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Payton Perspective: Gov. Newsom isn’t really allowing places of worship to reopen, his guidelines are too restrictive

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Some churches to participate in civil disobedience this Sunday and open for services.

“Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights”… “the Constitution calls for California to do more to accommodate religious worship” – 5/19/20 US DOJ letter to Gov. Newsom.

By Allen Payton

Yesterday, Monday, May 25, 2020 – Memorial Day, the day we honor and commemorate those who died for our freedoms, some of which are seriously limited, right now – California Governor Gavin Newsom issued guidelines for reopening places of worship. At first, I was hopeful that he was doing something good in response to President Trump’s directive to all the governors and the directive to California from U.S. Attorney General William Barr and the Department of Justice, last week.

But the guidelines don’t really allow most places of worship to reopen. Why? Because they’re too restrictive, limiting attendance to just 25% of building capacity or 100 people whichever is less. Plus, Newsom is leaving it up to each unelected county health officer to approve of the guidelines or not.

Now, it’s worse because they’re allowing more and more businesses to reopen – which is great – but not the churches. Our officials already considered all the vice serving businesses, including all the locations of the nation’s top abortion provider, Planned Parenthood, liquor stores, and marijuana dispensaries essential. But not the churches or other places of worship. And as of today, the governor said barber shops and hair salons can reopen.

Which part of “shall make no law…prohibiting the free exercise” of religion and the other First Amendment right of freedom of peaceful assembly, don’t our officials get?

Civil Disobedience

Following in the footsteps of the black Christian ministers who led the efforts during the civil rights movement, it appears some churches will be participating in some civil disobedience with the ministers leading the effort for their rights, when they hold services this next Sunday, May 31st in defiance of state and local orders. Those in attendance will probably only be issued citations and the maximum fine is $1,000, which they can collectively fight. Plus, with $0 bail, right now none of them will go to jail. Most likely only the ministers will be cited and fined. But who knows? The Lord does and we will see just how far the government officials will take this and just how much they want to continue this fight.

Time to Elect New Leaders

It’s definitely time we elected only those who agree that places of worship are essential, not only to those who attend, but society as a whole, and will actually uphold their oaths of office, in which they swore to defend the Constitution against all enemies foreign and domestic. Event the CDC recognized that in the statement for its Interim Guidance for Communities of Faith, unlike our governor in the statement included with his guidelines. The CDC wrote, “Millions of Americans embrace worship as an essential part of life. In addition, we note that while many types of gatherings are important for civic and economic well-being, religious worship has particularly profound significance to communities and individuals, including as a right protected by the First Amendment. State and local authorities are reminded to take this vital right into account when establishing their own re-opening plans.”

What did the governor include in the statement about his guidelines? Just more warnings about how public gatherings can cause more deaths. That statement includes, “There have been multiple outbreaks in a range of workplaces, indicating that workers are at risk of acquiring or transmitting COVID-19 infection. Examples of these workplaces include places of worship, long-term care facilities, prisons, food production, warehouses, meat processing plants, and grocery stores.”

“Further, it is strongly recommended that places of worship continue to facilitate remote services and other related activities for those who are vulnerable to COVID19 including older adults and those with co-morbidities. Even with adherence to physical distancing, convening in a congregational setting of multiple different households to practice a personal faith carries a relatively higher risk for widespread transmission of the COVID-19 virus, and may result in increased rates of infection, hospitalization, and death, especially among more vulnerable populations. In particular, activities such as singing and group recitation negate the risk-reduction achieved through six feet of physical distancing,” Newsom’s statement continues.

Nothing about our First Amendment rights which should be protected or that corporate worship or even churches being essential to at least some Californians or society as a whole.

Support Legal Efforts

We also need to support the legal efforts of those suing the state and governor to get the courts to force him to allow the churches to reopen. One way you can do that is by supporting the Center for American Liberty, based in San Francisco and led by my friend, attorney Harmeet Dhillon and her fellow attorney, Mark Meuser, a former Contra Costa resident. Read about their cases and make a contribution, here – https://libertycenter.org/pf/covid-19-litigation/.

Another lawsuit by churches in California against Newsom and the state, which was joined by Dhillon, lost last week at the 9th Circuit Court of Appeals on a 2-1 decision of a three-judge panel. Not surprising the judges who voted with the governor were appointed by Clinton and Obama, and the one judge that voted with the churches was appointed by Trump.

“These are emergency appeals,” Dhillon explained on Monday. “We filed for an appeal to the U.S. Supreme Court” in the recent case before the 9th Circuit.

“The DOJ sent a letter to the governor that his policies were discriminatory against churches,” she continued. “Today’s guidelines are still limiting. They’re totally arbitrary. There is no limit of 100 people for any retail establishment. Retail has a 50% capacity limit for some and none for others.”

“To tell people how they can worship, this is more unconstitutional and very problematic,” Dhillon added.

DOJ Letter to Newsom

In the DOJ letter to Newsom about “several civil rights concerns with the treatment of places of worship” due to the governor’s stay-at-home order, as well as “documents relating to the California Reopening Plan” it states “Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights.” USDOJ 5.19.20 Ltr. to Hon. Gavin Newson

“Laws that do not treat religious activities equally with comparable nonreligious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment,” the letter continues.

“Places of worship are not permitted to hold religious worship services until Stage 3” of Newsom’s reopening plan, the letter explains. “However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets and others are permitted to operate with social distancing. And as noted, ecommerce and entertainment industry activities are already permitted with social distancing. This constitutes precisely the kind of differential treatment the Supreme Court identified” in the decision of another case “in which the government is not willing to impose on certain activities the same restrictions it is willing to impose on constitutionally protected religious worship.”

