APPEAL,LNO
U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:20−cv−00865−BAS−AHG

South Bay United Pentecostal Church et al v. Newsom et al Assigned to: Judge Cynthia Bashant Referred to: Magistrate Judge Allison H. Goddard Related Case: 3:20−cv−00683−BAS−AHG
Case in other court: USCA, 20−55533 Cause: 42:1983cv Civil Rights Act − Civil Action for Deprivation of Rights
Plaintiff

Date Filed: 05/08/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

South Bay United Pentecostal Church a California nonprofit corporation

represented by Charles S. LiMandri LiMandri & Jonna LLP PO Box 9120 Rancho Santa Fe, CA 92067 (858)759−9948 Fax: (858)759−9938 Email: cslimandri@limandri.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Harmeet K. Dhillon Dhillon & Smith LLP 177 Post Street Suite 700 San Francisco, CA 94108 415−433−1700 Fax: 415−520−6593 Email: harmeet@dhillonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jeffrey M. Trissell Freedom of Conscience Defense Fund PO Box 9520 Rancho Santa Fe, CA 92067 858−759−9948 Fax: 858−759−9938 Email: jtrissell@limandri.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Philip Meuser Dhillon Law Group, Inc. 177 Post Street Suite 700 San Francisco, CA 94108 415−433−1700 Email: MMeuser@dhillonlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Milan Louis Brandon , II LiMandri & Jonna LLP P.O. Box 9120 Rancho Santa Fe, CA 92067 858−395−5585 Email: mbrandon@limandri.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Bishop Arthur Hodges III an individual
Plaintiff Rabbi Mendel Polichenco an individual TERMINATED: 05/11/2020
V. Defendant Gavin Newsom in his official capacity as the Governor of California

Paul Michael Jonna Law Offices of Charles S. LiMandri, APC P.O. Box 9120 Rancho Santa Fe, CA 92067 858−759−9930 Fax: 858−759−9938 Email: pjonna@limandri.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles S. LiMandri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harmeet K. Dhillon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey M. Trissell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark Philip Meuser (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Milan Louis Brandon , II (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul Michael Jonna (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Charles S. LiMandri (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harmeet K. Dhillon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Attorney General State of California Office of the Attorney General 600 West Broadway Suite 1800 San Diego, CA 92101−3702

Defendant Xavier Becerra in his official capacity as the Attorney General of California
Defendant Sonia Angell in her official capacity as California Public Health Officer
Defendant Wilma J. Wooten in her official capacity as Public Health Officer, County of San Diego

(619)645−2076 Fax: (619)645−2313 Email: docketingsdawt@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa J. Plank California Attorney General 455 Golden Gate Avenue San Francisco, CA 94102 415−510−4445 Email: lisa.plank@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Grabarsky California Attorney General's Office 300 South Spring Street Suite 1702 Los Angeles, CA 90013 213−897−2112 Fax: 213−897−7604 Email: todd.grabarsky@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Attorney General (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa J. Plank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Grabarsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Attorney General (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa J. Plank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Todd Grabarsky (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Timothy M. White Office of County Counsel 1600 Pacific Highway, Rm 355 San Diego, CA 92101

Defendant Helen Robbins−Meyer in her official capacity as Director of Emergency Services
Defendant William D. Gore in his official capacity as Sheriff of the County of San Diego
Defendant Kevin Faulconer in his official capacity as Mayor of the City of San Diego TERMINATED: 05/11/2020
Defendant David Nisleit in his official capacity as the Chief of Police of the City of San Diego TERMINATED: 05/11/2020

6195314865 Fax: 6195316005 Email: timothy.white@sdcounty.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Timothy M. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Timothy M. White (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 05/08/2020
05/08/2020 05/08/2020
05/08/2020

# Docket Text
1 COMPLAINT With Jury Demand Against Gavin Newsom, Xavier Becerra, Sonia Angell, Wilma J. Wooten, Helen Robbins−Meyer, William D. Gore, Kevin Faulconer, David Nisleit, (Filing fee $ 400 receipt number ACASDC−13846481.), filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III, Rabbi Mendel Polichenco. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit)
The new case number is 3:20−cv−865−AJB−MDD. Judge Anthony J. Battaglia and Magistrate Judge Mitchell D. Dembin are assigned to the case. (LiMandri, Charles)(jxv)(jrd) (Entered: 05/08/2020)
2 Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jxv)(jrd) (Entered: 05/08/2020)
3 **Document Stricken per Order 8 ** Ex Parte MOTION for Temporary Restraining Order and Order to Show Case re Preliminary Injunction by Bishop Arthur Hodges III, Rabbi Mendel Polichenco, South Bay United Pentecostal Church. (Attachments: # 1 Memo of Points and Authorities, # 2 Decl. Art Hodges, # 3 Decl. Mendel Polichenco, # 4 Decl. George Delgado, # 5 Decl. Jeffrey Trissell & Exh. 1−1 to 3−1, # 6 Decl. Jeffrey Trissell & Exh. 3−2 to 3−3, # 7 proposed Order)(LiMandri, Charles) Modified to strike on 5/11/2020 (jrm). (Main Document 3 replaced on 5/11/2020) (jrm). (Entered: 05/08/2020)
4 REQUEST FOR JUDICIAL NOTICE by Bishop Arthur Hodges III, Rabbi Mendel Polichenco, South Bay United Pentecostal Church re 3 Ex Parte MOTION for Temporary Restraining Order and Order to Show Case re Preliminary Injunction Pursuant to Federal Rules of Evidence 201 (Attachments: # 1 Declaration of Jeffrey M Trissell, # 2 Proposed Order)(LiMandri, Charles)Attorney Charles S. LiMandri added to party Bishop Arthur Hodges III(pty:pla), Attorney Charles S. LiMandri added to

05/08/2020 05/08/2020 05/09/2020 05/11/2020
05/11/2020 05/11/2020 05/11/2020
05/11/2020 05/11/2020 05/11/2020 05/11/2020

party Rabbi Mendel Polichenco(pty:pla), Attorney Charles S. LiMandri added to party South Bay United Pentecostal Church(pty:pla) (jrm). (Entered: 05/08/2020)
5 NOTICE OF RELATED CASE(S) by William D. Gore, Helen Robbins−Meyer, Wilma J. Wooten of case(s) 20cv00683 . (Attachments: # 1 Proof of Service)(White, Timothy) (jrm). (Entered: 05/08/2020)
6 OBJECTION by Bishop Arthur Hodges III, Rabbi Mendel Polichenco, South Bay United Pentecostal Church re 5 Notice of Related Case of the County Defendants'. (LiMandri, Charles) (jrm). (Entered: 05/08/2020)
7 REQUEST FOR JUDICIAL NOTICE by Bishop Arthur Hodges III, Rabbi Mendel Polichenco, South Bay United Pentecostal Church re 3 Ex Parte MOTION for Temporary Restraining Order and Order to Show Case re Preliminary Injunction of New Authority (LiMandri, Charles) (jrm). (Entered: 05/09/2020)
8 Notice of Document Discrepancies and Order Thereon by Judge Anthony J. Battaglia Rejecting re 3 Ex Parte MOTION for Temporary Restraining Order and Order to Show Case re Preliminary Injunction, from Plaintiffs Bishop Arthur Hodges III, Rabbi Mendel Polichenco, South Bay United Pentecostal Church. Non−compliance with local rule(s), Pursuant to chambers rules section III: All ex parte motions will be accompanied by a declaration from counsel documenting : (1) efforts to contact opposing counsel; (2) counsels meet and confer efforts; and (3) opposing counsels position regarding the ex parte motion.. IT IS HEREBY ORDERED: The document is rejected. It is ordered that the Clerk STRIKE the document from the record, and serve a copy of this order on all parties. Signed by the Chambers Judge Anthony J. Battaglia.(jrm) (Additional attachment(s) added on 5/11/2020: # 1 Stricken Document 1, # 2 Stricken Document 1−1) (jrm). (Entered: 05/11/2020)
9 NOTICE OF RELATED CASE(S) by William D. Gore, Helen Robbins−Meyer, Wilma J. Wooten of case(s) 20cv873 20cv683. (Attachments: # 1 Proof of Service)(Bunton, Thomas) (jrm). (Entered: 05/11/2020)
10 NOTICE of Voluntary Dismissal by Bishop Arthur Hodges III, Rabbi Mendel Polichenco, South Bay United Pentecostal Church of Certain Defendants Without Prejudice Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) (LiMandri, Charles) (Entered: 05/11/2020)
11 AMENDED COMPLAINT with Jury Demand against Sonia Angell, Xavier Becerra, William D. Gore, Gavin Newsom, Helen Robbins−Meyer, Wilma J. Wooten, filed by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Amended Civil Cover Sheet, # 2 Amended Summons − Newsom, # 3 Amended Summons − Becerra, # 4 Amended Summons − Angell, # 5 Amended Summons − Wooten, # 6 Amended Summons − Robbins−Meyer, # 7 Amended Summons − gore)New Summons Requested. (LiMandri, Charles) (Entered: 05/11/2020)
12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration Bishop Art Hodges, # 3 Declaration Dr. George Delgado, # 4 Declaration Jeffrey M Trissell, # 5 [Proposed] Order)(LiMandri, Charles) (Entered: 05/11/2020)
13 REQUEST FOR JUDICIAL NOTICE by Bishop Arthur Hodges III, South Bay United Pentecostal Church re 12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction Pursuant to Federal Rules of Evidence 201 (Attachments: # 1 Declaration of Jeffrey M Trissell, # 2 [Proposed] Order)(LiMandri, Charles) (Entered: 05/11/2020)
14 OBJECTION by Bishop Arthur Hodges III, South Bay United Pentecostal Church re 9 Notice of Related Case to the County Defendants Second Notice of Related Cases. (LiMandri, Charles) (Entered: 05/11/2020)
15 Ex Parte MOTION re 12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction to Modify the Briefing Schedule on Plaintiffs Application for a Temporary Restraining Order by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Declaration of Jeffrey M Trissell, # 2 [Proposed] Order)(LiMandri, Charles) (Entered: 05/11/2020)

05/12/2020
05/12/2020 05/12/2020
05/12/2020 05/12/2020 05/12/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020 05/14/2020

16 AMENDED DOCUMENT by Bishop Arthur Hodges III, South Bay United Pentecostal Church. Amendment to 15 Ex Parte MOTION re 12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction to Modify the Briefing Schedule on Plaintiffs Application for a Temporary Restraining Order − Notice of Filing Amended Exhibit 3 in Support of Ex Parte Application to Modify the Briefing Schedule on Plaintiffs. (LiMandri, Charles) (jmo). (Entered: 05/12/2020)
17 Amended Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (jrm) (Entered: 05/12/2020)
18 ORDER OF TRANSFER PURSUANT TO LOW NUMBER RULE. Case reassigned to Judge Cynthia Bashant and Magistrate Judge Allison H. Goddard for all further proceedings. Judge Anthony J. Battaglia, Magistrate Judge Mitchell D. Dembin no longer assigned to case. Create association to 3:20−cv−00683−BAS−AHG. The new case number is 3:20−cv−00865−BAS−AHG. Signed by Judge Anthony J. Battaglia on 5/12/2020. Signed by Judge Cynthia Bashant on 5/11/2020.(jrm) (Entered: 05/12/2020)
19 ORDER Setting Telephonic Oral Argument (ECF No. 12 ). The Court sets atelephonic oral argument for the motion on 5/15/20 at 10:30 a.m. Accordingly, the Court TERMINATES AS MOOT Plaintiffs' ex parte application for a modified briefing schedule. (ECF No. 15 ) Signed by Judge Cynthia Bashant on 5/12/20.(jmo) (Entered: 05/12/2020)
20 NOTICE Supplement to Notice of Related Cases by William D. Gore, Helen Robbins−Meyer, Wilma J. Wooten re 9 Notice of Related Case (Attachments: # 1 Exhibit 1, # 2 Proof of Service)(Bunton, Thomas) (jmo). (Entered: 05/12/2020)
21 Ex Parte MOTION for Leave to File Application for Leave To File Request for Judicial Notice Pursuant to Federal Rule of Evidence 201 by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Declaration Charles LiMandri)(LiMandri, Charles) (jmo). (Entered: 05/12/2020)
22 RESPONSE in Opposition re 12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction filed by William D. Gore, Helen Robbins−Meyer, Wilma J. Wooten. (Attachments: # 1 Request for Judicial Notice, # 2 Proof of Service)(White, Timothy) (jmo). (Entered: 05/14/2020)
23 RESPONSE in Opposition re: ECF 12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction, filed by Sonia Angell, Xavier Becerra, Gavin Newsom. (Attachments: # 1 Declaration of Plank, # 2 Declaration of Watt)(Plank, Lisa) Modified on 5/14/2020 to correct link and regenerate NEF (jmo). (jmo). (Entered: 05/14/2020)
24 NOTICE of Appearance by Mark Philip Meuser on behalf of Bishop Arthur Hodges III, South Bay United Pentecostal Church (Meuser, Mark)Attorney Mark Philip Meuser added to party Bishop Arthur Hodges III(pty:pla), Attorney Mark Philip Meuser added to party South Bay United Pentecostal Church(pty:pla) (jmo). (Entered: 05/14/2020)
25 NOTICE of Appearance by Paul Michael Jonna on behalf of Bishop Arthur Hodges III, South Bay United Pentecostal Church (Jonna, Paul)Attorney Paul Michael Jonna added to party Bishop Arthur Hodges III(pty:pla), Attorney Paul Michael Jonna added to party South Bay United Pentecostal Church(pty:pla) (jmo). (Entered: 05/14/2020)
26 OBJECTION by Bishop Arthur Hodges III, South Bay United Pentecostal Church re 23 Response in Opposition to Motion, 22 Response in Opposition to Motion, to Untimely Opposition to Plaintiffs Ex Parte Application for a Temporary Restraining. (LiMandri, Charles) (jmo). (Entered: 05/14/2020)
27 NOTICE of Appearance by Todd Grabarsky on behalf of Sonia Angell, Xavier Becerra, Gavin Newsom (Attachments: # 1 Proof of Service)(Grabarsky, Todd)Attorney Todd Grabarsky added to party Sonia Angell(pty:dft), Attorney Todd Grabarsky added to party Xavier Becerra(pty:dft), Attorney Todd Grabarsky added to party Gavin Newsom(pty:dft) (jmo). (Entered: 05/14/2020)

