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Gov. Gavin Newsom has seen some of his pandemic emergency powers curtailed by a judge.
Jim Heaphy / Wikimedia Commons
Creative Commons Attribution-Share Alike 3.0 Unported license
On March 4, 2020, California Governor Gavin Newsom declared a state of emergency to deal with what was then the state’s burgeoning coronavirus pandemic. Just 15 days later. Using his new emergency powers, Newsom handed down the United States’ first mandatory stay-at-home order. The order placed tight restrictions of movement on California’s 40 million residents. And it was followed by a series of orders from Newsom, directing some businesses to close, placing a hold on renter evictions, and even converting the state’s election system to an all-mail-in ballot format.
But on Nov. 13, a judge in Sutter County placed her own restrictions on Newsom, ruling that the governor had overstepped his authority when he issued his mail-ballot order on June 3. The ruling by Superior Court Judge Sarah Heckman came in a lawsuit brought by two Northern California-based Republican state assembly members, Kevin Kiley and James Gallagher, according to a Mercury News report by Richard Silva.
Newsom quickly appealed Heckman's ruling, however. Finally, on May 5 of 2021, a three-judge panel on California’s Third Appellate District Court — in a 21-page opinion — tossed out the Sutter County judge’s decision, saying that Heckman “erred” in her interpretation of the state’s 1970 Emergency Services Act when she banned the governor from exercising “quasi-legislative powers” in an emergency situation.
The Governor's 'Police Powers'
Newsom (or any governor) does, in fact, possess what the law calls “police powers” to issue orders and even create new laws to protect public health and safety in an emergency, the court ruled. The opinion was authored by Presiding Justice Vance W. Raye, who was appointed to the appellate bench in 1991 by Republican Governor George Deukmejian.
The Appellate judges also ruled that Newsom’s orders regarding mail-in ballots became “moot” on November 3, 2020’s election day. Heckman, however, ventured further, beyond just the mail-ballot issue, placing strict limits on what Newsom may do when it comes to issuing future orders in response to the COVID-19 crisis. But she also gave him latitude to continue using his emergency powers, under the Emergency Services Act, which Newsom invoked in the early days of the pandemic.
Heckman’s ruling, however, did not stop Newsom from handing down a new, sweeping stay-at-home order on Dec. 3, 2020 —a day when the United States set a grim new record with more than 208,000 new positive coronavirus tests, and a death total of 2,918 which surpassed the previous day’s record total of 2,875, according to data compiled by the population statistic site Worldometers.
Clearly something had to be done. As of Dec. 3, the virus had killed almost 20,000 state residents—or approximately one of every 2,000 Californians who were alive on March 13 (the day prior to the first recorded COVID-19 death in the state). By the time the Appellate judges got around to overturning Heckman’s ruling, 61,786 had died from the pandemic, roughly one of every 750 Californians who had been alive when the pandemic took hold.
The governor’s Dec. 3 order was designed to be triggered regionally, when a designated California region saw its intensive care unit bed capacity fall to 15 percent or below. The five regions were defined in his order:
When ICU capacity dropped to 15 percent in any of those designated regions, local governments had 48 hours to put the stay-at-home order in place, banning gatherings of any size, and shutting down indoor recreational facilities, wineries, museums, bars, card rooms and casinos, sports events with a live crowd in attendance, hair salons, and several other types of businesses.
Those regions were already quite close to triggering Newsom’s new order as of Dec. 3, when he issued it.
Northern California was the most precarious at 18.6 percent capacity, followed by San Joaquin Valley at 19.7. Southern California was also speeding toward the cutoff at 20.6 percent capacity, followed by Greater Sacramento (22.2) and the Bay Area (25.3).
Of course, within a region, the numbers fluctuated by significant degrees among counties. For example, according to a report by San Francisco’s KGO-TV, in the Bay Area, Sonoma County was in crisis with only 3.6 percent ICU capacity. On Dec. 3, there were only three ICU beds available in the entire county of nearly 550,000 people.
Santa Cruz County, on the other hand, was in a relatively comfortable position with 51.3 percent ICU capacity remaining. But under Newsom’s order, if the entire Bay Area slipped to 15 percent or below, collectively, Santa Cruz will be forced to impose stay-at-home restrictions, along with the rest of the 11-county region.
