Amicus Curiae Brief — California Restaurant Association, Inc., Petitioner v. Superior Court of California, Los Angeles County, et al.

No. 21-148

In the Supreme Court of the

United States

_________

CALIFORNIA RESTAURANT ASSOCIATION, INC.,

Petitioner,

v.

SUPERIOR COURT OF CALIFORNIA, LOS ANGELES

COUNTY, ET AL.,

_________

Respondents

On Petition for Writ of Certiorari to

the Court of Appeal of the State of

California,

Second Appellate District

_________

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

_________

CHARLES E. SLYNGSTAD*

BURKE, WILLIAMS & SORENSEN, LLP

444 South Flower Street, Suite 2400

Los Angeles, CA 90071-2953

Telephone: 213.236.0600

cslyngstad@bwslaw.com

Counsel for Amicus Curiae City of Santa Clarita

*Counsel of Record

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TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE.......................... 1

SUMMARY OF ARGUMENT .................................. 2

ARGUMENT ............................................................ 4

I.

UNANSWERED QUESTIONS

REGARDING GOVERNMENT

AGENCY POWERS AND COVID

RESTRICTIONS WILL CONTINUE

FOR THE FORSEEABLE FUTURE ............ 4

II.

CALIFORNIA’S PUBLIC POLICY

OF OPEN GOVERNMENT SUPPORTS

THE TRIAL COURT’S DECISION............... 5

III.

THE TRIAL COURT DID NOT

ABUSE ITS DISCRETION BY

REQUIRING RESPONDENTS

TO PERFORM A RISK-BENEFIT

ANALYSIS ..................................................... 8

IV.

A PROPER RISK-BENEFIT ANALYSIS

INCLUDES CONSIDERATION OF

EFFECTS ON STAKEHOLDERS

LIKE THE CITY .......................................... 13

CONCLUSION ....................................................... 16

ii

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Jacobson v. Massachusetts,

197 U.S. 11 (1905)…….……………………8, 9, 10

State Cases

Carrancho v. California Air Resources Board

111 Cal.App.4th 1255 (2003)……………….…...11

Cohan v. City of Thousand Oaks

30 Cal.App.4th 547 (1994) .................................. 7

Epstein v. Hollywood Entertainment Dist. II Bus.

Improvement Dist.

87 Cal.App.4th 862 (2001) .................................. 7

Western States Petroleum Assn. v. Trial Court

9 Cal.4th 559 (1995) .......................................... 11

State Statutes

Cal. Gov. Code section 54950 ........................... 6, 7, 8

California Health and Safety Code section

101040(a) ........................................................... 11

California Health and Safety Code Section 120175

........................................................................... 12

iii

Other Authorities

Cal. Const. Art. I, § 3(b) ........................................... 6

1

INTEREST OF AMICUS CURIAE1

The City of Santa Clarita (the “City”) is one of

the 88 incorporated cities within the County of Los

Angeles and, accordingly, restaurants within the

City are required to comply with the decision by the

Los Angeles County Department of Public Health

and Dr. Barbara Ferrer (collectively, “Respondents”)

to ban outdoor dining at restaurants beginning on

November 25, 2020 (the “Restaurant Closure

Order”). The City’s economy relies heavily on food

services, among other industries. The City’s

inhabitants depend on the food services industry for

work, and the sales tax revenues generated by the

City’s restaurants is a major source of funding for

the City. The City therefore has a vested economic

interest in the decision by the trial court to enjoin

Respondents from continuing the Restaurant Closure

Order unless and until Respondents perform a riskbenefit analysis of the impacts likely to result from

the Restaurant Closure Order.

The City, as a law and policy making

authority itself, also has a vested interest in

ensuring that government properly and adequately

1 Pursuant to S. Ct. Rule 37.6, counsel for all parties were given

timely notice of the City of Santa Clarita’s intent to file this

brief and have consented to the filing of this brief. No counsel

for a party authored this brief in whole or in part and no person

or entity other than amicus, its members or counsel made a

monetary contribution to its preparation or submission.

2

justifies its decisions to the public it serves.

Respondents here deny such obligation by taking the

position that the Superior Court of California in Los

Angeles County (“trial court”) was wrong to require

Respondents to perform the risk-benefit analysis.

Contrary to Respondents’ arguments, public policy

supports the trial court’s decision.

