The National Federation of Independent Business (NFIB) is supporting a lawsuit against Gov. Gavin Newsom with an amicus brief filed last week, which alleges he lacked the power to impose COVID-19 restrictions.
“We think it's critical that California law is clear on the limits to the governor's authority moving forward when it comes to emergency power,” said Karen Harned, executive director of NFIB’s Small Business Legal Center. “It's very clear in the law that the state legislature has the authority to write the statutes, not the governor when it comes to policy and public health.”
Gov. Newsom announced last week that the economy will fully reopen statewide on June 15 as long as COVID-19 hospitalizations remain low and all state residents 16 or older have access to the vaccine, but Harned said the lawsuit has a precedential effect beyond the scheduled reopening date.
“We felt it was incumbent on us to weigh in on this because we are really concerned with his exercise of authority in this instance and don't want to see future governors do the same,” she said.
Daryn Coleman lost thousands of dollars per month after his haunted mini-golf company, Ghost Golf, in Fresno was shut down due to the pandemic last year, according to media reports.
The Pacific Legal Fund sued Gov. Newsom on behalf of Ghost Golf pro bono but the Superior Court of Fresno denied their request for a preliminary injunction that would have stopped the enforcement of Blueprint for a Safer Economy-related orders issued by Gov. Newsom. The case is currently pending with the Fifth Appellate District Court of Appeal.
“California’s small businesses have suffered and continue to suffer irreparable harm because of actions taken in an official capacity by the Governor of California to address the COVID-19 pandemic,” Harned wrote in the April 13 NFIB amicus brief. “Those actions by the Governor to address the COVID19 pandemic have violated California’s statute on emergencies and its constitutional separation of powers.”
NFIB Small Business Legal Center wants the state appellate court to reverse the denial of Fresno Superior Court’s preliminary injunction against enforcement of Gov. Newsom’s orders.
“Without a court order from the court, we're very concerned that this will mean other governors, including this one in office currently, will feel like they have more freedom to act unilaterally as a King of the state rather than one of the three branches of government that is accountable to the people,” Harned told the Southern California Record. “There's a reason you need the legislature. They are the ones that are supposed to be writing the laws and what is so egregious in this particular instance is that the legislature has been meeting.”
NFIB represents some 350,000 member businesses nationwide and 15,000 in California. In California alone, the number of small businesses open as of December 31, 2019 compared to January of 2020 decreased by 36.6% and as of March 16, 2021, the decrease was 35.3%, according to the Opportunity Insights: Economic Tracker.
“Most of the businesses are not remotely close to the revenues they were earning prior to the pandemic and shut down orders,” Harned added. “It has taken a big toll on California's small businesses. This was not the time for a one size fits all blueprint. Every calculation should have been different for a small business with regards to this pandemic.”