Pushback Against COVID Restrictions
On Dec. 4, however, five of the Bay Area counties announced that they would put the new stay-at-home restrictions into effect, even though the region remained above the 15 percent cutoff, according to a KRON-TV report. Sonoma, despite its dire ICU bed shortage, was not among them. The counties putting the restrictions in place through the holiday season, until Jan. 4, were San Francisco and Santa Clara starting Dec. 6, Alameda on Dec. 7, with Contra Costa and Marin imposing the orders on Dec. 8.
Heckman’s ruling appeared to allow Newsom’s sweeping, December order, because it presumably did not “amend” any existing laws. The CESA, according to a Los Angeles Times analysis by Phil Willon, allows the governor emergency powers to “suspend” state and local statutes, but not to “amend”—that is, change—them. Or to create new ones. Heckman decided that Newsom’s June order converting the state’s election system to an all-mail format, along with other health precautions around the election, actually created a new law. That’s something only the legislature can do, under the California constitution.
But state health and safety laws give the governor and the state’s public health officer, who is under the governor’s authority, the power to take “measures as are necessary to ascertain the nature of the disease and prevent its spread,” when the state faces an outbreak of contagious disease. That power is apart from the emergency authority given to the governor under CESA.
Since invoking his CESA powers in March, according to the Times, Newsom has signed at least 50 pandemic-related executive orders, on issues ranging from a moratorium on renter evictions, to pandemic-related price gouging — in addition to the business and travel restrictions he first imposed in March, and is now putting into effect once again.
While the earlier restrictions were largely met with public cooperation, the “all in it together” spirit has gone sour over the ensuing eight months, with local governments and businesses pushing back against the health rules and in some cases—Beverly Hills in Los Angeles County, for example—taking steps to create their own public health departments, which they believe would exempt them from countywide orders, according to a separate L.A. Times report.
Newsom himself struck a blow against his own cause when, on Nov. 6, he was photographed sitting maskless at a table with a large group of friends at the toney French Laundry restaurant in Napa Valley, a Michelin-starred eatery where a typical meal runs a tab of $350 per person—not including booze.
The governor later apologized for the apparent violation of his own health rules, saying, "I need to preach and practice, not just preach and not practice, and I've done my best to do that. We're all human. We all fall short sometimes."
Newsom was not the only public official to flout the very rules that he, or she, preached to constituents. San Francisco Mayor London Breed was spotted chowing down with a group of pals at the same super-upscale Napa Valley restaurant as Newsom, just one night after the governor’s visit. Three days after her French Laundry soiree, Breed banned indoor dining in her own city.
San Jose Mayor Sam Liccardo came under fire for attending an outdoor Thanksgiving feast with friends from four different households, even though the state health guidelines held such get-togethers to three households, maximum.
Restrictions Lifted but Emergency Remains
The symbolism of Newsom and other politicians living it up while at the same time decreeing rigid restrictions on the activities of other Californians only weakened the credibility of health measures to control community spread of the novel coronavirus, though scientific experts say such measures remained necessary at the time.
A coalition of 12 rural counties in Northern California held a conference in October—organized by Kiley and Gallagher—to challenge Newsom’s restrictions and demand that local governments be allowed final say over how to respond to the pandemic. In Southern California, Riverside County has also pushed back, with the Board of Supervisors issuing a report complaining that Bay Area counties have been given “preferential treatment” by the governor.
On April 6, however, Newsom announced that due to the state’s increase in vaccinations and corresponding decrease in new COVID-19 cases, most of the health restrictions he previously imposed would be lifted on June 15. On June 11, Newsom signed that executive order, lifting most COVID-related health restrictions, partucularly for fully vaccinated Californians, who would no longer be required to wear masks, even in indoor settings. Businesses under Newsom's order would be allowed to lift restrictions on the number of customers they can allow inside at any one time, as well as social distancing requirements for those customers.
As it turned out, however, Newsom was not yet done with his emergency powers, even though the state was set to “reopen” in mid-June. On June 4, the governor issued a caveat, according to a report by CalMatters reporter Emily Hoeven, saying that even though he would lift restrictions on the 15th, the state of emergency he declared 15 months earlier would remain in place.
“This disease has not been extinguished. It’s not vanished,” Newsom said. “It’s not taking the summer months off.”
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