After initial ruling, judge in OC beach case mulls another one

A superior court judge overseeing the Orange County beach closure dispute held off on making a ruling Monday, saying it wasn't clear if there is still a disagreement and what orders would be appropriate.

Judge Nathan Scott previously denied a bid by private citizens and the city of Huntington Beach for a temporary restraining order against Gov. Gavin Newsom's directive to close Orange County beaches over the coronavirus. Since then, the governor has reopened the beaches under a more narrowed, restricted use.

"When we last spoke on May 1, I did ask you to work together to see if you could strike a balance," said the judge. "It looks like you folks have done so and people are now enjoying the beaches as we speak. It is not entirely clear to what extent there is an ongoing dispute in light of your hard work, and if there is an ongoing dispute it is not entirely clear what order would be appropriate."

Mark R. Beckington, supervising deputy attorney general, said the court should deny a preliminary injunction and writ of mandate in two cases while the petitioners said they should be granted.

The judge spent much of the hour-and-a-half telephonic oral arguments keeping attorneys in bounds on one question: What order do parties seek? The very debate over whether a constitutional overreach by Newsom exists after his closure was lifted, and who has authority, was central to the debate.

Beckington argued the matter is moot as the governor rescinded his closure directive. Petitioners, meanwhile, said the new directive continues to be a constitutional overreach by the governor because citizens are barred from sitting or standing on beaches. Therefore, a stay is needed. The new directive said those visiting beaches should maintain active, physical activity and not stand still or sit. Muller v. Newsom 30-2020-01139511-CU-PT-CJC Huntington Beach v. Newsom, 30-2020-01139511-CU-PT-CJC (Both OC Super. Ct. filed May 1, 2020).

"The city views it as a partial reopening," said Huntington Beach City Attorney Michael E. Gates. "The state maintains control. From a city's perspective we are not much in a different position."

In defending the governor's actions, Beckington said Newsom possessed broad powers to exercise his discretion, and acted in good faith by protecting the public from the spread of the virus.

"At the moment there are no claims. It is completely unnecessary. Neither plaintiffs have satisfied the burden," said supervising attorney general.

Petitioners said Newsom didn't ask the cities or county for input when he modified its directive, which Beckington disputed.

"No one contacted us to discuss it. It was wholly coercive," said petitioner's counsel Bilal Essayli of Essayli & Brown LLP, who in its own lawsuit with the Dhillon Law Group Inc., also sued the state of California.

Petitioners said they feared future overreach and argued that by changing his closure directive, the governor was aware of overstepping his legal authority. It further said the original order was not technically a directive but a suggestion because it used the word "heeded." Beckington responded that both orders were clear directives.

"The very premise of this case is wrong. The governor does have the authority to do this," said Beckington.

At one point the judge asked the city about its remarks about intending to fully reopen.

"Does that mean the city would intend to open the beach without any restriction as to what anyone could do on it?" asked Scott.

"The city would like to open to recreational and active beach goers ... and continue to enforce social distancing which we had been doing very effectively before the governor's order," said Gates.

Petitioners, who said circulated media photos of crowded beaches were misleading, said it was false that beach goers weren't socially distancing.

A decision is expected by the end of the week.

The judge, who noted to parties appearing over the phone that he was wearing a mask, made some comments before the remote hearing started.

"I apologize if I am hard to hear, or if it sounds like I am yelling. I am trying to project my voice over two speaker phones," said the judge.