Democratic Gov. Gavin Newsom's ability to dictate the conditions of reopening California's economy is being challenged in a new lawsuit by small business owners who claim that the governor's pandemic restrictions have endangered their livelihoods—as well as representative government in the state.
"We've been shut down since mid-March and that's been completely devastating," says Daryn Coleman, owner of Ghost Golf, who is currently suing Newsom. "I have bills racking up. I have balances building on everything."
Coleman's business, a ghost-themed miniature golf and family entertainment center in Fresno, California, was forced to close, alongside all other nonessential businesses in mid-March, when Newsom first issued his emergency declaration.
Since then, he's been at the mercy of reopening conditions set by the governor and the California Department of Public Health (CDPH), which has kept Ghost Golf closed but for a few days in early June.
The state's latest reopening criteria don't give Coleman much hope of being able to open his doors again soon, let alone turn a profit.
The state's latest Blueprint for a Safer Economy places counties in one of four color-coded tiers based on their number of new cases (case rate), and percent of COVID-19 tests coming back positive (positivity rate). The higher a county's case and positivity rates are, the fewer businesses and social activities are permitted.
Fresno County is in the second-most-restrictive purple tier. That means Coleman's Ghost Golf, like all amusement parks in the county, is closed. Gyms, dance studios, and aquariums can open at limited capacity and under certain conditions.
Coleman will have to wait until his county is admitted into the next least-restrictive tier before being allowed to open. Even then, he'll only be allowed to operate at 25 percent capacity. That could be too little, too late for Ghost Golf.
"I honestly don't know if I will survive even if I am allowed to reopen," says Coleman, pointing to those capacity restrictions and the fact that business closures have already cost him busy summer months and the Halloween rush. "We're a haunted-themed place and I lost October, which is usually a really good month for us."
On Thursday, Coleman and Nieves Rubio, a restaurant owner in Bakersfield, California, sued Newsom, California Attorney General Xavier Becerra, Acting State Public Health Officer Erica Pan, and CDPH Director Sandra Shewry. Their lawsuit argues Newsom's business closures are a usurpation of law-making powers reserved for the state's Legislature.
"The governor is essentially making law. He has no authority to do that," says Luke Wake, an attorney with the Pacific Legal Foundation (PLF), which has filed the case on behalf of Coleman and Rubio. "We're now seven months into what is really autocratic rule, one-man rule."
Newsom's orders have invoked the state's Emergency Services Act, which enables the governor to declare a state of emergency, and gives him sweeping powers to craft regulations and direct state agencies' actions when responding to an emergency.
While this law consolidates executive power in the hands of the governor, argues Wake, it doesn't create new executive powers that haven't already been approved by the state legislature.
"The Emergency Services Act allows the Governor to coordinate all aspects of the executive branch of the state and to exercise all powers already granted to any executive agency of the state," reads the lawsuit. "It does not grant the Governor the authority to take actions not otherwise authorized by the California Constitution or by statute."
The legislature, Wake notes, has passed several bills related to the COVID-19 pandemic while contenting themselves to let the governor and public health officials set the pace of the state's reopening.
The lawsuit PLF has filed on behalf of Coleman and Rubio is asking the court to declare the governor and CDPH exceeded their authority by ordering business closures and to strike down the entirety of the state's Blueprint for a Safer Economy as unlawful.
During coronavirus, the courts have generally have been loath to strike down lockdown orders and business closures in response to plaintiffs claiming their individual rights have been violated, citing a 1905 U.S. Supreme Court case which upheld a mandatory vaccination law as a constitutional exercise of state's police powers.
Lawsuits alleging that state governors and public health authorities have unjustly assumed powers reserved for state legislatures have proven more successful. State supreme courts in Wisconsin and Michigan shot down their governors' respective business closure orders for violating the separation of powers.
Every day, Coleman says he gets numerous emails and phone calls asking if his business is open yet. He hopes that this lawsuit will undo the restrictions keeping him from serving these customers, restrictions he considers arbitrary as well as financially ruinous.
"I can go work out at a gym. I can go get a massage if I want. I can go to a movie theater," he says. "but playing laser tag or indoor miniature golf is too great a risk?"