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S266106 S______In the Supreme Court of the State of California

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S266106 S______In the Supreme Court of the State of California Supreme Court of California Supreme Court of California Jorge E. Navarrete, Clerk and Executive Officer of the Court Jorge E. Navarrete, Clerk and Executive Officer of the Court Electronically RECEIVED on 12/14/2020 at 11:06:42 PM Electronically FILED on 12/14/2020 by Robert Toy, Deputy Clerk S266106 S______________ IN THE SUPREME COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO; and JOSIE GONZALES, an individual Petitioners, vs. GAVIN NEWSOM, in his official capacity as Governor of California, ERICA PAN, M.D., in her official capacity as Acting Public Health Officer of the State of California, SANDRA SHEWRY, in her official capacity as the State Public Health Officer and Department of Public Health Director Respondents. VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE IN THE FIRST INSTANCE; MEMORANDUM OF POINTS AND AUTHORITIES IMMEDIATE RELIEF REQUESTED NO LATER THAN DECEMBER 28, 2020 (Palma Notice Requested) TYLER & BURSCH, LLP Jennifer L. Bursch (State Bar No. 245512) [email protected] Nathan R. Klein (State Bar No. 306268) [email protected] Cody J. Bellmeyer (State Bar No. 326530) [email protected] 25026 Las Brisas Road Murrieta, California 92562 Tel: (951) 600-2733 Fax: (951) 600-4996 Attorneys for Petitioners 1 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA _________________ CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d) Supreme Court Case Caption: COUNTY OF SAN BERNARDINO; and JOSIE GONZALES, an individual Petitioners, vs. GAVIN NEWSOM, in his official capacity as Governor of California, ERICA PAN, M.D., in her official capacity as Acting Public Health Officer of the State of California, SANDRA SHEWRY, in her official capacity as the State Public Health Officer and Department of Public Health Director Respondents. Please check here if applicable: [gJ There are no interested entities or persons to list in this Certificate as defined in the California Rules of Court. Dated: December 14, 2020 l ___________________________ Jennifer L. Bursch Nathan R. Klein Cody J. Bellmeyer Tyler & Bursch, LLP 25026 Las Brisas Rd, Murrieta, California 92562 Attorney for Petitioners 2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED ENTITIES OR PERSONS ............................ 2 VERIFIED PETITION FOR PEREMPTORY WRIT OF MANDATE IN THE FIRST INSTANCE; MEMORANDUM OF POINTS AND AUTHORITIES .... 10 INTRODUCTION ................................................................................................ 10 NECESSITY OF WRIT RELIEF ......................................................................... 10 IMMEDIATE JUDICIAL ACTION IS NECESSARY TO ADDRESS GOVERNOR NEWSOM’S EXECUTIVE ORDERS .......................................... 11 ISSUE PRESENTED ............................................................................................ 18 PARTIES, IRREPARABLE INJURY, AND NECESSITY FOR RELIEF ......... 18 JURISDICTION ................................................................................................... 21 TIMELINESS OF PETITION .............................................................................. 21 PRAYER FOR RELIEF ....................................................................................... 22 VERIFICATION................................................................................................... 23 VERIFICATION................................................................................................... 24 DISCUSSION ....................................................................................................... 25 I. THIS PETITION MERITS ORIGINAL JURISDICTION........................ 25 II. THE CESA DOES NOT PROVIDE THE RESPONDENTS WITH THE POWER TO LEGISLATE OR TO ENACT A STATEWIDE STAY-AT-HOME LAWS ................................................................................................................... 26 III. RESPONDENTS’ ENACTMENTS VIOLATE THE ADMINISTRATIVE PROCEDURES ACT............................................................................................ 33 IV. THE LEGISLATURE CANNOT DELEGATE ITS AUTHORITY TO THE GOVERNOR THROUGH THE EMERGENCY SERVICES ACT ........... 36 V. THE EMERGENCY CONDITIONS NO LONGER DEMAND RESPONDENTS’ INTERVENTION .................................................................. 43 VI. IRREPARABLE HARM EXISTS WHICH, IF LEFT UNADDRESSED, IS DETRIMENTAL TO THE COUNTY AND THUS, THE NEED FOR JUDICIAL ACTION AND IMMEDIATE RELIEF IS NECESSARY ............... 49 A. No Adequate Remedy at Law ............................................................. 49 B. The Writ Should Be Issued In the First Instance to Correct the Respondents’ Unbridled Abuses of Power. ........................................ 