05/14/2020 05/14/2020 05/15/2020 05/15/2020 05/15/2020
05/15/2020 05/15/2020 05/15/2020 05/15/2020 05/16/2020

28 NOTICE of Appearance by Milan Louis Brandon, II on behalf of Bishop Arthur Hodges III, South Bay United Pentecostal Church (Brandon, Milan)Attorney Milan Louis Brandon, II added to party Bishop Arthur Hodges III(pty:pla), Attorney Milan Louis Brandon, II added to party South Bay United Pentecostal Church(pty:pla) (jmo). (Entered: 05/14/2020)
29 Ex Parte MOTION for Leave to File Supplemental Authority in Support of Plaintiffs Application for a Temporary Restraining Order by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Declaration of Jeffrey M Trissell, # 2 [Proposed] Order)(LiMandri, Charles) (jmo). (Entered: 05/14/2020)
30 DECLARATION re 26 Objection, Declaration of Timothy M. White in Response to Plaintiffs' Objection to Purportedly "Untimely" Opposition to Plaintiffs' TRO Application [ECF 26] by Defendants William D. Gore, Helen Robbins−Meyer, Wilma J. Wooten. (Attachments: # 1 Proof of Service)(White, Timothy) (jmo). (Entered: 05/15/2020)
31 RESPONSE re 26 Objection, State Defendants Opposition to Plaintiffs' Objection (ECF No. 26) filed by Sonia Angell, Xavier Becerra, Gavin Newsom. (Plank, Lisa) (jmo). (Entered: 05/15/2020)
32 Minute Order for proceedings held before Judge Cynthia Bashant: Motion Hearing (telephonic) held on 5/15/2020. For the reasons stated in the hearing, the Court grants 29 Ex Parte MOTION for Leave to File Supplemental Authority in Support of Plaintiffs Application for a Temporary Restraining Order filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III; denies 12 Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III; and denies 21 Ex Parte MOTION for Leave to File Application for Leave To File Request for Judicial Notice Pursuant to Federal Rule of Evidence 201 filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III (Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Paul Jonna, Charles LiMandri, Jeffrey Trissell, and Mark Meuser).(Defendant Attorney Todd Grabarsky, Lisa Plank, and Timothy White). (no document attached) (sxm) Modified on 5/15/2020 to correct attorney name(sxm). (Entered: 05/15/2020)
33 NOTICE of Appearance by Lisa J. Plank on behalf of Sonia Angell, Xavier Becerra, Gavin Newsom (Attachments: # 1 Proof of Service)(Plank, Lisa)Attorney Lisa J. Plank added to party Sonia Angell(pty:dft), Attorney Lisa J. Plank added to party Xavier Becerra(pty:dft), Attorney Lisa J. Plank added to party Gavin Newsom(pty:dft) (jmo). (Entered: 05/15/2020)
34 WAIVER OF SERVICE Returned Executed by Bishop Arthur Hodges III, South Bay United Pentecostal Church, as to Sonia Angell, Xavier Becerra, William D. Gore, Gavin Newsom, Helen Robbins−Meyer, Wilma J. Wooten. (Attachments: # 1 Waiver of Service − Xavier Becerra, # 2 Waiver of Service − Sonia Angell, # 3 Waiver of Service − Wilma J. Wooten, # 4 Waiver of Service − Helen Robins−Meyer, # 5 Waiver of Service − William D. Gore, Sheriff)(LiMandri, Charles) (jmo). (Entered: 05/15/2020)
35 NOTICE OF APPEAL to the 9th Circuit as to 32 Order denying Motion for a Temporary Restraining Order and denying Motion for an OSC re Preliminary Injunction by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Filing fee $ 505 receipt number ACASDC−13878564.) (Notice of Appeal electronically transmitted to the US Court of Appeals.) (Attachments: # 1 Representation Statement)(LiMandri, Charles). (Modified on 5/15/2020: Edited docket text re linked Order.) (akr). (Entered: 05/15/2020)
36 Ex Parte MOTION for Order Granting Injunction Pending Appeal by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Declaration Jeffrey M Trissell)(LiMandri, Charles) (jmo). (Entered: 05/15/2020)
37 USCA Case Number 20−55533 for 35 Notice of Appeal to the 9th Circuit filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III. (akr) (Entered: 05/16/2020)

05/18/2020 05/18/2020 05/19/2020 05/22/2020 05/22/2020
07/09/2020 07/10/2020

38 NOTICE OF FILING OF OFFICIAL TRANSCRIPT (Motion Hearing) held on 5/15/2020 before Judge Cynthia Bashant. Court Reporter/Transcriber: Dana Peabody. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or the Court Reporter/Transcriber. If redaction is necessary, parties have seven calendar days from the file date of the Transcript to E−File the Notice of Intent to Request Redaction. The following deadlines would also apply if requesting redaction: Redaction Request Statement due to Court Reporter/Transcriber 6/8/2020. Redacted Transcript Deadline set for 6/18/2020. Release of Transcript Restriction set for 8/17/2020. (akr) (Entered: 05/18/2020)
39 ORDER Denying Plaintiffs' Ex Parte Motion for an Injunction Pending Appeal (ECF No. 36 ). Signed by Judge Cynthia Bashant on 5/18/20. (jmo) (Entered: 05/18/2020)
40 NOTICE of Appearance by Jeffrey M. Trissell on behalf of Bishop Arthur Hodges III, South Bay United Pentecostal Church (Trissell, Jeffrey)Attorney Jeffrey M. Trissell added to party Bishop Arthur Hodges III(pty:pla), Attorney Jeffrey M. Trissell added to party South Bay United Pentecostal Church(pty:pla) (jmo). (Entered: 05/19/2020)
41 ORDER of USCA as to 35 Notice of Appeal to the 9th Circuit filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III. The motion of Americans United for Separation of Church and State for leave to file an amicus curiae brief in opposition to appellant's emergency motion for an injunction pending appeal is granted. The Clerk shall file the amicus brief submitted on May 16, 2020. Appellants' request to expedite this appeal is granted in part. Briefing schedule issued. No streamlined extensions of time will be approved. No written motions for extensions of time under Ninth Circuit Rule 31−2.2(b) will be granted absent extraordinary and compelling circumstances. (akr) (Entered: 05/22/2020)
42 ORDER of USCA as to 35 Notice of Appeal to the 9th Circuit filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III. This appeal challenges the USDC's denial of appellants' motion for a temporary restraining order and order to show cause why a preliminary injunction should not issue in appellants' challenge to the application of the State of California and County of San Diego's stay−at−home orders to in−person religious services. Appellants have filed an emergency motion seeking injunctive relief permitting them to hold in−person religious services during the pendency of this appeal. We have jurisdiction to review the denial of a temporary restraining order where, as here, "the circumstances render the denial 'tantamount to the denial of a preliminary injunction.'" Accordingly, the motion to dismiss for lack of jurisdiction is denied. The request to take judicial notice is granted. In evaluating a motion for an injunction pending appeal, we consider whether the moving party has demonstrated that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. We conclude that appellants have not demonstrated a sufficient likelihood of success on appeal. Where state action does not "infringe upon or restrict practices because of their religious motivation" and does not "in a selective manner impose burdens only on conduct motivated by religious belief," it does not violate the First Amendment. We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a "[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." The remaining factors do not counsel in favor of injunctive relief. We therefore deny the emergency motion for injunctive relief pending appeal. (See Order for full text.) (akr) (Entered: 05/22/2020)
43 Joint MOTION for Leave to File for Plaintiffs to File a Second Amended Complaint; and to Extend Time for Defendants Responses by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (LiMandri, Charles) (dlg). (Entered: 07/09/2020)
44 ORDER Granting Joint Motion (ECF No. 43 ). Deadline for Defendants to respond to first amended complaint is extended to 7/24/20, but is expected to be mooted by Plaintiff's filing of second amended complaint. Plaintiffs second amended complaint due no later than 7/17/20 at 5:00 PM. Defendants response to second amended complaint is extended 28 days after it is filed. Signed by Judge Cynthia Bashant on 7/10/20. (jmo) (Entered: 07/10/2020)

07/10/2020 07/14/2020 07/17/2020 07/20/2020 07/29/2020
07/29/2020 07/30/2020 07/30/2020 08/10/2020 08/14/2020

45 MOTION for an Indicative Ruling Pursuant to Fed. R. Civ. P. re 32 Order on Motion for Leave to File Document,,,,, Order on Motion for TRO,,,,,,,,,, Motion Hearing,,,, by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration of Bishop Hodges, # 3 Declaration of Charles LiMandri, # 4 Request for Judicial Notice, # 5 Proof of Service)(LiMandri, Charles) (jmo). (Entered: 07/10/2020)
46 ORDER Granting Motion for Indicative Ruling (ECF No. 45 ). Signed by Judge Cynthia Bashant on 7/14/20. (jmo) (Entered: 07/14/2020)
47 AMENDED COMPLAINT with Jury Demand , Second Amended, against Sonia Angell, Xavier Becerra, Kevin Faulconer, William D. Gore, Gavin Newsom, David Nisleit, Helen Robbins−Meyer, Wilma J. Wooten, filed by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Proof of Service) (LiMandri, Charles) (jmo). (Entered: 07/17/2020)
48 DEMAND for Trial by Jury by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (LiMandri, Charles) (jmo). (Entered: 07/20/2020)
49 ORDER of USCA as to 35 Notice of Appeal to the 9th Circuit filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III. On July 10, 2020, Plaintiffs−Appellants filed a motion for a limited remand to the USDC for it to reconsider whether to enjoin California's orders regarding the COVID−19 pandemic, in light of changes to those orders and other developments since Plaintiffs filed the present appeal on May 15, 2020. The specific developments relevant to Plaintiffs' request are outlined in Plaintiffs' Motion for Indicative Ruling and the Second Amended Complaint filed with the USDC. The panel construes Plaintiffs' request as a renewed application for a temporary restraining order and an order to show cause re: preliminary injunction. The USDC presently lacks jurisdiction to consider this request, G & M, Inc. v. Newbern, 488 F.2d 742, 746 (9th Cir. 1973), but the USDC has issued an indicative ruling stating that the request raises a substantial issue. Accordingly, the panel grants Plaintiffs' motion for limited remand pursuant to Federal Rule of Appellate Procedure 12.1. The panel retains jurisdiction of the case and remands it for the limited purpose of permitting the USDC to consider Plaintiffs' request in light of the events and case law that have developed since May 15, 2020. On remand, the USDC may order supplemental briefing as necessary to address Plaintiffs' request. The oral argument set for August 12, 2020, is vacated, and this appeal is stayed pending the results of the limited remand ordered herein. The parties shall notify the Clerk of Court when the USDC has decided the motion on remand. (akr) (Entered: 07/29/2020)
50 ORDER Setting Briefing Schedule. Plaintiffs are to file their motion for temporary restraining order on or before 8/10/20. Any response by Defendants must be filed within 21 days of Plaintiffs' filing of the motion and any reply by Plaintiffs must be filed within 7 days of Defendants' filing of the opposition. Signed by Judge Cynthia Bashant on 7/29/20.(jmo) (Entered: 07/29/2020)
51 Joint MOTION for Extension of Time to File Responses to Second Amended Complaint by Sonia Angell, Xavier Becerra, Gavin Newsom. (Attachments: # 1 Proposed Order)(Grabarsky, Todd) (jmo). (Entered: 07/30/2020)
52 ORDER Granting Joint Motion for Extension of Time (ECF No. 51 ). The deadline for Defendants to respond to the Second Amended Complaint is extended until twenty−one (21) days after the Court issues its ruling on Plaintiffs' intended motion for temporary restraining order. Signed by Judge Cynthia Bashant on 7/30/20. (jmo) (Entered: 07/30/2020)
53 MOTION for Temporary Restraining Order / Preliminary Injunction − Renewed by Bishop Arthur Hodges III, South Bay United Pentecostal Church. (Attachments: # 1 Memo of Points and Authorities, # 2 Second Suppl. Declaration of Bishop Hodges, # 3 Suppl. Declaration of Jeffrey Trissell, # 4 Declaration of Dr. Delgado, # 5 Declaration of Charles Cicchetti, # 6 Declaration of Sean Kaufman, # 7 Declaration of James Lyons−Weiller, # 8 Declaration of Dr. Bhattacharya, # 9 Proof of Service)(LiMandri, Charles) (jpp). (Entered: 08/10/2020)
54 DECLARATION re 53 MOTION for Temporary Restraining Order / Preliminary Injunction − Renewed of Dr. Jayanta Bhattacharya by Plaintiffs Bishop Arthur

Hodges III, South Bay United Pentecostal Church. (LiMandri, Charles) (Entered: 08/14/2020)

 
 Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.1 Page 1 of 128

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067

5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, BISHOP ARTHUR

21 HODGES III, an individual, RABBI

22 MENDEL POLICHENCO, an individual,

23

Plaintiffs,

24 v.