SUMMARY OF ARGUMENT

1. The Court should hear this case as the

risks of COVID and measures taken to slow the

spread of COVID will likely persist for months, if not

years, to come. Leaving questions of government

agency authority unanswered during a pandemic will

open the door for California health officials to order

closures and other restrictive edicts without showing

the reasoning behind those actions.

2. Respondents’ position is that, during a

period in which they declare a public health crises,

County health officials can impose nearly any

restriction at all and the officials do not need to

justify the decision to anyone – the public or the

courts. Respondents boldly assert: “Nor may the

court demand that the County produce a risk-benefit

analysis or indeed any empirical evidence to support

its action in temporarily banning outdoor dining.”

Respondents’ Petition for Writ of Mandate,

Prohibition or Other Appropriate Relief; Request for

Stay; Memorandum of Points and Authorities, Filed

December 17, 2020 (“Pet.”) at 13 (emphasis added.)

Respondents repeat essentially the same position

3

later in their petition: “In such circumstances

[referring to an epidemic], government may act

based on rational speculation and need not present

any evidentiary support or empirical data.” Pet. at 51

(emphasis added.) Respondents’ position is contrary

to law, and bad policy. The arguments in the City’s

brief assert that legal authority requires

governments to consider all relevant factors before

imposing a specific rule or restriction and to

articulate the reasoning. In the context of public

health decisions, the relevant factors include the

risks or costs that are likely to result from the rule or

restriction under consideration. Public policy and the

statutes under which Respondents purported to act

when imposing the Restaurant Closure Order

support the notion that they can be required to

conduct a risk-benefit analysis. Thus, the trial court

properly ordered Respondents to justify the

Restaurant Closure Order by performing a riskbenefit analysis and to demonstrate to the public

that it had done so.

3. The City also argues that a proper riskbenefit analysis includes tailored consideration of the

effects on specific localities, like the City, which has

consistently had lower rates of COVID-19 caused

deaths compared to Los Angeles County overall.

Considering the substantial negative economic,

social, and psychological consequences the

Restaurant Closure Order would have, the

Respondents should have to undergo a reasoned

analysis before the Restaurant Closure Order is

imposed county-wide.

4

ARGUMENT

I.

UNANSWERED QUESTIONS

REGARDING GOVERNMENT AGENCY

POWERS AND COVID RESTRICTIONS

WILL CONTINUE FOR THE

FORSEEABLE FUTURE

According to a recent update posted by the

Centers for Disease Control and Prevention (CDC),

there has been a reversal in the downward trajectory

of COVID cases. The rise of COVID case and

hospitalization rates around the country have been

“rapid and alarming.” And data shows the Delta

variant, currently the predominant strain of the

virus in the United States, is more infectious and

leads to increased transmissibility in comparison to

other variants, even in vaccinated individuals. Delta

Variant (Aug. 19, 2021)

https://www.cdc.gov/coronavirus/2019ncov/variants/delta-variant.html. It is likely the Los

Angeles County Department of Public Health will

continue to take measures to mitigate the spread of

COVID that will affect the entirety of Los Angeles

County, including the City. A decision from the

Court is necessary to ensure that government agency

powers are not exercised in an arbitrary or capricious

manner that may result in more harm than good.

5

II.

CALIFORNIA’S PUBLIC POLICY OF

OPEN GOVERNMENT SUPPORTS THE

TRIAL COURT’S DECISION

The trial court decided to close its order with

an important concept. Our government serves the

people, and the government should be able to justify

its decisions to the people. The trial court said: “This

analysis [referring to the risk-benefit analysis

ordered Respondents to perform before allowing the

Restaurant Closure Order to remain in effect

indefinitely] must be articulated for [real party in

interest California Restaurant Association, Inc.

(“CRA”)] and the public to see.” The trial court

properly ordered Respondents to justify the

Restaurant Closure Order by performing a riskbenefit analysis and to demonstrate to the public

that it had done so.

Underpinning the trial court’s order was a

recognition that the government’s decisions should

be grounded in reasoned decision-making. The

people are entitled to know the bases of its

government’s decisions, and whether the government

has considered the relevant information before

reaching its decisions. This concept can be traced to

the beginning of this country. The Declaration of

Independence provides for an open government: “We

hold these truths to be self-evident, that all men are

created equal, that they are endowed by their

Creator with certain unalienable Rights, that among

these are Life, Liberty and the pursuit of

happiness.—That to secure these rights,

6

Governments are instituted among Men, deriving

their just powers from the consent of the governed ....”

