Gov. Newsom’s C-19 Emergency Order intentionally avoided state criteria for declaring an epidemic. But, nonetheless, California’s coronavirus outbreak does not meet that criteria.
A video has been circulating on the Internet since May 6 by Orange County resident Peggy Hall claiming that Gov. Newsom’s emergency orders regarding the so-called coronavirus epidemic do not meet the criteria of an epidemic under state law.
Moreover, Hall claims that since the coronavirus-19 outbreak does not meet these criteria she believes the emergency order is no longer effective.
The video had 105,243 views as of May 6. And recently the video has started to go viral across the Internet without comment and correction – see here.
Hall explicitly states she is not a lawyer only a citizen. And, she erroneously states that according to law “we don’t have to stay home” and “businesses and schools do not need to remain closed.”
What Hall failed to recognize is that Newsom’s Emergency Proclamation suspended the law she cited (California Emergency Services Act 2015, Section 8558 [b]), which provides criteria by which to declare an epidemic (see Proclamation here).
Gov. Newsom’s Proclamation invoked Section 8571 of the California Government Code, enacted in 1943 during the war with Japan, which deals with a “state of war emergency” or an unspecified “state of emergency” – as captioned below:
Government Code 8571 – During a state of war emergency or a state of emergency the Governor may suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency….where the Governor determines and declares that strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay the mitigation of the effects of the emergency.
The legal website JDSupra clarifies that Government Code Section 8571 apparently gives a governor carte blanche (complete freedom) to act as they see fit:
“While broad, this statute does not endow the Governor with the power to suspend all (non-regulatory) laws…he or she may only suspend a “regulatory statute” or a “statute prescribing the procedure for the conduct of state business”. One problem is that the statute does not define what is meant by a “regulatory statute”. The Governor’s authority to suspend regulations of state agencies does not appear to be so limited”.
Questionable Epidemic Level of Deaths
According to the state law governing declarations of epidemics (under the California Emergency Services Act), which Newsom suspended, the criteria for an epidemic is that it must “likely” overwhelm” local emergency response capacities.
“California Emergency Services Act 8558:(c) ‘Local emergency’ means the duly proclaimed existence of conditions of disaster or of extreme peril to the safety of persons and property within the territorial limits of a county, city and county, or city, caused by conditions such as….epidemic….which are or are likely to be beyond the control of the services, personnel, equipment, and facilities of that political subdivision and require the combined forces of other political subdivisions to combat…”
Hall points out that the number of deaths from coronavirus in Orange County and California as of May 6 were:
Coronavirus Deaths – 38
Seasonal Flue Deaths – 600
Coronavirus Deaths – 2,000
Seasonal Flu Deaths – 6,000
(Source: California Department of Health as of May 6)
The key term used above is “likely” to be beyond local capacities. Hall makes a case that it was “likely” that Orange County and the state had the capacity to handle the coronavirus “outbreak” and thus there is no “epidemic.”
Hall asserts that for a virus outbreak to be declared an epidemic under state law it must be “beyond the normal range” of average annual deaths. However, it is not deaths but hospitalizations that would overwhelm the health system. Even if hospital cases, not deaths, are used as a measure, the coronavirus would not be anticipated to overwhelm the medical system. Artificially clearing out hospitals for exclusive use only by coronavirus patients does not prove the system was overwhelmed.
Relevant statistics as of May 20 do not bear out that hospitals are overwhelmed, especially in Orange County:
Total State Hospital Beds 98,416 (link)
C-19 Total State Cases: 84,057 (link)
C-19 Total State Hospitalizations: 4,115 (link)
C-19 Total State Deaths: 3,436 (link)
By invoking an epidemic emergency under Government Code 8571, intended to be used in wartime, Gov. Newsom found a convenient loophole that does not require him to justify the criteria of an epidemic. Newsom asserted that the capacity of emergency response services were expected to be overwhelmed by the virus. But that has not been the case.
Peggy Hall may have gotten the law wrong that Gov. Newsom relied on in declaring an emergency. But she is apparently right that, so far, the coronavirus has not overwhelmed the likely capacity of local emergency services and is not an epidemic under state law.