“Religious gatherings may not be singled out for unequal treatment compared to other nonreligious gatherings that have the same effect on the government’s public health interest…” the letter states.

It then refers to the recent case before the 9th Circuit and states, “Other decisions around the country…make clear that reopening plans cannot unfairly burden religious services as California has done.”

“We believe…that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.”

An email has been sent to the DOJ asking for their views on Newsom’s guidelines and if they comply with the May 19th letter. (Please check back later for updates to this column.)

Time for Action

It’s time for action and to stop living in fear, my friends. The governor’s guidelines are too restrictive and continue to clearly violate our God-given – the meaning of “unalienable” – and constitutionally protected rights of both freedom of religion and assembly. Until Newsom complies with the directives from the federal government, churches should feel free to reopen within the guidelines applied to nonreligious activities and businesses.

As the DOJ letter states, “Religious communities have rallied to protect their communities from the spread of this disease by making services available online, in parking lots, or outdoors, by indoor services with a majority of pews empty, and in numerous other creative ways that otherwise comply with social distancing and sanitation guidelines.” Local churches can do the same. We shall see if any actions are taken against the ministers and those who attend this Sunday’s services.

DOJ Letter to Governor Newsom

U.S. Department of Justice

Civil Rights Division

 

 

____________________________________________________________________________________________

Office of the Assistant Attorney General                                               Washington, D.C. 20530

May 19, 2020

 

The Honorable Gavin Newsom

Governor of California

1303 10th Street, Suite 1173

Sacramento, CA 95814

Dear Governor Newsom:

We are writing to you to raise several civil rights concerns with the treatment of places of worship in Executive Orders N-33-20 and N-60-20 and documents relating to the California Reopening Plan.

Of course, we recognize the duty that you have to protect the health and safety of Californians in the face of a pandemic that is unprecedented in our lifetimes. You and other leaders around the country are called on to balance multiple competing interests and evaluate the constantly changing information available to you about COVID-19, and make your best judgment on courses of action.

Attorney General William P. Barr recently issued a statement on Religious Practice and Social Distancing, in conjunction with a Mississippi case in which the Department of Justice participated regarding restrictions on worship. In the statement, the Attorney General emphasized the need to practice social distancing to control the spread of COVID-19. He also noted that temporary restrictions that would be unacceptable in normal circumstances may be justified. But, “even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity.” Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights.

Laws that do not treat religious activities equally with comparable nonreligious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Laws that are not both neutral toward religion and generally applicable are invalid unless the government can prove that they further a compelling interest and are pursued through the least restrictive means possible. Religious gatherings may not be singled out for unequal treatment compared to other nonreligious gatherings that have the same effect on the government’s public health interest, absent the most compelling reasons.

Executive Order N-33-20 (March 19, 2020) ordered Californians to remain at home except to engage in authorized necessary activities as laid out by the Public Health Officer at the time and as modified going forward. The Public Health Officer’s April 28 “essential workforce” list does not appear to treat religious activities and comparable nonreligious activities the same.

The list includes “faith-based services” but only if “provided through streaming or other technologies.” In-person religious services are thus apparently prohibited even if they adhere to social distancing standards.

The list of nonreligious workers who are not so restricted by the Executive Order and essential workforce list when telework “is not practical” is expansive. For example, the list includes “Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around social distancing.” Likewise, “workers supporting ecommerce” are included as essential, regardless of whether the product they are selling and shipping are life-preserving products or not. This facially discriminates against religious exercise. California has not shown why interactions in offices and studios of the entertainment industry, and in-person operations to facilitate nonessential ecommerce, are included on the list as being allowed with social distancing where telework is not practical, while gatherings with social distancing for purposes of religious worship are forbidden, regardless of whether remote worship is practical or not.

Even more pronounced unequal treatment of faith communities is evident in California’s Reopening Plan, as set forth in Executive Order N-60-20 (May 4, 2020), and in the documents the California Department of Public Health produced pursuant to it, including the “Resilience Roadmap” (https://covid19.ca.gov/roadmap/) and “County Variance Attestations” (https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Local-Variance-Attestations.aspx). Places of worship are not permitted to hold religious worship services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing. And as noted, ecommerce and entertainment industry activities are already permitted with social distancing. This constitutes precisely the kind of differential treatment the Supreme Court identified in the Lukumi decision in which the government is not willing to impose on certain activities the same restrictions it is willing to impose on constitutionally protected religious worship. While it is true that social distancing requirements applied to places of worship may inevitably result in much smaller congregations than some faith groups would like, in our experience with other controversies around the country, many places of worship are quite content to operate at 15-25% of capacity in a way that allows for social distancing between family groups.

The Department of Justice does not seek to dictate how States such as California determine what degree of activity and personal interaction should be allowed to protect the safety of their citizens. However, we are charged with upholding the Constitution and federal statutory protections for civil rights. Whichever level of restrictions you adopt, these civil rights protections mandate equal treatment of persons and activities of a secular and religious nature.

