Newsom shutdown foes file in state court, argue science

Opponents of Gov. Gavin Newsom's coronavirus shutdown orders are trying new legal strategies, with more plaintiffs filing in state courts and attorneys placing a greater emphasis on scientific arguments.

A Sacramento-area gym chain that has been frustrated in federal court filed a complaint last month in Yolo County Superior Court. On behalf of the gym owner, Brian Ricardo Chavez-Ochoa of Spring Valley sued the county, its director of emergency services and interim health office, alleging constitutional problems with the county's order closing gyms. Best Supplement Guide LLC v. County of Yolo, CV2020-1387 (Yolo Super. Ct., filed Oct. 10, 2020).

On Monday, the county moved to get the plaintiffs back into federal court, where they have had little success in their case against Newsom.

"In the complaint, plaintiffs allege, inter alia, violations of plaintiffs' rights under the U.S. Constitution. Accordingly, plaintiffs allege causes of action that 'arise under' federal law, making this a civil action over which this court has original jurisdiction," wrote Deborah J. Fox, a principal with Meyers Nave Riback Silver & Wilson PLC in Los Angeles in her notice of removal.

Fox represents Yolo County in Best Supplement Guide LLC v. County of Yolo, 2:20-cv-02233-MCE-DB (E.D. Cal., filed Nov. 9, 2020).). She also represents the city of Lodi in the earlier case, Best Supplement Guide LLC v. Newsom, 2:20-cv-00965-JAM-CKD (E.D. Cal., filed May 12, 2020).

Federal litigants have had trouble proving constitutional violations. But some state courts have been more receptive to arguments over executives exceeding their authority under state law. For instance, on Friday the Wisconsin Court of Appeals blocked Gov. Tony Evers' order limiting public gatherings and business occupancy; Evers quickly announced an appeal.

One of the few rulings to go against Newsom so far came in state court. A pair of GOP Assembly members convinced Sutter County Judge Sarah H. Heckman that the governor's order to mail ballots to all registered voters exceeded his authority. Gallagher v. Newsom, CVCS20-0912 (Sutter Super. Ct., filed June 12, 2020).

But some federal litigants are still trying. On Monday, the legal team behind several challenges brought by churches submitted a new brief to support their motion for summary judgment, arguing the state misinterpreted guidelines from the federal Centers for Disease Control.

The brief led by Robert H. Tyler, a partner with Tyler & Bursch LLP in Murrieta, argued the state tried to use limited recommendations about indoor gatherings to justify a far more expansive policy restricting religious services. They submitted these arguments with 32 pages of exhibits relating to federal guidelines. Calvary Chapel of Ukiah v. Newsom, 2:20-cv-01431-KJM-DMC (E.D. Cal., filed July 15, 2020).

"The CDC does not recommend that singing or chanting be eliminated at indoor worship services, or otherwise suggest that a ban on all singing and chanting at such services is necessary or advisable," Tyler wrote, referring to activities Newsom banned.

Last month, the state Department of Justice submitted an opposition brief that argued the state's policies followed federal guidelines. Deputy Attorney General Jonathan M. Eisenberg also argued the plaintiffs would fail to show the state had interfered with the Constitution's free exercise of religion guarantee.

"Plaintiffs seek to enjoin what they label a 'worship ban,'" Eisenberg wrote. "There is no such ban. Plaintiffs are able to hold worship services in person, with singing and chanting, and no limits on attendance, so long as they do so outside -- as at least two of them have been doing. Plaintiffs are also free to have remote (online) services with singing and chanting."