South Bay and Harvest Rock Are Now Fully Briefed Before the Supreme Court

California did not argue the controversies were moot. Now the case is ripe for resolution.

Earlier this week, I blogged about California's decision to lift the regional orders shutting down indoor worship. Now both South Bay and Harvest Rock churches are back to the Supreme Court. Both cases are fully briefed. I had anticipated that California would argue that the dispute were moot, in the never-ending game of Whack-a-Mole. I was wrong. California concedes that the restrictions are still in effect.

The very end of California's opposition brief is something of a proffer to the Court--if you rule against us, please leave the percentage restrictions in place.

Should this Court disagree, however, it would be critical for it to tailor any injunction and preserve some latitude for state public health officials to limit the number of people attending large and communal gatherings indoors, in order to mitigate the virus's spread. Cf. Roman Catholic Diocese, 141 S.Ct. at 68 ("[W]e should respect the judgment of those with special expertise and responsibility in this area."). The court of appeals has already enjoined the numerical capacity limitations in Tiers 2 and 3, South Bay App. A 47-49, and this Court has recognized that, even with those caps, the limitations in Tiers 2 through 4 are "far" less restrictive than the New York restrictions that were enjoined in Roman Catholic Diocese, 141 S.Ct. at 67 & n.2.57 While the State firmly believes that the Tier 1 restrictions are constitutional and critical to preventing excessive spread of the virus, if the Court were to enjoin those restrictions, it should leave the percentage capacity restrictions in Tiers 2 through 4 in effect, and specify that the State may impose the Tier 2 percentage capacity limitations on counties in Tier 1. Cf. Roman Catholic Diocese, 141 S. Ct. at 68 (leaving in place proportional capacity limitation). It would also be critical to allow the State to continue imposing requirements such as "social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services." Id. at. 69 (Gorsuch, J., concurring).  

Given this posture, Chief Justice Roberts will have an opportunity to rule on a case that is not moot. Justice Breyer will be in a tough spot, as he was sympathetic to the arguments presented in Diocese of Brooklyn. Where will Justice Kagan go?

I also commend the Becket Fund for flagging Governor Newsom's "bait-and-switch":

California officials told reporters by at least the morning of January 22— well before the Ninth Circuit panel issued its decision—that it had ICU data it was not sharing with the public, again because it would "mislead." Don Thompson, "It's a secret: California keeps key virus data from public," ABC News (Jan. 22, 2021), available at https://perma.cc/XYN5-3QRB. After receiving sharp criticism from academic epidemiologists—including from Dr. George Rutherford, one of California's own declarants in the Harvest Rock case—California officials decided over the weekend to release the data. Ibid. As it happened, that data showed a massive improvement in California's ICU capacity, including in Southern California. Yet for some reason, California did not share this information with the South Bay panel, which had been led to believe that the ICU capacity metric was far worse than it actually was. By Monday, California wasn't even taking ICU capacity into account in determining what activities would or would not be allowed. See State of California, Blueprint for a Safer Economy, https://perma.cc/DTL6-H79S ("Every county in California is assigned to a tier based on its test positivity and adjusted case rate."). In situations of information asymmetry, courts can be tempted to defer completely to the assertions of government officials. But where core First Amendment rights are at stake—and where no other state in a similar situation has imposed the "draconian" measures California has—courts must be willing to look behind the curtain. Harvest Rock Church, 2021 WL 235640 at *1, *3 (O'Scannlain, J., concurring). Cf. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 500–501 (1984) (appellate courts have duty of independent review in First Amendment cases). California's deliberate withholding of information is another reason it cannot meet its burdens of proof and persuasion on strict scrutiny.

We should get a ruling in the next week or two.

Comments

[Dr. Ed 2]

I'm wondering if CA is worried about a decision going further than even the churches are asking.

Somehow, I don't think SCOTUS will think highly of CA not releasing its own data to the 9th Circuit -- at what point does that become legal misconduct on the part of CA's attorneys?

Can SCOTUS demand to see it?

[jb]

The Beckett Fund is (for lack of a better term) full of shit about the "bait and switch":

(1) California has now, and has had for some time now, a dashboard that shows ICU capacity per region: https://covid19.ca.gov/state-dashboard/

(2) Both Southern California and the San Joaquin Valley are still at 0% ICU capacity, a week after the Backett Fund asserts that there was "massive improvement".

[Armchair Lawyer]

Can you actually trust California's government is telling the truth here?

[jb]

(1) Unless you are one of the crazies barging into hospitals demanding to see the full ICU beds because you don't believe that Covid is real, yes you can. ICU capacity is pretty easily verifiable--hospital administrators, doctors, nurses, etc. would all have to be in on the fix in order to fudge the numbers since there's thousands of people who could look at the data and say "wait, that's not correct for my institution".

(2) Irrelevant to the point at hand. The Beckett Fund isn't arguing that they have secret data that contradicts California's public data, it's that California itself wasn't revealing the data and when they did it showed a "a massive improvement in California's ICU capacity, including in Southern California". Both elements of that claim are wrong--the state is totally transparent about capacity, and Southern California is still at 0% ICU capacity in all the data they have published.

[mulched]

Hard to square your statement with the Dept of Health spokeswoman saying they have info they're not sharing. Maybe she knows more about it than you do.?

[jb]

It's only hard to reconcile because Beckett Fund are either lying or can't tell the difference between current data and forward-looking projections. The state was, for a few days, keeping some of it's models and projections secret while continuing to report real-time data. Then on January 25th they also released the models that they had used to decide on lifting the stay-at-home orders. These models show improvement in ICU capacity four weeks in the future, but don't contradict any of the statements that California made to the court or the public about the state of the pandemic or ICU capacity when they filed their response.

