Two small businesses in central California are suing Gov. Gavin Newsom over his strict continuing lockdowns purportedly aimed at combating the COVID-19 pandemic.
The 109-page lawsuit, Ghost Golf Inc. v. Newsom, filed in Fresno County Superior Court by Pacific Legal Foundation (PLF), a public interest law firm based in Sacramento, claims the governor lacks the power to unilaterally shutter businesses.
“An emergency doesn’t give the governor authority to decide fundamental policy for the State; only the legislature can make law, and that remains true even in a time of crisis,” said PLF attorney Luke Wake, an attorney at Pacific Legal Foundation, which is representing a mini-golf venue and a restaurant free of charge.
“The governor can’t just make up whatever rules he wants for as long as he wants to. California’s courts need to uphold the state’s separation of powers.”
Daryn Coleman created Ghost Golf—a family-friendly, “haunted” mini-golf attraction—in 2010. Eight years later, he moved the family business to Fresno, where they were able to expand the mini-golf course, open a shooting gallery, and add an arcade.
“For me, this business is everything,” Coleman said in a statement provided by PLF.
“Ghost Golf is my dream, and to have that dream put in jeopardy like this is unfair. And I know that I’m not the only small business owner in this situation. I just want to be able to open my business safely and get back to work.”
Except for four days in June, the outfit has been closed since March under the governor’s edicts. Coleman calculates he’s losing thousands of dollars per month in revenue, and his bills are accumulating. He still has to pay rent and other business expenses, even though he can’t open the business. If allowed to open, Ghost Golf is willing to enforce social distancing rules, require patrons to wears masks, and implement other safety measures for staff according to guidance from the Centers for Disease Control.
Sol y Luna Mexican Cuisine, a Mexican restaurant in Bakersfield, has also been affected by the shutdown. Its owner, Nieves Rubio, is also a plaintiff.
The restaurant is operating at 25 percent capacity, Wake told The Epoch Times in an interview. He said he filed a motion last week for a preliminary injunction and that a hearing is scheduled in court for Dec. 15.
The state legislature has been “silent on Governor Newsom’s continuing assertions of an unprecedented power to shut-down entire industries and to impose various restrictions as he, in his sole discretion, deems appropriate,” the legal complaint states.
“Now, after more than seven months, the Governor and the [California Department of Public Health] continue to pronounce new, complex, and ever-shifting rules, causing financial hardship and uncertainty for businesses across California.”
On Aug. 28, Newsom unveiled a “Blueprint for a Safer Economy,” a system of rules that assigns different colors to California counties and corresponding restrictions for all sectors of the economy. “This color-coded Blueprint is complex in its mechanics and sweeping in its implications for businesses throughout the State,” and was developed without input from the state’s businesses, the complaint says.
Wake said he was cautiously optimistic about the suit’s chances.
“What we’ve seen in the beginning is the courts were very deferential to the emergency powers assertions from the governor,” he said. “The cases that have had the greatest success in other states have been separation-of-powers cases that have been challenging the [respective] governor’s authority to do these things either under the statutes that gave them emergency powers or constitutional grounds.
“There are some signs that the California courts are beginning to take issue with the continuing assertion of emergency powers.”
The Ghost Golf lawsuit comes after Judge Sarah Heckman of Sutter County Superior Court recently ruled in favor of Assemblymen James Gallagher and Kevin Kiley, both Republicans, in their abuse-of-power lawsuit against Newsom, a Democrat.
In the tentative Nov. 2 decision in Gallagher v. Newsom, Heckman declared the governor’s Executive Order N-67-20, issued June 3, unconstitutional, and enjoined him from unilaterally making or changing state law moving forward. The injunction prevents Newsom “from exercising any power under the California Emergency Services Act … which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.”
“This is a victory for separation of powers,” Gallagher and Kiley said in a statement. “The Governor has continued to create and change state law without public input and without the deliberative process provided by the Legislature. Today, the judicial branch again gave him the check that was needed and that the Constitution requires.
“Nobody disputes that there are actions that should be taken to keep people safe during an emergency. But that doesn’t mean that we put our Constitution and free society on hold by centralizing all power in the hands of one man.”
This article by Matthew Vadum dated Nov. 11, 2020, appeared in The Epoch Times.