Attorneys say the will continue to sue governor over closures

Attorneys for businesses that have been forced to close and reopen at the whim of California's state mandates are considering challenging Gov. Gavin Newsom's authority to issue orders going forward.

While Newsom reinstated on Monday the tiered reopening system that allows most businesses to at least partially operate, they say they are unsatisfied since the state can revert to the blanket ban.

Wine Country Coalition for Safe Reopening attorney Thomas Harvey, representing the group of nearly 50 restaurants suing Newsom over regional bans on outdoor dining, emphasized that there's been months of "roller coaster guidance" unfounded in science.

"They're aware that an arbitrary ban can just come back," he said of his clients. "They want to ensure this doesn't happen to them again."

While the coalition secured the relief it was seeking in being allowed to operate outdoors, spokesman Carl Dene said the group is discussing "next steps for our lawsuits to ensure our members are protected in the future." Wine Country Coalition for Safe Reopening v. Newsom, 21-cv-000065 (Napa Super. Ct, filed Jan. 19, 2021).

The governor's office did not respond to requests for comment.

Mark J. Geragos of Los Angeles, who's engaged in several lawsuits against the state on behalf of restaurants, including his own, plus hairdressers and schools, similarly pointed to the "on again off again status of the orders" as part of his clients' frustrations. Pineapple Hill Saloon & Grill v. Newsom, 20-cv-11501 (C.D. Cal., filed Jan. 21, 2021).

"A lot of people invested tens of thousands of dollars to comply with outdoor services," he said. "As soon as they made that investment, they were shut down."

The Geragos & Geragos partner said the only relief left might be to seek an order finding that Newsom does not have the power to unilaterally issue closure mandates nearly a year into the emergency.

Such relief is not unprecedented.

The Michigan Supreme Court ruled in October that Gov. Gretchen Whitmer exceeded her authority in issuing orders to curb the spread of COVID-19 without the approval of state lawmakers. It found that a state law allowing the governor to declare emergencies and sustain orders without legislative input is unconstitutional.

Santa Barbara County noted the ruling in its lawsuit filed in December to the California Supreme Court seeking to block Newsom's regional stay-at-home order. Unlike others challenging the substance of Newsom's directives, the complaint filed by attorneys at Tyler & Bursch LLP in Murrieta argued that the governor did not have the power to issue such orders.

The stay-at-home mandate and those that preceded it all cite the California Emergency Services Act, which gives the governor "complete authority over all agencies of the state government" and the power to "promulgate, issue, and enforce such orders and regulations as he deems necessary" during an emergency. It says the governor should declare the emergency over at the "earliest possible data that conditions warrant" or when the state Legislature declares it over.

A major roadblock that lawsuits challenging the content of Newsom's orders as unconstitutional faced is that they cannot fully work their way through the courts since closure mandates are lifted soon after they are filed, rendering them moot. Harmeet Dhillon of San Francisco, who represents several entities engaged in such litigation, called it a "shell game" to evade a ruling on the merits.

"Every two weeks, we get a call saying the lawsuit is moot," the Dhillon Law Group LLP partner and Center for American Liberty founder said. "Shady is the term I'd use."

Brian S. Kabateck of Kabateck LLP in Los Angeles, who's filed lawsuits on behalf of restaurants in multiple counties challenging state and local officials continuing to impose business fees, said he's encountered the same problem.

"As a strategic reason -- that's why the government is doing this," he said. "It wants to duck a ruling on the closure orders."

Still, he and Dhillon opposed seeking an injunction that would block the governor from issuing emergency directives in the future. Dhillon said, "We can't preemptively block him from issuing new orders."

Some entities might try, Kabateck predicted, but will have limited success since judges are reluctant to issue blanket orders with such wide implications. He was more optimistic about a lawsuit claiming that Newsom is unconstitutionally bypassing the Legislature in issuing emergency directives.

"An executive can only go so long without taking the subject matter to the legislature," he said. "At some point, the courts will have to take a look at this."

Legislators appeared to have been caught off guard when Newsom lifted regional stay-at-home orders on Monday. Assemblywoman Laura Friedman, D-Glendale, posted on Twitter, "If you think state legislators were blindsided by, and confused about, the shifting and confusing public health directives, you'd be correct."

"If you think we have been quiet about it in Sacramento, you'd be wrong," the post read.