Wednesday 3 March 2021
Court of Appeal:
The green light at the outdoor restaurant was incorrect
Currey’s opinion related to the 1905 United States High Court ruling upholding the city’s requirement that adults be vaccinated in light of the smallpox epidemic; LA judge did not adequately refer to the local health department’s point of view
By a MetNews editor
A Los Angeles Superior Court judge abused his discretion by issuing a preliminary injunction barring the application of the then-existing county ban on alfresco dining in restaurants, the Court of Appeals ruled in this regard. district, relying in large part on a 1905 decision of the United States Supreme Court. resulting from a local health service order in response to a smallpox epidemic.
In a notice filed Monday night, Judge Brian S. Currey wrote for the division. Four in granting a petition for a warrant requested by the Los Angeles County Department of Public Health. The writ orders the court of first instance to annul its order of December 15 prohibiting the implementation of the edict of November 22 of this department according to which the catering service outside must be closed, from three days later.
Lawyer Mark Gerges’ Engine Co. No. 28 is pictured above, formerly a fire station (opened in 1912), now a street level restaurant. He was one of two plaintiffs who obtained an order from the Los Angeles Superior Court to issue a preliminary injunction prohibiting the application of the Los Angeles County ban on alfresco eating. The Court of Appeal stayed the order in December and on Monday issued a warrant to quash the order.
Serving food indoors, in stores, was prohibited since June 1, 2020.
Three days after Judge James C. Chalfant granted the preliminary injunction – which provided that the county could not enforce the ban unless it could provide a risk-benefit analysis convincing it that its measure was justified – Div. Four ordered the Los Angeles Superior Court to explain why a peremptory warrant should not be issued to quash this action, and said:
“The preliminary injunction order is stayed until further notice of this court.”
The challenge to the outdoor dining ban has been brought in two cases, one by the California Restaurant Association, Inc. and the other by Mark’s Engine Company No. 28 Restaurant LLC, owned by the famous Los Angeles lawyer. Mark J. Geragos of Geragos & Geragos, which has its offices in the same building at 644 S. Figueroa St. which houses the restaurant and bar. The cases have been grouped below and on appeal.
Currey noted on Monday that with the development of fewer COVID-19 cases and the subsequent release of intensive care units in hospitals, state and county bans on outdoor dining were lifted on the 25th. January.
“While we hope we don’t see another increase, we recognize that conditions may change and the county may reimpose its ban on eating at outdoor restaurants,” Currey wrote. “So the cases are not theoretical.”
“We now believe that the courts must be extremely respectful of public health authorities, particularly during a pandemic, and particularly when, as here, public health authorities have demonstrated a rational basis for their actions. Wisdom and precedent dictate that elected officials and their public health experts, rather than the judiciary, should generally decide how best to respond to health emergencies in cases not involving fundamental constitutional freedoms. Courts should only intervene when the actions of health officials are arbitrary, capricious or lacking in rational basis, or violate basic constitutional rights, which is clearly not the case here. “
The “extremely deferential” standard of review, Currey said, refers to the United States Supreme Court ruling of February 20, 1905. Jacobson v. Massachusetts.
Jacobson v. Massachusetts
There, a man who had suffered the ill effects of a vaccination received at the age of 6 in his native Sweden refused to receive an inoculation which had been mandated in 1902 by the city of Cambridge, Massachusetts’s Board of Health for All adult residents in light of a smallpox epidemic.
Henning Jacobson, a minister, pictured above in 1878, was fined $ 5 for refusing to be vaccinated against smallpox during an outbreak in Massachusetts. The United States Supreme Court ruled in 1905 that the state’s policing power extended to authorizing local health departments to require vaccinations. The district appeals court on Monday invoked the ruling to conclude that the Los Angeles County Department of Health had properly ordered the ban on outdoor dining.
The Massachusetts legislature had delegated to local health departments the duty of determining whether conditions in the area warranted mandatory vaccinations. The 1901-03 epidemic was centered in Boston where nearly 300 people died from the disease.