(Italics added.) The principle that public bodies must

hold open and public meetings (at which the public

can view and judge their government) is enshrined in

the California Constitution. See Cal. Const. Art. I, §

3(b) (guaranteeing public’s right of access to public

records and governmental meetings). The California

Legislature also codified this intent at Section 54950

of the California Government Code, which states:

In enacting this chapter, the

Legislature finds and declares that the

public commissions, boards and councils

and the other public agencies in this

State exist to aid in the conduct of the

people’s business. It is the intent of the

law that their actions be taken openly

and that their deliberations be

conducted openly.

The people of this State do not yield

their sovereignty to the agencies which

serve them. The people, in delegating

authority, do not give their public

servants the right to decide what is

good for the people to know and what is

not good for them to know. The people

insist on remaining informed so that

they may retain control over the

instruments they have created.

7

Cal. Gov. Code § 54950. The California Court of

Appeal has said about this statute that governs open

government in California:

It is clearly the public policy of this

state that the proceedings of public

agencies, and the conduct of the public's

business, shall take place at open

meetings, and that the deliberative

process by which decisions related to the

public's business are made shall be

conducted in full view of the public.

Epstein v. Hollywood Entertainment Dist. II Bus.

Improvement Dist., 87 Cal.App.4th 862, 867 (2001)

(emphasis added). Requiring decisions related to the

public’s business to be made in full view of the public

serves multiple goals, including facilitating public

participation in all phases of local government and

curbing misuse of the democratic process by secret

legislation of public bodies. See Cohan v. City of

Thousand Oaks, 30 Cal.App.4th 547, 555 (1994).

Contrary to Respondents’ apparent desire to

shield from the public view whatever support they

may have to enact the Restaurant Closure Order,2

the public policy of the state of California is

otherwise. The trial court was therefore correct to

2 “Nor may the court demand that the County produce a risk-

benefit analysis or indeed any empirical evidence to support its

action in temporarily banning outdoor dining.” Pet. at 13.

(emphasis added.)

8

order Respondents (if they desire to continue the

Restaurant Closure Order beyond its three week

initial term) to demonstrate to Petitioner and to the

public through a risk-benefit analysis the reasons

Respondents believe the Restaurant Closure Order is

necessary. This process the trial court mandated

finds ample support in the law, and allows the people

to be “informed so that they may retain control over

the instruments they have created.” See Cal. Gov.

Code § 54950.

III.

THE TRIAL COURT DID NOT ABUSE ITS

DISCRETION BY REQUIRING

RESPONDENTS TO PERFORM A RISKBENEFIT ANALYSIS

The negative consequences of a decision are

certainly among the factors relevant to an agency’s

consideration of a given action. Failing to perform

any risk-benefit analysis or consider at all the

potential negative effects of the Restaurant Closure

Order demonstrates that Respondents enacted the

order arbitrarily, capriciously, and without

evidentiary support.

Performing a risk-benefit analysis in the

context of public health decisions finds support at

least as far back as Jacobson v. Massachusetts, 197

U.S. 11 (1905). That case involved a regulation

adopted by the City of Cambridge Board Of Health

that required all city inhabitants to be vaccinated or

revaccinated against smallpox because the board

found that the disease was “prevalent” in the city

9

and infections were increasing. Id. at 12. The board

also found that the vaccination order was “necessary

for the speedy extermination of the disease.” Id. This

Court, like the supreme judicial court of

Massachusetts before it, observed that vaccination is

an accepted form of preventative measure that

carries a low level of risk. This Court quoted the

following language of the decision by the supreme

judicial court of Massachusetts, which this Court

upheld:

He [referring to the trial court] would

have considered this testimony of

experts in connection with the facts that

for nearly a century most of the

members of the medical profession have

regarded vaccination, repeated after

intervals, as a preventive of smallpox;

that, while they have recognized the

possibility of injury to an individual

from carelessness in the performance of

it, or even in a conceivable case without

carelessness, they generally have

considered the risk of such an injury too

small to be seriously weighed as against

the benefits coming from the discreet

and proper use of the preventive; and

that not only the medical profession and

the people generally have for a long

time entertained these opinions, but

legislatures and courts have acted upon

them with general unanimity.

