Open defiance, multiplying lawsuits in response to governor’s shutdown orders

Grumbling about Gov. Gavin Newsom's stay-at-home orders has grown into open defiance, with new challenges coming in court, from local government bodies and from an angry crowd outside the State Capitol.

Some attorneys say Newsom's orders rest on firm constitutional grounds, but much depends on how far he is willing to go to enforce them, and which law he cites. The legal dynamics could change if the orders remain in place in the coming weeks and months, especially if this allows plaintiffs to show increasingly serious examples of concrete harm.

Professor Leslie G. Jacobs at the McGeorge School of Law said Newsom's emergency powers are "clear cut" in the state Constitution. States and cities must follow the state government in much the same way state governments have limited powers to defy the federal government, Jacobs said.

"To the extent that the governor's orders are within his authority, which so far they have been, they control," Jacobs said. "The counties can't do something that's in conflict with the governor's order."

"It's constitutional, and it's also statutory," said Brandon D. Young, a partner in the government and regulatory practice at Manatt Phelps and Phillips LLP. "The specific power is vested in the Government Code. There are provisions that allow him to suspend any regulation or statute that would proscribe the business of state conduct."

But Young added that legal context is also important. Court challenges to such orders often seek a temporary restraining order, which in turn requires a balancing test, he said. That potentially gives plaintiffs a way in -- if they can show the order or policy is more onerous or harmful than needed. Such arguments might be easier to make the longer the policies go on, he added. One caveat, he added, is that with courts largely shut down, the orders themselves may be rescinded before cases are resolved.

"I suspect you'll increasingly see fact-based arguments from cities claiming that to prohibit a certain type of congregation or a business, if it creates a greater harm than addressing the public health issues in front of us, those arguments will start resonating more," Young said.

This is exactly what plaintiffs tried unsuccessfully to do in a hearing in Orange County Superior Court on Friday. Three local elected officials sued Newsom just one day after he announced beach closures at his daily lunchtime press conference about the coronavirus response. The suit is one of several filed against the governor by Harmeet K. Dhillon of Dhillon Law Group in San Francisco. Muller v. Newsom, 30-2020-01139511-CU-PT-CJC (O.C. Super. Ct., filed May 1, 2020).

The complaint argues the governor did not cite a valid legal reason for the beach closures, instead relying on vague references to his prior executive orders.

"Because Newsom cannot point to any legal authority justifying his directive closing all Orange County beaches, his conduct must be considered an abuse of his discretion," the complaint argued.

Reached after the hearing, Dhillon said Judge Nathan R. Scott issued an order preserving the status quo and gave the state until Wednesday to file a reply brief. She said Scott also urged the parties to reach a settlement.

"I complement the judge for giving a hearing so quickly on an important issue," Dhillon said. "That has not been the case in this COVID situation."

The filing follows votes last week from the city councils of Dana Point and Huntington Beach to sue over the closures, which affect only Orange County despite a notice from sent to all state law enforcement agencies that Newsom was going to shutter all beaches. The named plaintiffs include Dana Point City Councilman Joseph Muller, San Clemente City Councilwoman Laura Ferguson and Mission Viejo City Councilman Gregory Raths.

The court scheduled an immediate hearing on the temporary restraining order request, but this was not one of the live streams made available by the court on Friday.

Up in the opposite corner of the state, the Modoc County Board of Supervisors voted to open up its economy in defiance of Newsom's orders. The tiny county of 9,000 bordering Nevada and Oregon has a couple of things in common with the far more populous Orange County: Republican leadership and a relatively low infection rate. As of Friday, Modoc was one of four California counties without a confirmed case of the virus.

Most dramatic were the hundreds of protestors gathered outside the Capitol on Friday in defiance of a California Highway Patrol order that was supposed to end in-person protests on state property pending the end of the lock-downs. More rallies occurred elsewhere, including a large one in Huntington Beach.

Newsom acknowledged the desire by many to open up the economy when he spoke to reporters on Friday.

"It is appropriate that we pause and reflect on the economic dislocation that millions and millions of Californians have suffered," Newsom said.

He also discussed a phased reopening of the state he said he wants to begin within weeks.

Jacobs said it is unlikely Newsom will directly respond to every local government that says it will defy an order, especially if they don't initiate litigation.

Meanwhile, she added, not all local governments have taken the confrontational approach.

"The way the law works and the practical realities of enforcement are different," she said. "In this instance, the appropriate way for counties to be able to open more things is to do what a number of them have done, which is to petition the governor and say, 'Please, will you make exceptions?'"