Three years into pandemic, still unclear who is in charge
Greater than three years after the pandemic started, authorized confusion stays in California over who’s in cost on the native degree throughout an emergency of points reminiscent of curfews and eviction moratoriums.
Uncertainty over authority exacerbated tensions through the early months of the pandemic. Now that the majority restrictions have been lifted, it’s time to make use of the calm earlier than the subsequent storm, hearth, flood, earthquake or pandemic to resolve the thorny problems with jurisdiction.
The dispute shouldn’t be whether or not Gov. Gavin Newsom had the facility to impose emergency orders and make short-term adjustments to state regulation. He did. The state’s appellate courts resolved that dispute.
Somewhat, as a current Bay Space courtroom case confirmed, the uncertainty is on the native degree over whether or not counties throughout emergencies can set guidelines inside cities. Or is county jurisdiction restricted to unincorporated areas outdoors municipal boundaries?
Lack of readability has doubtlessly life-altering implications for emergency responses if they’re delayed whereas traces of authority are hammered out.
This isn’t a struggle over masking, quarantine or stay-at-home orders. State regulation permits county well being officers to problem well being orders in an emergency to cease the unfold of illness if they’ve the consent of the cities. As a result of solely three cities within the state — Berkeley, Lengthy Seashore and Pasadena — have their very own well being officers, most delegate that authority to the county official.
The dispute facilities on points outdoors the purview of the well being officer — for instance, whether or not county governments can dictate curfews and eviction moratoriums. This isn’t a purple vs. blue problem. This can be a county vs. metropolis battle over who’s in cost, one which the Legislature and/or the courts ought to resolve earlier than California faces its subsequent emergency.
Sadly, state regulation fails to offer clear steering, leaving cities and counties to type it out. The magnitude of the authorized gulf between them grew to become clear final month when a Superior Courtroom choose dominated that Alameda County by no means had authority to incorporate cities in its eviction moratorium.
The ruling got here in a case involving a tenant residing in property owned by town of Alameda who had did not pay lease. The tenant claimed safety underneath Alameda County’s still-on-the-books eviction moratorium, which county supervisors utilized to unincorporated areas and cities.
Alameda Superior Courtroom Decide Victoria Kolakowski sided with town, ruling that the state’s 1970 Emergency Companies Act doesn’t allow counties to undertake emergency orders and rules that apply to cities.
Cities typically have authority to set guidelines inside their boundaries, and counties set the principles for unincorporated areas. The state Structure permits counties to carry out municipal features if a metropolis requests the help.
However, through the pandemic, some counties have clung to a non-binding 1979 authorized opinion by the state Legal professional Basic’s Workplace that cities are sure by county guidelines and rules adopted throughout an area emergency to guard life and property.
In some conditions, that might make intuitive sense. As a result of floods and fires, for instance, don’t cease at metropolis boundaries, it could possibly be greatest to have one company main the response and in a position to regulate all through the county.
However, as Decide Kolakowski dominated, whereas that could be wise, that’s not what the Emergency Companies Act says. As a substitute, the act “strongly suggests that in native emergencies counties and cities promulgate emergency orders and rules inside their respective territories.”
That’s what Alameda Metropolis Legal professional Yibin Shen has argued because the first summer season of the pandemic when he despatched a letter to then-Legal professional Basic Xavier Becerra asking him to rethink the workplace’s 41-year-old opinion — a request Becerra rejected.
The Alameda case was between town and the tenant. The county was not a celebration to the litigation, nevertheless it clearly has an curiosity within the end result. However, Andrea Weddle, chief assistant counsel for Alameda County, who was current at a listening to within the case, by no means sought to defend the county’s eviction moratorium, which can expire on the finish of this month. Weddle didn’t return emails looking for remark.
Except town of Alameda case is appealed, it received’t function authorized precedent. However Kolakowski’s ruling has caught the eye of native authorities officers throughout the state and will open the door for extra challenges to county mandates.
This energy battle between California’s cities and counties would possibly simply be getting began. It might be greatest to resolve the difficulty earlier than extra lives are on the road.
