Those suing governor getting what they want without the courts

Plaintiffs suing Gov. Gavin Newsom over his emergency orders are starting to get some of what they want, though generally not from the courts.

Partly fulfilling a prediction made by the attorney behind several of these cases, Newsom announced a deal with local law enforcement to reopen Orange County beaches on Monday. This was despite an Orange County judge denying a temporary restraining order against Newsom's beach closures on Friday.

"I don't think he's worried he's going to lose a lawsuit," said McGeorge School of Law Professor Leslie G. Jacobs. "He's more worried all of Orange County is going to storm the beaches."

Plaintiffs in these cases face a fundamental problem of timing, Jacobs said. They must seek temporary restraining orders against the policies to have them heard in a meaningful time frame. Besides the fact that the orders continually change, the pandemic could be over long before cases are resolved. Yet judges don't grant such orders lightly, especially in the midst of a danger to public health.

"With people filing these lawsuits, they can't be thinking they're likely to win, at least not today," Jacobs said. "So yes, they must have some purpose other than actually winning the lawsuit."

A reply filed Friday by Attorney General Xavier Becerra in a case challenging a ban against protesting on state property laid out what appears to the be the state's strategy in defending a variety of coronavirus-related measures: Outline the governor's authority under the state constitution and state law, then argue the actual harms to the plaintiffs are minimal and temporary and claim granting the order could cause new danger. Givens v. Newsom, 2:20-cv-00852-JAM-CKD (E.D. Cal., filed April 27, 2020).

"Plaintiffs disagree with this strategy and believe that they can safely conduct their proposed mass rallies using measures such as physical distancing and masks," read the opposition to the temporary restraining order filed by Deputy Attorney General Amie L. Medley. "Plaintiffs, however, present no evidence to support this belief, much less the compelling evidence that a court would need to second-guess the expert determination of public health officials in the midst of a pandemic."

The sides will make their arguments Thursday. Becerra's office might point to an unauthorized protest against the governor's stay-at-home order on Friday. Photos show hundreds of people and very little social distancing, similar to the pictures of crowded Orange County beaches that led to the shutdown Newsom announced last Thursday.

The plaintiffs, represented by D. Gill Sperlein and Harmeet K. Dhillon, will have a chance to see the state's arguments by then. Dhillon is also lead attorney in a case filed by three Orange County politicians against the beach closures, Muller v. Newsom, 30-2020-01139511-CU-PT-CJC. Temporary orders sought in this case and another, City of Huntington Beach v. Newsom, 30-2020-01139512-CU-MC-CJC (both O.C. Super. Ct., filed May 1, 2020), were both heard and rejected on Friday.

The next hearing is scheduled for May 11, after briefing by both sides. Dhillon did not return an email seeking comment on Monday. But on Friday, she made a very specific prediction: "If I were a betting person, it would be that by the time the hearing rolls around, or even potentially by the time the governor has to respond, this order will no longer exist."

At his regular coronavirus news conference on Monday, Newsom announced deals with local law enforcement to reopen the beaches with new distancing policies, starting immediately with the cities of San Clemente and Laguna Beach. He also announced Phase 2 of the state's reopening, including many retail and logistics workers coming back to work on Friday, and said the state has received 14 million protective masks through a controversial deal with a Chinese provider.

The governor also reached out to those protesting his policies.

"Know your voices are being heard," Newsom said. "Know they're being respected. Some are a little more pointed than others. But I understand where that comes from."