Becerra’s 2018 opponent argues shutdown orders are no longer ‘temporary’

Attorney General Xavier Becerra's 2018 election opponent faced off against some of his deputies in federal court on Thursday. The result helped illustrate why it has been so difficult for plaintiffs to win challenges against Gov. Gavin Newsom's coronavirus restrictions.

Steven C. Bailey is a former El Dorado County judge who qualified for the general election against Becerra as a Republican. He's now with San Diego-based Bailey & Romero. His complaint on behalf of a Nevada County restaurant made claims under the First, Fifth and 14th Amendments seeking to invalidate several orders from Newsom and the California Department of Public Health.

The state filed a motion to dismiss in January, arguing the state public health orders during a pandemic are subject to a high degree of deference and seeking to undermine their plaintiffs' constitutional claims. Tuck's Restaurant and Bar v. Newsom, 2:20-cv-02256-KJM-CKD (E.D. Cal., filed Nov. 11, 2020).

Kimberly J. Mueller, chief judge for the U.S. Eastern District of California, began by asking Bailey about his clients' due process and equal protection claims.

"What we're arguing is that the nature of the orders that have been promulgated by the governor are such that they can have a continuing constitutional issue, issues such as the right to be able to conduct business or an occupation, which is a fundamental right," Bailey said.

"The right to pursue one's own profession, it is a right, but it's limited," Mueller replied.

She then turned to Deputy Attorney General Kristin A. Liska to ask about Bailey's arguments on the long-lasting nature of some of Newsom's orders.

"Is there any case that delineates the limits in terms of time?" Mueller asked.

"The fact that the orders are temporary in nature matters," Liska replied. "These orders still are temporary in nature. I know they've gone on a long time, but the state has loosened restrictions."

Liska then argued the orders have gone on because the underlying crisis has been long-lasting and the length of time an order is in place is not by itself a reason to invalidate it. The fact the state has "loosened restrictions as conditions improved" shows the state is striving to be as permissive as possible, she stated.

Mueller then turned back to Bailey, who acknowledged he could not point to a precedent limiting the time of an order. He said Newsom and state officials have repeatedly tweaked the restrictions "without ever changing the fundamental order."

"I think the court can justifiably conclude this isn't temporary any longer," Bailey said. "This is essentially permanent, in that the state has given no indication that it ever intends to lift the order."

Liska replied that the orders have been changing constantly, becoming more permissive when conditions allow.

"The state is clearly trying to ease these restrictions," Liska said. "We are very cognizant of the hardship this causes to plaintiffs' business."

Bailey also conceded there is no physical taking under the state-imposed limits. But he said the rules created an economic impact taking under Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). He said his client has suffered substantial financial harm.

"The lead plaintiff is continuing to operate in flouting the orders, do I have that right?" Mueller asked.

"He continues to operate," Bailey replied.

Mueller took the arguments under submission.