25 GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER

26 BECERRA, in his official capacity as the

27

Attorney General of California, SONIA ANGELL, in her official capacity as

28 California Public Health Officer, WILMA J.

Case No.: '20CV865 AJB MDD COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
JURY TRIAL DEMANDED

Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.2 Page 2 of 128

1 WOOTEN, in her official capacity as Public

2

Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official

3 capacity as Director of Emergency Services,

WILLIAM D. GORE, in his official 4 capacity as Sheriff of the County of San

5 Diego, KEVIN FAULCONER, in his official capacity as Mayor of the City of San
6 Diego, and DAVID NISLEIT, in his official

7 capacity as the Chief of Police of the City of San Diego,
8 Defendants.
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.3 Page 3 of 128

1

Why can someone safely walk down a grocery store aisle

2

but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?

3

The Commonwealth has no good answers. While the law

4

may take periodic naps during a pandemic, we will not

let it sleep through one.

5

6

Maryville Baptist Church, Inc. v. Beshear,

No. 20-5427 (6th Cir. May 2, 2020) 7

8

INTRODUCTION

9

1. It is time. California is one of only eight states whose response to the

10 COVID-19 pandemic has included no accommodation for—hardly even a mention

11 of—the religious rights of its citizens. Now, with the pandemic stabilizing, California

12 has moved from “Stage 1” to “Stage 2.” In the first part of Stage 2, beginning on

13 Friday, May 8, retail and manufacturing may begin reopening—but not places of

14 worship. In the latter part of Stage 2, within a “few weeks,” shopping malls, car

15 washes, pet grooming, offices, dine-in restaurants, schools may reopen—but again,

16 not places of worship. No, churches will be allowed to reopen months later in “Stage

17 3,” at the same time as salons, tattoo parlors, gyms, bars, and movie theaters. But

18 worship is not frivolous entertainment: it is the first right protected in the First

19 Amendment. To be sure, “[t]here is no instruction book for a pandemic. The threat

20 evolves. Experts reevaluate.” On Fire Christian Ctr., Inc. v. Fischer, --- F. Supp. 3d ---,

21 2020 WL 1820249, at *10 (W.D. Ky. 2020). And now it is time to reevaluate

22 California’s approach of dismissing the religious rights of its citizens.

23

2. This new regime, where manufacturing, schools, offices, and childcare

24 facilities can reopen—but places of worship cannot—is mindboggling. The churches

25 and pastors of California are no less “essential” than its retail, schools, and offices to

26 the health and well-being of its residents. More confusing is the placement of worship

27 in Stage 3, alongside hair salons, nail salons, and tattoo parlors.

28

3. There is no attempt at tailoring in California’s new regime, much less

1 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.4 Page 4 of 128

1 narrow tailoring. Every church in the state has been shuttered, and every pastor and

2 congregant placed under house arrest, save for “essential” non-religious activities.

3 This has now gone on for almost a month and a half, with several more months to

4 come, and with no true end in sight. No consideration has been made for church size.

5 No allowance has been made in relation to particular individuals’ risk factors for

6 coronavirus.

7

4. Defendants have thus intentionally denigrated California churches and

8 pastors and people of faith by relegating them to third class citizenship. Defendants

9 have no compelling justification for their discriminatory treatment of churches and

10 pastors and people of faith, nor have they attempted in any way to tailor their

11 regulations to the least restrictive means necessary to meet any arguable compelling

12 interest.

13

5. In light of this denigration, this Action presents facial and as-applied

14 challenges to the Governor of California’s March 19, 2020, Executive Order N-33-

15 20, April 28, 2020, Essential Workforce memorandum, and May 7, 2020, Resilience 16 Roadmap (the “State Orders”);1 the County of San Diego’s April 30, 2020, Order of 17 the Health Officer and Emergency Regulations (the “County Order”);2 and the

18 Mayor of San Diego’s March 16, March 30, and April 30, 2020, Executive Orders 19 Nos. 2020-1, 2020-2, and 2020-3 (the “City Orders”)3—each of which violate the

20 1 Attached hereto as Exhibits 1-1, 1-2, 1-3, and 1-4: 21 https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf;

22

https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf; https://covid19.ca.gov/roadmap/;

23 https://www.gov.ca.gov/2020/05/07/governor-newsom-releases-updated-industry-

24

guidance/ 2 Attached hereto as Exhibits 2-1 and 2-2:

25 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol ogy/HealthOfficerOrderCOVID19.pdf;
26 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol

27

ogy/covid19/SOCIAL_DISTANCING_AND_SANITATION_PROTOCOL_040 22020_V1.pdf

28 3 Attached hereto as Exhibits 3-1, 3-2, and 3-3:

2 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.5 Page 5 of 128

1 constitutional rights of Plaintiffs and the people of California (collectively, the

2 “Orders” or the “Reopening Plan”).

3

JURISDICTION AND VENUE

4

6. This action arises under 42 U.S.C. § 1983 in relation to Defendants’

5 deprivation of Plaintiffs’ constitutional rights to freedom of religion, speech, and

6 assembly, due process, and equal protection rights under the First and Fourteenth

7 Amendments to the U.S. Constitution. Accordingly, this Court has federal question

8 jurisdiction under 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over the

9 claims asserting violations of the California Constitution through supplemental

10 jurisdiction under 28 U.S.C. § 1367(a). This Court has authority to award the

11 requested declaratory relief under 28 U.S.C. § 2201; the requested injunctive relief

12 and damages under 28 U.S.C. § 1343(a); and attorneys’ fees and costs under 42

13 U.S.C. § 1988.

14

7. The Southern District of California is the appropriate venue for this

15 action pursuant to 28 U.S.C. §§ 1391(b)(1) and (2) because it is the District in which

16 Defendants maintain offices, exercise their authority in their official capacities, and

17 will enforce the Orders; and it is the District in which substantially all of the events

18 giving rise to the claims occurred.

19

THE PARTIES

20

8. Founded in 1956, Plaintiff South Bay United Pentecostal Church is a

21 California non-profit corporation, located in Chula Vista, California. The Church

22 sues in its own capacity and on behalf of its congregants. It is a multi-national, multi-

23 cultural congregation. The majority of its members are Hispanic, with the balance

24 consisting of Filipino, Caucasian, African-American, and other ethnic groups. It is an

25 https://www.sandiego.gov/sites/default/files/mayoralexecutiveorder_covid19.pdf;
26 https://www.sandiego.gov/sites/default/files/mkf_executive_order_2020-2_-_3-

27

30-2020_1.pdf; https://www.sandiego.gov/sites/default/files/mkf_executive_order_2020-04-30-

28 2020_3.pdf

3 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.6 Page 6 of 128

1 open and accepting community that believes all humans are children of God.

2

9. Plaintiff Bishop Arthur Hodges III is a resident of the County of San

3 Diego, California. He has served as the Chief Executive Officer and Senior Pastor of

4 the South Bay United Pentecostal Church for thirty-five years. He also serves as

5 Superintendent for the SoCal District of the United Pentecostal Church International.

6

10. Plaintiff Rabbi Mendel Polichenco is a resident of the County of San

7 Diego, California. He serves as rabbi and director of Chabad of Carmel Valley,

8 located in the City of San Diego, California. He also serves as director of Chabad

9 Without Borders, which operates fifteen Chabad branches in Mexico and three

10 branches in San Diego County.

11

11. Defendant Gavin Newsom is sued in his official capacity as the

12 Governor of California. The California Constitution vests the “supreme executive

13 power of the State” in the Governor, who “shall see that the law is faithfully

14 executed.” Cal. Const. Art. V, § 1. Governor Newsom signed the State Orders.

15

12. Defendant Xavier Becerra is the Attorney General of California. As the

16 State’s chief law enforcement officer, Becerra is responsible for executing the State’s

17 police powers. He is sued in his official capacity.

18

13. Defendant Sonia Angell is California’s Public Health Officer. Under the

19 authority of the State Order, Angell decided which employees in the State are to be

20 “Essential Critical Infrastructure Workers.” She is sued in her official capacity.

21

14. Defendant Wilma J. Wooten is San Diego County’s Public Health

22 Officer. Wooten signed the County Order. She is sued in her official capacity.

23

15. Defendant Helen Robbins-Meyer is made a party to this Action in her

24 official capacity as the Director of Emergency Services, County of San Diego. She

25 signed the County Orders.

26

16. Defendant William D. Gore is made a party to this Action in his official

27 capacity as Sheriff of the County of San Diego. He is responsible for enforcing the

28 State Orders and the County Order.
4 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.7 Page 7 of 128

1

17. Defendant Kevin Faulconer is the Mayor of San Diego, California. As

2 “the chief executive officer of the City,” he is empowered “[t]o execute and enforce

3 all laws, ordinances, and policies of the City.” S.D. Charter Art. XV, § 265. Mayor

4 Faulconer signed the City Orders. He is sued in his official capacity.

5

18. Defendant David Nisleit is sued in his official capacity as the Chief of

6 Police of the City of San Diego. He is responsible for enforcing the State Orders and

7 the City Orders.

8

19. Each and every Defendant acted under color of state law with respect to

9 all acts or omissions herein alleged.

10

FACTUAL ALLEGATIONS

11

Introduction

12

20. On or about March 13, 2020, President Donald J. Trump proclaimed a

13 National State of Emergency as a result of the threat of the emergence of a novel 14 coronavirus, COVID-19.4 Fear of the coronavirus epidemic has gripped California,

15 the nation, and the world. The coronavirus outbreak has turned the world upside-

16 down, causing profound damage to the lives of all Americans and to the national

17 economy.

18

21. In response to the virus, many states imposed “stay-at-home” orders to

19 “flatten the curve” of the spread of the virus. In the vast majority of states, these stay-

20 at-home orders protected the constitutional rights of churches and religious believers 21 during the coronavirus pandemic.5 When those orders did not protect their

22 4 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-

23 national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

24

5 According to a recent article, only nine states did not have religious exemptions from their stay-at-home orders. See Chris Field, 9 states still prohibit religious

25 gatherings during pandemic. All others have religious exemptions for stay-at-home orders,

THE BLAZE (Apr. 28, 2020); https://www.theblaze.com/news/states-prohibit-

26 religious-gatherings-pandemic (listing states with no religious protections as: Alaska,

27

California, Idaho, Illinois, Minnesota, New Jersey, New York, Vermont, Washington.) On May 1, 2020, in response to a lawsuit, Illinois removed itself from

28 that list. See Tina Sfondeles, Freedom to worship? Pritzker adds ‘free exercise of religion’

5 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.8 Page 8 of 128

1 constitutional rights, the Courts quickly corrected them. See, e.g., Maryville Baptist

2 Church, Inc. v. Beshear, --- F.3d ---, 2020 WL 2111316 (6th Cir. 2020) (enjoining order

3 that restricted attendance at religious services); On Fire Christian Ctr., Inc. v. Fischer, --

4 - F. Supp. 3d ---, 2020 WL 1820249 (W.D. Ky. 2020) (same); First Baptist Church v.

5 Kelly, --- F. Supp. 3d ---, 2020 WL 1910021 (D. Kan. 2020) (same).

6

22. Those states recognized that, during this pandemic, Americans need the

7 Spirit of Almighty God even more to help them weather these dark times—and that

8 this need is no less “essential” than any other need. They understood that the rules

9 of constitutional interpretation are not as rigidly fixed in a time of national

10 emergency. Jacobson v. Massachusetts, 197 U.S. 11 (1905). “But[, they understood,]

11 even under Jacobson, constitutional rights still exist. Among them is the freedom to

12 worship as we choose.” On Fire Christian Ctr., 2020 WL 1820249, at *8 (citing

13 Jacobson, 197 U.S. at 31).

14

23. Those states had it right. See, e.g., Statement of Attorney General

15 William P. Barr on Religious Practice and Social Distancing (Apr. 14, 2020);6

16 Memorandum for the Assistant Attorney General for Civil Rights and All United 17 States Attorneys (Apr. 27, 2020).7

18

24. “To be sure, individual rights secured by the Constitution do not

19 disappear during a public health crisis.” In re Abbott, 954 F.3d 772, 784 (5th Cir.

20 2020). Fundamental and unalienable rights are, by their very nature, “essential”—

21 they are the essential rights which led to the founding of this country and this state.

