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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

Writer complains about waiting 7 hours for out of state phone service to schedule free COVID-19 test, not having comment read during Supervisors meeting

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Dear Editor:

Please run this scathing letter that I wrote about my terrible experience in not getting a COVID-19 test late last week.

But the other part of the story is that it was not read into the record during Tuesday’s Board of Supervisors meeting. Instead it will be “shared” with the supervisors, according to Jami Napier, Chief Assistant Clerk to the BOS.

In an email response she wrote, “This email will be shared with the Board of Supervisors. We are not reading emails into the record at this time.”

I responded, “Shame on you!  The agenda states that written comments will be accepted before and during the meeting.  I feel that I am being marginalized by the county. I feel cheapened. I cannot even get a Covid test; and then you do this to me.  Written comments should also be read into the record. Bad!”

Board of Supervisors Chair Andersen:

The county is playing with the lives of citizens, especially seniors when the county announces free COVID-19 testing for anyone regardless of one’s health, and the county’s out of state telephone message service is unable to properly handle the avalanche of incoming calls. Shame on the county and the telephone service!

Thankfully neither I nor my wife have COVID_19 symptoms, but last Friday I was on the phone 7 hours futilely waiting to make an appointment to line up appointments for free COVID-19 tests.  No one answered my call.  Incredible!

Later that day I talked to Supervisor Federal Glover who confirmed with that the health department is swamped with calls and is working to resolve the issue. That’s all that he could do for me and my wife. What a bummer!

The problem is, what if someone like myself or my wife, really has COVID-19 symptoms?  What do they do then if they cannot make an appointment like I attempted to do?  I suppose the answers to those questions is, wait for one’s maker, death!

This situation is unacceptable. The county and supervisors should be held accountable and correct this problem now!

Sincerely,

Daniel & Leslie Borsuk  

Pittsburg

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

Contra Costa County: Compassion and Community in Action

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Messsage from the County Health Director

Contra Costa County Health Services Director Anna Roth, RN, MS, MPH. Photo: CCHealth.org.

For all of us caught in the midst of this unprecedented pandemic, life has changed fundamentally. How we socialize, learn, exercise, dine and work has been reshaped entirely in the course of just a few weeks. That level of change, combined with the inherent health concerns related to COVID-19, has created levels of stress and anxiety typical of war zones. Combine all that with the frustration of not knowing when this might end, how we will all be impacted and what a post-COVID-19 world will look like and you might expect fractures in our community.

But we’re not breaking apart. In fact, as I look around, I see a community that is pulling together in many different and powerful ways. Yes, we’re all under immense stress, but Contra Costa County has risen to the challenge, showing a level of respect, cooperation and involvement that is simply remarkable. It’s too early to predict the future, but one thing I do foresee is Contra Costa County emerging from all this with pride for modeling a remarkable level of civility and leadership.

It’s these increased acts of community participation that make it possible for Contra Costa County Health Services to respond in a coordinated, science-based and thoughtful manner to this crisis. The health department’s purpose is to protect and preserve life. We prepare and practice for mass emergencies on a regular basis—earthquakes, fires, disease outbreaks and other disasters. It is our obligation to be prepared even for a once-in-a-century pandemic. And now, with COVID-19, our purpose inspires and drives us to balance the need for extreme caution with a respect for your need to live as normal a life as possible in the face of this crisis.

As one of the first states to see COVID-19 cases, California could well have faced the same catastrophic impacts that other states are now experiencing. However, because of the courage and foresight of health and government officials in Contra Costa County and the entire Bay Area, we took strong and immediate action. Issuing one of the nation’s first region-wide shelter in place orders, the Bay Area slowed the spread of this unprecedented threat to prevent the crushing demand on hospital resources, which prevented illness and death. None of this is possible without the understanding and cooperation of all of you. Your willingness to alter your lives in ways we know are disruptive is vital for the health and well-being of the entire community as well as the safety of our essential workers.

Part of what’s made our response effective thus far has been the cooperation and coordination of the entire county government apparatus. From our Board of Supervisors and County Administration to the multiple different county departments, we are seeing an unprecedented level of alignment and action. Separate departments are sharing resources, staff expertise and contacts to make sure that the county’s response is as comprehensive and coordinated as possible. By the same respect, the county’s 19 cities are partnering closely with all of these efforts to magnify our reach, impact and efficiency. This has been a true example of a whole government response to support and protect the people of Contra Costa County.

Rightly so, there has been a lot of focus on the amazing individuals on the front lines of this epidemic – our healthcare workers, medics, police, fire and many more. As the county’s health director, I have never been more inspired in my entire career than to work with doctors, nurses, clinicians, lab workers, disease investigators, community health workers, registration, administration and custodial staff and countless other essential workers who have never once questioned their responsibility. Instead, they come to work every day dedicated to protecting and preserving lives in our county. It is humbling to witness this level of commitment to others. And for every worker that is responding on the multiple front lines of this pandemic, there’s a team of support staff working to make sure they have the materials, protection, data, information, and expertise they need so they can focus their attention on the work of helping people get and stay well.

