Should SLO County sue state to end stay-at-home order? Supervisors are considering it
San Luis Obispo County officials will consider suing the state to end the ongoing coronavirus stay-at-home order impacting local businesses — even as the area continues to see its biggest surge in COVID-19 cases.
The county Board of Supervisors on Tuesday voted 3-2 in favor of exploring a lawsuit that would push for the county to break away from the Southern California region and potentially be eligible to return to the purple tier on its own.
Supervisors John Peschong, Lynn Compton and Debbie Arnold voted in favor of learning more about a potential lawsuit. The dissenting votes were cast by Supervisors Bruce Gibson and Dawn Ortiz-Legg.
Gov. Gavin Newsom in early December instituted a statewide stay-at-home order that divided California into regions and ordered stringent restrictions on business activities in areas where hospital intensive care unit capacity dipped below 15%.
The county was included in the Southern California region, which also includes much larger population centers, such as Los Angeles, Orange and San Diego counties. This has frustrated local elected officials and business owners, who believe the county belongs in a Central Coast region with Santa Barbara and Ventura counties.
The three counties petitioned the state to create their own region, but Newsom has not given that plan the green light, County Counsel Rita Neal said during the Tuesday meeting. State leaders extended the stay-at-home order in the Southern California region on Dec. 29, saying the area’s ICU capacity had not improved.
The region’s ICU capacity remained at 0% as of Tuesday, according to state data. SLO County, however, has an ICU capacity of about 32%, as of Monday.
The county was previously in the purple tier of the state’s Blueprint for a Safer Economy, which was slightly less restrictive than the stay-at-home order. Under the purple tier, restaurants were allowed to serve diners outside, and hair salons and barber shops were permitted to serve a limited number of customers.
Lawsuit would say state exceeded its authority
District 1 Supervisor Peschong pushed for the lawsuit and expressed a desire to follow in the footsteps of San Bernardino County, which sued the state in the California Supreme Court on Dec. 14, according to a news release on the county’s website.
The lawsuit “(asks) the court to find that the governor’s stay-at-home orders exceed the authority found in the California Emergency Services Act,” the release said.
“The county seeks to exercise local control in response to the COVID-19 pandemic rather than be restrained by the state’s regional approach that treats San Bernardino County the same as significantly different counties such as Los Angeles, Santa Barbara and San Diego.”
Peschong said San Luis Obispo County should file a similar suit “because right now what I’m finding is our small businesses are suffering.”
“I believe we should not be in the Southern California region,” he said. “I do not believe that we should have the stay-at-home order. We were in the purple level before. I think we should go back to the purple level. That allows some semblance of normal business life to go on, but it is safe, it’s done safely, and that’s the thing I think this county has done. ... We have been a very, very safe county in the way that we’ve been dealing with the COVID-19 pandemic in our community.”
Chances of success are slim, county counsel says
Neal told the board that a lawsuit against the state has a very poor chance of success and described litigation as “an uphill battle.”
“The courts have generally held that an order made for public health and safety to slow the spread of a contagious disease outweighs a lot of interest that people may have in a public health crisis,” Neal said. “So being able to show that there was an abuse of discretion by the governor, I think, is a very, very difficult hurdle to overcome.”
Neal said the lawsuit’s chance of success has gotten worse as more and more county residents have tested positive for COVID-19, and it would decline even further if Newsom orders local hospitals to begin accepting patients from neighboring counties.
District 2 Supervisor Gibson said the county shouldn’t waste money and staff time pursuing a lawsuit that is unlikely to succeed. Instead, the board should create a subcommittee of supervisors to consider using economic development funds to directly help struggling businesses, he said.
“The litigation in the state against the public health orders of the state have roughly had the survival of a snowflake in hell,” Gibson said. “So I have my serious concerns and would not endorse a frivolous attempt to voice our frustration.”
“That being said, our frustration is real. I understand that,” Gibson continued. “And efforts continue to engage the state on how this proceeds. But I would point out that with 900 cases reported yesterday, our standing in terms of how well we are doing is not bright and shiny at this point. We are in a very serious situation. And no matter how the state is carved up, this state is in very serious condition.”
Arnold and Compton support considering lawsuit
District 5 Supervisor Arnold joined Peschong’s call for a lawsuit, citing “desperate situations going on all over the county.”
“We are the voice of the public,” she said. “So many of us have specific, focused jobs in this whole big picture, and we need to continue to be the voice of the public and our constituents and bring it into the mix.”
District 4 Supervisor Compton — who disclosed during the meeting that her daughter had contracted COVID-19 — said she understood those who wanted to see additional restrictions and those challenged by the current stay-at-home orders. Compton said a lawsuit is very unlikely to succeed, but she’s willing to learn more about the situation at a future meeting.
“I honestly do not believe it will be successful if we do that,” Compton said. “You have to get the state’s permission to sue them — do you really think they’re going to give us permission to sue them? No, I don’t think they are. Do I agree that’s how it should be, and do I wish it were different? Yes, I wish it were different.”
Newly appointed District 3 Supervisor Ortiz-Legg joined Gibson in voting against the lawsuit.
“I think we really need to step back and at least get through this holiday period where we’re going to see a rise of cases again before we make any rash decisions on anything about going alone, so to speak, if that would have any validity, because I think we are reaching for the stars,” she said.
The board directed Neal to return with additional information about a potential lawsuit, which members will discuss in closed session at their next meeting.
Supervisors also voted unanimously to allow Ortiz-Legg and Peschong to form a subcommittee and look into supporting businesses struggling under the current stay-at-home order.
This story was originally published January 5, 2021 at 2:30 PM.
