With a surge in COVID-19 cases around the globe, Gov. Gavin Newsom has imposed new restrictions on large and small gatherings, including a lockdown if local hospitals reach 85% capacity.
Five Bay Area counties, including Santa Clara, have decided not to wait and imposed another lock-down already. This second round of lockdowns has, not surprisingly, elicited far more frustration. Many Californians are still struggling to make ends meet, and a lockdown going into the Christmas season is likely to doom many of the small businesses that survived the spring lockdown.
In the face of this frustration, there will almost certainly be a corresponding increase in lawsuits targeting these new restrictions. Already, San Bernardino County has signaled its intent to file a lawsuit challenging the new restrictions by Newsom, despite a massive surge in diagnoses in the county.
The California Restaurant Association sued to preserve in-person dining in Los Angeles, and four San Diego businesses sued to preserve in-door dining in the city. Both of these suits were quickly dismissed.
The legal landscape surrounding COVID-19 restrictions has been developing quickly over the past nine months. Since February, there have been almost 1,000 lawsuits challenging government restrictions, including 162 in California alone. However, judges have shown little appetite for interference in the work of local and state governments.
Most of the early lawsuits challenging the authority of the governor and local governments to impose the restrictions were summarily dismissed on the grounds that it has long been recognized that state and local governments have the authority to protect the health and safety of their residents.
Most states, including California, also have emergency and disaster legislation that gives certain officials additional powers during just such a crisis. A California court stepped in only once, issuing an order that the governor cannot use his emergency power to modify statutory law. The decision was largely symbolic, however, given that the legislature had already resolved the issue.
The next round of lawsuits have challenged the constitutionality of the restrictions. A constitutional challenge is normally the “Hail Mary” of legal remedies, and early cases proved predictably unsuccessful.
A gym owner in Lodi (San Joaquin County) had the privilege of being the first to be thrown out of court, followed quickly by the Orange County Board of Education, who sued claiming the stay-at-home orders violated equal protection.
Finally, a group of churches sued claiming the shutdown violated their religious freedom by preventing them from gathering for worship. That case made it all the way to the U.S. Supreme Court, but a split court sided against them.
However, on the issue of religious freedom, the justices appear to have reversed course since the appointment of Justice Amy Barrett. In a midnight order right before Thanksgiving, the justices blocked New York from enforcing their restrictions on religious institutions, and then reinforced that order a week later in a California case.
Famed constitutional law professors Laurence Tribe and Michael Dorf immediately released a stinging rebuke, decrying the justices’ hypocrisy, “extreme solicitude” toward religious institutions and callous disregard for public safety when “over a quarter of a million people have already died.”
It is still unclear whether these decisions by the Supreme Court signal a move toward intervention by the judiciary. It is certainly possible conservative lower court judges will use the decision as a license to meddle in public health policy, however there is good reason to believe that may not be the case.
The Supreme Court’s unapologetic bias in favor of religious groups probably explains its decision to rebuff New York and California, and that solicitude may not extend to objections that do not involve religious institution.
Furthermore, Chief Justice John Roberts correctly pointed out in May that the constitution entrusts issues of public health and safety to the political branches, not the judiciary, and where the issue is especially complex and dangerous, the authority of public officials must be “especially broad.” Cognizant of these words, judges at all levels may be inclined toward judicial restraint, unless explicitly directed otherwise by the Supreme Court.
Still, liberal groups hoping to draft the judiciary into the cause of implementing further restrictions shouldn’t get their hopes up either. In June, the U.S. DC Circuit tossed an appeal by the AFL-CIO seeking to force the Occupational Health and Safety Administration (OSHA) to impose greater health and safety protections for workers.
In October, the California Supreme Court rejected an effort to force the release of prisoners in prisons where COVID-19 was spreading out of control. And in November, a Florida appeals court rejected an effort to force the governor to close state beaches.
At present, judicial restraint remains the default position of the judiciary, and with COVID infections on the rise and a vaccine only just now entering circulation, it would be extremely unwise for judges to change course. So, don’t expect judicial intervention anytime soon.
Michael Vargas is a business and securities lawyer and a part-time professor at Santa Clara University Law School. Vargas also chairs the American Bar Association’s committee on Business Law Education and serves on the executive board of the Santa Clara County Democratic Party, and on the boards of BAYMEC and the Rainbow Chamber of Commerce.