The other day, I was on my way to a field health care site we have prepared. As I was driving, I saw a gathering of people at a local school. With masks and gloves on, dozens of volunteers had shown up to distribute food to their neighbors, friends and strangers who are feeling some of the greatest economic impact of this pandemic. As I passed the group I was filled with gratitude. I believe this deep sense of community and connection is part of what makes us resilient and will take us forward to greet the days ahead.

Many thanks for all the ideas, feedback and information so many of you have shared with Contra Costa County Health Services. Your input is helping us to improve each day. Thank you for your continued support of our health department and each other.

Wishing you all safety, health and wellness

Anna Roth, RN, MS, MPH

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.

Payton Perspective: How did we allow unelected officials to make decisions affecting millions of Americans?

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As most Californians and Americans shelter in place, the children are being homeschooled with online learning, high school and sports tournaments and championships have been cancelled, professional sporting events postponed, movie theaters closed and churches holding online services, the question that comes to mind is how did we allow unelected officials to make these decisions that are not only negatively affecting millions of Americans, but limiting our God-given, constitutionally-guaranteed, First and Second Amendment rights of freedom of religion and assembly, and the right to bear arms. Plus, their decisions are creating potentially long-term devastating effects to our economy.

There have been some positive results and responses to our current situation, from the outpouring of generosity and hospitality from Americans both old and young, rich and poor, as well as the quick response by many in the American business sector to retool their manufacturing capabilities to meet the demands of the healthcare industry.

Yet, it’s the county health officers, not the elected members of the county Board of Supervisors who issued the shelter in place orders. It was the state health officer who, a few days later, issued the statewide stay at home order, which our elected governor announced and issued an executive order to support. It wasn’t our elected school board members who closed the schools, but our superintendents who – I was surprised to learn – have that authority and exercised it.

So far, 10 million Americans who have been thrown out of work as a result, have filed for unemployment, because millions of businesses are closed. That means they can’t pay their employees, their rent to their landlords, nor pay their suppliers, who in turn can’t pay their employees or bills.

Now, we have a conflict over which businesses and workers are considered essential, among the county, state and federal governments. Can residential construction continue or not? Are Realtors essential or not? That depends on which county you live in based on the determination of that county’s health officer. Should that be the way it’s decided and who should be deciding it, and affecting two of the major industries in our nation?

The statistics show most people won’t contract the virus, because most of us are generally healthy. Most of those who do won’t need to be hospitalized and the ultimate fact is very few of those who are hospitalized will die from it. Plus, many who have died had other, underlying health challenges.

Add to that the fact there are conflicting projections of how many people will actually be affected by or die from the Wuhan/coronavirus/COVID-19. Also, it’s not affecting each county, state or even each nation, the same.

The bottom line is, too much power has been placed in the hands of those with no accountability to “we the people” and all of them who have made such decisions have a guaranteed, government salary and benefits. So, their decisions of closing businesses and ordering most of us to shelter in place aren’t affecting their ability to earn a living and pay their bills.

This is a democratic republic, a government of law with elected representatives who pass and implement those laws. Once this is over, and it needs to happen sooner rather than later, we the people need our elected representatives to take back control of our county, state and nation, and change who gets to make these decisions in the future. We need our elected officials to make the common sense, balanced decisions, and protect our collective interests, instead of abdicating their rightful leadership roles to non-elected officials.

In our country and with our form of government, non-elected officials are supposed to make recommendations to our elected officials who answer to “we the people”. Then it’s the elected official’s responsibility to make the final decisions. 

Yes, good health is number one. But being able to provide for ourselves and our families, now and for the long-term, is a close and possibly equal second. There must be a balance between protecting the public health with the ability for individuals to meet their own needs and those of their families.

Here’s what we need our elected leaders to do as soon as possible, to get us back to our lives: require those who are vulnerable, over age 70 or with health challenges, to self-isolate and shelter in place, while the rest of us get back to work, while being careful to wash our hands, sneeze and cough into our elbow bends, social distance as much as possible, wear masks, and wipe down surfaces, etc.

Elected officials, it’s time to step up and take back control of the government we elected you to lead.

 

OP-ED: COVID-19 mitigation is not vacation

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By Don Amador

With hospitals and emergency responders running out of masks and other PPE in California and elsewhere, it should come as no surprise that local, state, and federal land managers are expanding the scope of their COVID-19 temporary access restrictions to popular destination recreation sites that – are or have the potential to -attract large crowds of visitors.

For example, California State Parks issued a news release late last night that stated, it is taking additional safety measures to reduce crowds and help prevent the spread of COVID-19 (coronavirus). Many state parks and beaches received record visitation over the weekend which made it impossible for the public to implement appropriate social distancing practices.

LINK TO STATE PARKS ANNOUNCEMENT

https://www.parks.ca.gov/NewsRelease/945

The Nevada BLM issued a temporary closure order for the Sand Mountain Recreation Area near Fallon, Nevada.   As many of you know, the Sand Mountain OHV Area is a popular destination site for families and clubs that enjoy riding dirt-bikes, ATVs, SxSs, and 4WD vehicles.

