“It is time — past time — to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues and mosques,” U.S. Supreme Court Justice Neil Gorsuch recently wrote, overturning New York’s church closure restrictions.
With a recent court win over Los Angeles County regarding the outdoor dining ban, California attorneys Mark Geragos, Harmeet Dhillon, Mark Meuser, Alexandra Kazerian, and Matthew Hoesly, filed a lawsuit in U.S. District Court against Gov. Gavin Newsom, representing Los Angeles restaurant owner Angela Marsden who made the recent tearful, now-viral video as she was forced to close down her restaurant, Pineapple Hill Saloon and Grille. She was forced to close down even her outdoor dining, while a Hollywood film production was allowed to provide the same outdoor dining across the shared parking lot. The message: Hollywood “essential” and necessary, Pineapple Hill Saloon and Grille, not.
This is the 17th lawsuit against the governor by the Dhillon Law Group since he ordered the state locked down for COVID-19 in March.
The lawsuit opens up with the Great Barrington Declaration, which the Globe has reported on extensively:
Current lockdown policies are producing devastating effects on short and long-term public health. The results (to name a few) include lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings and deteriorating mental health- leading to greater excess mortality in years to come, with the working class and younger members of society carrying the heaviest burden.
…. The most compassionate approach that balances the risks and benefits of reaching herd immunity, is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while better protecting those who are at highest risk. We call this Focused Protection.
…. Those who are not vulnerable should immediately be allowed to resume life as normal…
~The Great Barrington Declaration – signed by over 51,970 medical and public health scientists and medical practitioners from around the world and across political ideologies.
This is yet another powerful lawsuit accusing Gov. Gavin Newsom of grossly abusing his emergency powers. Also named as defendants are California Attorney General Xavier Becerra, Acting State Public Health Officer for the California Department of Public Health Erica S. Pan M.D., M.P.H., State of California—Health and Human Services Agency.
“Defendants, in a gross abuse of their power, have seized the Coronavirus pandemic to expand their authority by unprecedented lengths, depriving Plaintiff and all other similarly situated small business owners in California of fundamental rights protected by the U.S. and California Constitutions, including freedom assembly and due process and equal protection under the law,” the lawsuit states. “It is this Court’s duty to defend these constitutional principles by safeguarding the many rights and liberties of Californians such as Plaintiff that Defendants so brazenly, arbitrarily and capriciously violate.”
The lawsuit says the governor “has abused his Emergency Powers to give to an unelected, appointed public bureaucrat, is issuing orders that have full force of law,” referencing State Public Health Officer Dr. Erica Pan.
“These shutdown orders are not being deliberated and enacted by the legislature nor are they following California law for prorogating administrative regulations.”
The lawsuit addresses how Pineapple Hill Saloon and Grill owner Angela Marsden, all restaurant owners, and small business owners, have been jerked around by the governor and his unelected appointed public health officials by first locking down and closing the state, then re-opening, only to then close non-essential businesses again.
“On May 7, 2020, State Public Health Officer Dr. Sonia Angell issued an order permitting the gradual reopening of businesses and activities in California in stages. The order provided for four stages of gradual reopening, with the final stage, Stage 4, consisting of an end to all stay-at-home orders and a full reopening of businesses. As a result, and on or about the beginning of June 2020, Plaintiff’s business re-opened for indoor dining, but was only allowed to do so at 50% capacity.
Thereafter, and on July 13, 2020, the State Public Health Officer issued a further order directing all restaurants in the State of California, such as Plaintiff’s, to again cease indoor dining service. The order applied to all restaurants regardless of ICU bed capacity availability or the number of deaths experienced in each county. As a result of the July 13, 2020 order, Plaintiff was also unable to recoup the cost of implementing the safety measures imposed by the May 7, 2020 order as a condition to offering indoor dining to their customers.”
On August 28, 2020, Defendant Dr. Pan implemented a statewide order that abandoned the previous, staged re-opening plan and dictated that counties would be classified according to a new plan entitled “Blueprint for a Safer Economy” under which a color-coded “tier” system would be used.
The lawsuit notes the lack of – what many in the media have failed to demand – scientific evidence. “Many of the contact tracing studies in the scientific literature that document the most common sources of spread of COVID infection show no evidence suggesting that outdoor dining is more likely to spread the COVID virus than the activities – including private gatherings – that remain permissible.”
Where the lawsuit gets interesting, besides challenging Newsom’s emergency powers, is his and the unelected public health officials’ violation of due process.
“Defendants also have violated Plaintiff’s procedural due process rights by ignoring California law as to the promulgation of administrative regulations as set forth in the California Administrative Procedures Act (Cal. Gov. Code §11340 et. seq.), including but not limited to the procedures for enacting emergency regulations (Cal. Gov. Code §11346.1).”
“No right granted or secured by the Constitution of the United States can be impaired or destroyed by a state enactment, whatever may be the source from which the power to pass such enactment may have been derived.” Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 558 (1902).
“The Due Process clause ‘forbids the government to infringe [on] fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’ Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (internal quotations omitted).”
“This applies to ‘fundamental rights and liberties which are deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty.’ Chavez v. Martinez, 538 U.S. 760, 775 (2003) (internal quotations and citations omitted) (partially overruled on other grounds by Saucier v. Katz, 533 U.S. 194 (2001)).”
“Substantive due process ‘includes more than the absence of physical restraint.’ Washington v. Glucksberg, 521 U.S. 702, 719 (1997) (citation omitted).”
“It protects—in addition to all the enumerated freedoms in the Bill of Rights—a wide array of liberties.”
“Citizens have a fundamental right to be free from confinement without due process of law. Hamdi v. Rumsfeld, 542 U.S. 507, 531 (2004).”
“It is self-evident that the right to freely come and go from one’s home is a fundamental right. See Aptheker, 378 U.S. at 520.”
“The “involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law.” Connor v. Donaldson, 422 U.S. 563, 580 (1975). Also, any “confinement must cease when those reasons [giving rise to it] no longer exist.” Id.”
“Quarantine laws may be permitted as to infected individuals, but not the public at large. Robinson v. State of California, 370 U.S. 660, 666 (1962).”
“A quarantine law that banned introduction of cattle into a state for several months of the year regardless of whether the cattle were diseased or not was held to be unconstitutional. Railroad Company v. Husen, 95 U.S. 465, 473 (1877).”
“Both the Executive Orders and the Regional Orders mandate that Californians stay at home and shut down their “non-essential” businesses.”
“Both the Executive Orders and the Regional Orders violate Plaintiff’s constitutional right to liberty.”
This is the lawsuit:Dhillon v. Newsom