We recognize that three U.S. District Courts have denied Temporary Restraining Orders (TRO’s) sought by plaintiffs against Executive Order N-33-20, Abiding Place Ministries v. Wooten, No. 3:20-cv-00683 (S.D. Cal. April 10, 2020) (no written opinion); Gish v. Newsom, No. 5:20-CV-755 (C.D. Cal. Apr. 23, 2020); Cross Culture Christian Ctr. v. Newsom, No. 2:20-CV-00832 (E.D. Cal. May 5, 2020), and one denied a TRO against the Reopening Plan, which is now on appeal to the Ninth Circuit. South Bay United Pentecostal Church v. Newsom, No. 3:20-cv-865 (S.D. Cal. May 15, 2020) (oral transcript ruling). These TRO decisions do not justify California’s actions. The Abiding Place, Gish, and Cross Culture TRO decisions do not address the Stage 2 reopening, and South Bay United Pentecostal does not describe why worship services can be distinguished from schools, restaurants, factories or other places Stage 2 permits people to come together. Other decisions around the country have followed Lukumi to make clear that reopening plans cannot unfairly burden religious services as California has done. See, e.g., Robert v. Neace, No. 20-5465 (6th Cir. May 11, 2020).

Religion and religious worship continue to be central to the lives of millions of Americans. This is true now more than ever. Religious communities have rallied to protect their communities from the spread of this disease by making services available online, in parking lots, or outdoors, by indoor services with a majority of pews empty, and in numerous other creative ways that otherwise comply with social distancing and sanitation guidelines. We believe, for the reasons outlined above, that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.

Thank you for your prompt attention to this matter. Should you wish to discuss further, please contact United States Attorney for the Eastern District of California McGregor Scott at (916) 554-2730 or mcgregor.scott@usdoj.gov.

Sincerely,

           Eric S. Dreiband

                             Assistant Attorney General

                Civil Rights Division

McGregor W. Scott

United States Attorney

Eastern District of California

Nicola T. Hanna

United States Attorney

Central District of California

David L. Anderson

United States Attorney

Northern District of California

Robert S. Brewer

United States Attorney

Southern District of California

cc: The Honorable Xavier Becerra

Attorney General of California

Contra Costa Superior Courts to reopen May 26

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ALL COURT LOCATIONS WILL REOPEN TO THE PUBLIC ON MAY 26, 2020 AT 8:00 A.M.

  • IF YOU ARE SICK, DO NOT COME TO THE COURT. NO ONE WHO IS SICK OR WHO IS EXHIBITING COVID-19 SYMPTOMS WILL BE PERMITTED TO ENTER ANY COURT FACILITY.
  • YOU MUST WEAR A MASK OR FACE COVERING TO ENTER ANY COURT FACILITY AND AT ALL TIMES WHILE INSIDE.
  • ANYONE ENTERING ANY COURT FACILITY WILL HAVE THEIR TEMPERATURE TAKEN. IF YOU HAVE A TEMPERATURE OF 100 DEGREES OR HIGHER, YOU WILL BE DENIED ENTRY FOR THAT DAY.
  • PLEASE EXPECT LONG LINES AND LONG WAIT TIMES. THE COURT WILL FOLLOW SOCIAL DISTANCING REQUIREMENTS AND BUILDING ACCESS WILL BE LIMITED. PLEASE OBEY ALL SIGNS. YOUR PATIENCE IS APPRECIATED.
  • CLERK’S OFFICES ARE OPEN 8:00 A.M. – 2:00 P.M., WITH PHONE HOURS FROM 10:00 A.M. – 2:00 P.M., UNTIL FURTHER NOTICE.
  • THE MARTINEZ COURT RECORDS OFFICE REMAINS CLOSED. SEE BELOW FOR INFORMATION CONCERNING RECORDS ACCESS.
  • PLEASE READ THE REMAINDER OF THIS RELEASE FOR INFORMATION ABOUT SPECIFIC OPERATIONS.

Entrances and Exits. All buildings will operate a single entry/exit point. Please follow all signs carefully. The Court Street entrance for the Wakefield Taylor building in Martinez will not be open; use the Main Street entrance only.

No Nonessential Parties. Due to social distancing limitations, individuals who are not essential to Court matters should not accompany parties to Court for any matter or case type.

Drop Box Filings. Drop boxes will still be available from 9 A.M. – 3 P.M. (one hour after clerk’s office closure). Because clerk’s offices will experience high demand and significant wait times, the Court encourages you to file items by drop box. Items placed in the drop box before 3:00 p.m. will be file-stamped that day. Drop box locations are:

  • Civil: Main Street entrance of the Wakefield Taylor Courthouse in Martinez.
  • Criminal: Main Street entrance of the Wakefield Taylor Courthouse in Martinez.
  • Family: Main entrance of Family Law building in Martinez.
  • Juvenile: Main entrance of the Walnut Creek Courthouse.
  • Probate: Main Street entrance of the Wakefield Taylor Courthouse in Martinez.
  • Pittsburg and Richmond courthouses: These drop boxes are available only for filings in case types heard at those locations.

Jury Service. Jury service will resume. Be assured that we are working with the County Health Department to ensure your safety. Those summoned must follow the rules above for access to the Court, including wearing masks. To obey social distancing requirements, jurors will be called in two-hour blocks. See your jury summons for call-in information. No more than 50 jurors will be present in a jury assembly room at any time. If you are sick, exhibiting COVID-19 symptoms, or are a high-risk individual (e.g., over 60 years of age, immunocompromised, etc.), the Court will excuse you from service upon proof. Please call 925-608-1000 and follow the prompts for Jury Services.

Emergency Local Rules. All Emergency Local Rules remain in effect unless otherwise noted or as superseded by effect of the Court’s reopening. Rules are available at: http://www.cc-courts.org/local-rules/local-rules.aspx

Filing Holidays. The Court is open for filing as of May 26, 2020. Filing holidays under this Court’s Implementation Orders and/or Emergency Local Rules expire as of the Court’s reopening. Judicial Council Emergency Rules of Court and/or orders of the Chief Justice, available on the Court’s website, may further extend filing holidays in certain cases. Review these carefully.

