Writ petition uses Newsom’s words to try to end emergency

Attorneys who previously challenged Gov. Gavin Newsom's lockdown orders are trying to use his words to persuade the state Supreme Court his state of emergency should be ended immediately.

"Gov. Newsom has clung to this state of emergency in violation of the Emergency Services Act," petitioners' attorney Robert Tyler of Tyler & Bursch LLP in Murrieta said Wednesday. "The basis for our petition is the fact that Gov. Newsom's own words and arguments in court establish that the conditions warrant the end of the state of emergency."

Tyler, representing the Orange County Board of Education and the Children's Health Defense, filed a petition for writ of mandate directly with the state's high court on Tuesday. He argues the governor is violating his duties under the law by not terminating the state of emergency at the earliest possible moment in spite of a brief submitted on the governor's behalf by Attorney General Rob Bonta last week. It said the state's health care system no longer faces a threat of being overwhelmed. Orange County Board of Education et al. v. Gavin Newsom, S270319.

Under the Emergency Services Act, the governor is required to end the state of emergency when the threat to the safety of people and property in the state subsides, Tyler said.

"The governor's own arguments establish that there is no longer an emergency and the conditions warrant the end of the state of emergency," Tyler said. "He has to end the state of emergency, but he's clinging on to this dictatorial authority far too long and it's no longer justified."

A statement from the governor's press office Wednesday did not comment on Tyler's writ petition, but said, "These lawsuits are a disappointing distraction from a common goal -- getting kids back into schools safely and limiting the spread of COVID-19."

"California's COVID-19 prevention strategies are the best way to fully open our schools while protecting students and staff, and the state's guidance fully aligns with the CDC and the American Academy of Pediatrics. Our top priority and singular focus remains ensuring that the return to in-person learning for all students is successful this fall," the statement said.

In his petition, Tyler quoted the attorney general's motion to dismiss a lawsuit brought by a Ventura County church challenging past bans on indoor services. On behalf of the state government, Bonta wrote, "Because of widespread vaccinations, infection rates in California have plummeted, and the state no longer faces a threat that the state's health care system will be overwhelmed."

He continued, "To the contrary, all available evidence suggests a resurgence of cases, hospitalizations and deaths to the level that prompted the blueprint and the other now rescinded public health directives at issue is unlikely to occur in light of the percentage of eligible Californians who are fully vaccinated." County of Ventura v. Godspeak Calvary Chapel, 56-2020-00544086-CU-MC-VTA (V.C. Super. Ct. filed Aug. 5, 2020).

Scott J. Street of Musick, Peeler & Garrett LLP in Los Angeles, co-counsel for the petitioners, said the writ petition is not about masks, vaccines or any other specific policy issues.

"It concerns fundamental issues of governance that are the foundation of American self-government and which cannot exist in an indefinite state of emergency," Street said in a statement.

The petition noted the state Supreme Court court has, in at least two separate cases, declined to hear challenges of the governor's state of emergency and related mandates including a previous writ petition, Orange County Board of Education v. Newsom, S264065.

Some legal commentators said that despite Tyler's new argument, the petition will most likely be unsuccessful.

"This petition's chance of success is virtually zero," David A. Carrillo, executive director of UC Berkeley School of Law's California Constitution Center, said Wednesday. "Maybe 0.05% of original writ petitions like this get granted -- usually just to transfer it to the Court of Appeal."

Carrillo added that given the current reported COVID-19 surge due to the Delta variant, "a court is unlikely to agree that the pandemic is over."

As of Wednesday, the state's COVID-19 dashboard reported 7,007 COVID hospitalizations, a 320 patient increase from the previous day, and 9,925 new cases, a 0.3% increase from the day before.

Daniel M. Kolkey, former co-chair of the appellate and constitutional law group at Gibson, Dunn & Crutcher LLP, said Wednesday, "While there are many legal and scientific grounds for disputing how the governor has exercised his emergency powers during the pandemic, the California Supreme Court will be reluctant to second-guess the governor as to when the state of emergency should end, particularly during a time that the Delta variant is surging. The end of the state of emergency will require a new governor."

In an article written for the Daily Journal in June, Kolkey called for the state high court to clarify the scope of a governor's right to unilaterally legislate during a state of emergency following a California Court of Appeal opinion. Newsom v. Superior Court, 2021 DJDAR 4417 (May 5, 2021).

Kolkey took issue with the court's reliance on the safeguards provided by the act against the exercise of quasi-legislative authority: the governor's obligation under the act to terminate the state of emergency at the earliest possible date and the Legislature's authority to terminate the emergency at any time.

"But these are hardly safeguards against the arbitrary exercise of power," he wrote. "The safeguard that a governor who abuses his or her power can terminate the abuse by terminating the emergency is no safeguard at all. ... [N]or is the Legislature's right to terminate ..' because the termination of the emergency terminates all orders issued during the emergency. If the emergency continues, this safeguard requires a sledgehammer to kill a gnat."

If the court does end the state of emergency, all mandates would become void including Newsom's order on Wednesday that will require all school staff to either show proof of full vaccination or to be tested at least once a week as of Oct. 15.

Other mandates under Newsom's emergency order include vaccine verification for state workers and health care workers, and universal masking in all school settings.