22 For, “[h]istory reveals that the initial steps in the erosion of individual rights are

23 usually excused on the basis of an ‘emergency’ or threat to the public. But the

24

25 as ‘essential’ activity in new order—but not large gatherings, CHICAGO SUN-TIMES (Apr.

30, 2020, 9:58 p.m.), https://chicago.suntimes.com/2020/4/30/21243640/illinois-

26 stay-at-home-order-jb-pritzker-free-exercise-religion.

27

6 https://www.justice.gov/opa/pr/attorney-general-william-p-barr-issues-statementreligious-practice-and-social-distancing-0

28 7 https://www.justice.gov/opa/page/file/1271456/download

6 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.9 Page 9 of 128

1 ultimate strength of our constitutional guarantees lies in the unhesitating application

2 in times of crisis and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d

3 Cir. 1972) (Mansfield, J., concurring).

4

25. For more than four hundred years, people have come to America in a

5 quest for religious freedom. Like the Puritans, most of these pilgrims were fleeing

6 religious persecution in Europe. They understood that “[n]o place, not even the

7 unknown, is worse than any place whose state forbids the exercise of your sincerely

8 held religious beliefs.” On Fire Christian Ctr., 2020 WL 1820249, at *2.

9

26. Stretching back to the formation of colonies like Pennsylvania and

10 Rhode Island, where citizens could practice religion in a way that would not be

11 impeded by the government, this basic freedom that was sought by so many colonists

12 was enshrined in the constitutions of the states and, most importantly, in the First

13 Amendment to the United States Constitution: “Congress shall make no law

14 respecting the establishment of religion or prohibiting the free exercise thereof.”

15 U.S. Const. amend I. This religious heritage is evident even today in the names of

16 California’s cities, and specifically the City of San Diego, whose founding 250 years

17 ago by Fray St. Junípero Serra, the City celebrated just last year.

18

27. Yet in March of this year, the Golden State criminalized all religious

19 assembly and communal religious worship. With the pandemic as justification,

20 Governor Newsom and the County and City of San Diego expanded their authority

21 by extraordinary lengths, depriving all Californians of fundamental rights protected

22 by the U.S. and California Constitutions, including freedom of religion, speech, and

23 assembly, and due process and equal protection under the law.

24

28. Unlike forty-two other states issuing stay-at-home orders, California did

25 not mention religion or churches in its executive order. At the State level, the only

26 reference to religious rights was a single line in a 23-page memorandum that clergy are

27 “essential” for “faith-based services that are provided through streaming or other

28 technologies that support physical distancing and state public health guidelines.” (Ex.
7 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.10 Page 10 of 128

1 1-2, at 16.) At the County level, the orders make no reference to religion. (Ex. 2-1, Ex.

2 2-2.) And at the City level, the Mayor “prohibited” “any event or convening that

3 brings together 50 or more people in a single room or a single space at the same time,

4 such as a[] . . . church.” (Ex. 3-1, at 1.)

5

29. Oddly “mental health workers” could keep their business open for in-

6 person counseling and services.” (Ex. 1-2, at 2.) Thus, California apparently

7 recognized the benefit of providing mental health and substance abuse support 8 services—as long as they are not provided by pastors and churches.

9

30. At the same time as criminalizing worship—each of the Orders had a

10 paragraph threatening criminal enforcement—the State Order (adopted and expanded

11 upon by the County and City Orders) allowed citizens to gather at liquor stores, pot-

12 dispensaries, Planned Parenthood, Walmart, CVS, Costco, Home Depot, and many

13 other locations deemed “essential.” The State Order deemed the entirety of the

14 “entertainment industries” essential. (Ex. 1-2, at 23.)

15

31. This was not a hypothetical situation from an Orwellian novel describing

16 a bleak future—this was the current and very real nightmare endured by millions of

17 religious citizens who maintained the conviction that the faithful practice of regularly

18 gathering together was absolutely “essential.” But those citizens decided to wait

19 anyway. Religious Americans are no less patriotic than any other Americans, and are

20 absolutely willing to do their part to “flatten the curve.” But they are not willing to

21 have their faith denigrated, demeaned, and compared to attending a movie theater.

22

The History of the Executive Orders

23

32. On March 4, 2020, California Governor Gavin Newsom proclaimed a

24 State of Emergency as a result of the threat of COVID-19.8

25

33. On March 19, 2020, California Governor Newsom issued Executive

26 Order No. N-33-20 in which he ordered that “all residents are directed to

27 8 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOE28 Proclamation.pdf.
8 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.11 Page 11 of 128

1 immediately heed the current State public health directives.” (Ex. 1-1.)

2

34. The state public health directive requires “all individuals living in the

3 State of California to stay home or at their place of residence except as needed to 4 maintain continuity of operations of the federal critical infrastructure sectors. . . .”9

5

35. On March 22, 2020, the California Public Health Officer designated a

6 list of “Essential Critical Infrastructure Workers.” (Ex. 1-2.) Included on the list of

7 the “essential workforce” are “faith based services that are provided through

8 streaming or other technology.”

9

36. Accordingly, this list prohibits all religious leaders from conducting in-

10 person and out-of-home religious services, regardless of the measures taken to reduce

11 or eliminate the risk of the virus spreading. Meanwhile, the list deems the continuity

12 of services provided by coffee baristas, burger flippers, and laundromat technicians to

13 be so necessary for society that these activities are permitted to continue under the

14 State Order, despite the existence of the very same risk Defendants rely on to stymie

15 the exercise of fundamental rights.

16

37. On April 30, 2020, the County of San Diego issued an Order of the

17 Health Office and Emergency Regulations. (Ex. 2-1.) That order incorporated

18 Governor Newsom’s Executive Order No. N-33-20, and set further guidelines for

19 essential businesses operating in San Diego County. Specifically, that order

20 promulgated the County of San Diego “Social Distancing and Sanitation Protocol”

21 that all essential businesses were required to fill out and adhere to. (Ex. 2-2.) The

22 order also banned all gatherings of “more than one person” except at essential

23 businesses or transit places. (Ex. 2-1, at 4.)

24

38. On April 30, 2020, the City of San Diego issued Executive Order No.

25 2020-3. (Ex. 3-3.) That order expressly incorporated the State and County orders:

26 “All City residents shall comply with all current direction issued by Executive Order

27 of the Governor of California and by directive of the County Public Health Officer.” 28 9 The State Public Health Directive was included in the text of the State Order.
9 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.12 Page 12 of 128

1 It also extended prior City of San Diego Orders. (Ex. 3-1; Ex. 3-2.)

2

39. The state public health directive, included in Executive Order No. N-33-

3 20, provides that its directives “shall stay in effect until further notice.”

4

40. On April 28, 2020, Governor Newsom held a press conference in which

5 he announced California’s current four stage Reopening Plan, and his intention on

6 how he will modify his Executive Order No. N-33-20. That plan relegates religious

7 services to the bottom of the pile, next to attending the cinema, and prioritizes

8 reopening manufacturing and offices.

9

41. On May 4, 2020, Governor Newsom published a press release in which

10 he announced that Stage 2 of the Reopening Plan—where offices and manufacturing

11 will re-open—will begin, in part, on Friday, May 8, 2020.

12

42. On May 7, 2020, Governor Newsom published his Resilience Roadmap,

13 which provided the means of beginning of Stage 2 of the Reopening Plan on Friday,

14 May 8, 2020. (Ex. 1-3.)

15

Bishop Arthur Hodges and

16

the South Bay United Pentecostal Church

17

43. South Bay Pentecostal Church is a reflection of the Chula Vista

18 community. It is a multi-national, multi-cultural congregation. The majority of its

19 members are Hispanic, with the balance consisting of Filipino, Caucasian, African-

20 American, and other ethnic groups. The congregation represents a cross-section of

21 society, from rich to poor and encompassing people of all ages. The congregation also

22 includes members and visitors who run the gamut of essential workers. These

23 essential workers and service providers receive spiritual support, comfort, guidance,

24 and shelter from our ministry. The Church is an open and accepting community that

25 believes all humans are children of God.

26

44. Bishop Hodges has served as senior Pastor and Bishop of the South Bay

27 Pentecostal Church for thirty-five years. He also serves as a District Superintendent

28 of the United Pentecostal Church International. He oversees more than two-hundred
10 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.13 Page 13 of 128

1 pastors and ministers, representing more than one-hundred churches across

2 Southern California.

3

45. Bishop Hodges’ vocation was settled from an early age. He is the son of

4 a Pentecostal Pastor. His father repeatedly built churches from scratch, establishing

5 the community and moving on to repeat the same process in another town.

6

46. At the age of ten, he felt God calling him to the same ministry. However,

7 sensing the labors of his Father, who was tasked with raising a family, maintaining his

8 electrician business, and serving as a Pastor all at the same time, he understood the

9 tremendous sacrifice that pastors are expected to make. At that age, he was

10 frightened by the burden. As such, he was reluctant to accept God’s call.

11

47. When he was twelve, he attended a youth class. The teacher of that

12 particular class was very passionate about the power of prayer. Frequently, he would

13 end those classes in prayer meetings. At one prayer meeting, Bishop Hodges heard

14 God asking him, “Are you willing to be my preacher? Will you be my minister?” In

15 that moment, he said yes, and the fear of his father’s burden finally left him.

16 However, it would be a number of years before he would make good on that promise.

17

48. Upon graduating from high school, Bishop Hodges believed he would

18 become an airline pilot. However, his father requested that he honor his sacrifices in

19 raising him and asked him to give Bible College a chance. Out of a sense of filial duty,

20 Bishop Hodges enrolled at the Apostolic Bible Institute in St. Paul, Minnesota. While

21 at the Institute, God’s call became too loud to ignore. With a missionary’s zeal, he

22 threw himself into full-time ministry. He began preaching at youth camps,

23 conferences, and other venues, traveling from city to city and state to state, sharing

24 God’s Word with all who would open their hearts to listen.

25

49. Two years later, Bishop Hodges’ father invited him to serve as Assistant

26 Pastor at South Bay Pentecostal Church. Sensing that life on the road was no place to

27 grow a family, and with his wife pregnant with their first child, he agreed to accept

28 the position. The passage of time brought change, and his father once more felt the
11 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.14 Page 14 of 128

1 call to move on to a new church. In his stead, Bishop Hodges was unanimously voted

2 to take his place at South Bay, where he has served ever since.

3

50. Bishop Hodges is a sincere, strong believer that the Bible is the infallible

4 and immutable word of God. This belief is one that he shares with South Bay

5 Pentecostal Church. They believe that there is one God—the creator of all. They

6 practice as best they know how and can according to their abilities and understanding

7 of Scripture. “Not forsaking the assembling of ourselves together, as the manner of

8 some is; but exhorting one another: and so much the more, as ye see the day

9 approaching.” (Hebrews 10:25.)

10

51. The South Bay Pentecostal Church’s model is the New Testament

11 church founded and described in the book of the Acts of the Apostles: “And when

12 the day of Pentecost was fully come, they were all with one accord in one place.” (Acts

13 2:1 [emphasis added].) They believe that “all” being gathered in “one place” is

14 fundamental in order to fulfill Christ’s final charge that “you will be my witnesses.”

15 (Acts 1:8.) Thus, at the Church’s very beginning, they believe that the foundational

16 function of the church, all gathering together with one accord, was established.

17

52. The Book of Acts, which chronicles the founding of the Church, uses

18 the word “together” thirty-one times, thus providing thirty-one reasons for the

19 church to come together with one accord. Being “together” spiritually and physically

20 is key in their preaching, teaching, and worship practice. This experience of

21 worshipping together occurs both in the home and in the communal setting,

22 “continuing daily with one accord in the temple, and breaking bread from house to

23 house.” (Acts 2:46–47 [emphasis added].)

24

53. In observance of this sacred charge and sincerely held religious belief,

25 South Bay Pentecostal Church holds between three and five services each Sunday. The

26 average attendance at some of these services lies between two-hundred and three-

27 hundred congregants. The Church’s sanctuary can hold up to six-hundred people.

28

54. The services focus on the scriptural charge to be “together”—both

12 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.15 Page 15 of 128

1 spiritually and physically. Services begin with Bible classes spread across different

2 ages and groups. Each class may have between ten and one-hundred participants.

3 When these classes conclude, congregants gather together with one accord for praise

4 and worship. Those with special needs or sickness come forward and stand around

5 the altar, where hands are laid upon them and they are then anointed. This sacrament

6 observes the Scriptural charge to “let them pray over him, anointing him with oil in

7 the name of the LORD.” (James 5:14.)

8

55. The Church believes that the act of laying on hands also assists in

9 conferring, in a real sense, the gift of the Holy Ghost: “And when Paul had laid his

10 hands on them, the Holy Ghost came on them.” (Acts 19:6.) The service concludes

11 with preaching followed by a challenge to physical action, where the congregation is

12 challenged to approach the altar to “come believing, come praying.” As mandated by

13 Scripture, the service concludes with fellowship both inside and outside the

14 sanctuary: “And they continued steadfastly in the apostles’ doctrine and fellowship,

15 and in the breaking of bread, and in prayers.” (Acts 2:42.)

16

56. South Bay Pentecostal Church also perform baptisms, funerals,

17 weddings, and other religious ceremonies.