Records. The Court Records office in Martinez remains closed. The Court will only accept records requests and requests for background checks via drop box or mail, subject to all legal confidentiality exceptions. Do not wait in line or come to a clerk’s window with a records request.

Request forms may be downloaded from the appropriate Court Records webpage:

  • For Criminal matters and background checks: http://www.cc-courts.org/criminal/records.aspx. Submit by mail or use the Criminal drop box.
  • For any other matters: http://www.cc-courts.org/civil/records.aspx. Submit by mail or use the drop box for the appropriate case type.

Specific Matters

  • Restraining Orders. The Court continues to accept applications for domestic violence, civil harassment, and gun violence restraining orders. For civil restraining orders, please review the Civil Emergency Local Rules. For domestic violence restraining orders and emergency protective orders, please review the Family Emergency Local Rules.
  • Traffic. The Court is in the process of rescheduling all traffic matters and you will receive a notice of new dates. Read your notice carefully: The location of your matter may differ from your original notice. All traffic matters have been granted a 120-day extension which also applies to payment deadlines as well as deadlines for traffic school and community service completion.
  • Small Claims. The Court will reschedule all small claims matters and provide notice of new dates. Read your notice carefully: The location of your matter may differ from your original notice.
  • Unlawful Detainer. The Judicial Council’s Emergency Rules of Court prohibit the Court from issuing a summons on any new unlawful detainer complaints, with limited exceptions for urgent public health and safety matters. For matters involving violence, threats of violence, and/or health and safety issues, parties should provide documents with the filing, such as a declaration under oath, relating facts supporting the urgency on those grounds.
  • Civil Limited and Unlimited.
  1. Hearings and filings will proceed under the Civil Emergency Local Rules. Hearings from May 18, 2020 through May 27, 2020, will go forward on fully-briefed matters. Briefs for hearings on May 28, 2020, or thereafter must be filed under normal statutory timeframes even if that requires a filing during the closure period. Review the Civil Emergency Local Rules for further information.
  2. The CourtCall process in the Civil Emergency Local Rules will be used for all hearings until further notice. Do not come to Court for your hearings.
  3. Review the Complex Emergency Local Rules for procedures for Complex cases.
  • Probate. All matters should be submitted via drop box. The Probate File Examiner Office will not be open to accept ex parte submissions until further notice. Review the Probate Emergency Local Rules for information on hearings and use of remote technology. The Probate department will be providing additional guidance separately.
  • Criminal Virtual and Emergency Courtrooms. These courtrooms will close as of May 26, 2020, except by written stipulation of the parties approved by the Presiding Judge.

Orinda attorney Gina Dashman appointed Contra Costa Superior Court Commissioner

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By Matt Malone, Public Information Officer, Superior Court of California, Contra Costa County

Gina Dashman. From her LinkedIn profile.

The Court is very pleased to announce the appointment of Gina Dashman as Commissioner. Commissioner Dashman will preside over Department 57, handling traffic, unlawful detainer, small claims, and restraining order matters with morning calendars at the Pittsburg courthouse and afternoon calendars at the Wakefield Taylor courthouse in Martinez. Commissioner Dashman assumed her role effective April 27, 2020.

The 60-year-old Orinda resident is an experienced and accomplished lawyer who, prior to her appointment, was an equity partner at Haapala, Thompson & Abern LLP since 2014, where she had also been an associate since 2009. Previously, she was of counsel at Stein, Rudser, Cohen & Magid from 2002-2009, an associate and partner at Buresh, Kaplan, Jang & Feller from 1988-2002, and an associate at Epstein, Becker & Green from 1986-1988.

Dashman served as President of Women Lawyers of Alameda County from 2018-2019 and on the Board of Directors of the Contra Costa County Bar Association from 2018-2020. She earned her Juris Doctor degree from George Washington University School of Law in 1986 and her Bachelor of Arts degree from U.C. Berkeley in 1983.

According to her LinkedIn profile, Dashman is also a published author of Neighbor Disputes-Law and Litigation, and United States Corporate Disinvestment from South Africa: The Financial Rand and Exchange Control.

Allen Payton contributed to this report.

Government overreach and the Constitution

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Dear Editor:

I am not an attorney, nor do I play one on TV.  However, I do have 30 years of experience working on land-use legislation, litigation, politics, and policy at the local, state, and national level.   Based on those experiences, I want to share my opinion with you.

In March, all Americans including recreationists were asked to comply with temporary Covid-19 shelter-in-place (SIP) orders and mitigation measures to “Flatten the Curve” to avoid overcrowding our hospitals and reduce the number of projected deaths.

The American public responded to the government mandates by largely complying with those plans and mitigations.   Recreation leaders in the grassroots and industry sectors also responded with outreach and education programs to encourage compliance with those temporary orders.

Today, many in the general public are now questioning some states and local jurisdictions that appear to have politicized Covid-19 restrictions by extending hard SIP orders – without a strong rationale – that apply to residents and businesses.

Considering the above reality in some states, it should come as no surprise for the U.S. Supreme Court (SCOTUS) to weigh in on the matter when potential violations of the U.S. Constitution appear to be taking place.

On such case is in Pennsylvania where according to the article linked to below: “A group of Pennsylvania businesses petitioned the US Supreme Court Monday in their lawsuit seeking to overturn Governor Tom Wolf’s March 19 executive order closing “non-life-sustaining” business in response to the COVID-19 pandemic.”