[Don Nico]

Jb,
Care to make a full disclosure to the readers.
Your tone is certainly indicative of someone trying to hide a conflict of interest.

[jb]

I am not involved in any way with the state of California or its Covid reporting or any of the legal cases at hand. I pay attention to the numbers because I'm currently in Southern California, so I'm a concerned citizen.

Most of Professor Blackman's posts on this topic are hyperbolic and/or assume bad faith on behalf of people he has political differences with. The Beckett Fund has taken that a step farther by trying to pretend California was lying when at worst they just have some confusing metrics and projections.

[Armchair Lawyer]

1) pretty easily verifiable...

Great. Has it been verified using non-government sources? Can you verify it for me without using non-government sources, since it's pretty easily verifiable?

2) California's government has already been keeping data "secret" before critical court decisions. Organizations that do it once are more likely to do it again.

[jb]

Nice try. If you want to argue that California is lying, the burden of proof is on you.

[Dr. Ed 2]

The wild card is that the number of ICU beds can vary -- it's staffing ratio and equipment that defines one, and particularly staffing. Hence a Med/Surgical bed can become an ICU bed if they are willing to hire the extra nurses.

[avb]

From your source, the only Southern California county to have zero ICU beds free at any point last year were Imperial and Inyo counties (the smallest counties, I suspect they only have something like 10 total each). Los Angeles, San Diego, Riverside, Venture, Santa Barbara and Orange counties always had ICU beds free. Los Angeles currently has 282.

[jb]

Yes, the "ICU beds free" metric is confusing because Covid cases get weighted in a way that can cause the number to be 0.0% or below when there are in fact free beds. I agree that's weird, but as someone else mentioned may be intended to make sure there's capacity for other types of cases.

Relevant to the discussion at hand, though, the state didn't change the way they compute this recently. They were using the same metric both before and after the 22nd, despite the Beckett Foundation's assertion that they secretly were showing something different.

[Variant]

These ICU's are not actually full. California uses a formula to declare them full but leave overhead for non-COVID patients.

I'm not recalling if they've released the details on the formula, but do think the raw data showing the ICU's are definitely *not* full is available somewhere.

[gormadoc]

Raw data says 305 available in LA when map was updated. In order to have 0.0% availability you need 305000 beds in the region, all but 305 full and no other county with free beds, generously assuming it's actually a truncated 0.099...%.

[Krayt]

Perhaps they should report negative capacity, with 1000 normal capacity but 1200 people in ICU with temporary overflow.

[Armchair Lawyer]

"California officials told reporters by at least the morning of January 22— well before the Ninth Circuit panel issued its decision—that it had ICU data it was not sharing with the public, again because it would "mislead."

Unbelievable.

[mydisplayname]

I'm happiest when I have nothing new to add and this is certainly one of those situations. As I have mentioned before, in Virginia and most other states Rt fell below 1.0 in early December: the prevalent variant of the virus has infected essentially all those it can infect and the pandemic of this variant will subside long before vaccine distribution is widespread. While this doesn't imply anything about ICU capacity -- or about the effect of the multitude of variants -- it does aid in understanding the role controlling politicians must assume; that is, the central planning leagues must now bend "science" (and conceal fact) in order to preserve the degree of credibility/plausibility/control necessary to combat future outbreaks.

We do not -- and are never likely to -- have a cure (or vaccine) for the common cold or any other coronavirus. We cannot continue to obey "emergency" restrictions as if a magical cure will be timely found; similarly, we cannot move forward having the false hope that a viral variant will not spread. So what lie -- what course of meaningless action -- should be pursued by those who wish to be in control? And who should rightfully be enslaved by the powerful ignorance?

We may collectively find that there is no such thing as "public health" and that instead each man has his own life and individual destiny. While I appreciate flat-earthers' earnest warnings to refrain from travel beyond the horizon, it is fortuitous that such warnings were disregarded: as it was then, it is now.

[Rev. Arthur L. Kirkland]

" the prevalent variant of the virus has infected essentially all those it can infect "

Sounds legit -- I believe I heard something similar from Drs. Marjorie Taylor Greene, Paul Gosar, Jessica Watkins, and Dawn Bancroft.

[Don Nico]

Once again your troll add nothing to the discussion

[Rev. Arthur L. Kirkland]

On that point, I defer to Billy Preston (with bonny backing band).

[Don Nico]

Once again you have nothing of substance to say.

[Rev. Arthur L. Kirkland]

Your avid consumption of partisan polemics and delusional rants makes your ostensible objection unpersuasive.

I sense you dislike educated, modern, reasoning people.

[jb]

"We do not — and are never likely to — have a cure (or vaccine) for the common cold"

Well, fortunately the common cold doesn't kill hundreds of thousands of people a year so this fact does not pose the same public health challenge.

[Stephen Lathrop]

We may collectively find that there is no such thing as “public health”

Which will leave whoever, "we," are struggling to explain world population increase during the 20th century—among other mysteries.

Still, for rationalists, your axiom looks rational. Anything which makes government look successful must be denied. More than denied, disbelieved. Then advocated against without show of self-doubt.

Left unexplained is the question whether cognitive habits like that buy group acceptance sufficient to offset the downsides. Obviously, it works for many. Do you suppose personal extent of dependence on social supports is what governs the balance?