Note: none of the information presented here is any form of this is legal advice to you or anyone else. Should you have any questions regarding your specific needs and circumstances, then you are encouraged to seek the advice of competent legal counsel.
As a Sacramento lobbying firm, our experienced lobbyists cringe whenever we see sloppy new laws or Executive Branch Orders which create confusion and uncertainty.
This analysis looks at Governor Newsom’s Executive Orders in consideration of:
– Separation of Powers Violations
– Adjudication / Appeal of this new Administrative Rule Making
– Due Process Violations
– California Public Health Officials having Exceeded their Authority
– Governor Newsom’s Timeline for Action
In response to recent “shelter in place” orders by State and local government, and waivers for “essential” personnel, many people are rightfully asking “what is essential?” The problem is there is no definitions of “essential” in federal or California state law, or in Governor Newsom’s Executive Orders.
Through Executive Order the Governor called upon local counties to create their own variety of ‘shelter in place’ orders, at the time of this review none of those municipalities have defined who is “essential”, either.
Depending upon whether you are an “essential” or non-essential person in the Governor’s opinion, your freedom, livelihood, economic viability, and standard of living may be severely harmed by these new administrative restrictions.
We determined Governor Newsom has relied upon this federal document to impose his new restrictions upon (non-essential) Californians. But the document was created behind closed doors, without public notice, and in secret. The document states it is a guiding “White Paper” according to the authoring Cybersecurity & Infrastructure Security Agency (CISA), under the U.S. Department of Homeland Security. But its distribution and purpose reveals it was clearly intended to be so much more.
Separation of Powers (Trias Politica)
There are substantial Separation of Powers issues with any Executive Branch entity performing the Legislative Branch function of creating a new “standard” for, expanding upon, or interpreting any law. Additionally, neither the Governor nor CISA held any public hearing, allowed any public comment, or adhered to any other due process requirement for their attempt at public policy making to create this new “essential” standard.
The CISA White Paper is utterly devoid of definitions. Instead, the paper uses vague and ambiguous terminology as it develops its guidance through mere descriptions and examples. As a result, understanding of the term “essential” must be exorcised by derivation from these examples.
The CISA descriptions refer to vague job titles which also lack definition, and the references to general duties may differ from one jurisdiction to another. The CISA White Paper document should have but failed to reference definitions within existing law.
By example, the document calls upon the vague term “occupational therapist” as one example of the “essential” personnel. Massage therapists are a healing arts variety of an “occupational therapist” in numerous jurisdictions and licensed by many states for their role in developing and maintaining recovery from a debilitating physical impairment.
But is a massage therapist “essential” personnel necessary to stabilize a society within a State of Emergency? Violating the Governor’s Executive Order may result in civil or even criminal penalties. Under these new and unclear orders which carry the effect of law, we simply cannot know with any certainty so as to avoid violating the broad language and referenced derivations relied upon by the Governor’s orders.
Secret rule making is not how our government officials are supposed to proceed with restricting the rights of any American.
An Appeal Process
Most county Superior Court systems in California remain open for filing “Writs of Habeas Corpus Challenging Medical Quarantines”. If you believe your rights have been violated, and there is no evidence that you are infected or have been in contact with someone who is infected, then you are encouraged to consult with a competent legal counsel to discuss restoring your rights and being made whole again due to any losses you may have suffered as a result of this improper rule making and potential violation of your civil rights.
In interpreting any statute or rule of law, there is a 3-pronged test of rules to guide the courts in these matters:
1) The Literal Rule uses the plain ordinary meaning of words. In Fisher v Bell  3 All ER 731 . What does “essential” literally mean? Essential means “extremely important”. Is avoiding bankruptcy and financial ruin — no matter what type of livelihood you have — extremely important? Yes.
The Literal Rule provides no reliable distinction in this regard.
2) The Golden Rule is an extension of the Literal Rule and has both a narrow and wider application and is used where the literal rule creates an absurdity. Widely used, is it essential to avoid financial ruin for which someone might never recover? Yes.
Is it narrowly essential for someone to receive a massage? Normally, no. But what if an “essential” patient is injured by way of seized muscles which causes pain so severe that it impairs work performance, and they need to return to work as soon as possible? Then, yes, if the massage provides relief.
Under the Golden Rule, the answer cuts both way and so without a legislative guidance or definition it is still unclear.
3) The Mischief Rule allows for more discretion and is not unlike the Doctrine of Competing Harms. By example, a law which forbids driving a carriage while intoxicated may also be interpreted to apply to an intoxicated person operating a bicycle if there is a public safety or public health police power being served.
Yesterday an Ice Cream Truck was driving around our neighborhood selling ice cream. Is that an “essential” food industry worker? Not credibly.
Golf courses are deemed to be “essential” while churches are not. Golf courses are “essential” for their social and mental health benefits through exercise, stress relief, and fresh air.
Hardware stores are also “essential” while churches are not. But can churches provide the same social distancing, limitations upon the number of attendees, and requisite sanitation services as “essential” stores? Yes.
So why are churches not similarly exempted? Prohibiting church gatherings while allowing non-religious social gatherings is also a content specific restriction in violation of the First Amendment, and would be subject to “strict scrutiny” by the courts.
