Does Gov. Newsom Have the Power to Shut Down Private Businesses Because of Coronavirus? | California Globe

HM_JF19_Page_37_Image_0001_0Editor’s Note: Finally, a constitutional attorney studies the California Governors martial law powers distinct from emergency powers. The State of California has declared a state emergency on the heels of a national emergency so as to cash in on federal funding  available to the state, but the Governor has not declared martial law. His orders are recommendations with no force of law.

Do counties really have the authority to order everyone to stay at home? Are Shelter in Place Laws Valid?

By Katy Grimes

California Constitutional-Election Law Attorney Attorney Mark Meuser has been questioned so much about the Coronavirus shelter in place orders, and social distancing, he prepared a video and comprehensive explanation of the executive Orders issued by Gov. Gavin Newsom, and California counties public health officials’ orders.

Mark Meuser:

I have been asked by numerous people to help them understand what is going on in the state of California regarding the shutting down of businesses and shelter in place laws. Does the governor really have the power to shut down private businesses? Do counties really have the authority to order everyone to stay at home? This video is my attempt to provide some basic understanding about the difference between martial law and the governor declaring a state of emergency. In this video, we will look at California statutes, the Governors Executive Orders, and the subsequent county health orders of shelter in place. Hopefully as we go through all these documents, you will gain a better understanding of what exactly is going on in this state.

Because of all the misinformation and a lack of information regarding what is going on, if you find this video helpful, can I ask you to share this video on your social media. Tell your friends and family to watch this video so that they can be better educated on what exactly is going on legally that led to all these shelter in place laws.

Please remember that things are changing by the minute and as such, it may not necessarily reflect the most current legal developments. As such, all the information presented here is for general information purposes only and is not intended to be legal advice. You should seek the advice of legal counsel of your choice before acting upon any of the information contained in this video.

First off, let’s start off with the term Martial Law. What is Martial Law, and when can the governor declare Martial Law?

California Military and Veterans Code Section 143 is the statute that gives the Governor authority to proclaim Martial Law. This statute reads:

Whenever the Governor is satisfied that rebellion, insurrection, tumult or riot exists in any part of the state the Governor may, by proclamation, declareto be in a state of insurrection, and he or she may thereupon order into the service of the state any number and description of the active militia, or unorganized militia, as he or she deems necessary, to serve for a term and under the command of any officer as he or she directs.

As you can see, we are not currently in a state of rebellion, insurrection, tumult or riots and as such, the Governor of the State does not have the power to declare martial law. However, that being said, the Governor does have broad powers under the California Emergency Services Act. The California Emergency Services Act can be found starting in California Government Code section 8550.

There are three main types of emergencies that enable a governor to declare a state of emergency.

  1. State of War emergency.
  2. State of Emergency
  3. Local Emergency

I think we all agree that we do not currently have a state of war emergency since neither California or the United State are not under an attack or threat of attack by an enemy of the United States.

As such, that leads us to state of emergency or local emergency. A local emergency deals with disasters that are contained within the limits of a county. Since the Corona virus effects the entire state of California, we are currently dealing with the second option, a State of Emergency.

Under California Government code section 8558, a governor can call a state of emergency when there is an “existence of conditions of disaster or of extreme peril to the safety of persons and property within the state caused by conditions such as air pollution, fire, flood, storm, epidemic, riot, drought, cyberterrorism, sudden and severe energy shortage, plant or animal infestation or disease, …earthquake, or other conditions, other than conditions resulting from a labor controversy or conditions causing a state of war emergency ….”

California Government Code section 8567 states that all orders under the California Emergency Services Act must be in writing and they take effect immediately. When the governor calls a state of emergency, he may suspend any state statute, rule or regulation. (Cal. Gov. § 8571). Please notice that the governor does not have the authority to suspend the California Constitution. As such, any rights contained in the Constitution are still in force. In fact, to make sure the government understands that there are limits to their authority, Cal. Gov. § 8571.5 expressly states that nothing in the California Emergency Services Act gives the government the right to seize or confiscate any firearm or ammunition unless an officer is arresting someone pursuant to an investigation for the commission of a crime.

When a governor calls a state of emergency, this gives him the authority to commandeer or utilize any private property or personnel deemed by him necessary in carrying out the responsibilities. However, the state is liable for the reasonable value of what it uses. (Gov. Code § 8572).

Gov. Newsom’s Executive Orders

Now that we have discussed the law, let’s now talk about what the Governor of California has actually done.

On March 4, 2020, Governor Newsom Declared a State of Emergency.

On March 11, 2020, Governor Newsom’s office published the fact that it was California Department of Public Health’s policy of preventing gatherings of groups larger than 250 people “should be postponed.” This was not an executive order by the governor, instead it was a California Department of Public Health policy. This policy does not cite a single law that gives the California Department of Public Health authority to shut down events of 250 people or require social distancing of more than 6 feet. While these may be good guidelines to follow, they are simply policies, they are not the law.

To emphasize that this was just a policy and not a law, on March 12, 2020, Newsom issues his next executive order (N-25-20). This executive order states that “All residents are to heed any orders and guidance of state and local public health officials, including but not limited to the imposition of social distancing measures, to control the spread of COVID-19.”

Notice the language of this order. “All residents are to heed any orders and guidance …”. If you look up the word heed in the dictionary, you will discover that it means “to give consideration attention to.” It does not say you must obey. Gavin Newsom in his executive order utilizing his powers granted him after declaring a state of emergency told the citizens of California that Californians should takes the advice given by the California Department of Public Health into consideration when making decisions.