Judge John Marshall Harlan wrote for the 7-2 majority affirming a $ 5 fine imposed on a minister, Henning Jacobson, based on his refusal to be vaccinated, stating:
“According to the principle of self-defense, of primary necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members. It should be noted that, when the regulation in question was adopted, smallpox, according to the recitals of the regulation adopted by the Board of Health, was to some extent prevalent in the city of Cambridge, and the disease was on the increase…. Smallpox being widespread and increasing in Cambridge, the tribunal would usurp the functions of another branch of government if it found, in law, that the mode adopted under state sanction, to protect the people in general, was arbitrary. and not justified by the necessities of the case.
Decision not repudiated
Currey said that Jacobson has been “cited both positively and negatively in concordances and dissent in the recent series of United States Supreme Court cases adjudicating challenges to emergency exercises of state authority in the pandemic current ”regarding restrictions on the holding of religious services. The Div. Four judges noted:
“The Supreme Court has had ample opportunity to reject Jacobson, but did not.
He pointed to a dissent from Justice Brett Kavanaugh in one of those cases, saying his panel agreed with the part he quoted and perceived that “a majority of the United States Supreme Court would. also”. What he cited includes this:
“[C]our duties should be very respectful of the line drawn by states in opening businesses and allowing certain activities during the pandemic …. Under the Constitution, state and local governments, not federal courts, have primary responsibility address COVID-19 related issues such as quarantine requirements, test plans, mask warrants, phased reopens, school closures, sports rules, adjustment of voting and election procedures, state court practices and penitentiary establishments, etc.
Adhere to Jacobson, Currey said the Div. Four will not “question the actions of public health officials” in an area where there are divergent medical opinions. He drew the conclusion that the Restaurant Association and Geragos had “failed to meet their burden of showing that the order is arbitrary, capricious or without rational basis” and, therefore, “ultimately cannot gain from cause on the merits of their claims ”, demanding that the Superior Court be ordered to quash the preliminary injunction.
Freedom of assembly
The Geragos restaurant also made a claim (which the Restaurant Association did not subscribe to) that the outdoor dining ban violated the First Amendment right of association. Currey said it was not clear whether this plaintiff was claiming his own right to freedom of association or pursuing a cause of action based on the rights of his clients, but in any event, was he he said, the argument fails.
He recalled the 1989 decision of the United States Supreme Court in Ward vs. Rock Against racism that states may limit First Amendment rights when the restrictions “are justified without reference to the content of regulated speech, are narrowly tailored to serve an important government interest, and leave many alternative channels open for the communication of information ”.
“First, the Order does not regulate the assembly on the basis of the expressive content of the assembly. Instead, it bans all alfresco dining at restaurants, breweries, wineries, and bars, regardless of the purpose of the gathering or the type of speech patrons wish to deliver.
“Second…, it is undisputed that limiting the spread of COVID-19 is a legitimate and substantial interest of the government. The ban on alfresco dining, where people from different households congregate nearby for long periods without masks, is tightly tailored to limit the spread of COVID-19….
“Third, the Order leaves alternative channels open for gathering, that is, videoconferencing or socially distant in-person gatherings with face covers.”
The case is Los Angeles County Department of Public Health v Superior Court (California Restaurant Association), 2021 SOS 925.
The county was represented by Deputy County Lawyer Natasha Mosley; Amnon Z. Siegel, Jason H. Tokoro and Minh-Van T. Do by Miller Barondess; and Timothy T. Coates and Marc J. Poster of Greines Martin, Stein & Richland, for the petitioners. The attorneys for the California Restaurant Association were Dennis S. Ellis, Eric M. George, Katherine F. Murray, Ryan Q. Keech, Lori Sambol Brody, Carl Alan Roth, Noah S. Helpern and Richard A. Schwartz of Brown George Ross O ‘Brien Annaguey & Ellis. Mathew Hoesly, from his cabinet, joined Geragos in advocating for the assertion.
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