San Bernardino County sues Newsom over coronavirus restrictions

As coronavirus cases rise, San Bernardino County has asked the California Supreme Court to overturn Gov. Gavin Newsom’s stay-at-home order, alleging overreach under the state’s emergency act.

County officials are asking the state’s highest court to act by Dec. 28, when the three-week order is set to expire or be renewed.

Board of Supervisors Chairman Curt Hagman said in a statement that Newsom has improperly acted as both the executive and legislative branch under the California Emergency Services Act since the pandemic hit nine months ago.

If the act grants the governor that power, then the act itself is unconstitutional, Hagman said.

Newsom’s office vowed to defend against the suit, as it has others, “staying laser focused on protecting Californians’ health and safety within the legal authorities available to us,” said Jesse Melgar, Newsom’s communications director, in an email.

Some legal experts say the emergency act confers broad powers on the governor during an emergency, such as a war or global pandemic.

That’s the gist of an analysis by attorneys Stephen Duvernay and Brandon Stracener, who examined the law in April for a blog dedicated to the California Supreme Court.

“Typically, the state constitution requires policy decisions … to be made through the deliberative legislative process,” Duvernay and Stracener wrote. “But in a crisis, that authority … may be consolidated and exercised by one executive.”

Representing the county is law firm Tyler & Bursch, which has sued the state over other coronavirus orders, including a temporary ban on singing in churches. The firm also represented the Orange County Board of Education pro bono in a fight to reopen schools over the summer.

The latest suit alleges that the state stay-at-home order robs the county of its police powers and ability to craft its own regulations.

Under the state order, San Bernardino County is included in the Southern California region, which has dipped below the 15% intensive care capacity that triggers the order.

Capacity rates at hospitals across the state “are at the most critical point that they have been since the start of the COVID-19 pandemic,” Melgar said.

Mirroring a grim trend across the state, San Bernardino County has seen COVID-19 cases skyrocket in recent weeks. Over the past seven days, the county has reported an average of just over 3,364 new cases per day, a 187% increase from two weeks ago, according to data compiled by The Times. Over that same period, there have been nearly 14 deaths a day.

According to the suit, the state’s orders “stretch the county’s resources thin,” making it difficult for the sheriff and health department to provide other critical services. The Sheriff’s Department has spent more than 117,000 regular hours and 24,000 overtime hours on pandemic-related issues, the suit states.

Former Supervisor Josie Gonzalez, who joined the suit as a private citizen, slammed the state for failing to provide data backing up its decisions.

“The state has not produced science or data that suggest the restrictions ... would address the current trajectory of the pandemic in San Bernardino County,” Gonzalez said.