Thus, contrary what you may have been led to believe, Gov. Newsom did not actually issue an executive order requiring Californians to practice social distancing, nor did he actually order gatherings of over 250 people to shut down. All he did was order people to pay attention to what these organizations were saying. These were merely recommendations.

Understand, a policy is different from a regulation. While I was able to find authority that allowed the California Department of Health Services to issue emergency regulations after they jumped through a few hoops, I have been unable to find where their policies would have the full force of law. Laws are passed by the legislature, or under the state of emergency, via executive order by the governor.

Before I move on to what the counties have done with their shelter in place laws, I want to quickly let you know that Gov. Newsom has issued five other executive orders in the last several days regarding the Corona virus.

Newsom has signed an executive order on March 13 ensuring funding for schools even if the schools are closed. He has issued an executive order on March 16th on how the state must focus on protecting the health and safety of the most vulnerable. And on March 16th, his executive order dealt with suspending the laws allowing landlords and banks from removing individuals who have not been able to pay their bills until May 31st. On the 17th he signed an executive order to ensure that key commodities can be delivered to California retailers. Finally, on the 18th he issued an executive order to protect ongoing safety net services for the most vulnerable Californians.

Shelter in Place Laws

So now let’s move to the issue of shelter in place laws being issued by the counties. I have not looked at every county’s shelter in place law, but I have looked at several and they are very similar.

California law allows counties to declare a health emergency when the local health officer determines that there is a threat of the introduction of any contagious, infectious, or communicable disease. (California Health and Safety Code § 101080). It appears that this power was not given to the California Department of Health Services but instead, this power was left in the hands of local Health Officers.

Cal. Health & Safety § 101040 permits local health officers to take any preventive measures that may be necessary to protect and preserve the public health from any state of emergency declared by the governor. After a local health emergency has been declared, “The sheriff of each county .. may enforce within the county … all orders of the local health officer issued for the purpose of preventing the spread of any contagious, infectious, or communicable disease.” (Cal. Health and Safety Code 101029). Cal. Health & Safety § 101030 specifically gives the county health officer the authority to order quarantines.

However, the question arises, does a county health officer have the authority to order a quarantine of healthy people, or just those who are sick? What laws are in place in the state of California regarding the stopping of disease through quarantine?

The statutes are very broad in their wording. Cal. Health & Safety § 120175 says that the health officers “shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases. Cal. Health & Safety § 120200 indicates that a health officer shall establish and maintain places of quarantine. But this still does not answer the question, can a health officer issue a quarantine of everyone in the county?

In 1921, Laura Culver petitioned the courts to be released from a quarantine. The Court’s held that the law permitted public health officials to quarantine individuals who have come in contact with cases and carriers of contagious diseases.

As one studies California law, it is clear that the law used to be very explicit that a quarantine was only applicable to those who had a contagious disease or those who had come in contact with someone who had a contagious disease.

While most of the laws regarding quarantine are very broad, Cal. Health & Safety § 120215 appears to have limiting language. This statute reads: Upon receiving information of the existence of contagious, infectious, or communicable disease for which the department may from time to time declare the need for strict isolation or quarantine, each health officer shall: (a) Ensure the adequate isolation of each case, and appropriate quarantine of the contacts and premises. (b) Follow the local rules and regulations, and all general and special rules, regulations, and orders of the department, in carrying out the quarantine or isolation.

Let’s look at this for a minute. I think we can all agree that the health officers have sufficient information that there is a communicable disease. However, where we disagree is that the Health Officers are ordering a county wide shelter in place law where the law only allows “adequate isolation of each case, and appropriate quarantine of the contacts.” This is where the local health official appears to have overstepped their authority. The counties are not looking at this on a case by case bases. Instead, they are issuing broad orders that affect both the healthy and the sick. They are not ordering a quarantine of those who have been in contact with someone who has the virus.

Cal. Health & Safety § 120225 also has some instructive language. This statute says that “A person subject to quarantine …”. The quarantine laws where designed to quarantine an individual or a location, not an entire community or organization.

Finally, Cal. Health & Safety § 120235 makes clear that the quarantine powers of the local health officer were never intended to be a community lock down. Cal. Health & Safety § 120235 clearly states that “no quarantine shall be raised until every exposed room, together with all personal property in the room, has been adequately treated, or, if necessary, destroyed, under the direction of the health officer, and until all persons having been under strict isolation are considered noninfectious.”

The quarantine laws are clearly intended to be applied to individuals not to the entire county. The quarantine laws are designed to stop those who might have been infected from passing the disease onto others. Absent the local health officers finding that an individual has the disease or is likely to have the disease, California law does not give them broad authority to quarantine the entire county.

As such, it appears counties such as San Francisco that have issued broad shelter in place laws may be violating California law.

If you feel like the state of emergency called by the governor or these shelter in place laws have adversely effected your business and/or violated your constitutional rights, I would encourage you to seek competent legal counsel to examine your individual case.

In conclusion, we are living in very interesting times. There are those who feel like government officials are in a contest to see who can be the most aggressive in upending the lives of its citizens over the Corona virus. The great debate of today seems to be, is the government doing too much or is the government not doing enough. Regardless of the answer to that question, there are going to be some serious financial ramifications as a result of this virus.

Regardless of whether the government has over reacted or under reacted, the threat of this virus will end. When it does, our generation will have the opportunity to show how we are able to bounce back, just like we did after the Great Depression or 9/11.

Source: California Globe

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