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August 12, 2021

The Endless State of Emergency Must End to Restore our Rights

On March 04, 2020, Governor Gavin Newsom declared a State of Emergency for all of California, granting himself a great deal of power, which he promptly used to infringe on the rights of all Californians. Now, more than 18 months later, the Orange County Board of Education, Robert F. Kennedy Jr., and Children’s Health Defense, California Chapter, are pushing back by filing a Petition in the California Supreme Court.

We are past the 500 day mark of a seemingly endless state of emergency in California. Governor Newsom has used his emergency powers to issue 149 executive orders so far. These executive orders have had wide-ranging effects, and caused physical, emotional, economic, and educational harm to many, including school-aged children who spent over a year in isolation and who lost many educational opportunities and rites of passage.  Now, the Orange County Board of Education, Robert F. Kennedy Jr., and Children’s Health Defense, California Chapter (“Petitioners”), are pushing back by filing a Petition directly in the California Supreme Court on Tuesday August 10, 2021. The Petitioners have now asked the Court to declare an immediate end to Governor Newsom’s declared State of Emergency and restore our representational government. Newsom’s own words have made this possible.

“This Petition is not about masks, vaccines, or any other specific policy issue,” said Scott J. Street, an attorney for the Orange County Board of Education who successfully litigated a case against the State last year after state health officials arbitrarily closed gyms based on no supporting evidence to show that gyms presented any special risk of viral spread that other businesses did not. Instead, “the Petition concerns fundamental issues of governance that are the foundation of American self-government and which cannot exist in an indefinite state of emergency. It seeks to restore the People’s right to participate in their government, to have policy decisions made in public by the People’s elected officials, and not behind closed doors by a revolving door of unelected technocrats.”

By law, a “State of Emergency” cannot go on forever

The California Emergency Services Act states in Article 1 that an emergency can be declared when there exists “extreme peril to the safety of persons and property within the state.”  This declaration grants the governor powers under Article 3, including a virtually unlimited budget and the ability to make laws without using the legislative process which normally includes public input, a cost-benefit analysis, and a certain level of transparency regarding the criteria that makes the law necessary.  The Emergency Services Act also sets rules for ending the State of Emergency in Article 13.  It states that: “The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated” (emphasis added).

Just last week, in defending himself against another lawsuit, Governor Newsom argued that the emergency had ended:

“[T]he State no longer faces a threat that the State’s health care system will be overwhelmed. To the contrary, all available evidence suggests a resurgence of cases, hospitalizations. and deaths to the level that prompted the Blueprint [for a Safer Economy last August] and the other now-rescinded public health directives at issue is unlikely to occur in light of the percentage of eligible Californians who are fully vaccinated.”

Newsom is trying to have his cake and eat it, too

“The Governor can’t have it both ways. He can’t claim victory over the emergency of Covid-19 in one court and immediately claim an emergency exists in another, just so that he can keep the people of California in a headlock.” said Robert Tyler, counsel for Orange County Board of Education.

The importance of ensuring that California’s state of emergency is terminated as soon as conditions warrant so as to not give the Governor unlimited power to rule by executive order indefinitely was nicely stated in a recent decision by California’s Third District Court of Appeal.  On page 18 of the decision, the court states “The Governor’s obligation under the Emergency Services Act to terminate the emergency and thereby nullify orders issued under his emergency powers as soon as conditions warrant, as well as the Legislature’s authority to terminate the emergency at any time with the same effect, provides a safeguard for the delegation of quasi-legislative authority in section 8627″ (emphasis added).

Nevertheless, despite such a built-in safeguard, Governor Newsom seems content with ruling California alone, with the help of a cadre of unelected and unaccountable agency officials. The other branches of government no longer seem to exist in California.

“This lawsuit seeks to restore democracy in California after a 17 month suspension.  Californians are tired of being governed by unelected technocrats ruling us by arbitrary dictates with no scientific basis in violation of our constitutional rights to transparency, public participation, and due process,” said Robert F. Kennedy Jr., Board Chair of Children’s Health Defense. “Government best serves public health when citizens participate in the regulatory process to craft policies annealed in the cauldron of debate as the regulatory system provides.”

“CHD-CA is extremely concerned about the lack of transparency of statewide orders affecting our children,” said Denise Young, Executive Director of Children’s Health Defense – California Chapter. “Parents and concerned citizens will never be able to participate in our representative form of government as long as Governor Newsom retains a death grip on his ’emergency’ dictatorial authority over the laws of California.”

What an end to the State of Emergency means

Ending the State of Emergency, whether by proclamation, legislative resolution, or court order, will return California to a normal, functioning, representative government. Once again, the legislature will be required to do its job of making laws. The agencies making often harmful and anti-scientific public health decisions will be subjected to normal administrative rule making procedures that require public input. It returns our rights as citizens to participate, once again, in the rule-making process. All of the executive orders issued under the state of emergency also end, giving us back control of our schools, businesses, and public places.

Under this emergency Petition, the Governor has 10 days to respond. Will the governor argue that the state of emergency continues, thereby indicating that he likes ruling by executive fiat or will he admit it’s time to return to the representational government he promised to uphold.

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Read the full press release here.

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About Tyler & Bursch, LLP (www.tylerbursch.com): With offices in Murrieta and Irvine, CA, Tyler & Bursch’s attorneys have been litigating civil liberties cases for more than 25 years in federal and state court. Tyler & Bursch provides pro-bono legal support through
the non-profit legal organization, Advocates for Faith & Freedom (faith-freedom.com).

About Musick, Peeler & Garrett, LLP (www.musickpeeler.com): Musick, Peeler & Garrett LLP is an established general practice firm with over one hundred attorneys practicing in six of California’s major metropolitan centers – Los Angeles, San Francisco, San Diego, Orange County, Westlake Village and Santa Barbara. Musick Peeler’s expansion from its origins in Los Angeles has mirrored the growth of business and industry in California.