New suits challenge Newsom’s orders under state, rather than US, laws

Challenges to Gov. Gavin Newsom's pandemic-related executive orders have repeatedly failed in court. But after 83 such orders this year, attorneys may be getting a better idea of what might work.

"It's really hitting with everything to see what will strike," said Leslie G. Jacobs, director of the Capital Center for Law & Policy at McGeorge School of Law. "Hit with a bunch of different theories, hit in a bunch of different venues, get a bunch of different judges and see what might stick."

Many early complaints made direct constitutional challenges to Newsom's authority, often citing the First, Fifth and Fourteenth amendments to the U.S. Constitution and similar protections under the California Constitution.

With the pandemic dragging on for months, some newer complaints instead target local officials for how they have enforced these orders, often citing inconsistencies and alleged violations of state law.

That's the case with a complaint filed Wednesday by a Southern California church against the city of La Habra, the city manager and two private citizens accused of photographing and accosting parishioners.

The church's pastor says in the lawsuit that harassment is happening despite the Orange County Sheriff's Department determining the church is "complying with all relevant laws." Word Aflame Tabernacle Inc. v. City of La Habra Heights, 2:20-cv-09899 (C.D. Cal., filed Oct. 28, 2020).

"Defendants have repeatedly falsely accused plaintiffs of violating health orders," reads the complaint signed by Robert H. Tyler with Tyler & Bursch LLP and Dean R. Broyles with the National Center for Law & Policy. "Realizing that plaintiffs were beyond reproach in complying with federal, state, county, and city laws and public health orders, defendants have decided to focus on local subjective noise ordinances to continue to harass and persecute plaintiffs."

The complaint doesn't challenge Newsom's authority to issue statewide emergency orders, but has a similar goal as some prior cases that did: to allow the church to hold services and Bible study meetings. Among its nine claims are allegations of intentional infliction of emotional distress and violations of the Bane Act, a state law designed to shield people from intimidation or coercion.

Jacobs said the plaintiffs have made "novel claims ... based on pre-existing laws that would apply" whether or not there was a pandemic. But she said they also face a "high bar," especially as they affect the public officials and entities named. Much will depend on the evidence, she added, especially as it applies to the neighbors who are accused of taking pictures and reporting the churchgoers to law enforcement.

While the claims and the defendants differ from many past cases, Scott J. Street said the plaintiffs still face an "uphill climb." The partner with Musick, Peeler & Garrett LLP in Los Angeles is not involved in the case but knows the attorneys. He said the pleadings show they've read previous rulings that stymied churches' earlier challenges, but that the venue makes it difficult.

"I said earlier that all the federal cases would fail and that smart litigants would start bringing them in state court, challenging the scope, duration, and arbitrariness of the orders under state law," Street said by email on Thursday.

This repeated a prediction he made to the Daily Journal in May -- one he said this week has largely proven true.

"The only COVID challenges that have gotten anywhere in the U.S. this year (Wisconsin and Michigan) were filed under state law and challenged the scope and duration of the government's powers," Street said.

Earlier this month the Michigan Supreme Court ruled 4-3 against Gov. Gretchen Whitmer under state law. The court ordered a phase-out of Whitmer's state of emergency declaration after the state legislature declined to extend it. Earlier this week the Wisconsin Supreme Court agreed to hear a similar challenge to Gov. Tony Evers' mask order.

This ruling was part of the inspiration for another recent complaint filed in California by the owner of a mini-golf course, Ghost Golf Inc. v. Newsom, 20CECG03170 (Fresno Sup. Ct., filed Oct. 26, 2020).

Luke A. Wake with the Pacific Legal Foundation represents the plaintiffs. He said cases filed against stay-at-home orders have fallen into two categories. One of these comprises rights-based claims of violations of due process and equal protection.

"Those sorts of claims have been very unsuccessful, not just in California but in general," Wake said. "The courts have proven very deferential when it comes to addressing those sorts of claims because it really is within the prerogatives of the state to address public health. The question presented in our suit is a separation of powers question."

The complaint makes claims around Newsom's statutory authority and the nondelegation doctrine. Wake acknowledged that somewhat similar claims have failed in the past. But he added these recent cases have provided a better blueprint and said his organization has an entire section that deals with separation of powers cases.

Much of the complaint, he said, deals with "the ongoing, one-man rule under Newsom." They will attempt to show the Legislature has impermissibly given away its lawmaking power, he said.