SCOTUS has now weighed in by giving the PA Governor until May 4 to respond to a petition that accuses the commonwealth of violating the constitutional rights of its citizens.

Please see https://www.jurist.org/news/2020/05/supreme-court-orders-pennsylvania-to-respond-to-challenge-to-stay-at-home-order/

Folks in other states are also challenging extended SIP orders that appear to violate our constitutional rights.  The purpose of this opinion is not to start a debate about the veracity or effectiveness of Covid-19 mitigation measures but to simply highlight the growing concern about government overreach and potential violation of our constitutional rights.

Having SCOTUS step in on this issue may be the biggest news item in recent weeks.

Don Amador

Oakley, CA

Don Amador has been in the trail advocacy and recreation management profession for over 30 years. Don is President of Quiet Warrior Racing/Consulting. Don served as a contractor to the BlueRibbon Coalition from 1996 until June 2018. Don served as Chairman and member on the California Off-Highway Motor Vehicle Recreation Commission from 1994-2000. He has won numerous awards including being a 2016 Inductee into the Off-Road Motorsports Hall of Fame and the 2018 Friend of the AMA Award. Don currently serves as the government affairs lead for AMA District 36 in Northern California and also serves as the OHV representative on the BLM’s Central California Resource Advisory Committee.  Don is also a contributor to Dealernews Magazine

Drive-in churches now legal in California thanks to lawsuit victory

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“But, it’s problematic because going to church still isn’t considered essential” – Attorney Harmeet Dhillon

By Allen Payton

A victory, Friday in a lawsuit on freedom of worship is forcing California to allow drive-in church services.

The lawsuit against the State of California naming Governor Gavin Newsom over his executive order, was filed by San Francisco attorney Harmeet Dhillon, founder of the non-profit Center for American Liberty and co-counsel Mark Meuser, on behalf of three southern California churches and one parishioner. (See related article)

According to twitter posts by Dhillon, a government brief filed late (Friday) morning claimed that “drive in” is a “technology” like streaming video, and now OK. In response to this executive order “clarification” by opposition brief, Riverside and San Bernardino Counties update(d) their health decrees to allow drive-in worship.

“This development is a partial victory in our lawsuit, but it still does not allow in-building services – meaning people seeking spiritual guidance and fellowship safely, are given no right to do so but the same people can visit wine, pot, food, laundry shops with a mask legally,” she tweeted.

“We continue to wait for ruling on TRO (temporary restraining order),” Dhillon continued. “People of faith may be treated no less favorably than any other people in California. Reporters, termite guys, tree trimmers, baristas, stir-fry chefs, grocery workers, and customers of all have rights – so do religious leaders & followers!”

She was asked why this applies to the entire state, when she was only representing the three churches and one parishioner in Southern California.

“But I sued the State of California over the statewide order, and the counties,” she explained.

The place where the so-called policy changes were announced are hidden in the ruling, with the state agreeing that “of course drive-in churches are a technology like streaming video,” Dhillon shared. “You and I both know that’s absurd. But, it’s problematic, because going to church still isn’t considered essential.”

There’s no requirement for the state to publicize the court’s decision.

“It’s sneaky,” she said.

Asked about her clients Dhillon said, “I’m only representing those who are socially responsible, like anyone else.”

According to their website, “The Center for American Liberty defends the Free Speech rights and Civil Liberties of Americans.”

“The non-profit hired my firm to represent the plaintiffs,” she explained.

The decision was handed down by the U.S. District Court for the Central District of California in Los Angeles, which also includes Riverside and San Bernardino Counties.

“I’m glad we were able to do this. This is a small thing,” Dhillon added. “You’re probably not going to see a lot of drive-in churches in the next week or two. But, it’s better than nothing, dressing up, driving in and seeing your friends.”

U.S. Attorney General Barr issues statement on Religious Practice and Social Distancing

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Department of Justice files Statement of Interest in Mississippi church case

U.S. Attorney General William Barr. Official portrait by DOJ.

On Tuesday, April 14, 2020, United States Attorney General William P. Barr, the nation’s top law enforcement officer, issued the following statement:

“In light of the COVID-19 pandemic, the President has issued guidelines calling on all Americans to do their part to slow the spread of a dangerous and highly contagious virus.  Those measures are important because the virus is transmitted so easily from person to person, and because it all too often has life-threatening consequences for its victims, it has the potential to overwhelm health care systems when it surges.

To contain the virus and protect the most vulnerable among us, Americans have been asked, for a limited period of time, to practice rigorous social distancing.  The President has also asked Americans to listen to and follow directions issued by state and local authorities regarding social distancing.  Social distancing, while difficult and unfamiliar for a nation that has long prided itself on the strength of its voluntary associations, has the potential to save hundreds of thousands of American lives from an imminent threat.  Scrupulously observing these guidelines is the best path to swiftly ending COVID-19’s profound disruptions to our national life and resuming the normal economic life of our country.  Citizens who seek to do otherwise are not merely assuming risk with respect to themselves, but are exposing others to danger.  In exigent circumstances, when the community as a whole faces an impending harm of this magnitude, and where the measures are tailored to meeting the imminent danger, the constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances.

But even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.  Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings.  Religious institutions must not be singled out for special burdens.

