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.