Newsom’s emergency power is again challenged in federal court

Attorneys meet once again Thursday in a virtual hearing to debate the limits of Gov. Gavin Newsom's powers during a crisis.

These disagreements center not just on fundamentally different understandings of the role of the government but of the reality of the coronavirus pandemic. Some attorneys say Newsom's right to make such orders is pretty firmly grounded in constitutional and statutory law. But others question the continued use of a 115-year-old legal precedent to justify interfering with Californians' First Amendment and other constitutional rights and whether Newsom has shown his orders are proper and necessary under state law.

The latest face-off will occur in a federal court in Sacramento in a case challenging a ban on rallies on state property, issued to fight the spread of the coronavirus. Givens v. Newsom, 2:20-cv-00852-JAM-CKD (E.D. Cal., filed April 27, 2020).

A response filed by the plaintiffs' attorneys D. Gill Sperling and Harmeet K. Dhillon on Tuesday argued the governor faces a high burden when restricting basic rights.

"There is no pandemic exception to the United States Constitution. ... Our fundamental liberties do not rise or fall with the stroke of one man's pen any more than they may ebb and flow with the tide," the filing states.

Attorney General Xavier Becerra filed a reply on Friday. He argued the governor is well within his constitutional rights to order closures of churches, businesses, and open-air public places and said his decisions do not violates the plaintiffs' rights "even under traditional standards of review."

The reply includes 19 mentions of a 115-year-old Supreme Court precedent that is being raised in court hearings. Jacobson v. Massachusetts 197 U.S. 11 (1905) resulted from a mandatory vaccination law designed to fight a smallpox outbreak.

"The only reason plaintiffs offer that Jacobson should not apply is that it 'was decided decades before the First Amendment was held to apply to the states by incorporation,'" the state's reply argued. "Plaintiffs offer no authority that supports their effort to so narrowly cabin the holding in Jacobson."

Reached on Wednesday, Dhillon wrote in an email that her filings made numerous arguments about why Jacobson was never intended to be used in the way the state is now using it.

"It's a vaccine case. There is no precedent for a whole state shutdown for months or even more than a year, as the governor is now hinting, and Jacobson had nothing to do with the First Amendment, protest, assembly, exercise, religion," Dhillon wrote in the email. "It's totally inapposite. There is no case saying that the Constitution is suspended in emergencies. Period."

Scott J. Street said it would be difficult to convince a federal judge to rule against Newsom under Jacobson. But he added there are problems with relying on very old precedents, especially ones set when understanding of constitutional rights and the power of medicine were quite different. The partner with Musick, Peeler & Garrett LLP added that some challenges could end up in federal appeals courts by summer, with possible new precedents to follow.

"A big question is how long these orders will continue to be in place and be enforced," Street said. "I do get the sense that the judiciary, especially in California, is trying to avoid deciding these issues.

Street said Newsom was generally on firm ground until March 19. That's when he issued Executive Order N-33-20, his sweeping stay-at-home order. Those challenging Newsom's orders should look into the powers and limitations Newsom has under the very law that gave him many of his powers, the California Emergency Services Act, he said.

"There are several cases dealing with the scope of the governor's authority under this act," Street said. "The things the governor has done have gone far beyond the scope of any previous governor."

Other courts have been taking up similar questions about the governor's orders. So far, Newsom is winning.

For instance, on Tuesday, U.S. District Judge John A. Mendez denied a temporary restraining order sought by a Lodi church pastor who challenged Newsom's banning of in-person church services through two executive orders. Cross Culture Christian Center v. Newsom, 2:20-cv-00832-JAM-CKD (E.D. Cal., filed April 22, 2020). U.S. District Judge Jesus G. Bernal made a similar order on April 23 in Gish v. Newsom, 5:20-cv-00755-JGB-KK (C.D. Cal., filed April 13, 2020).

"Both stay-at-home orders flow from valid exercises of state and local emergency police powers," Mendez wrote. He later said such police actions would be barred "under normal circumstances ... but sometimes, normalcy is lost."

Dean R. Broyles, the president of the conservative National Center for Law and Policy and a plaintiff's attorney in the case, compared it to prior instances when courts found an executive acted within their rights but later jurists disagreed, such as the internment of Japanese Americans during World War II.

"If Governor Newsom's order were actually otherwise valid, neutral, and generally applicable, there may be very limited situations where the state could lawfully issue such an order, but only for a very limited period of time, not indefinitely," Broyles said in an email. "But that is not what happened here."

Another set of cases has been playing out around Newsom's order closing Orange County beaches. These cases -- Muller v. Newsom, 30-2020-01139511-CU-PT-CJC (O.C. Super. Ct., filed May 1, 2020) and City of Huntington Beach v. Newsom, 30-2020-01139512-CU-PT-CJC (O.C. Super. Ct., filed May 1, 2020) -- appear unlikely to go the distance. Newsom announced this week he had reached agreements with local law enforcement to reopen the beaches.

Some other interesting disagreements show up in a federal court challenge to the bans, Muldoon v. Newsom, 8:20-cv-00844-JVS-JDE (C.D. Cal., filed May 3, 2020). Filed by Dhillon, it seeks to undermine much of the evidence Newson cited in issuing the ban in the first place.

These include references to what the suit calls "misleading" photos showing crowded beaches and claims the death rate from the virus in the United States is similar to the common flu. Dhillon also noted that Orange County has a lower death rate that many counties where beaches weren't closed.