Today, the Department filed a Statement of Interest in support of a church in Mississippi that allegedly sought to hold parking lot worship services, in which congregants listened to their pastor preach over their car radios, while sitting in their cars in the church parking lot with their windows rolled up.  The City of Greenville fined congregants $500 per person for attending these parking lot services – while permitting citizens to attend nearby drive-in restaurants, even with their windows open.[1]  The City appears to have thereby singled churches out as the only essential service (as designated by the state of Mississippi) that may not operate despite following all CDC and state recommendations regarding social distancing.

As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest.  While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.

Religion and religious worship continue to be central to the lives of millions of Americans.  This is true more so than ever during this difficult time.  The pandemic has changed the ways Americans live their lives.  Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.

The United States Department of Justice will continue to ensure that religious freedom remains protected if any state or local government, in their response to COVID-19, singles out, targets, or discriminates against any house of worship for special restrictions.”

 

California Judicial Council adopts new rules to lower jail population, sets bail at $0, suspends evictions and foreclosures

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Judicial Council Chair, Chief Justice Tani G. Cantil-Sakauye ran the teleconference call from the council’s office in Sacramento on Monday. Photo by JCC.

11 temporary emergency rules include $0 statewide bail for misdemeanors and lower-level felonies during COVID-19 pandemic to “safely reduce jail populations”

By Blaine Corren, Senior Communications and Public Affairs Analyst, California Judicial Council

VIA TELECONFERENCE—At its meeting on Monday, April 6, 2020, the Judicial Council of California approved 11 temporary emergency rules, including setting bail statewide at $0 for misdemeanors and lower-level felonies to “safely reduce jail populations” and staying eviction and foreclosure proceedings to protect Californians from losing their homes during the COVID-19 pandemic.

This was the second emergency council meeting of court and branch leaders from around the state to consider further measures to ensure California courts—which remain open as “essential services” under Gov. Newsom’s stay-home executive order—can meet stringent health directives while also providing due process and access to justice.

“We are at this point truly with no guidance in history, law, or precedent,” said Chief Justice Tani Cantil-Sakauye, chair of the council. “And to say that there is no playbook is a gross understatement of the situation. In developing these rules, we listened to suggestions from our justice system partners, the public, and the courts, and we greatly appreciate all of the input. Working with our court stakeholders, I’m confident we can preserve the rule of law and protect the rights of victims, the accused, litigants, families and children, and all who seek justice. It’s truly a team effort.”

Members of the Judicial Council of California. Photo from 2018 by JCC.

The council received and considered more than 100 written comments on the new rules from judges, public defenders, district attorneys, law enforcement, legal aid and advocacy groups, unions, attorneys, court reporters, interpreters, and other justice system partners.

Among the actions the council approved, to go into effect immediately:

  • Suspend the entry of defaults in eviction cases;
  • Suspend judicial foreclosures;
  • Allow courts to require judicial proceedings and court operations be conducted remotely, with the defendant’s consent in criminal proceedings;
  • Adopt a statewide emergency bail schedule that sets bail at $0 for most misdemeanor and lower-level felony offenses;
  • Allow defendants to appear via counsel or remote technologies for pretrial criminal hearings;
  • Prioritize hearings and orders in juvenile justice proceedings and set a structure for remote hearings and continuances
  • Extend the timeframes for specified temporary restraining orders;
  • Extend the statutes of limitations governing civil actions; and
  • Allow electronic depositions in civil cases.

The council previously approved a number of temporary measures at its first emergency meeting Mar. 28 to give courts flexibility to continue to provide essential services to the public while protecting health and safety during the pandemic.

For a complete list of emergency orders taken by the California court system in response to the COVID-19 pandemic, see the California Courts Newsroom.

About the Judicial Council

Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff implements the council’s policies.

OP-ED: Statewide lockdowns and the law

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Hasty infringements on individual rights at a time of coronavirus.

By John You, Harmeet K. Dhillon

As losses mount throughout the economy due to the coronavirus quarantines, President Trump suggested that he wants the nation “to be opened up and just raring to go by Easter.”  He has since stepped away from that proposal and issued guidelines that lockdowns stay in place until the end of April.  But Trump still seems to be more optimistic than many state governors in his hope that the U.S. will return to normal economic activity sooner rather than later.

But even if Trump were to issue a declaration re-opening American businesses, a nationwide compliance would remain beyond his power.  The Constitution’s system of federalism reserves the authority to lift the quarantine orders in the same people who issued them in the first place: the state governors.

Because state government sits closer to the people, we can and should demand more immediate transparency and accountability of our officials for these draconian, potentially devastating policies.  They may impede the spread of the disease, but we cannot tell if this comes at an acceptable cost because neither governors Gavin Newsom nor Andrew Cuomo have explained how they made the cost-benefit trade-off involved.  They risk judicial intervention or, ultimately, popular rejection, should they continue to keep shutting down their economies without justified benefits.

Richard Epstein, a Hoover scholar and friend, has come under fire for his claim that public health officials have overestimated the rate of infection and the lethality of the coronavirus.  Regardless of Epstein’s theory of why the spread of the virus will slow, the underlying truth of his argument remains: stopping the spread of disease balances lives potentially saved against the economic losses from the lockdowns.

Here is a quick, back-of-the-envelope calculation for a single state, California. The U.S. economy generates approximately $24 trillion a year in GDP, or $2 trillion a month.  California is about 15 percent of that total, for about $300 billion per month.  Suppose that the lockdown causes economic activity to drop by 75 percent in California (it may well be worse).  Is it worth immediate losses of $225 billion per month, in just one state, with potentially longer-lasting recessionary effects, to reduce (but not eliminate) the lives lost to the coronavirus?

