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Newsom’s Emergency COVID Orders Forcing Closures Were Not ‘Takings’—C.A.
By a MetNews Staff Writer
Gov. Gavin Newsom’s emergency COVID-19 restrictions that forced restaurants and gyms to close did not constitute a “taking” without compensation in violation of the Fifth Amendment, Div. One of the Fourth District Court of Appeal held Friday.
“A mandated-but-temporary business closure to deal with a public health emergency is not sufficiently akin to a governmental appropriation of private property for a public use so as to require compensation,” Justice William Dato wrote.
His opinion affirms a judgment of dismissal which followed San Diego Superior Court Judge Kenneth J. Medel’s sustaining of demurrers without leave to amend a third amended complaint. That complaint, in a putative class action, was brought by restaurant-owner 640 TENTH, LP and others against state and county officials.
Claim Fails
Dato said the owners of restaurants and gyms “have not alleged a legally sufficient regulatory taking claim,” noting:
“Their attempt to do so is met first with a virtual torrent of California federal district court decisions rejecting similar challenges to Governor Newsom’s emergency COVID-19 orders.”
He cited six District Court cases decided in California and nine District Court cases decided outside the Ninth Circuit.
Administrative Procedure Act
The plaintiffs also contended that Newsom failed to observe the requirement under the Administrative Procedure Act of a 45-day notice and comment period prior to enactment of a regulation.
Dato responded by pointing to Government Code §8567, a part of the California Emergency Services Act. It provides:
“(a) The Governor may make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter. The orders and regulations shall have the force and effect of law….
“(b) Orders and regulations, or amendments or rescissions thereof, issued during a state of war emergency or state of emergency shall be in writing and shall take effect immediately upon their issuance….”
No Ambiguity
The justice wrote:
“The only legally tenable interpretation of section 8567 is that in a duly proclaimed state of emergency, the Governor’s orders ‘take effect immediately.’…There is no ambiguity. The meaning of ‘immediately’ is not reasonably subject to dispute.”
He added:
“Obviously, it would be impossible for the Governor’s orders under section 8567, subdivision (a) to ‘take effect immediately’…, and at the same time be subject to a 45-day waiting period. The Emergency Act can be interpreted only one way. If the orders take effect immediately, then the APA cannot apply.”
The case is 640 Tenth, LP v. Newsom, D079339.
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