LINK TO NV BLM CLOSURE OF SAND MOUNTAIN

https://www.blm.gov/sites/blm.gov/files/documents/Emergency%20Closure%20Order.pdf

Based on photos and stories posted on social media, it appears that many motorized and non-motorized recreationists have misinterpreted various “shelter-at-home” orders from state or county government as authorization for them to take a short or long-term vacation – often with large groups – on public lands.

Until we collectively “Flatten the Curve,”   recreationists should honor the stay at home directives and if they do go out for trail activities it should be close to home and/or in dispersed areas sans large crowds where social distancing is practiced. Respecting the seriousness of this issue will hasten its resolution and help expedite the withdrawal of closure orders and the reopening of public lands for both casual use and permitted events.

The professional healthcare workers, law enforcement officials, and park maintenance staff that I know, will be greatly appreciative of us doing our part to address the coronavirus.

Amador has 30 years in the recreation management and advocacy profession. Don is president of Quiet Warrior Racing, a recreation consulting company located in Oakley, CA. Don is also CEO of the Post Wildfire OHV Recovery Alliance, a non-profit group that works with volunteers and land agencies to recover, restore, and reopen recreation facilities damaged by wildfires. Don may be reached via email at: damador@quietwarriorracing.com

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.

Writer supports Supervisor Burgis for re-election for her “integrity, brilliance and imagination”

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Dear Editor:

I writing to express my genuine respect, admiration, and appreciation for Supervisor Diane Burgis and whole-heartedly support her re-election.

We are blessed to have a leader with the level of integrity, brilliance, and imagination that Diane has demonstrated in serving the people of Contra Costa. She is a woman who is relentless in her efforts to bring innovation to our region and has made significant strides towards job and business creation to support our local workforce.

I have witnessed first-hand Diane’s wisdom and her dedication to regional improvement through her work on business-based drone development in far east Contra Costa, the creation of a multimillion-dollar light industrial park at the site of the former DuPont plant in Oakley, and the launch of the Family Justice Center in Antioch that includes job training and support for people who have been victims of human trafficking as well as those who seek skills training in technology employment through the work of the “Love Never Fails” project that has made significant impact throughout the Bay Area.

Diane is accessible and genuinely loves our communities and those of us who live here. Please cast your vote for Supervisor Diane Burgis, so she can continue with the amazing work she is doing for the benefit of our families. My husband Keith is fully in support of this statement.

Iris Archuleta

Antioch

The Herald recommends Martinek for Congress in District 9

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William Martinek

There are two candidates challenging six-term incumbent Congressman Jerry McNerney, retired U.S. Marshal and L.A. police officer Antonio “Tony” Amador who is running for his third time and newcomer, financial advisor and decorated combat Army veteran William Martinek. I’ve compared the two to decide who to support and vote for. Both are good men and have already served our nation. Both want to serve our country, again as a member of Congress. Both offer a serious contrast to McNerney.

Martinek is from Brentwood and jumped into the race early, showing a sincere interest in serving the people of our district. Amador, from Lodi in the San Joaquin County part of the district, only entered the race after he met Martinek and thinks he would be the better Republican candidate. They have similar views on the issues: national security and defense, transportation, jobs and economic development, and working to solve the problems of illegal immigration and homelessness. So, the main differences are age and life experience, but also commitment to run a serious campaign.

Amador is in his 70’s, married, a father, grandfather and great grandfather, and has a long history of public service, which is great, and I applaud him for that. Martinek is a much younger, married father who served tours in Iraq and Afghanistan defending our national interests, which I also applaud. He wants to take his energy to Washington, D.C. to work for us.

They both believe they can do better for our district than McNerney who is now in his 12th year in the House of Representatives.

But, the final, major difference I had to look at is which of the two Republicans will run a more serious campaign to replace the incumbent. In his first run for Congress, in 2014, Amador only raised and spent about $60,000, yet came within 5 percent of McNerney. Had he run a more aggressive campaign and raised more money to get his message out to the voters, Amador might have won. But, then in 2016, again waiting until the last minute, while the San Joaquin County Republican Party Chairman, he jumped in the race against Kathryn Nance, who had been campaigning for several months. Amador came in second in the primary, beating Nance by 2.6% of the vote, and making it into the general election. But, this time – during the presidential election year – he lost to McNerney by almost 15%.

If the Republicans hope to take the most winnable Congressional district in the entire nine-county Bay Area, plus San Joaquin County, it’s going to take a candidate who will be aggressive and raise the necessary funds, like Ricky Gill did in 2012, who raised and spent almost $3 million. But the candidate needs more life experience than Gill had, having just graduated from law school.

Martinek is that candidate. He’s serious about serving our nation and has already done so in the Army, and he wants to make things better for his family and ours, in both Contra Costa and San Joaquin Counties. And he’s willing to do put in the hard work to campaign aggressively and raise the needed funds to get his message to the voters so they can become familiar with him by the November election.

Please join me in voting for Republican William Martinek for Congress in the 9th Congressional District. For more information read the Herald article, here and visit www.williammartinekforcongress.com.

Allen Payton, Publisher & Editor