51 CONCLUSION ..................................................................................................... 54 3 TABLE OF AUTHORITIES CASES Alexander v. Superior Court (1993) 5 Cal.4th 1218 ........................................................................... 51 Anderson v. Superior Court (1989) 213 Cal.App.3d 1321 ................................................................ 51 Apple Inc. v. Superior Court (The Police Retirement Sys. of St. Louis) (2017) 18 Cal.App.5th 222 51 Bd. of Soc. Welfare v. Cnty. of L.A. (1945) 27 Cal.2d 98 .............................................................................. 21 Blumenthal v. Bd. of Med. Examiners (1962) 57 Cal.2d 228 ............................................................................ 41 Bodinson Mfg. Co. v. California Employment Com. (1941) 17 Cal.2d 321 ............................................................................ 21 Bramberg v. Jones (1999) 20 Cal.4th 1045 ......................................................................... 26 Cal. Corr. Peace Officers’ Ass’n v. Schwarzenegger (2008) 163 Cal.App.4th 802 ........................................................... 30, 31 Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805 ............................................................................ 26 Carmel Valley Fire Prot. Dist. v. State (2001) 25 Cal.4th 287 ........................................................................... 38 Carson Mobilehome Park Owners’ Assn. v. City of Carson (1983) 35 Cal.3d 184 ............................................................................ 37 City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823 ...................................................................... 28, 36 Clean Air Constituency v. State Air Resources Bd. (1974) 11 Cal.3d 801 ............................................................................ 38 Conservatorship of Early (1983) 35 Cal.3d 224 ............................................................................ 52 Conservatorship of Roulet (1979) 23 Cal.3d 219 ............................................................................ 52 4 Corbett v. Superior Court (Bank of America, N.A.) (2002) 101 Cal.App.4th 649 ........................ 50 County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 845 .................................................................... 50 County of Sonoma v. Cohen (2015) 235 Cal.App.4th 42 ................................................................... 39 Doughtery v. Austin (1892) 94 Cal. 601 ................................................................................ 37 Fair v. Fountain Valley School Dist. (1979) 90 Cal.App.3d 180 .................................................................... 21 Gallagher v. Newsom Case No. CVCS20-0912 ................................................................. 28, 32 Gikas v. Zolin (1993) 6 Cal.4th 841 ............................................................................. 33 Gundy v. United States (2019) 139 S.Ct. 2116, 2148 ................................................................ 32 Harbor v. Deukmejian (1987) 43 Cal.3d 1078 .......................................................................... 28 Hendricks v. Hanigan (Cal. Ct. App. Mar. 14, 2002) 2002 WL 397648 ................................. 30 Home Bldg & Loan Ass’n v. Blaisdell (1934) 290 US 298 ............................................................................... 39 In re Certified Questions (2020) 505 Mich. ____, 2020 WL 5877599 ................................... 39, 41 In re Gallego (1998) 18 Cal.4th 825 ........................................................................... 49 in re Garcia (1998) 67 Cal.App.4th 841(1) .............................................................. 34 Kugler v. Yocum, 69 Cal.2d 371 (1968) ............................................................................ 37 Lauderbach v. Zolin (1995) 35 Cal.App.4th 578 .................................................................... 33 5 Lewis v. Sup. Ct. (1999) 19 Cal.4th 1232 ......................................................................... 10 Loving v. United States (1996) 517 U.S. 748 ....................................................................... 27, 32 Malibu W. Swimming Club v. Flournoy (1976) 60 Cal.App.3d 161 ........................................................ 44, 47, 53 Marbury v. Madison (1803) 5 U.S. (1 Cranch) 137, 177 ....................................................... 52 Martin v. Municipal Court (People of the State of Cal.) (1983) 148 Cal.App.3d 693 .............. 29, 31 McClung v. Employment Dev. Dep’t (2004) 34 Cal. 4th 467 .......................................................................... 52 Nat’l Tax-Limitation Comm. v. Schwarzenegger
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