It depends on how we estimate the number of lives saved from the lockdowns.  Take California as an example.  At last count, California has 4,643 confirmed cases and 101 deaths from the virus.  We have to balance the lockdowns not against those lives, but against the reduction in the expected harms of an outbreak (which is the probability of an outbreak times the estimated number of deaths).  Some experts, such as doctors at Stanford Medical School, argue that current estimates are inflated, due to the lack of good data from China and Italy and the propensity to test those already infected. Instead, they calculate that the U.S. population may suffer an infection rate of about 2.2 percent, which translates into about 7.7 million infected Americans, or 924,000 Californians.

If the mortality rate from the coronavirus ranges from 1-2 percent, as doctors estimate, then the number of lives that would be lost in an epidemic in California would be 18,500. Suppose that there were a 50 percent chance of that happening without any aggressive government measures, and that the lockdown instead dropped the chances of an outbreak to 10 percent.  By shutting down most economic activity within its borders, California would be spending millions to save a single life, without taking into account less intrusive alternative measures, such as protecting the elderly and placing quarantine orders on those with high probability of testing positive for the disease.

That same money would otherwise allow millions of families – many of them in the lowest income brackets – to pay the rent, put food on the table, and afford health care.  Our states do not shut down their economies every winter to stop the flu, which can kill 60,000 a year nationwide.  Even if the deaths from the coronavirus extend to a higher estimate of 200,000 deaths nationwide, or 24,000 deaths in California, we are still forgoing millions in economic activity to save each life.  While each life is precious, our society chooses not to stop all economic activity to stop other illnesses, such as the flu, or to forgo certain valuable freedoms such as driving to reduce auto accidents.  As the Great Recession showed, massive economic losses can cost lives too by reducing incomes, decreasing longevity, and increases in death by suicide and drug overdoses.

Our state officials should explain whether they could have implemented other policies that could have reduced the spread of the disease without incurring such massive economic destruction.  Did state officials consider less intrusive measures, such as quarantining the identified infected and safeguarding the elderly, who are most vulnerable to the illness, instead of imposing a shutdown of the state’s economy? Was any consideration given to the human health effects of the mandatory stay-at-home order, including exacerbation of mental health issues such as depression and anxiety; a predicted increase in domestic violence; suicides by business owners facing debt and ruin? We simply don’t know.

These are tough decisions. California cannot spend whatever it takes to save every life.  In the 2017-18 flu season, the CDC estimates that 61,000 Americans died of influenza; but we do not impose the types of economic lockdowns and social distancing we see today to stop the flu.  We elect officials to state government to make these policy decisions for us, in a responsible and informed manner.  If they do not explain how and why they arrived at their decision, they risk popular discontent.  If the lockdown continues for weeks on end, and it appears that our leaders imposed statewide quarantines without sufficient proof that the numbers of lives saved would justify the heavy, widespread cost, they even risk civil disobedience where Americans will simply ignore the bans on social and economic activity.  No state has enough manpower to control an unwilling American population.

Lockdown critics might also point to the fact that the states imposing the most draconian suspensions of civil liberties – the rights to travel, congregate, or use property, enjoy due process before the loss of your business or livelihood – have a mixed record when it comes to public safety. California has the highest homeless population in the nation, with over 100,000 living on the streets in squalid conditions that lend themselves to disease outbreaks, including hepatitis, typhus, and others. A lack of public trust as to the consistency of the government’s public health intervention may undermine confidence in the current orders.

This is a good area where the law can step in.  Lawsuits could challenge the government to explain itself and to even compensate business losses for panicked decisions. The Takings Clause of the Constitution, for example, requires just compensation when the state takes private property for public purposes.  If Newsom or Cuomo commandeer hotel rooms to convert into makeshift hospital rooms, the states would have to pay the market rate.  On the other hand, if the state has to close restaurants that fail health and safety codes, they do not.

Statewide lockdowns test these principles and would demand that state governors explain themselves.  A restaurant or nail salon shut down by the lockdown orders is not inherently a threat to public health or safety.  It is as if the governors commandeered all of these private spaces because people might congregate there and – they believe – spread the virus.  If the state forbids private property owners from using their land for a reasonable, lawful purpose, it must compensate the owners for sacrificing for the public good.

In this crisis, property and business owners could claim that the state cannot force them to bear alone the costs for achieving a social goal.  And at the very least, such lawsuits would force state government to explain why the benefits shutdowns exceed their costs, when compared to less intrusive approaches such as quarantines, monitoring, and testing. Our Declaration of Independence recognized the natural law principle that the consent of the governed is needed for that government to have enduring legitimacy – and hasty infringements on individual rights will soon test that consent.

John Yoo is Heller professor of law at the UC Berkeley School of Law, a visiting fellow at the American Enterprise Institute, and a visiting scholar at Stanford University’s Hoover Institution. From 2001 to 2003 he served as Deputy Assistant Attorney General in the Office of Legal Counsel in the Justice Department of President George W. Bush. Harmeet K. Dhillon is a trial lawyer and a partner in the Dhillon Law Group in San Francisco. She is the founder of the Center for American Liberty, a civil rights nonprofit organization.

Contra Costa Superior Court remains closed through April 30, update on acceptance of filings

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By Matt J. Malone, Public Information Officer, Superior Court of California, County of Contra Costa

The Court has requested authorization from the Chief Justice to continue its closure through April 30, 2020 and will issue a further release with details as to what Court operations will resume during any extended closure period.

