kruger and Joshua Groban – after evaluating the county’s filing and its supporting documents, entered a ruling denying the county’s petition to overturn the state’s current stay-at-home order and other precautionary restrictions. Associate justices Goodwin H. Liu and Martin J. Jenkins recused themselves with regard to the decision, begging off because of an undisclosed conflict-of-interest with regard to the issue.
-Mark Gutglueck