18

57. They believe Scripture exhorts them to “[r]epent, and be baptized every

19 one of you in the name of Jesus Christ for the remission of sins, and ye shall receive

20 the gift of the Holy Ghost.” (Acts 2:38.) They believe this sacrament of “new birth”

21 cannot be performed on one’s own, or by staying at home. One may repent on their

22 own, but they cannot baptize themselves. They believe there is no justifiable reason for

23 postponing the sacrament of baptism, as it is a necessary part of salvation.

24

58. Since the Orders prohibiting physical religious assembly were put in

25 place, the Church’s ability to carry out its ministry has been dramatically curtailed.

26 Bishop Hodges has neither experienced symptoms of nor been diagnosed with

27 COVID-19.

28

59. These orders forbid the assembly required to come together with one

13 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.16 Page 16 of 128

1 accord. These orders forbid baptism, gathering around the altar, and any form of

2 “being together” that is both physical and spiritual.

3

60. “Zoom Meetings” and other tele-conferencing applications are

4 inadequate substitutes as they curtail a minister’s ability to lay hands upon a

5 congregant or perform a baptism. They also curtail the congregation’s ability to

6 approach the altar, which is central to their experience of faith.

7

61. As a result of the Orders, South Bay Pentecostal Church is prohibited

8 from holding the services mandated by Scripture. These include the important

9 milestone services that mark life events and even the end of a life.

10

62. South Bay Pentecostal Church desires to hold services in a manner that

11 properly protects its congregants so that they may observe the inviolable precepts of

12 Scripture and encourage and comfort one another during these troubling times of the

13 COVID-19 outbreak. The Church’s congregation needs to connect with one another

14 in order to receive the hope and encouragement they need to heal and grow in their

15 faith and in order to observe the Scriptural requirement of gathering together with

16 one accord.

17

63. The Orders’ outright ban on religious services are overbroad and

18 unnecessary because Sunday services, baptisms, and funerals may be held in a

19 manner consistent with the social distancing guidelines. If restaurants, auto

20 mechanics, and marijuana dispensaries are capable of following these guidelines, the

21 congregation of South Bay Pentecostal Church is certainly capable.

22

64. As the below photo demonstrates, South Bay Pentecostal Church

23 possesses a large sanctuary that provides ample room to accommodate the six feet of

24 social distancing required by the County and CDC requirements. Moreover, should

25 the amount of congregants threaten to overwhelm the social distancing guidelines,

26 additional services can be added to accommodate smaller gatherings that would

27 satisfy those guidelines.

28
14 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.17 Page 17 of 128

1

2

3

4

5

6

7

65. In addition, the Church can integrate masks, gloves, screens, veils, and

8 other screening mechanisms in order to protect congregants and inhibit the spread of

9 COVID-19 during all services, including Sunday worship, baptisms, and funerals.

10 Furthermore, the Church will encourage anyone uncomfortable with gathering

11 during the pandemic to stay at home. The Church will also require that anyone who

12 is sick or has symptoms to stay at home.

13

66. In other words, the Church can and will abide by the County’s Social

14 Distancing and Sanitation Protocol, and any other necessary guidelines, just like any

15 other organization.

16

67. These services are essential for the spiritual health of the congregation

17 so that the congregants can exhort one another and the will of God during these

18 difficult times.

19

68. The Church has previously demonstrated its ability to adopt and enforce

20 suitable guidelines for social distancing practices through its work as what may be the

21 largest food distributor to needy people in the South Bay region of San Diego County.

22 Since the closure orders were placed, the Church worked with the Chula Vista Police

23 Department to develop a drive-through food distribution system so that hundreds of

24 cars may drive into and around the Church parking lot. Volunteers are provided

25 masks and gloves and deliver groceries, contact-free, directly into each driver’s trunk

26 or cargo area. During any given week, the Church distributes between three and

27 twelve tons of food. The Church has also been publicly fêted for its efforts by the

28 Mayor of Chula Vista.
15 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.18 Page 18 of 128

1

2

3

4

5

6

7

8

9

10

11

12

69. If the Church is capable of demonstrating and implementing proper

13 social distance protocols for the purposes of food distribution, it is clearly capable of

14 demonstrating and implementing similar protocols when engaging in its Scripturally

15 mandated worship practices.

16

Rabbi Mendel Polichenco

17

70. Rabbi Mendel Polichenco is a rabbi of the Jewish faith. It is his mission

18 to educate and inspire passion for Judaism in his congregants. He serves as rabbi and

19 director of Chabad of Carmel Valley, located in San Diego, California. He also serves

20 as director of Chabad Without Borders.

21

71. Rabbi Polichenco’s life’s mission was lovingly formed in the embrace of

22 Argentina’s vibrant Jewish community. From a young age, he knew that it was his

23 vocation to follow in the footsteps of his father. Rabbi Polichenco’s father was a rabbi

24 and prominent leader in their faith community and was responsible for opening a

25 number of Jewish day schools and high schools in their native Buenos Aires.

26

72. In the coming years, Rabbi Polichenco concluded that he must make an

27 absolute commitment to follow in his father’s footsteps. Therefore, he not only

28 became a rabbi, but he also became a builder of communities. Soon after he was
16 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.19 Page 19 of 128

1 ordained, he became the rabbi for the Jewish Community of Tijuana—the first

2 official representative of the Chabad movement in Mexico. As rabbi, he also founded

3 the first and only Jewish Day School in the state of Baja California, which remained

4 open for seven years. Believing that spiritual sustenance must nourish mind, soul and

5 body, he also opened a Kosher restaurant, bakery, and catering service, which

6 operates to this day. Over the coming years, he expanded his activities in Baja

7 California and, ultimately, into the United States.

8

73. Rabbi Polichenco is a sincere, strong believer in the Torah’s mitzvahs.

9 He holds sacred the Torah’s command that “[a]ccording to the law [the rabbinical

10 courts] instruct you and according to the judgment they say to you, you shall do; you

11 shall not divert from the word they tell you, either right or left.” (Deuteronomy

12 17:11.)

13

74. In observance of these precepts and his sincerely held religious beliefs,

14 Rabbi Polichenco holds weekly Shabbat services at Chabad of Carmel Valley in San

15 Diego, California. Approximately three-hundred adults worship at Shabbat.

16 Moreover, he holds midweek Shacharit services. Approximately twenty adult

17 attendees congregate at these weekday services.

18

75. He also performs funerals, Bar Mitzvahs, Bat Mitzvahs, weddings, and

19 other religious ceremonies.

20

76. Jewish services and ceremonies require a quorum of ten men to be

21 present in the same physical space in order for the service or ceremony to commence.

22 This quorum requirement applies to Shabbat, Shacharit, funerals, Bar Mitzvahs, Bat

23 Mitzvahs, and weddings.

24

77. Rabbi Polichenco also teaches weekly classes on the Torah for teenagers

25 and adults. In addition, he offers social services and counseling.

26

78. He serves a congregation that is multi-racial and represents a cross-

27 section of society, from rich to poor and encompassing people of all ages. His

28 congregation also includes members and visitors who run the gamut of essential
17 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.20 Page 20 of 128

1 workers. These essential workers and service providers receive spiritual support,

2 comfort, guidance, and shelter from his ministry.

3

79. He is also the director of Chabad Without Borders, which operates

4 fifteen Chabad branches in Mexico and three branches in San Diego County.

5

80. Since the Orders prohibiting physical religious assembly were put in

6 place, Rabbi Polichenco’s ability to carry out his ministry has been dramatically

7 curtailed. He has been forced to curtail his ministry, as well as that of Chabad of

8 Carmel Valley and Chabad Without Borders, despite the fact that he has neither

9 experienced symptoms of nor been diagnosed with COVID-19.

10

81. These orders forbid the assembly required to hold Shabbat, Shacharit,

11 funerals, Bar Mitzvahs, Bat Mitzvahs, and weddings. This is because allowing a

12 quorum of at least ten men to gather in the same physical space is facially prohibited

13 by the Orders.

14

82. “Zoom Meetings” and other tele-conferencing applications are

15 insufficient for amassing the required quorum to commence a Shabbat or Shacharit

16 service because the rabbinical mitzvahs require that at least ten men be physically

17 present in the same space. If this minimum threshold is not met, a service cannot

18 occur.

19

83. As a result of the Orders, Rabbi Polichenco is prohibited from holding

20 the services mandated by the Jewish faith. These also include the important

21 milestone services that mark life events and even the end of a life.

22

84. It is particularly heartbreaking and tragic for a congregant to lose a

23 parent or child and not be able to say the special prayers of comfort and healing that a

24 Jewish funeral provides. Because the Orders prohibit religious assembly, the required

25 quorum of ten men cannot be marshalled. As a result, Rabbi Polichenco is unable to

26 hold any funerals, and members of his congregation are left to nurse their heartbreak

27 in silence.

28

85. In addition, the orders have forced Rabbi Polichenco to cancel Bar

18 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.21 Page 21 of 128

1 Mitzvahs. As part of the service, a teenage boy is expected to recite extensive

2 portions of the Torah. This requires a full year’s study to memorize these substantial

3 portions for recitation at the Bar Mitzvah service. Such a recitation can only occur on

4 one specific day, depending on the boy’s birthday. Because the Orders prohibit

5 religious assembly, the required quorum of ten men cannot be marshalled. As a

6 result, Rabbi Polichenco is unable to hold any Bar Mitzvahs, and the boys’ years of

7 hard study are wasted.

8

86. Rabbi Polichenco desires to hold services in a manner that properly

9 protects his congregants so that they may observe the inviolable precepts of the

10 mitzvahs, and encourage and comfort one another during these troubling times of the

11 COVID-19 outbreak. His congregation needs to connect with one another in order to

12 receive the hope and encouragement they need to heal and grow in their Jewish faith.

13

87. The Orders are overbroad and unnecessary because Shabbat, Shacharit,

14 funerals, Bar Mitzvahs, Bat Mitzvahs, and weddings may be held in a manner

15 consistent with the social distancing guidelines. If restaurants, auto mechanics, and

16 marijuana dispensaries are capable of following these guidelines, his congregation is

17 certainly capable.

18

88. Chabad of Carmel Valley possesses a very large sanctuary that can

19 accommodate social distances beyond the six feet required by the County and CDC

20 requirements. Chabad of Carmel Valley can accommodate distances of up to ten feet

21 per person.

22

89. Chabad of Carmel Valley also provides space for open air services in a

23 very large garden. This garden can also accommodate social distance requirements.

24

90. In addition, regardless of whether services are held indoors or outdoors,

25 the Chabad can integrate masks, gloves, screens, veils, and other screening

26 mechanisms in order to protect congregants and inhibit the spread of COVID-19.

27 Rabbi Polichenco will also encourage anyone uncomfortable with gathering during

28 the pandemic to stay at home. He will also require that anyone who is sick to stay at
19 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.22 Page 22 of 128

1 home.

2

91. In other words, Rabbi Polichenco can, and will abide by the County’s

3 Social Distancing and Sanitation Protocol, and any other necessary guidelines, just

4 like any other organization.

5

92. These services are essential for the spiritual health of the congregation

6 so that the congregants can exhort one another and the will of God during these

7 difficult times.

8

The Current State of the Pandemic

9

93. Due to the unified efforts of the American people, efforts to curb the

10 coronavirus have proven successful.

11

94. The flattening of the curve has been well documented by a medical

12 expert, Dr. George Deglado, M.D., who has been providing medical support and

13 direction to a COVID-19 planning group using Monte Carlo simulations to create

14 accurate planning models—models which have been consistently more accurate than

15 the State’s models. According to Dr. Delgado:

16

It is clear that due to mitigation measures carried out

17

throughout California, the trajectory of the COVID-19 pandemic has been altered; the “curve has been

18

flattened.” . . .

19

Hospitalizations and deaths are both lagging indicators. In

20

fact, deaths reflect infections that started approximately three

21

weeks prior. Except in certain geographic pockets where flareups may occur, level or decreasing hospitalizations and death

22

rates are reassuring that we have reached a plateau or even a

23

decrease in the number of new infections.

24

In California, the statistics support the flattening of the curve.

25

Hospitalizations have remained at a relatively steady level and ICU admissions have trended downward. Deaths have been at

26

a plateau since early April 6 with the daily death count from

27

April 6 to May 2 ranging from 31 to 115 per day. Only one of

those days had 100 or more deaths. Eight of those days had

28

20 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.23 Page 23 of 128

1

counts less than 50. Again, deaths are the last lagging

2

indicator.

3

Los Angeles County has reported about 1,200 deaths (out of

4

California’s approximate total of 2,200). The curve of new deaths has flattened, similar to the California curve. The

5

Monte Carlo model predicts that total deaths in Los Angeles

6

County will be approximately 1,900, for this year.

7

The measure R0 (“R naught”) gives an indication of how

8

many additional persons an infected person can infect. When R0 drops below one, an outbreak loses steam and begins to

9

subside. Our model shows that in Los Angeles County R0

10

decreased to less than one in early April.

