April 17, 2020

Governor Gavin Newsom
1303 10th Street, Suite 1173
Sacramento, CA 95814

Sonia Y. Angell, MD, MPH
California Department of Public Health
PO Box 997377, MS 0500
Sacramento, CA 95899-7377

Re:       Order of the State Public Health Officer, dated March 19, 2020, and State of California Executive Order N-33-20, dated March 19, 2020 (collectively, the “Stay-at-Home Order”

Hon. Newsom and Dr. Angell:

On March 19, 2020, California issued a Stay-at-Home Order ordering its approximately 39.5 million citizens to “stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors…”  The Stay-at-Home Order also states that citizens may leave their homes or places of residence to obtain “food, prescriptions, and health care” and that, when doing so, they “should at all times practice social distancing”.  The Stay-at-Home Order is in effect “until further notice”.

On March 24, 2020, the Center for Disease Control (“CDC”) issued guidance concerning the use of ICD codes relating to Coronavirus Disease 2019 (“COVID-19”).  That guidance directed physicians and medical examiners that a new code should be “reported on the death certificate for all decedents where the disease caused or is assumed to have caused or contributed to death” [emphasis in the original], such that COVID-19 would be identified as the cause of death “more often than not”.  In other words, the CDC’s statistics concerning COVID-19 cases and deaths is merely a best guess estimate that encourages a classification of COVID-19, and can, and likely does, include cases and deaths that are not related to COVID-19.

Appreciating that the numbers are merely supposition, the California Department of Public Health reports that, as of April 15, 2020, there have been 26,182 cases of COVID-19 in the State of California, and 890 fatalities.  Thus, a Californian has an approximately 0.065% chance of contracting COVID-19.  Death is exceptionally rare, occurring in only 3% of cases.  In fact, as many as 50% of people who have COVID-19 present little to no symptoms.  Surely, your offices understand that other contagious illnesses, such as influenza, produce statistics that are much more astounding.

Yet, the entire State of California has been placed on quarantine in response to COVID-19, and the consequences have been absolutely detrimental.  Since issuing the Stay-at-Home Order, the unemployment rate in California has increased over 1575%.  Because health insurance benefits are normally tied to employment in this country, along with a loss of income, many Californians have also lost their health insurance in the midst of an apparent health crisis.  These individuals can no longer properly sustain their nutritional, housing, or healthcare needs.  In fact, the United Nations warned, on April 16, 2020, that hundreds of thousands of children are expected to die this year – not from COVID-19 but from the economic fallout that is directly resultant from directives such as California’s Stay-at Home Order.  Surely, the death of hundreds of thousands of children is contrary to the State’s goal of saving lives.

Further concerning is the continuing infringement upon our citizens’ basic Constitutional rights.  You are no doubt familiar that the U.S. Constitution (and related case law) affords every American citizen, Californians among them, broad protections concerning speech, assembly, religious practice, travel, personal healthcare, privacy, and access to the courts.  States cannot make enactments that breach these rights without passing a test of strict scrutiny, which places the burden on the government to demonstrate that the law is necessary to further a compelling state interest by the least restrictive means possible.

The Stay-at-Home Order is unconstitutional because it cannot pass a test of strict scrutiny.  There are undeniably less restrictive means to accomplishing the State’s goal of slowing the spread of infectious disease than stripping its citizens of their fundamental rights, imprisoning them to their homes, financially devastating them, and damaging their overall physical and mental well-being.  Such means include:

·         Voluntary quarantines of particularly vulnerable populations, such as the elderly and immunocompromised;

·         Temporary, short-term quarantines for those that exhibit symptoms of COVID-19 and have tested positive;

·         Directing individuals to regularly wash their hands and practice good hygiene;

·         Allowing “essential” and “non-essential” businesses alike to operate if they can implement reasonable “social distancing” protocols, such as working remotely (if realistically possible), maintaining 6 feet of space between customers, and requiring public-facing employees to wear a face mask.

The above measures are touted as being effective in slowing the spread of COVID-19 when we grocery shop and visit the pharmacy; certainly, they would remain just as effective when engaged in “non-essential” activities.  It is simply not necessary for otherwise healthy people with strong immune systems to be quarantined, forced out of work, impoverished, driven to depression, and have no access to the courts to rectify their situation, in order to quell the spread of COVID-19.  Not only are such results nonsensical within the context of promoting public health, it is completely unconscionable in a country that is founded on the very premise that we have the right to enjoy basic freedoms.

The U.S. Constitution also provides that no citizen may be deprived of life, liberty, or property without due process of law and just compensation for a government taking of private property.  The quality of our lives has plummeted since the issuance of the Stay-at-Home Order.  No longer can we enjoy the fulfillment of running a small business, taking a walk in the park, or going out for ice cream.  Our children have nowhere to play or learn.  While these might have been inconveniences for a short, temporary period, we are now being told that this will be our lives for months or even years.  Saving lives is most definitely important; living a life of value and meaning should be equally as important.  There is no reason why we cannot resume our normal lives during the COVID-19 pandemic if we can do so within the “social distancing” guidelines bullet-pointed above.

Our liberty is gone.  We have been effectually placed on house arrest “until further notice” with no trial, and the courts are closed to hear our grievances.  This is tantamount to a bill of attainder and a flagrant violation of our Constitutional rights.

Finally, the government has driven businesses to bankruptcy and forced millions to file for unemployment under the guises of protecting public health.  This action constitutes a constructive taking of private property rights, namely individuals’ businesses and livelihoods.  Under the U.S. Constitution’s eminent domain clause, the State of California owes these individuals the fair market value of their businesses.  An unemployment or stimulus check is wholly inadequate and does not properly compensate these losses under the law.

We appreciate and are sensitive to the needs of the few that have been impacted by COVID-19 - but those needs must be weighed against the needs of the majority in our State that are suffering because the Stay-at-Home Order is, without exaggeration, destroying their lives.  If we are to remain under the restrictions set out in the Stay-at-Home Order, those restrictions must be better tailored to prevent a true disaster for our State.

We prefer, as we are sure you do, to resolve this matter without the need for litigation.  However, if the Stay-at-Home Order is not lifted or otherwise appropriately modified to allow Californians to get back to work and start living fulfilling lives again by May 1, 2020, we will proceed to file our claims and seek to have the Stay-at-Home Order declared invalid, unenforceable, and unconstitutional on an emergency basis.  We trust that your offices will exercise enough good sense to avoid such an unfortunate action.

Respectfully submitted,

[see attached signatures]

 

With copies to:

Senator Kamala Harris
501 I Street, Suite 7-800
Sacramento, CA 95814

Senator Dianne Feinstein
11111 Santa Monica Blvd., Suite 915
Los Angeles, CA 90025