While Court offices and facilities remain closed, the Court will begin accepting certain urgent filings as follows:

• Emergency Criminal and Juvenile Matters. The Court will accept filings for emergency criminal and juvenile matters only beginning March 30, 2020.

o Criminal filings will be accepted via a drop box placed at the Main Street entrance of the Wakefield Taylor Courthouse in Martinez.

o Juvenile filings will be accepted via a drop box at the Walnut Creek Courthouse.

o “Emergency matters” will be specifically defined in Emergency Local Rules which will be posted on the Court’s website as soon as possible.

• All other matters EXCEPT Traffic and Unlawful Detainer matters. The Court will begin accepting certain filings for these matters on April 6, 2020. Emergency Local Rules governing these filings will be posted to the Court’s website by April 1, 2020.

o Civil and Family filings will be accepted at a drop box placed at the Main Street entrance of the Wakefield Taylor Courthouse in Martinez.

o Family filings only will also be accepted via a drop box at the front of the Family Law building in Martinez.

• Unlawful Detainer matters may not be filed at this time.

• Traffic matters will not be handled at this time. If you seek to pay or challenge a traffic ticket, the Court remains closed. Please contact the Court upon reopening. No Court penalties or fines accrue during the closure.

• Additional drop boxes available at branch courts. Beginning April 6, drop boxes will also be made available at both the Pittsburg and Richmond branch courts only for filings in case types heard at those locations.

• Acceptance of filings by mail/delivery. The Court will accept approved filings, as defined by the case-type Emergency Local Rules, by mail or other delivery such as FedEx. Couriers will not have access to Court facilities, only to the drop boxes.

The Court will not schedule hearings or reset hearings that were scheduled during the closure period until the Court reopens, with the exception of urgent matters described above and those to be set forth in Emergency Local Rules. The Court will inform you of the rescheduled hearing date. Please do not call the Court asking for a date.

The Court will be closed completely on March 31, 2020, in observance of the Cesar Chavez holiday.

As with its initial closure, the Court’s request for a continued emergency order and limited closure is not in response to a specific notice of exposure at any Court facility or to any Court staff.

OP-ED: Gov. Newsom’s Executive Order for 40 million Californians to Shelter In Place is not an order, it’s a recommendation

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By Mark Meuser

Thursday, Governor Gavin Newsom issued Executive Order N-33-20. The Office of the Governor of California’s official Twitter account said that “Governor Gavin Newsom issued a stay at home order to protect the health and well-being of all Californians and to establish consistency across the state in order to slow the spread of COVID19.”

However, a more careful look at the Governor’s Executive Order shows that he actually made no such order. (https://covid19.ca.gov/img/N-33-20.pdf). The Executive Order reads “To preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all, and prioritizing those at the highest risk and vulnerability, all residents are directed to immediately heed the current State public health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19.”

The word “heed” is the important word in this order. According to Merriam-Webster’s dictionary, the word “heed” means “to give consideration or attention to”. As such, Governor Newsom has not actually ordered the people of California to obey the Public Health Officials but instead ordered “all residents are directed to immediately [give consideration to] the current State public health directives.”

While the Governor of California has broad powers to suspend laws and regulations while the state of California is under a State of Emergency, he does not have the power to abolish citizens constitutional rights. (Gov. Code § 8571).

California Constitution Article 1, Section 1 states “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

California Constitution Article 1, Section 7 reads “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws …”.

The problem for Governor Newsom is that the Public Health Officials do not have the authority to quarantine someone who has not been infected. This violates Californians’ Constitutional Rights. The California Courts have held that people have a right of liberty from being quarantined unless the public health official has probably cause that they are infected. In Ex parte Arata, the California Court of Appeals ruled that “A mere suspicion, unsupported by facts giving rise to reasonable or probable cause, will not justify depriving a person of his liberty under an order of quarantine.”

Furthermore, in the case of In re Shepard the California Court of Appeals ruled that “Mere suspicion that an individual is afflicted with an isolable disease was not sufficient to give a health officer ‘reason to believe’ that such person was so afflicted, … making it the duty of health officers to protect the public against spread of such disease from persons whom such officers have ‘reason to believe’ were afflicted with such diseases.”

Public Health Officials do have the authority to quarantine someone who they have reason to believe has been infected by the virus. California law actually permits the Public Health Officials to quarantine such individuals without a court order. In Ex parte Johnson the California Court of Appeals ruled that “One infected with a contagious disease … might be subjected to quarantine regulations by the health commissioner of a city, without its first being judicially established by some proceeding in court that he or she was so infected.”

The reality of the situation in California is that Gavin Newsom has ordered the Department of Public Health to develop a policy for how to deal with the Corona Virus. However, the recommendations by the Department of Public Health are unconstitutional. Rather than ask the Department of Public Health to go back and rewrite the policies, Gavin Newsom tells everyone that he is ordering them to obey the directives of the Department of Public Health. However, regardless of what Gavin Newsom says with his mouth in press conferences or says on his social media accounts, the actual text of his Executive Orders are the laws. (Gov. Code § 8567).

The text of Gavin Newsom’s most recent Executive Order is merely a suggestion that the people of California obey the unconstitutional directive being published by the Department of Public Health. Whether or not it is advisable for people to stay home is not the question, the Department of Public Health does not have the authority to pass such a law, and Gavin Newsom does not have the authority to suspend Californians’ Constitutional Rights just because California is in a State of Emergency.

Meuser is a Constitution and elections law California attorney with the Dhillon Law Group. He is a former resident of Contra Costa County and 2018 candidate for California Secretary of State. You can follow him on Facebook.