California Business Owners Sue Gov. Newsom Over the Lockdowns

"[The police] asked me, are you knowingly going against Gavin Newsom's orders? And I said, 'Yes,'" says Annie Rammel, co-owner of the Oak and Elixir restaurant in the San Diego County beach town of Carlsbad, which was the site of mass disobedience of statewide lockdown orders in 2020.

On December 3, 2020, Gov. Gavin Newsom (D) ordered all California restaurants to stop serving customers in person and to convert their businesses to takeout only. It was the third shutdown order of the pandemic. Rammel had decided that enough was enough

"When the same person that's telling you and restricting you from being open is going to a restaurant himself and eating inside, not six feet apart, it puts a little fire in you to say… this isn't right," Rammel tells Reason, referring to photos capturing Newsom dining indoors unmasked with lobbyists at the pricey French Laundry restaurant less than a month earlier.

"I'm going to stand up for my rights. I'm going to stand up for my business that I worked extremely hard to run and to have, and I'm going to stand up for the community."

Rammel was skeptical of Newsom's assurances that the latest order would only last a few weeks and began organizing resistance with other local business owners.

"I told restaurant owners, you're not smart if you think this is only going to be three weeks. It's definitely going to be months. And I was right."

Rammel and other Carlsbad businesses formed a coalition that eventually numbered in the hundreds.

"We opened up, and it was crazy because [Carlsbad was] really the only city that was doing this outspokenly and telling the community, telling the news that we were going to stay open," says Rammel. "And we were going to continue to be safe. We're going to continue to wear masks and sanitize and six feet apart and do everything that we had been doing before. But that we were not going to close down."

Rammel was issued a citation by San Diego's public health department and by the state alcohol board, which threatened to revoke her liquor license.

But the county sheriff had decided not to enforce the governor's order. The local police issued her a citation, but she says they apologized as they did so.

"They said, 'We just want you to know that we don't want to be doing this. We want you guys to survive this, sorry,' as they're handing me the paper," says Rammel. 

Today, the coalition that defied the governor's orders is suing Newsom and their state and local health departments to drop the fines and compensate them for losses incurred because of the shutdowns. The defendants in the case declined to comment for this story. Whoever prevails, the case could have implications for what the scope of executive power truly is in a state of emergency.

"Underground regulations facilitate arbitrary enforcement, and they undermine the rule of law," says attorney Matt Harrison, who represents the San Diego County business owners. (Harrison is a former senior fellow at Reason Foundation, the nonprofit that publishes Reason and Reason TV.)

He says Newsom's emergency orders didn't follow the proper procedure for issuing new regulations.

"The most canonical, established application of due process is that the law needs to be clear enough so that a reasonable person can understand what's prohibited," says Harrison. 

Newsom's Blueprint for a Safer Economy, released on August 28, 2020, laid out a color-coded tier system indicating which types of businesses were able to open and in what manner. Harrison says that this plan wasn't legally binding because the governor didn't follow the correct legal procedure: Regulations in California are required to be submitted to the secretary of state, who then makes them available for a public review process. Regulations also have to be accompanied by an explanation for why they're justified.

"It's the rules for the rule-makers, the regulations for the regulators," says Harrison.

The state argues that the governor was able to circumvent this procedure because he was issuing emergency orders during a public health crisis.

This case is about whether due process exists in emergencies in the state. 

Rammel says that despite the governor's mantra, the regulations didn't follow the science with regard to COVID-19 spread.

"The restrictions didn't make sense. We were keeping people safe. The numbers from restaurants, there was no proof that the outbreaks were coming from us," says Rammel.

Rammel and the coalition lost the first round when a San Diego Superior Court judge dismissed the coalition's lawsuit. The case is now before an appeals court.

Courts have recently demonstrated a willingness to strike down administrative actions that circumvent standard rule-making procedures. Several Trump administration actions were struck down, including one that would have added a census question about citizenship status, one that would have changed deportation procedures, and an executive order that would have allowed employers to opt out of certain birth control insurance coverage.

Rammel says the fines she still faces for refusing to follow the governor's order amount to a couple of thousand dollars and don't threaten her livelihood. But this isn't a fight about money.

"I still feel like our rights are being tested, and that's scary because we live in America where we're supposed to be free, and we're supposed to be able to have our rights and make the choice to be open…And I think that's being threatened right now," says Rammel.

Produced by Zach Weissmueller; camera by Dillon Mortensen; graphics by Isaac Reese

Photo credits: Jim Ruymen; Brian Feinzimer/Sipa USA/Newscom; Dean Musgrove/Zumapress/Newscom; Paul Kitagaki Jr./Zumapress/Newscom