An overview of California’s emergency powers

The unprecedented challenges created by COVID-19 have forced the state and local governments to exercise exceptional powers to protect the public health. On March 4, California Gov. Gavin Newsom declared a state of emergency in response to the coronavirus. In the days that followed, local governments declared emergencies of their own. Recently, the state and local governments have actively imposed directives under their emergency powers to enforce social distancing, shelter-in-place, and similar directives.

The COVID-19 crisis is the latest in a series of emergencies that have demanded immediate action by government. While we often hear and read about government-declared emergencies, the legal underpinnings of governmental authority in times of crisis are less understood and discussed. However, COVID-19 has bought these powers into focus. This article provides an overview of the levers that government public officials can rely on to mount an aggressive government response in times of emergency, with a specific emphasis on California.

What is a state of emergency?

The government usually declares a state of emergency in response to a man-made crisis or natural disaster. The purpose is to allow the government to suspend laws, regulations or procedures to take coordinated action to address an urgent need. A state of emergency may be declared by the federal, state or local government. However, if the state declares an emergency, the federal government or local governments are not required to do so. Likewise, if a local government declares a state of emergency, the state or federal government may not necessarily follow suit. However, if more levels of government declare a state of emergency, more resources can be brought to bear.

Why declare an emergency?

At its most basic level, a declaration of emergency activates resources and confers broad powers to the governor or local governments. In addition, a declaration of emergency may supplement local police power or sovereign immunities that protect governments from certain types of lawsuits. Cases interpreting state law explain that the declaration of an emergency “responds to a fundamental role of government to provide broad state services in the event of emergencies resulting from conditions of disaster or of extreme peril to life, property, and the resources of the state.” Martin v. Municipal Ct., 148 Cal. App. 3d 693, 696 (1983).

How are state emergencies declared?

The California Emergency Services Act (Govt. Code Section 8550 et seq.) is the primary state law governing a declaration of emergency. The governor may unilaterally declare an emergency if he or she determines an emergency exists, or upon the request of a city or county. Local governments often have procedures that address the declaration of a local emergency and making requests of the state to provide assistance or secure gubernatorial support for a declaration of emergency. Upon the occurrence of an emergency, the governor is not required to make findings of fact; he or she is required only to note the circumstances of the emergency and that the emergency is beyond local control. See Martin, 148 Cal. App. 3d at 697; Govt. Code Section 8625(a).

What is the governor’s authority under the California Emergency Services Act?

The California Emergency Services Act confers upon the governor and the governing bodies of cities and counties the power to declare a state of emergency “in conditions of disaster or ... extreme peril” and confers powers on the governor to deal with such emergencies. During a validly declared state of emergency, among other powers, the governor may suspend laws, regulations or state policies if strict compliance would “prevent, hinder, or delay the mitigation of the effects of the emergency”; commandeer or acquire real or personal property; make expenditures from a “legally available” fund; and direct state agencies to address the emergency. The governor is also charged with the responsibility to coordinate the emergency plans and programs of all local agencies.

The governor has activated nearly all available powers in some fashion in response to COVID-19. See, e.g., Executive Order N-33-20 (directing shelter-in-place for all noncritical infrastructure sectors); Executive Order N-32-30 (directing $500 million in emergency funding; lifting restrictions in the health and safety code to allow local jurisdictions to spend their emergency homelessness funding on immediate shelter solutions); and Executive Order N-25-20 (readying state agencies to commandeer property for state residents, and suspending certain provisions of the Brown Act and Public Contract Code). However, additional executive action seems likely.

What emergency powers are available to local government?

Independent of a statewide emergency, cities and counties may also declare a local emergency. Govt. Code Section 8630(a). Upon the declaration of a local emergency, the local government “may promulgate orders and regulations necessary to provide for the protection of life and property,” including curfews. Id. Section 8634. Other specific powers and authorities may be dictated under local charters or municipal or county codes. For example, governments commonly suspend laws and regulations for competitive bidding, local land use, parking or building code requirements. A local emergency may also permit a local government to activate local officers or employees to assist in the performance of emergency services.

Importantly, if a local government declares an emergency, the government must review the need for continuing the local emergency at least once every 60 days until it terminates the local emergency, and must terminate the emergency at the earliest possible date. Id. Section 8630(c), (d). In some jurisdictions, local laws may require a review in less than 60 days. In a situation such as COVID-19, these reviews provide a useful check on the power of government, especially when the nature of an emergency changes.

Given the rise in the number of cases of COVID-19, how do quarantine laws apply to the declaration of state or local emergencies?

The state’s power to isolate and/or quarantine is addressed in the Health & Safety Code. For instance, state statutes permit the state to require local governments to comply with and implement orders, rules and regulations concerning quarantine or isolation, as prescribed or directed by the state. See, e.g., Health & Saf. Code, Sections 120195, 120200, 120210, 120215. Local laws may also give resident public health officers the authority and discretion to direct and enforce quarantine and isolation, as demonstrated by local shelter-in-place restrictions ordered throughout the state from Sacramento and San Francisco to Los Angeles and San Diego.

What about police power?

In the case of emergencies, there tends to be a focus on statutorily granted powers. One authority that is not mentioned as extensively is constitutionally vested police power granted to the state, counties and cities. Police power vests state and local government with authority to protect the lives, health, morals, comfort and general welfare of the people. As the Supreme Court explained, police power is “one of the least limitable of governmental powers, and in its operation often cuts down property rights.” Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 83 (1946). However, in the case of local government, the exercise of police power must be territorially limited to a given city or county.

What are the limitations on emergency power?

Despite an emergency, government actions must continue to comply with federal law and the U.S. Constitution. For instance, the exercise of power under the Emergency Services Act may be subject to limitations governing procedural and substantive due process as well as limitations on the power to penalize and restrict the movement of persons and property. However, courts have traditionally taken an expansive view of the Governor’s emergency power. Cal. Corr. Peace Off. Assoc’n v. Schwarzenegger, 163 Cal. App. 4th 802, 816-17 (2008) (upholding the exercise of emergency power to address prison overcrowding).

Courts have also largely deferred to local government in the exercise of statutorily based emergency powers. For example, during the L.A. riots in 1992, the city of Long Beach imposed strict curfew regulations, subject to criminal sanctions. The regulations were challenged as violative of the First, Fifth and 14th Amendments. In re Juan C., 28 Cal. App. 4th 1093, 1099–1100 (1994). However, in upholding those restrictions, the court explained “[t]he desire for free and unfettered discussion and movement must be balanced against the desire to protect and preserve life and property from destruction.”

Given how courts have treated statutory emergency power, constitutional restrictions concerning the exercise of police power are relevant. The due process clause of the 14th Amendment limits the exercise of police power. The exercise of police power may not be unreasonable or arbitrary — actions must be sufficiently justified by public necessity. The equal protection clause of the 14th Amendment is also a limitation commonly invoked on the exercise of police power. If certain activities are singled out and subjected to regulation, the classification must not be improperly discriminatory.

Finally, as it relates to quarantine, the U.S. Centers for Disease Control and Prevention takes the position that quarantine does not violate the guarantees of substantive due process under the Fifth Amendment, arguing that in circumstances requiring the control of communicable diseases, “restrictions on individuals ... are justified by the benefits to the public health.” 82 Fed. Reg. 6890–01, 6900 (Jan. 19, 2017) (citing Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (recognizing the power of states to issue “quarantine laws and health laws of every description”)). 