Missed graduation, medical treatment brings lawsuit

Gov. Gavin Newsom faces more constitutional challenges, this time from a handful of Californians who say some of their most important milestones, medical treatments and family visits have been ruined by his public health directives.

Harmeet K. Dhillon, Gregory R. Michael and Mark P. Meuser of Dhillon Law Group have again sued Newsom, Attorney General Xavier Becerra and two public health emergency officials alleging violations of Fifth and 14th Amendment rights. They include the right to travel, liberty equal protection and due process.

The lawsuit filed in the Central District of California references Attorney General William P. Barr's April 27 memo disseminated to U.S. attorneys nationwide about stepping into such challenges to better balance public safety and civil rights.

The latest group suing Newsom includes a couple whose April 21 wedding plans were postponed, parents who can only visit their son in a non-medical residential home twice a week, and a high school senior in San Diego who missed out on graduation. A Butte County musician whose performances have been suspended, along with a breast cancer survivor in need of re-constructive surgery that's been deemed cosmetic round out the list. Six et al v. Newsom, et al., 2:20-CV-04193 (C.D. Cal., filed May 8, 2020).

"A troubling dichotomy has emerged in California federal courts during the pandemic. Some courts have given broad deference to the state executive branch even when it infringes upon fundamental rights like the state order," Dhillon wrote. "At the same time other courts have closely scrutinized the constitutionality of the exercise of federal executive power, striking down many executive actions taken by President Trump."

Other legal experts maintain the recent trend of constitutional challenges revolve around the argument that the governor's directives are novel but existing parameters also set the groundwork of how and why Newsom's emergency orders are issued.

David A. Urban, senior counsel at Liebert Cassidy Whitmore who isn't involved in the case, said the allegations of infringement of an implicit constitutional right to travel and to liberty described in Dhillon's case are rare, but both the pandemic and the government's response are unprecedented. Urban often represents public sector employees and municipalities.

"Lawsuits filed in the coming months will probably have many new types of causes of action for courts to consider. The government will not only have to respond effectively to the pandemic but prepare to respond to types of lawsuits no one has seen before," Urban said.

The lawsuit argues Newsom's arbitrary shutdown orders exempt certain businesses like pot shops without compelling state interests. The lawsuit also notes the amount of actual hospitalized patients -- just over 6,000 -- is far lower than his projection of 5 million.

Professor Eugene Volokh of UCLA School of Law said he's not sure "this suit's actually going to go anywhere," but acknowledged the state orders have been "massive restrictions on liberties." Courts are more likely to extend the powers to state officials who use existing distinctions the law has already established, he said.

While there are restrictions on association, liberty and travel, there are lines drawn around existing parameters when it comes to equal protection, Volokh said. For example, the law treats marijuana as a pharmaceutical substance so courts can see it is reasonable for the state to allow pot shops to open, he said.

"The same goes for gun [sales] and abortion cases because these are one-on-one interactions and less likely to be dangerous to public health than a wedding or graduation," Volokh said.

Jacobson v. Massachusetts, 197 U.S. 11 (1905), which resulted in mandatory vaccination laws designed to fight the smallpox outbreak, serves as precedent courts tend to defer to when evaluating executive decisions for emergencies, Volokh said. "Jacobson is a very important precedent because it represents a broader line of precedents that upheld things that could be seen as otherwise unconstitutional state burdens, like the right to travel, interstate commerce and the like."