O.C. education board sues Newsom over COVID state of emergency

Trustee Lisa Sparks speaks during a recent O.C. Board of Education forum as Vice President Ken Williams listens.

Daily Pilot

Dec. 2, 2021 1:39 PM PT

For the second time in recent months, the Orange County Board of Education is mounting a legal challenge to Gov. Gavin Newsom’s pandemic-related state of emergency declaration.

In August, the California Supreme Court declined to hear the board’s previous petition seeking to overturn Newsom’s emergency rule-making authorities that included allowing state officials to issue a mask mandate for K-12 students this summer ahead of the new school year.

But that setback didn’t deter a renewed legal effort.

This time, attorneys for the board filed a Nov. 23 complaint with the Orange County Superior Court, which doesn’t share the state Supreme Court’s discretionary authority to decline cases.

And unlike the August petition, no release about the suit was sent before its filing, two days before the Thanksgiving holiday.

After the state Supreme Court declined to hear the original case, the board did send a formal letter to Newsom asking him to voluntarily end the state of emergency by Sept. 13 to avoid future litigation.

The framing of the filing that followed is similar to the previous petition.

“This case is not about vaccine or mask mandates, or any other specific policy measures,” said Scott Street, an attorney for the board. “It seeks to restore the normal process of governance and to ensure transparency and accountability in the political process, things that have been lacking during the past two years.”

Street previously served as an attorney with the California Fitness Alliance, a coalition of gym owners who sued the governor in 2020 over pandemic restrictions on their business operations but dropped the case when the state planned to fully reopen in June amid declining COVID-19 infections.

In the board’s suit, Street argued that Newsom violated the California Emergency Services Act when he reopened the state in June but kept the state of emergency declaration from March 2020 in play. The complaint acknowledged that the statute has been seldom used in the past with little in the way of case law interpretation, but it argued that the law was on its side.

“One thing is clear,” the suit claimed, “the governor has a duty to terminate the state of emergency at the ‘earliest possible moment that conditions warrant.’ ”

For Street and the plaintiffs, that moment arrived in June when Newsom rescinded the state’s stay-at-home order and proceeded to roll back nearly 90% of his pandemic executive orders by October — except the state of emergency declaration.

In November, the governor extended certain provisions of his emergency proclamation through March 2022, citing possible surges in COVID-19 cases and understaffed hospitals.

The California Department of Public Health vehemently disagrees any violation has taken place.

“Numerous courts have recognized that state law authorizes the continued state of emergency, which remains necessary to ensure hospitals are equipped to handle a surge in COVID-19 cases and to support the state’s ongoing vaccination and booster programs,” the department said. “California will continue to lead with science and public health to keep Californians safe.”

On Dec. 1, the department helped confirm the first Omicron variant case in the United States in San Francisco. Omicron is classified as a “variant of concern” by the World Health Organization. The Centers for Disease Control and Prevention notes that Omicron’s presence reinforces the importance of vaccination, booster shots and general prevention strategies.

Scientists predict it will be weeks or months before Omicron’s impact is more fully known.

Children’s Health Defense, an anti-vaccination group founded by Robert F. Kennedy Jr., has joined the education board as co-plaintiffs in the case, as it did in August.

The complaint described the nonprofit’s mission as one that seeks “to educate the public about the risks and harmful effects of chemical exposures upon prenatal and children’s health.”

In late September, YouTube removed Children’s Health Defense‘s page as part of a wider effort to crack down on vaccine misinformation.

Concerns about school vaccine and mask mandates appeared in court documents as attorneys argue that the board is adversely impacted by the ongoing state of emergency and has standing in court.

“They’re related,” says Robert Tyler, an attorney for the board and Children’s Health Defense. “These are definitely issues. All of these things are relevant to a school board. But it doesn’t mean that’s what this case is about. Under no circumstances does a governor have the right to end our form of government to maintain ‘flexibility.’”

Board members serve in an advisory role when overseeing the county’s 28 local school districts. They lack the authority to impose or rescind public health mandates over them.

The board voted 4-0 in August during closed session to approve a contract with outside counsel for legal services before filing a petition with the state Supreme Court. Tyler’s firm was retained for that effort and confirms that the contract continues to cover its latest legal effort in O.C. Superior Court, one that attorneys expect to go to trial.

The board also sued Newsom in 2020 in an effort to reopen schools that year, but the state Supreme Court declined to hear the case.