10

Id. at 23-24 (emphasis added). This Court also

considered the possibility that Massachusetts’

vaccination regulation could be applied in such a

manner that risk or cost would outweigh the benefit.

The Court said:

Until otherwise informed by the highest

court of Massachusetts, we are not

inclined to hold that the statute

establishes the absolute rule that an

adult must be vaccinated if it be

apparent or can be shown with

reasonable certainty that he is not at

the time a fit subject of vaccination, or

that vaccination, by reason of his then

condition, would seriously impair his

health, or probably cause his death.

Id. at 39. The Court was satisfied by the

maxim that all laws should receive a sensible

construction and therefore the Cambridge Board of

Health intended an exception to the vaccination

requirement when there was a particular showing of

resulting serious injury or possible death. Id. In

other words, when the risks outweighed the benefits.

Later cases, in ensuring that the government

has appropriately exercised its power, have

explained that the courts’ role is to “ ‘ensure that an

agency has adequately considered all relevant

factors, and has demonstrated a rational connection

between those factors, the choice made, and the

11

purposes of the enabling statute.’ ”3 Western States

Petroleum Assn. v. Superior Court, 9 Cal.4th 559, 577

(1995) (quoting California Hotel & Motel Assn. v.

Industrial Welfare Com., 25 Cal.3d 200, 212 (1979)

(superseded by rule on other grounds as stated

in Brinker Restaurant Corp. v. Superior Court, 53

Cal.4th 1004, 1036 (2012))); see also Carrancho v.

California Air Resources Board, 111 Cal.App.4th

1255, 1265 (2003). Under this authority, unless an

agency has “considered all relevant factors” (i.e.,

weighed the risks and benefits), the agency has acted

arbitrarily and capriciously.

The statutes under which Respondents

purported to act additionally support the notion

Respondents can be required to conduct a riskbenefit analysis. California Health and Safety Code

section 101040(a) states:

The local health officer may take any

preventive measure that may be

necessary to protect and preserve the

public health from any public health

hazard during any … ‘state of

emergency,’ or ‘local emergency’ as

defined by Section 8558 of the

3 The California Supreme Court’s direction that a government

agency demonstrate a rational connection between the factors

relevant to a decision, the choice made, and the purpose of the

enabling statute means Respondents are wrong when they

contend they have unfettered discretion to act during a

pandemic. See Pet. at 13, 51.

12

Government Code, within his or her

jurisdiction.

Section 120175 of the California Health and Safety

Code provides:

Each health officer knowing or having

reason to believe that any case of the

diseases made reportable by regulation

of the department, or any other

contagious, infectious or communicable

disease exists, or has recently existed,

within the territory under his or her

jurisdiction, shall take measures as may

be necessary to prevent the spread of

the disease or occurrence of additional

cases.

Both of these statutes require that health

officers act when “necessary.” A health officer cannot

know whether he or she is acting only when

“necessary” unless he or she weighs the foreseeable

potential risks of not acting against the perceived

benefits of proceeding with a contemplated course of

action.

In the present case, the trial court correctly

observed that Respondents failed to consider all

factors relevant to their decision to ban in-person

dining by failing to perform a risk-benefit analysis.

“By failing to weigh the benefits of an outdoor dining

restriction against its costs, the County acted

arbitrarily and its decision lacks a rational

13

relationship to a legitimate end.” See Appendix C of

Petitioner’s Application at 155a. The Court of

Appeal’s finding that a risk-benefit requirement is

“inconsistent with the court’s appropriate role” and

that all that is required is that the order not be

entirely arbitrary is inconsistent with California’s

public policy for transparent reasoning behind

decisions related to the public’s business and

inconsistent with the California Health and Safety

Code’s requirement that government officials only

take safety measures when they are actually

“necessary.” See Appendix B of Petitioner’s

Application at 23a. 25a.

IV.

