San Bernardino County is going to the California Supreme Court in an attempt to stop the stay-at-home order that went into effect in Southern California on Sunday, Dec. 6.

In a lawsuit filed directly to the state’s top court late Monday night, Dec. 14, the county argues that Gov. Gavin Newsom had no authority to ban all gatherings except protests and religious services, close many businesses designated as nonessential, end in-person dining at restaurants and cap restaurant’s occupancy at 20%.

It asks for a decision by Monday, Dec. 28, when the three-week stay-at-home order is set to either expire or be renewed.

Newsom’s press office did not respond to an email seeking a response to the lawsuit or the legal authority for the orders.

Southern California county sues Gov. Newsom to stop
coronavirus lockdown 1San Bernardino County Board of Supervisors Chairman Curt Hagman said the county believes the governor’s restrictions have made the coronavirus’s spread worse. (File photo by Jennifer Cappuccio Maher, Inland Valley Daily Bulletin/SCNG) 

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Not only does the county think those closures lacked legal authority, it thinks they hurt businesses while only worsening the spread of the novel coronavirus, said Curt Hagman, chairman of the county Board of Supervisors.

“We feel that we in local government have a better feel for what would work in our communities,” Hagman said in an interview Tuesday. “When you say people can’t go to restaurants, stores, churches, you’re basically forcing people indoors.”

And indoors is where the virus spreads worst, especially if people aren’t wearing masks — which authorities can’t realistically force people to do inside their home, Hagman said.

In announcing the stay-at-home order — which went into effect when a region has less than 15% of its intensive care unit capacity remaining and last at least three weeks — Newsom said it was necessary to slow the spread of the coronavirus.

The virus has spread rapidly since, as health officials had predicted in the wake of Thanksgiving gatherings. In Southern California, the percentage of unused ICU beds dipped below 15% within days of Newsom’s announcement and was at 1.7% as of Tuesday, Dec. 15.

Since the start of the pandemic, California has reported 21,194 deaths from COVID-19, including 150 Tuesday. In San Bernardino County, a record 1,319 people were in local hospitals, including 273 in intensive care, and 1,241 people have died of COVID-19 — an average of eight per day during December.

The stay-at-home order and earlier pandemic orders cite the California Emergency Services Act, which says in part that during an emergency, the governor will “have complete authority over all agencies of the state government” and “shall promulgate, issue, and enforce such orders and regulations as he deems necessary.”

The governor should declare the emergency over “at the earliest possible date that conditions warrant” or when the state Legislature declares it over, according to the act.

San Bernardino County asks the court to find either that the act does not allow Newsom to pass laws nine months into an emergency or — if it interprets the act as including that power — that the act should be struck down because it delegates legislative powers to the governor in violation of the state constitution.

The Michigan Supreme Court declared that governor’s orders, also intended to curb the coronavirus, to be unconstitutional based on a similar law rooted in the Michigan constitution, San Bernardino County’s attorneys note.

The county hired the firm of Tyler & Bursch, which has offices in Murrieta and Anaheim and is handling other lawsuits objecting to aspects of the state’s coronavirus response.

The lawsuit also says that San Bernardino County has extended significant resources enforcing the order, which it argues could have been better used elsewhere. The Sheriff’s Department has spent about 117,281.5 regular hours and 24,356.5 overtime hours on COVID-19-related activities, according to the lawsuit. Those activities ranged from following up with businesses accused of opening in violation of state orders to handling rushes on toilet paper, Hagman said.

San Bernardino County Department of Public Health has also had to take time away from important duties like family services, animal care and control, nutrition, and public health education, the lawsuit states.

“The Respondents subjectively decided that these services were secondary to the enforcement of their Stay-At-Home laws, requiring the SBPH to enforce Respondents’ legislative acts instead of allowing SBPH to provide important services to County residents,” the lawsuit says.

That’s especially important as the department now wants to shift its focus to distributing the coronavirus vaccine to residents, the lawsuit said.

When they decided in November to pursue the lawsuit, supervisors said they would like to get other counties and officials involved in the lawsuit.

To file the lawsuit as quickly as possible, they changed their strategy so that it wouldn’t be necessary to wait for counties to debate the lawsuit at a regularly scheduled meeting and possibly ask for changes, Hagman said Tuesday. But officials in Riverside, Orange and other counties have expressed interest and he encouraged them to file friend-of-the-court briefs supporting the lawsuit, Hagman said.

Even as they push against the governor’s orders, Hagman said, they still want people to take the virus seriously.

“Our beds are full at the hospital right now,” he said. “This is a dangerous time right now. … It’s related to things we’re doing in our homes, with our family and our friends, not related to outdoor dining. Those are punitive measures that we want to stop.”