Challenging Newsom's open-ended shelter-in-place order

Shakespeare's Dick the Butcher suggested that we "kill all the lawyers." As lawyer David Epstein once noted in the Wall Street Journal, Shakespeare meant this as a term of endearment, "to portray lawyers as the guardians of the rule of law who stand in the way of a fanatical mob."

That principle means as much now as it did then, as a fanatical mob of well-intentioned Californians hoard food, avoid their friends and destroy businesses because they fear the coronavirus. And it will be up to the lawyers to restore some sanity to the state, starting by challenging California Gov. Gavin Newsom's emergency order to shelter in place.

This order, Executive Order N-33-20, which Newsom issued on March 19, followed similar orders issued by local officials in San Francisco and Los Angeles. The media praised them as necessary efforts to fight the coronavirus pandemic. But a closer look at the orders raises troubling questions about their scope and necessity, and when, by law, they must terminate.

Newsom's order is especially jarring. Unlike emergency declarations issued by his predecessors, Newsom's order contains virtually no findings and no evidence. It contains just two substantive paragraphs, one which states that, "in a short period of time, COVID-19 has rapidly spread throughout California" and another which says Californians must follow an onerous public health directive "for the preservation of public health and safety throughout the entire State of California...."

The public health directive that the order references does not say anything specific either. It simply states that Californians must stay in their homes and that the order "is being issued to protect the public health of Californians ... to bend the curve, and disrupt the spread of the virus." The order allows certain people to leave home to work -- I probably would not be included in that list, although that is debatable, and one problem with the order -- and says it is fine to leave to buy food or medicine. But that's it. Violating the order can be punished as a misdemeanor and earn you up to six months in jail.

Newsom's order suffers from many flaws, including vagueness. The U.S. Supreme Court has held that "[l]iving under a rule of law entails various suppositions, one of which is that [all persons] are entitled to be informed as to what the State commands or forbids...." Papachristou v. Jacksonville, 405 U.S. 156, 162 (1939) (quotations omitted, original alteration). Thus, "the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way." Fed. Commc'ns Comm'n v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012).

More importantly, Newsom's order is not narrowly tailored to achieve a compelling government interest, the strict constitutional standard that a court would apply to it given that it restricts people's freedom to move and assemble. In fact, the order is not tailored at all.

What is extraordinary about Newsom's order, though, is not that it violates the federal Constitution, but that it is not proper under the state law under which it issued.

The California Emergency Services Act grants the governor broad powers to respond to a state of emergency. And, for now, let's assume that the coronavirus pandemic is properly classified as an "emergency" under the statute; that is, a condition of "extreme peril to the safety of persons and property within the state ...." Cal. Gov't Code Section 8558(b). What can the governor do to combat that?

Article 3 of the act explains. For example, the governor can spend money to respond to the emergency, circumventing the Legislature, which typically handles appropriations. Id. Section 8566. He can seize private property or personnel (while paying reasonable value for them, of course). Id. Section 8572. And he can "make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter." Id. Section 8567.

Newsom's order relies on this last provision. But the order is unlike any other emergency declaration issued by a California governor. Indeed, it represents an unprecedented reach of executive power.

There has been little litigation involving the act. But the courts that have addressed it have said it "recognizes and 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 Court (People of the State of Cal.), 148 Cal. App. 3d 693, 696 (1983) (emphasis added). Thus, in 2001, in response to the Enron-driven electric crisis, Gov. Gray Davis used his emergency powers to spend $400 million buying electricity for 12 days. A court upheld that decision because, at the time Gov. Davis made it, "there was a 'sudden and severe energy shortage' that caused an immediate danger of widespread and prolonged disruptions of electrical services to residents and businesses." Hendricks v. Hanigan, 2002 WL 397648, at *8 (Cal. Ct. App. Mar. 14, 2002).

Similarly, in 2006, Gov. Arnold Schwarzenegger declared an emergency in state prisons based on overcrowding and authorized the state to send some inmates to out-of-state private prisons. A court rejected a challenge to that decision. It emphasized that the act was designed primarily "to ensure that all emergency services functions of the State and local governments, the federal government, and private agencies of every type, be coordinated ... to the end that the most effective use be made of all manpower, resources, and facilities for dealing with any emergency that may occur." Cal. Corr. Peace Officers' Ass'n v. Schwarzenegger, 63 Cal. App. 4th 802, 812 (2008) (emphasis added) (quotations omitted).

As these cases show, governors primarily use the act to do things quickly in response to an emergency. They can also use the act to mandate behavior, as Gov. Jerry Brown did in 1980-81 by ordering all people in three Bay Area counties to remove certain plants in response to a medfly infestation that threatened farms in the Santa Clara Valley, an order subsequently upheld in Martin. But no governor has used the act to punish people for leaving their homes or to force businesses to close indefinitely. These activities are the very essence of life, liberty and the pursuit of happiness.

The Legislature knew that when it adopted the act. Thus, according to the California Supreme Court, the act "makes clear that in situations of 'extreme peril' to the public welfare the State may exercise its sovereign authority to the fullest extent possible consistent with individual rights and liberties." Macias v. State of Cal., 10 Cal. 4th 844, 854 (1995). Newsom's order does not even attempt to comply with these liberties. It relishes in burdening them, to the maximum extent possible, because, in the governor's view, that benefits the "common good."

Such logic has no place in America, regardless of how well-intentioned it may be. Supreme Court Justice Louis Brandeis told us, nearly a hundred years ago, that "[e]xperience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 480 (Brandeis, J., dissenting).

Governor Newsom is our generation's "man of zeal," albeit one of many parading across our tv screens each night.

There is a silver lining in all this. The act requires that "[d]ue consideration [ ] be given to the plans of the federal government in preparing the orders and regulations." Cal. Gov't Code Section 8567(a). Thus, the federal government could still show leadership in the coronavirus response and help develop a strategy for mitigating the spread of the virus that is based on evidence and reason while honoring individual rights. And the act requires that the Governor "proclaim the termination of a state of emergency at the earliest possible date that conditions warrant."