11

95. The flattening is also well documented by Kevin Systrom and Mike

12 Krieger, the founders of Instagram, who have created a website called Rt.live to track

13 the transmission rate nationwide. Like Dr. Delgado, their website shows that the 14 curve has effectively flattened.10

15

96. This flattening is also illustrated by a review of the death rates in

16 California. According to publicly available documents, as of July 1, 2019, the 17 population of California is estimated to be 39,512,223 persons.11 As of May 2, 2020, 18 there are a total of only 2,215 deaths in California.12 Thus, the probability of dying of

19 COVID-19 in California is 5.6 out of 100,000. A comparison of California with other 20 states by the Statista.com shows that California is doing amazingly well.13

21

97. The flattening is also well corroborated by reports that California

22 hospitals are laying off their staff because they have very few COVID-19 patients and

23 they are precluded from performing elective procedures (i.e., cancer surgery, heart

24 10 https://www.vox.com/recode/2020/4/21/21227855/coronavirus-spreading-by-

25

state-instagram-effective-reproduction-rate 11 https://www.census.gov/quickfacts/fact/table/CA/PST045219

26 12 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/

27

ncov2019.aspx#COVID-19%20by%20the%20Numbers. 13 https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-us-

28 by-state/

21 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.24 Page 24 of 128

1 surgery).14

2

98. Finally, the flattening of the curve was impressively illustrated in a

3 graphic published15 by Elon Musk:

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

California’s Four Stage Reopening Plan

22

99. As a result of their unified efforts, Americans began anticipating the day

23 when they could reap the benefits of their hard work—their sacrifice. They began

24 anticipating a lessening of the extreme measures imposed on them by their

25 Governors, and began pushing for that lessening to come soon.

26 14 https://www.kusi.com/palomar-health-to-lay-off-317-employees-citing-lack-of-

27

revenue/; https://calmatters.org/health/coronavirus/2020/05/health-care-workerslayoffs-california-coronavirus-nurses-furloughs-pay-cuts-hospitals/.

28 15 https://twitter.com/elonmusk/status/1255678979043778560

22 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.25 Page 25 of 128

1

100. In response to that pressure, on Tuesday, April 27, 2020, Governor

2 Newsom held a press conference in which he outlined how we “have not only bent 3 the curve in the state of California, but stabilized it.”16 As a result, “[t]he reality is,

4 we are just a few weeks away, not months away, from making measurable and 5 meaningful changes to our stay-at-home order.”17 This was supported by Governor

6 Newsom’s later recitation of the statistics:

7

The number of hospitalizations, 1.4% increase. Um, again,

8

we’re seeing some stabilization, decrease, modest increase, decrease, modest increase, uh, in the total number of

9

people hospitalized. The number of people in ICU’s

10

basically flat from yesterday, just one individual, uh, more

than in the last 24 hours in the ICU—so again,

11

stabilization.18

12 Towards the end of the press conference, Governor Newsom announced that during

13 a press conference on the next day, he would outline the forthcoming “measurable

14 and meaningful changes to our stay-at-home order.”

15

101. On Wednesday, Aril 28, 2020, Governor Newsom announced that those

16 “meaningful modifications” would come in the form of a four stage plan—with the 17 present situation representing Stage 1.19 During the press conference, Governor

18 Newsom stressed that “the foundational point of emphasis we want to advance today 19 is phase 2 . . . is in weeks not months, phase 3 and 4, months not weeks.”20

20

102. During the press conference, Dr. Sonia Angell—the Director of the

21 California Department of Public Health—explained Stage 2 as follows, and showed

22 the following graphic:

23

In stage 2, we’re going to really start focusing on lower risk

24

workplaces, that means gradually opening some of those

workplaces with adaptions. These include things like:

25 16 https://www.facebook.com/CAgovernor/videos/239711700434134/ at 6:03.

26 17 Id. at 6:40.

27

18 Id. at 25:04. 19 https://www.facebook.com/CAgovernor/videos/524013811808326/

28 20 Id. at 48:43.

23 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.26 Page 26 of 128

1

Retail, allowing for curbside pickup; Manufacturing, which

2

can include things like toys, clothing, other things, furniture, that was not a part of the essential sector;

3

Talking about offices, this can include things like PR firms,

4

and consulting, and other places where telework is not

possible, but by modifying the environment itself, it can

5

make it lower risk for individuals; and then ultimately

6

talking about opening more public spaces, things like parks

7

and trails, that may have historically been limited because of our concerns, trying to think about how we can modify

8

that to make them safer for individuals to enjoy the outdoor

9

spaces because we know physical activity is so important to our health, and this is also about health, clearly.21

10

11

12

13

14

15

16

17

18

19

20

103. Dr. Angell then described Stage 3 and 4 as follows: “The third stage is

21 when we get into those areas that may be higher risk, those sectors that we think will

22 take a lot more modification to adapt in a way that can make them places where people 23 can move with lower risk.”22 “Those are things like getting your hair cut, uh getting

24 your nails done, doing anything that has very close inherent relationships with other 25 people, where the proximity is very close.”23 “And then ultimately, the space that we

26

27

21 Id. at 37:29. 22 Id. at 35:22.

28 23 Id. at 35:52.

24 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.27 Page 27 of 128

1 all look forward to, someday as we move forward and work diligently together, is Stage

2 4, which would be the end of the stay-at-home order. And that’s when we’d be

3 opening all of our highest risk workplaces without modification necessary at that time,

4 because at that time we will know that we have identified a way that we can keep 5 people safe from COVID-19.24

6

7

8

9

10

11

12

13

14

15

16

104. Then, on May 4, 2020, Governor Newsom issued a press release in

17 which he stated that Stage 2 will begin, in part, on Friday, May 8, 2020. According to

18 that press release, only some businesses will be allowed to reopen, like “bookstores,

19 clothing stores, florists and sporting goods stores,” but not yet “offices, seated dining 20 at restaurants, shopping malls or schools.”25

21

105. On May 7, 2020, Governor Newsom held a press conference to

22 announce the beginning of Stage 2, and the publication of his Resilience Roadmap

23 (Ex. 1-3.) During that press conference, Governor Newsom was asked by a journalist

24 why schools were being prioritized over places of worship. The following exchange

25 followed:

26

27

24 Id. at 46:49. 25 https://www.gov.ca.gov/2020/05/04/governor-newsom-provides-update-on-

28 californias-progress-toward-stage-2-reopening/

25 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.28 Page 28 of 128

1

Q: Thank you Governor. Can you clarify why churches and

2

salons are in Stage 3 and not Stage 2. Um, what makes them more high risk than schools, for example? Uh, what

3

factors are you weighing here when you decide what goes

4

into what phase?

5

A: Yeah, we’re, we’re looking at the science,

6

epidemiology, looking again at frequency, duration, time, uh, and looking at low risk-high reward, low risk-low

7

reward, looking at a series of conditions and criteria, as well

8

as best practices uh from other states and nations.26

9 In other words, places of worship are being sidelined because they provide a “low

10 reward” in the eyes of California.

11

106. On May 7, 2020, Governor Newsom also published his Resilience

12 Roadmap online. (Ex. 1-3.) That Roadmap identifies the industries that may open

13 immediately (retail for curbside pickup, manufacturing and logistics), those that will

14 open in a few weeks (shopping malls, car washes, schools, restaurants), and those

15 that cannot open for several months, until Stage 3 is announced (salons, tattoo

16 parlors, gyms, bars, movie theaters, and places of worship). (Ex. 1-3, at 9). For each

17 industry that will be allowed to open in Stage 2, the Roadmap also linked to industry-

18 specific Pandemic Guidance that the industry must comply with. The industry must

19 both comply with the guidance, and certify to the state that it is in compliance. The

20 Guidance for two industries opening immediately—manufacturing and logistics—is

21 included in Exhibits 1-3. At the same time, Governor Newsom published a press

22 release announcing the Resilience Roadmap, and explaining the same. (Ex. 1-4.)

23

Conclusion

24

107. In full understanding of the public and private danger posed by the

25 coronavirus, churches and people of faith have conducted themselves, and intend to

26 continue conducting themselves, in a manner that adheres to CDC and California

27 guidelines on social distancing and safe gatherings. There is no generic protocol 28 26 https://www.facebook.com/CAgovernor/videos/260976601615609/, at 50:36.
26 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.29 Page 29 of 128

1 published by the State of California, but the County of San Diego’s Order includes a

2 requirement that essential businesses complete and comply with its Social Distancing

3 and Sanitation Protocol. (Ex. 2-2.) Plaintiffs are fully willing to comply with this

4 Protocol—and any reasonable Guidance mandated by the state—but they cannot

5 abide by an indefinite shut down of their churches.

6

108. To be blunt, California’s present regime, which mandates that

7 Californians who need the Spirit of Almighty God settle for the lesser spirits

8 dispensed out of California’s liquor stores, is demeaning and denigrating to all

9 persons of faith. Plaintiffs contend that, at least for their congregants, their

10 assemblies are an “essential service” and should therefore, because of fundamental

11 First Amendment Protections, be treated equal to Stage 2 “essential” businesses.

12

109. California’s targeting of religious adherents and total ban from religious

13 assembly, even in a manner consistent with governmental social distancing

14 guidelines, while permitting similar (and at times even more intimate) social

15 interaction to continue unabated in retail and commercial establishments, flouts the

16 protections of the U.S. and California Constitutions.

17

110. Thus, Plaintiffs bring this case to highlight the troubling erosion of

18 fundamental and cherished liberties wrought by the imposition of the Orders and the

19 Four Stage Reopening Plan, and their unconstitutional enforcement by the California

20 Attorney General and San Diego police.

21

111. Plaintiffs do not seek to discredit or discard the government’s

22 unquestionable interest in doing that task for which it was instituted—protecting the

23 citizenry. But, as is often true in times of crisis and fear, Plaintiffs respectfully submit

24 that to uphold its sworn duties, California has—perhaps unwittingly, perhaps not—

25 stepped over a line the U.S. and California Constitutions do not permit. Plaintiffs

26 thus bring this action to ensure that this Court safeguard the cherished liberties for

27 which millions have fought, bled, and died. For, “[i]f the provisions of the

28 Constitution be not upheld when they pinch as well as when they comfort, they may
27 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.30 Page 30 of 128

1 as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934)

2 (Sutherland, J., dissenting).

3

FIRST CLAIM FOR RELIEF

4

Free Exercise Clause of First Amendment to U.S. Constitution

5

(By all Plaintiffs against All Defendants)

6

112. Plaintiffs incorporate by reference all allegations contained in the

7 preceding paragraphs as though fully set forth herein.

8

113. The Orders and Defendants’ enforcement thereof violate the First

9 Amendment, both facially and as-applied to Plaintiffs. The First Amendment of the

10 Constitution protects the “free exercise” of religion. Fundamental to this protection

11 is the right to gather and worship. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

12 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain

13 subjects from the vicissitudes of political controversy, to place them beyond the reach

14 of majorities and officials and to establish them as legal principles to be applied by the

15 courts . . . [such as the] freedom of worship and assembly.”). The Free Exercise

16 Clause applies to the states through the Due Process Clause of the Fourteenth

17 Amendment. Cantwell v. Connecticut, 310 U.S. 296 (1940).

18

114. As the Supreme Court has noted, “a law burdening religious practice

19 that is not neutral or not of general application must undergo the most rigorous of

20 scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993).

21 “A law is not generally applicable if its prohibitions substantially underinclude non-

22 religiously motivated conduct that might endanger the same governmental interest

23 that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079

24 (9th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). “In other words, if a law pursues

25 the government’s interest ‘only against conduct motivated by religious belief,’ but

26 fails to include in its prohibitions substantial, comparable secular conduct that would

27 similarly threaten the government’s interest, then the law is not generally

28 applicable.” Id.
28 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.31 Page 31 of 128

1

115. The Orders and Reopening Plan are neither neutral nor of general

2 application. Defendants’ restrictions have specifically and explicitly targeted religious

3 and “faith-based” services and are thus not neutral on their face. Defendants have

4 prohibited certain public and private gatherings deemed “non-essential,” including

5 out-of-home religious services, while exempting a laundry list of industries and

6 services purportedly “essential” to the government’s various interests, including

7 medical cannabis dispensaries and other medical providers, courts, public utilities,

8 daycare and childcare, and “necessary” shopping.

9

116. In addition to relegating all faith activities to a third-class status (at best),

10 Defendants have threatened criminal penalties for holding in person services, and

11 have thus substantially burdened Plaintiffs’ religious exercise. Defendants have

12 forced Plaintiffs to choose between their sincerely held religious beliefs and their

13 desire to follow secular rules, in many cases imposed by unelected officials.

14

117. Laws and government actions that burden religious practice and are

15 either not neutral or not generally applicable must satisfy a compelling governmental

16 interest and be narrowly tailored to achieve that end.

17

118. Defendants’ mandates are not “narrowly tailored” to further any

18 compelling governmental interest. Defendants have granted numerous special

19 exemptions to their bans on public gatherings and conduct, including for purportedly

20 “essential” businesses and activities, provided that social distancing practices are

21 observed. Since these gatherings may be permitted, there can be no doubt that

22 Defendants must permit Plaintiffs to engage in religious activities and services

23 provided that Plaintiffs also adhere to the social distancing guidelines currently in

24 place.