A PROPER RISK-BENEFIT ANALYSIS

INCLUDES CONSIDERATION OF

EFFECTS ON STAKEHOLDERS LIKE

THE CITY

Respondents failed to articulate adequate

factors or considerations to trigger implementation of

the Restaurant Closure Order, and similarly have

not identified any measureable factors or

considerations that will result in rescission of the

order. The trial court identified a number of relevant

factors Respondents should have, but failed to

consider prior to continuing the Restaurant Closure

Order indefinitely. The court said:

A reasonable person would expect

[Respondents] to consider all pertinent

evidence on the benefits of closure,

including its own expert evidence, the

14

opinions of other experts such as

Kaufman and Bhattacharya (and

criticisms of their opinions), the China

Study, the Japan Study, and the Mayo

Clinic article (and criticisms of their

significance), the CDC study, the CDC

recommendation concerning outdoor

dining, the precautions already in place

for outdoor dining – socially distanced

outdoor dining, masks, and temperature

checks, and whether its trigger of 4000

new cases has any bearing on hospital

burden. As part of the risks of closure,

[Respondents] could be expected to

consider the economic cost of closing

30,000 restaurants, the impact to

restaurant owners and their employees,

and the psychological and emotional

cost to a public tired of the pandemic

and seeking some form of enjoyment in

their lives.

See Appendix B of Petitioner’s Application at 156a.

There existed at the time additional relevant data

that was available to Respondents to aid them in

reasoned decision-making, but which Respondents

failed to consider. Pandemic-related restrictions have

had, and will have, a significant impact on local

public entities like the City. In July 2020, the

Bureau of Labor Statistics of the United States

Department of Labor reported governments had shed

15

1.5 million jobs since February 2020.4 Despite

Respondents’ protestations that it is “impossible” to

analyze the impacts of Respondents’ “Covid-19

interventions” like the Restaurant Closure Order,

local government entities like the City have

estimated such impacts. As of May 2020, City staff

projected a $10 million loss in revenue to the City in

Fiscal Year 2019-2020 as a result of the state Safer

at Home Order.5 The City also estimates that

economic activity in the City is down 13% overall

when comparing the first three quarters of 2019 to

the first three quarters of 2020. The restaurant and

hotel sector in the City is down an estimated 25% in

the same time period. Other local public entities

have undoubtedly prepared their own economic

estimates. The analyses prepared by the City and the

data that support the analyses would have been

shared with Respondents if requested. Respondents

have offered no reasonable explanation for why this

relevant data cannot (or should not) be a part of

Respondents’ decision-making process.

Further demonstrating the arbitrary and

capricious nature of the Restaurant Closure Order is

the fact that Respondents instituted the order

county-wide and without regard to specific conditions

4 The report can be accessed at

https://www.bls.gov/news.release/archives/empsit_07022020.pdf

(see page 4).

5 The report can be accessed at

http://santaclaritacityca.iqm2.com/Citizens/FileOpen.aspx?Type

=1&ID=1605&Inline=True (see page 93).

16

in various locales. Los Angeles County “is one of the

nation’s largest counties with 4,084 square miles,

and has the largest population of any county in the

nation – nearly 10 million residents who account for

approximately 27 percent of California’s

population.”6 There are 88 incorporated cities within

the county.7 Respondents did not demonstrate to the

trial or appellate courts any rationale for imposing

the Restaurant Closure Order county-wide. The

COVID death rate of City residents has consistently

tracked lower than the county-wide death rate.8

A reasoned analysis would consider whether,

given this evidence, the Restaurant Closure Order

should be imposed county-wide. Respondents

admittedly conducted no such analysis. The trial

court was therefore correct in its finding that

instituting the Restaurant Closure Order indefinitely

was arbitrary and capricious.

CONCLUSION

For the reasons specified in this brief, the City

requests that a writ of certiorari be issued to review

6 See https://lacounty.gov/government/about-la-county/

7 See http://file.lacounty.gov/SDSInter/lac/1043530_09-

10CitiesAlpha.pdf

8 Los Angeles County COVID Case Summary from County of

Los Angeles County Public Health website (Aug. 24, 2021),

http://publichealth.lacounty.gov/media/coronavirus/locations.ht

m

17

the decision of the California Court of Appeal and,

ultimately, to reverse that decision.

Respectfully submitted,

CHARLES E. SLYNGSTAD*

BURKE, WILLIAMS & SORENSEN, LLP

444 South Flower Street, Suite 2400

Los Angeles, CA 90071-2953

Telephone: 213.236.0600

cslyngstad@bwslaw.com

Counsel for Amicus Curiae City of Santa Clarita

*Counsel of Record

Dated: September 2, 2021