What about our original example or massage therapists. Is it clear how all varieties of occupational therapists being exempted might be justified or unjustified based upon all information provided by the CISA document or subsequent government orders? It all depends.
The Mischief Rule provides no reliable distinction in this regard.
Under this 3-pronged test, the term “essential” may very well be voided as unconstitutionally vague.
Due Process Violations
In considering the secretive CISA White Paper, there are insurmountable problems with violation of due process. A Freedom of Information Act (FOIA) request for documents was submitted to the Department of Homeland Security and revealed that no public notice of a meeting, agenda, meeting minutes, invitee list, vote, public comment, or public review process existed during the rule making process for creating a standard for “essential” personnel.
Accordingly, the entire rule making process over how the standard for “essential” persons or businesses have been used by government enforcement agencies, including law enforcement is fatally flawed and unenforceable by any other government agency or public official.
All federal agencies are required to publish a “notice of proposed rulemaking” in the Federal Register for any notice, proposed rule, or rule. The public was never given this required notice that a new standard of “essential” personnel was being considered, discussed, and created. The public was not allowed its 30 days to submit public comment. This lack of proper notice, and the use of ambiguous terminology, is a flagrant violation of due process.
Further, any law or Executive Order which relies upon the undefined term “essential” is very likely null and void. The Executive Orders and county orders are also missing a severability clause for the event any “void for vagueness” argument is pursued at some point in the future over the problematic use of “essential” as a pivotal term.
In addition to being unclear, the CISA document also failed to adhere to the Administrative Procedures Act (APA, 5 U.S.C. §§ 551-559), which governs all federal Executive Branch agencies during all rule making.
The CISA White Paper was derived from private invite-only collaboration with selected parties and no public notice. But the APA requires strict adherence when “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefore or of valuations, costs, or accounting, or practices bearing on any of the foregoing.”
In short, whether intention or not, an agency is deemed to have created a “rule” when it seeks to “implement, interpret, or prescribe law or policy.” [Emphasis Added]
No State or local municipality may lend its legislative authority to any outside governmental or private entity which did not adhere to some level of due process standards for rule making. In the instance of CISA’s White Paper, there was no due process at all.
In that our State and our local municipalities have not defined “essential”, reliance upon that term arguably has no force of law because the rational and prudent person cannot plainly understand what is meant by it within a framework of clear and consistent application.
What we are seeing here is a fundamental breakdown of our rule making process.
CISA hasn’t had a public meeting since Feburary 19th, during which time CISA failed to include on its agenda any subject matter or discussion which was reflected within it published March 19th White Paper.
Should we grind an entire economy to a halt over vague and ambiguous terms?
In that some people’s constitutional rights to peaceably assemble have been restricted or in some cases eliminated, and some businesses have been arbitrarily determined to be non-essential (and their income has stopped, and people might be bankrupted), this issue matters very much to the financial well-being of a great many people.
California Public Health Officials have Exceeded their Authority
Nothing can be found in California law that allows any local or state public health official to declare a statewide or county-wide quarantine. Absent a law which articulates that authority, it would seem the State and counties have exceeded their authority by ordering mandatory quarantine of all non-essential persons.
While public health officials do have limited authority to specifically quarantine actual infected persons and persons known to have come in contact with infected persons, nothing can be found in State law which authorizes the quarantine of any and all healthy people who have no known contact with an infected persons. (cf. Health & Safety Codes §§ 101029, 101030, 101040, 120175, 120180, and 120200)
In these statutes, the Legislature could have but chose not to grant carte blanc authority to impose an all encompassing quarantine. Instead, the Legislature narrowly focused upon only infected persons and those other persons known to have come in contact with those infected persons.
Governor Newsom’s Timeline for Action
Our Governor knew, since January 3, 2020, the seriousness of the COVID-19 virus, and its exponential rate of infection throughout a population. It was not until nearly 2 months later, on March 4, 2020, that the Governor took action.
During all that time — and while the Legislature was in active Session — hearings could have been held, definitions could have been created, and a comprehensive action plan could have been created which both called for escalated measures depending upon public health needs and we could all easily understand and follow.
State agencies could have replenished stocks of personal protective equipment (PPE), ventilators, and oxygen tanks. But they did not.
To date, there is still no comprehensive public safety or public health action plan, and we have a statewide piece-meal patchwork quilt of public policies which vary and have directly contributed to substantial civil unrest.
Our State and local elected officials have failed to follow the Due Process requirements incumbent upon them for all rule-making, by relying upon a vague and ambiguous undefined terms (including “essential”). Now all persons are now expected to sink or swim based upon shoot-from-the-hip piecemeal policy making during press conferences by our Governor and other elected officials.
Does any of this mean you should ignore the Governor’s Executive order, or ignore any of the local governments orders to self-quarantine and isolate yourself from risk of infection by others? Of course not.
You are encouraged to think for yourself and take reasonable measures to ensure you stay healthy and you don’t increase the risk of spreading COVID-19.
Should your rights be observed, and should our elected officials act prudently to balance their public policies in thoughtful ways which effectively address whatever challenge we are facing? Yes. Always.