25

119. Requiring Plaintiffs to abstain from religious gatherings, despite

26 substantial modifications to satisfy the public health interests at stake, violates

27 Plaintiffs’ Constitutional right to free exercise of religion. The state does not have the

28 power under our Constitutional scheme to decree that as to faith activities,
29 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.32 Page 32 of 128

1 “streaming” (for those congregations and parishioners with the wealth and

2 technological acumen to partake of such truncated substitutes) is “good enough”

3 when at the same time the state protects the entertainment industry and media

4 organizations’ First Amendment rights while denying the Plaintiffs their First

5 Amendment rights.

6

120. Plaintiffs have no adequate remedy at law and will suffer serious and

7 irreparable harm to their constitutional rights unless Defendants are enjoined from

8 implementing and enforcing the Orders.

9

121. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

10 declaratory relief and temporary, preliminary, and permanent injunctive relief

11 invalidating and restraining enforcement of the Orders.

12

122. Plaintiffs found it necessary to engage the services of private counsel to

13 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

14 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

15

SECOND CLAIM FOR RELIEF

16

Free Exercise of Religion of Article I, Section 4, of the Cal. Constitution

17

(By all Plaintiffs against All Defendants)

18

123. Plaintiffs incorporate by reference all allegations contained in the

19 preceding paragraphs as though fully set forth herein.

20

124. In California “[f]ree exercise and enjoyment of religion without

21 discrimination or preference are guaranteed.” Cal. Const. Art. 1, §4.

22

125. “In general, the religion clauses of the California Constitution are read

23 more broadly than their counterparts in the federal Constitution.” Carpenter v. City

24 and County of San Francisco, 93 F.3d 627, 629 (9th Cir. 1996). Courts “therefore

25 review [a] challenge. . . under the free exercise clause of the California Constitution

26 in the same way [they] might have reviewed a similar challenge under the federal

27 Constitution after Sherbert, and before Smith. In other words, we apply strict

28 scrutiny.” Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 562
30 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.33 Page 33 of 128

1 (2004) (citations omitted).

2

126. For the reasons stated in Plaintiffs’ First Claim for Relief, requiring

3 Plaintiffs to abstain from its religious gatherings, despite substantial modifications to

4 satisfy the public health interests at stake, violates Plaintiffs’ free exercise rights

5 under the California Constitution as well.

6

127. Plaintiffs have no adequate remedy at law and will suffer serious and

7 irreparable harm to their constitutional rights unless Defendants are enjoined from

8 implementing and enforcing the Orders, or are enjoined from at least finding religious

9 services to be stage-two “essential.”

10

128. Plaintiffs have found it necessary to engage the services of private

11 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

12 award of attorney fees and costs pursuant to California Code of Civil Procedure

13 Section 1021.5.

14

THIRD CLAIM FOR RELIEF

15

Establishment Clause of First Amendment to U.S. Constitution

16

(By all Plaintiffs against All Defendants)

17

129. Plaintiffs incorporate by reference all allegations contained in the

18 preceding paragraphs as though fully Set forth herein.

19

130. The Orders and Defendants’ enforcement thereof violate the First

20 Amendment, both facially and as-applied to Plaintiffs. The Establishment Clause of

21 the “First Amendment mandates governmental neutrality between religion and

22 religion, and between religion and nonreligion.” McCreary Cty., Ky. v. Am. Civil

23 Liberties Union of Ky., 545 U.S. 844, 860 (2005) (citing Epperson v. Arkansas, 393 U.S.

24 97, 104 (1968)). The Establishment Clause applies to the states through the Due

25 Process Clause of the Fourteenth Amendment. Everson v. Board of Ed. of Ewing, 330

26 U.S. 1 (1947).

27

131. The Orders, as stated, advance no secular purpose. Defendants have

28 made numerous exceptions to their Orders, permitting the same conduct
31 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.34 Page 34 of 128

1 (counseling) if performed by secular practitioners but not religious ministers.

2 Defendants have also distinguished between religions, permitting services that can be

3 performed via livestream to proceed, but banning all Jewish services that require in-

4 person participation. It is not for Defendants to determine which faiths may have

5 their services proceed.

6

132. The Orders and Defendants’ ad hoc enforcement of them have the

7 primary effect of inhibiting religious activity.

8

133. Defendants have failed to avoid excessive government entanglement

9 with religion. Defendants permit only some forms of religious observance, such as

10 livestreamed, at-home religious activities.

11

134. There is no historical precedent in the United States for inhibiting

12 religious practices on terms more restrictive than those imposed on identical secular

13 activities, as Defendants do now.

14

135. Plaintiffs have no adequate remedy at law and will suffer serious and

15 irreparable harm to their constitutional rights unless Defendants are enjoined from

16 implementing and enforcing the Orders.

17

136. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

18 declaratory relief and temporary, preliminary, and permanent injunctive relief

19 invalidating and restraining enforcement of the Orders.

20

137. Plaintiffs found it necessary to engage the services of private counsel to

21 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

22 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

23

FOURTH CLAIM FOR RELIEF

24

Free Speech Clause of First Amendment to U.S. Constitution

25

(By all Plaintiffs against All Defendants)

26

138. Plaintiffs incorporate by reference all allegations contained in the

27 preceding paragraphs as though fully Set forth herein.

28

139. The Orders and Defendants’ enforcement thereof violate the First

32 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.35 Page 35 of 128

1 Amendment, both facially and as-applied to Plaintiffs.

2

140. Under Defendants’ Orders, public gatherings and church services are

3 prohibited.

4

141. Plaintiffs engage in protected speech through worship, religious

5 discussions, singing hymns, and praying with their congregation.

6

142. Defendants’ imposition of the Orders is unreasonable and has a chilling

7 effect on protected speech by outright banning in-person church services at the pain

8 of criminal penalty. Additionally, the City Orders state that “[e]ach individual officer

9 should use their discretion in enforcing this order and always keep the intent of the

10 order in mind.” But the City Orders fail to provide any guidance as to what violations

11 would be prioritized, leaving it up to the officers’ unfettered discretion to decide

12 which violations to enforce. Such a lack of standards along with a grant of such

13 discretion renders the Orders unconstitutional both facially and as they are applied.

14

143. The Orders are unconstitutionally overbroad, and therefore void as a

15 matter of law, both on their faces, and as it is applied.

16

144. Plaintiffs have no adequate remedy at law and will suffer serious and

17 irreparable harm to their constitutional rights unless Defendants are enjoined from

18 implementing and enforcing the Orders.

19

145. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

20 declaratory relief and temporary, preliminary, and permanent injunctive relief

21 invalidating and restraining enforcement of the Orders.

22

146. Plaintiffs found it necessary to engage the services of private counsel to

23 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

24 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

25

FIFTH CLAIM FOR RELIEF

26

Freedom of Speech of Article I, Section 2, of the Cal. Constitution

27

(By all Plaintiffs against All Defendants)

28

147. Plaintiffs incorporate by reference all allegations contained in the

33 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.36 Page 36 of 128

1 preceding paragraphs as though fully set forth herein.

2

148. In California, “[e]very person may freely speak, write and publish his or

3 her sentiments on all subjects, being responsible for the abuse of this right. A law may

4 not restrain or abridge liberty of speech or press.” Cal. Const. Art. 1, §2.

5

149. “The California Supreme Court has recognized that the California

6 Constitution is ‘more protective, definitive and inclusive of rights to expression and

7 speech’ than the First Amendment to the United States Constitution.” Rosenbaum v.

8 City and County of San Francisco, 484 F.3d 1142, 1167 (9th Cir. 2007).

9

150. For the reasons stated in Plaintiffs’ Fourth Claim for Relief, requiring

10 Plaintiffs to abstain from their religious gatherings, despite substantial modifications

11 to satisfy the public health interests at stake, violates Plaintiffs’ liberty of speech

12 rights under the California Constitution as well.

13

151. Plaintiffs have no adequate remedy at law and will suffer serious and

14 irreparable harm to their constitutional rights unless Defendants are enjoined from

15 implementing and enforcing the Orders.

16

152. Plaintiffs have found it necessary to engage the services of private

17 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

18 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure

19 Section 1021.5.

20

SIXTH CLAIM FOR RELIEF

21

Violation of First Amendment Freedom of Assembly Clause

22

(By all Plaintiffs against All Defendants)

23

153. Plaintiffs incorporate by reference all allegations contained in the

24 preceding paragraphs as though fully set forth herein.

25

154. The Orders and Defendants’ enforcement thereof violate the First

26 Amendment, both facially and as-applied to Plaintiffs. The First Amendment of the

27 Constitution protects the “right of the people peaceably to assemble.” The Freedom

28 of Assembly Clause was incorporated against the states in De Jonge v. Oregon, 299
34 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.37 Page 37 of 128

1 U.S. 353 (1937).

2

155. “The right of free speech, the right to teach, and the right of assembly

3 are, of course, fundamental rights.” Whitney v. California, 274 U.S. 357, 373 (1927).

4 When a government practice restricts fundamental rights, it is subject to “strict

5 scrutiny” and can be justified only if it furthers a compelling government purpose

6 and, even then, only if no less restrictive alternative is available. See, e.g., San Antonio

7 Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U.S.

8 330 (1972).

9

156. By denying Plaintiffs the ability to conduct services, Defendants are in

10 violation of the Freedom of Assembly Clause. Defendants cannot meet the no-less-

11 restrictive-alternative test. The CDC’s and the County’s social distancing guidelines

12 are appropriate to limit the spread of COVID-19. Imposing more restrictive

13 requirements that target churches while at the same time allowing manufacturing,

14 logistics, offices, retail, and restaurants to open is not the least restrictive means of

15 achieving Defendants’ public safety goals.

16

157. Requiring Plaintiffs to abstain from religious gatherings, despite

17 substantial modifications to satisfy the public health interests at stake, violates

18 Plaintiffs’ Constitutional right to peaceably assemble.

19

158. Plaintiffs have no adequate remedy at law and will suffer serious and

20 irreparable harm to their constitutional rights unless Defendants are enjoined from

21 implementing and enforcing the Orders.

22

159. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

23 declaratory relief and temporary, preliminary, and permanent injunctive relief

24 invalidating and restraining enforcement of the Orders.

25

160. Plaintiffs found it necessary to engage the services of private counsel to

26 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

27 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

28 ///

35 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.38 Page 38 of 128

1

SEVENTH CLAIM FOR RELIEF

2 Freedom of Assembly of Article I, Section 3, of the California Constitution

3

(By all Plaintiffs against All Defendants)

4

161. Plaintiffs incorporate by reference all allegations contained in the

5 preceding paragraphs as though fully set forth herein.

6

162. In California “[t]he people have the right to . . . assemble freely to

7 consult for the common good.” Cal. Const. Art. 1, §3.

8

163. For the reasons stated in Plaintiffs’ Sixth Claim for Relief, requiring

9 Plaintiffs to abstain from their religious gatherings, despite substantial modifications

10 to satisfy the public health interests at stake, violates Plaintiffs’ right to assemble

11 freely under the California Constitution as well.

12

164. Plaintiffs have no adequate remedy at law and will suffer serious and

13 irreparable harm to their constitutional rights unless Defendants are enjoined from

14 implementing and enforcing the Orders.

15

165. Plaintiffs have found it necessary to engage the services of private

16 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

17 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure

18 Section 1021.5.

19

EIGHTH CLAIM FOR RELIEF

20

Right to Liberty of Article I, Section 1, of the California Constitution

21

(By all Plaintiffs against All Defendants)

22

166. Plaintiffs incorporate by reference all allegations contained in the

23 preceding paragraphs as though fully set forth herein.

24

167. In California, “[a]ll people are by nature free and independent and have

25 inalienable rights. Among these are enjoying and defending life and liberty, acquiring,

26 possessing, and protecting property, and pursuing and obtaining safety, happiness,

27 and privacy.” Cal. Const. Art. 1, §1.

28

168. California courts have found that Public Health Officials could not

36 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.39 Page 39 of 128

1 quarantine 12 blocks of San Francisco Chinatown because of nine deaths due to

2 bubonic plague. See Jew Ho v. Williamson, 103 F. 10 (C.C. Cal. 1900); Wong Wai v.

3 Williamson, 103 F. 1 (C.C. Cal. 1900).

4

169. In Jew Ho and Wong Wai, the California courts found that there were

5 more than 15,000 people living in the twelve blocks of San Francisco Chinatown who

6 were to be quarantined. The courts found it unreasonable to shut down the ability of

7 over 15,000 people to make a living because of nine deaths. This was one death for

8 every 1,666 inhabitants of Chinatown.

9

170. In Jew Ho, the court stated that it was “purely arbitrary, unreasonable,

10 unwarranted, wrongful, and oppressive interference with the personal liberty of

11 complainant” who had “never had or contracted said bubonic plague; that he has

12 never been at any time exposed to the danger of contracting it, and has never been in

13 any locality where said bubonic plague, or any germs of bacteria thereof, has or have

14 existed.” Jew Ho, 103 F. 10.

15

171. California courts have instead focused on the necessity of there being

16 “reasonable grounds [] to support the belief that the person so held [quarantined] is

17 infected.” Ex parte Martin, 83 Cal. App. 2d 164 (1948). Public Health Officials must

18 be able to show “probable cause to believe the person so held has an infectious

19 disease. . . .” Id. “[A] mere suspicion [of a contagious disease], unsupported by facts

20 giving rise to reasonable or probable cause, will afford no justification at all for

21 depriving persons of their liberty and subjecting them to virtual imprisonment under a

22 purported order of quarantine.” Ex parte Arta, 52 Cal. App. 380, 383 (1921)

23 (emphasis added).

