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IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA_______________
ORANGE COUNTY BOARD OF EDUCATION, CHILDREN’S HEALTH DEFENSE, and CHILDREN’S HEALTH DEFENSE-CALIFORNIA CHAPTER, Petitioners,
vs.
GAVIN NEWSOM, in his official capacity as Governor of California, Respondent.
_________________
VERIFIED PETITION FOR WRIT OF MANDATE;
MEMORANDUM OF POINTS AND AUTHORITIESIMMEDIATE RELIEF REQUESTED
(Palma Notice Requested)
I. INTRODUCTION
This Petition does not focus on any specific policy issues. It concerns fundamental issues of governance that are the foundation of American self-government. It seeks to restore the People’s right to participate in their government, to have policy decisions made in public by the People’s elected officials and not behind the scenes by a revolving door of unelected technocrats.
Last fall, the Orange County Board of Education asked this Court to exercise original jurisdiction to decide whether Governor Gavin Newsom’s order to close all in-person schooling across California was lawful. The Court declined to hear the case. As a result, despite little risk of harm from in-classroom instruction, millions of children suffered through a year of virtual school that many people did not want but followed because the State ordered it.
Last winter, San Bernardino County asked the Court to order the Governor to terminate his stay-at-home order and end the state of emergency. The Governor’s office also asked the Court to hear the case. Again, the Court declined. Now, more than eighteen months after the pandemic began, Californians are living in a seemingly perpetual quasi-state of emergency, with ballparks full but mask mandates returning and millions of families waiting to see whether, and how, their children will be educated this school year. These policy decisions continue to be made not by elected officials but, by and large, by unelected public health officials in Sacramento or Washington, D.C., who operate behind closed doors with little transparency about how they make decisions and no opportunity for public debate.
California’s government is not supposed to function like this. Policy choices are supposed to be made by the Legislature, through the legislative process, with the executive branch administering the law. Of course, the Legislature can delegate authority to the Governor or administrative agencies under certain circumstances. But, even then, the government is supposed to follow a decision-making process that is transparent and which gives the People a voice in the process. It has not been doing that during the past eighteen months because the Governor suspended the normal rules of government under the California Emergency Services Act.
On June 11, the Governor issued an executive order that said Californians had successfully slowed the spread of COVID-19 and protected the health care system from collapse, the threat that caused him to declare the state of emergency. But he refused to terminate the state of emergency and said the emergency would continue indefinitely to give state health officials “flexibility” in their policymaking.
That is not proper. The Emergency Services Act says the Governor “shall” terminate the state of emergency at the earliest possible moment. This is a mandatory duty not a discretionary one. The Governor does not have the right to continue the state of emergency indefinitely. Interpreting the Emergency Services Act to give the Governor such discretion, simply for his convenience, would cause it to violate the non-delegation doctrine. The Third District Court of Appeal recognized as much when it recently ruled on the constitutionality of the Act. It cited the Governor’s obligation to terminate the emergency at the earliest possible moment as an important safeguard that saved the Act from violating the separation of powers.
Determining whether the Governor violated his duty to terminate the COVID-19 state of emergency now that he has effectively declared the emergency over is a matter of great public importance that this Court should address in the first instance. Deciding this Petition will also help resolve other cases going forward. Only one other court (the Third District Court of Appeal in 2003) has considered the scope of the Governor’s duty to terminate a state of emergency in detail and that opinion was de-published after a new governor terminated the emergency.
Time is of the essence. Petitioners educate and advocate for thousands of California’s children. They take the Governor at his word. With the successful slowing of the spread so COVID-19 did not overwhelm the health care system, it is time for government to return to normal. Given the importance of this issue, the Court should exercise original jurisdiction to hear the Petition and order the Governor to terminate the COVID-19 state of emergency.
PRAYER FOR RELIEF
Therefore, Petitioners respectfully requests that the Court:
1. Grant the Petition;
2. Issue a writ of mandate ordering the Governor to terminate the declaration of emergency he issued on March 4, 2020; and
3. Award Petitioners their costs and other appropriate relief, as well as any other relief the Court determines is just and proper.
Dated: August 10, 2021
CONCLUSION
Therefore, Petitioners respectfully request that the Court grant the Petition and issue an order requiring the Governor to terminate the state of emergency he declared on March 4, 2020.
Dated: August 10, 2021
REFERENCE:
Governor Newsom’s ‘State of Emergency’ Challenged in California Supreme Court
In a petition filed Tuesday in the California Supreme Court, the Orange County Board of Education and Children’s Health Defense asked the court to declare an immediate end to Gov. Gavin Newsom’s state of emergency, arguing Newsom himself last week said the emergency was over.
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