24

172. As stated above, as of May 2, 2020, COVID-19 is responsible for 2,215

25 deaths in California. As of July 1, 2019, the population of California is estimated to be

26 39,512,223 persons. Thus, the probability of dying of COVID-19 in California is 5.6

27 out of 100,000.

28

173. Plaintiffs have never had or contracted said coronavirus, and have not

37 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.40 Page 40 of 128

1 had any contact with individuals who have tested positive.

2

174. Requiring Plaintiffs to abstain from all religious gatherings, despite

3 substantial modifications to satisfy the public health interests at stake, violates their

4 California Constitutional liberty rights.

5

175. Plaintiffs have no adequate remedy at law and will suffer serious and

6 irreparable harm to their constitutional rights unless Defendants are enjoined from

7 implementing and enforcing the Orders.

8

176. Plaintiffs have found it necessary to engage the services of private

9 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

10 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure

11 Section 1021.5.

12

NINTH CLAIM FOR RELIEF

13

Violation of Substantive Rights in the Due Process Clause of

14

Fourteenth Amendment to U.S. Constitution

15

(By all Plaintiffs against All Defendants)

16

177. Plaintiffs incorporate by reference all allegations contained in the

17 preceding paragraphs as though fully set forth herein.

18

178. The Orders and Defendants’ enforcement thereof violate Plaintiffs’

19 substantive due process rights secured by the Fourteenth Amendment to the U.S.

20 Constitution. Under the Due Process Clause of the Fourteenth Amendment, no State

21 shall “deprive any person of life, liberty, or property, without due process of law.”

22 The fundamental liberties protected by this Clause include most of the rights

23 enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147–149

24 (1968). In addition, these liberties extend to certain personal choices central to

25 individual dignity and autonomy, including intimate choices that define personal

26 identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v.

27 Connecticut, 381 U.S. 479, 484–486 (1965).

28

179. Plaintiffs’ rights to freedom of religion, assembly, speech, and travel are

38 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.41 Page 41 of 128

1 fundamental rights protected by the U.S. Constitution. See, e.g., Aptheker v. Secretary

2 of State, 378 U.S. 500, 520 (1964); Kent v. Dulles, 357 U.S. 116, 127 (1958).

3

180. When a government practice restricts fundamental rights such as the

4 right to practice religion freely, assemble peacefully, speak, and travel, it is subject to

5 “strict scrutiny” and can be justified only if it furthers a compelling government

6 purpose, and, even then, only if no less restrictive alternative is available. See, e.g.

7 Memorial Hospital v. Maricopa County, 415 U.S. 250, 257–58 (1974); Dunn v.

8 Blumstein, 405 U.S. 330, 339-341 (1972); Shapiro v. Thompson, 394 U.S. 618, 89

9 (1969), Maher v. Roe, 432 U.S. 464, 488 (1977).

10

181. Strict scrutiny applies to Plaintiffs’ claims because the Orders mandate

11 that Plaintiffs stay at home, impinging on their fundamental rights to freedom of

12 religion, assembly, speech, and travel. These Orders do not permit Plaintiffs to

13 exercise these rights, even while conforming to the CDC and County guidelines for

14 social distancing, unless Defendants deem them “essential” or as participating in

15 “essential” activities.

16

182. Defendants’ mandates are not “narrowly tailored” to further any

17 compelling governmental interest. Defendants have granted numerous special

18 exemptions to their bans on public gatherings, including for purportedly “essential”

19 businesses and activities, provided that social distancing practices are observed; and

20 even for out-of-home religious services during Easter, an important day of religious

21 significance for Christians. Since these gatherings can be permitted, there can be no

22 doubt that Defendants may, and therefore must, permit Plaintiffs to engage in

23 equivalent constitutionally-protected activities provided that Plaintiffs also adhere to

24 the social distancing guidelines.

25

183. Plaintiffs have no adequate remedy at law and will suffer serious and

26 irreparable harm to their constitutional rights unless Defendants are enjoined from

27 implementing and enforcing the Orders.

28

184. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

39 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.42 Page 42 of 128

1 declaratory relief and temporary, preliminary, and permanent injunctive relief

2 invalidating and restraining enforcement of the Orders.

3

185. Plaintiffs found it necessary to engage the services of private counsel to

4 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

5 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

6

TENTH CLAIM FOR RELIEF

7 Equal Protection Clause of Fourteenth Amendment to U.S. Constitution

8

(By all Plaintiffs against All Defendants)

9

186. Plaintiffs incorporate by reference all allegations contained in the

10 preceding paragraphs as though fully set forth herein.

11

187. The Orders and Defendants’ enforcement thereof violate the

12 Fourteenth Amendment, both facially and as-applied to Plaintiffs. The Fourteenth

13 Amendment of the Constitution provides that “[n]o State shall . . . deny to any

14 person within its jurisdiction the equal protection of the laws.” Equal protection

15 requires the state to govern impartially—not draw arbitrary distinctions between

16 individuals based solely on differences that are irrelevant to a legitimate

17 governmental objection.

18

188. Defendants intentionally and arbitrarily categorize individuals and

19 conduct as either “essential” or “non-essential.” Those persons classified as

20 “essential,” or as participating in essential services, are permitted to go about their

21 business and activities provided certain social distancing practices are employed.

22 Those classified as “nonessential,” or as engaging in non-essential activities, are

23 required to stay in their residence, unless it becomes necessary for them to leave for

24 one of the enumerated “essential” activities.

25

189. Strict scrutiny under the Equal Protection Clause applies where, as here,

26 the classification impinges on a fundamental right, including the right to practice

27 religion freely, the right to free speech and assembly, and the right to travel, among

28 others.

40 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.43 Page 43 of 128

1

190. Defendants cannot satisfy strict scrutiny, because their arbitrary

2 classifications are not narrowly tailored measures that further compelling government

3 interests, for the reasons stated above.

4

191. Plaintiffs have no adequate remedy at law and will suffer serious and

5 irreparable harm to their constitutional rights unless Defendants are enjoined from

6 implementing and enforcing the Orders.

7

192. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

8 declaratory relief and temporary, preliminary, and permanent injunctive relief

9 invalidating and restraining enforcement of the Orders.

10

193. Plaintiffs found it necessary to engage the services of private counsel to

11 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

12 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

13

ELEVENTH CLAIM FOR RELIEF

14

Vagueness in Violation of the Due Process Clause of

15

Fourteenth Amendment to U.S. Constitution

16

(By all Plaintiffs against All Defendants)

17

194. Plaintiffs incorporate by reference all allegations contained in the

18 preceding paragraphs as though fully set forth herein.

19

195. The Orders and Defendants’ enforcement thereof violate the Due

20 Process Clause of the Fourteenth Amendment, both facially and as-applied to

21 Plaintiffs.

22

196. A regulation is constitutionally void on its face when, as matter of due

23 process, it is so vague that persons “of common intelligence must necessarily guess at

24 its meaning and differ as to its application” Connally v. General Const. Co., 269 U.S.

25 385, 391 (1926); People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1115 (1997). The void

26 for vagueness doctrine is designed to prevent arbitrary and discriminatory

27 enforcement. The problem with a vague regulation is that it “impermissibly delegates

28 basic policy matters to policemen, judges, and juries for resolution on an ad hoc and
41 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.44 Page 44 of 128

1 subjective basis. . . .” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).

2

197. Defendants’ Orders are void for vagueness for the following reasons:

3

a. The State Order provides that individuals are ordered to “heed”

4

State public health directives. The word “heed” is defined by

5

Webster’s Dictionary to mean “to give consideration or attention

6

to”—not specifically to adhere to those directives. Yet, the State

7

Order is widely reported in the media and cited by local and state

8

officials, including the County and City Orders, as compelling

9

compliance with State public health directives to shelter in place

10

unless conducting essential business. The State Order also includes

11

the text of the public health directive, which includes language that

12

ostensibly “order[s]” compliance, creating further ambiguity as to

13

whether Plaintiffs must comply with, or merely heed, the public

14

health directive. Accordingly, the State Order is vague as to what

15

precisely is being ordered, and what actions may result in criminal

16

penalties, fines, or imprisonment.

17

b. The City Orders both prohibit all gatherings, including at churches,

18

while also stating the following: “I hereby issue a strong

19

recommendation, consistent with Centers of Disease Control

20

guidance from March 16, 2020 to avoid non-essential gatherings to

21

the extent possible, to the leaders of the City’s houses of worship and

22

urge them, in the strongest possible terms, to limit gatherings on

23

their premises and to explore and implement ways to practice their

24

respective faiths while observing social distancing practices.” It is

25

ambiguous whether ignoring this “recommendation” will result in

26

prosecution.

27

c. All of the Orders, when issued, were surrounded by statements in

28

press conferences or press releases stating that they can be enforced,

42 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.45 Page 45 of 128

1

but will not always be enforced. And that citizens should police

2

themselves, and that officers should exercise good faith judgment.

3

Thus, without guidance, no reasonable person would know whether

4

his conduct is going to subject him to prosecution. In a March 19,

5

2020, press conference, Governor Newsom stressed that there will

6

be no police enforcement of the State Orders.27 In March 18, 2020,

7

press conference, the County’s Dr. Wilma Wooten stressed that she

8

was only expecting 80%-90% compliance—which would be

9

sufficient.28 And in a March 20, 2020 press conference, the City’s

10

Police Chief Nisleit stated that “the approach that we are taking” is

11

simply “asking for compliance.”29

12

198. As a result of these ambiguities, no reasonable person could understand

13 what conduct violates the Orders and might subject that person to criminal penalties.

14

199. Plaintiffs have no adequate remedy at law and will suffer serious and

15 irreparable harm to their constitutional rights unless Defendants are enjoined from

16 implementing and enforcing the Orders.

17

200. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

18 declaratory relief and temporary, preliminary, and permanent injunctive relief

19 invalidating and restraining enforcement of the Orders.

20

201. Plaintiffs found it necessary to engage the services of private counsel to

21 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

22 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

23 ///

24 ///

25 ///

26 27 https://www.facebook.com/CAgovernor/videos/494465634769746/, at 4:00 and

27

34:00. 28 https://youtu.be/sogjrotTCSw, at 1:10:15.

28 29 https://youtu.be/zIXUA3lrJYk, at 9:33, 14:45.

43 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.46 Page 46 of 128

1

PRAYER FOR RELIEF

2

WHEREFORE, Plaintiffs respectfully pray for judgment against Defendants

3 and request the following relief:

4

A. An order and judgment declaring that the Orders, facially and as-applied to

5

Plaintiffs, violate the First and Fourteenth Amendments to the U.S.

6

Constitution and Article 1, Sections 1, 2, and 4 of the California

7

Constitution;

8

B. An order temporarily, preliminarily, and permanently enjoining and

9

prohibiting Defendants from enforcing the Orders except as to requiring

10

Plaintiffs to comply with the County of San Diego’s Social Distancing and

11

Sanitation Protocol, and any other reasonable protocol;

12

C. For attorneys’ fees and costs; and

13

D. Such other and further relief as the Court deems appropriate and just.

14

15

Respectfully submitted,

16

LiMANDRI & JONNA LLP

17

18 Dated: May 8, 2020 19 20 21

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

22

23 24
Dated: May 8, 2020 25 26 27

THOMAS MORE SOCIETY
By: ____________________ Thomas Brejcha Peter Breen Attorneys for Plaintiffs

28
44 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.47 Page 47 of 128

1

2

DHILLON LAW GROUP INC.

3 4 Dated: May 8, 2020 5 6 7

By: ____________________ Harmeet K. Dhillon Mark P. Meuser Gregory R. Michael Attorneys for Plaintiffs

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
45 Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.48 Page 48 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDDDo
cument1Filed05/08/20 PageID.49 Page 49 of 128
KJ[/9O;B[[[+[LOK;F9CH=<[9[3Q9Q=[K>[%H=O@=J;Y[RK[=XDPR[DJ[ #9FC>KOJC9[9P[9[O=PSFQ[K>[RB=[QBO=9R[K>[#07+$[9J<[
CJ[9[PBKOR[L=OCK<[K>[QCI=[#07+$[B9P[O9LC<FY[PLO=9<[ RBOKS@BKSQ[ #9FC>KOJC9[ J=;=PPDR9QDJ@[ TL<9R=<[9J<[HKO=[PQOCJ@=JR[ @SC<9J;=[ >OKH[ >=<=O9F[ PQ9Q=[9J<[FK;9F[LS:GD;[B=9GQB[K>>C;D9GP [9J<[
>KO[QB=[LO=P=OV9QCKJ[K?[LS:FC;[B=9FRB[9J<[P9>=QY[RBOKS@BKSQ[RB=[ =JQCO=[ 3Q9Q=[ K?[#9GC>KOJC9[-[>CJ<[DQ[ J=;=PP9OY[ >KO[9FF[#9FC>KOJC9JP[QK[B==<[RB=[ 3Q9Q=[ LS:GD;[B=9GQB[<CO=;RDV=P[>OKH[RB=[$=L9ORH=JR[K>[1S:FC;[)=9GRB[
  (KV=OJKO[K>[QB=[3Q9Q=[K>[#9GD>KOJC9[ CJ[9;;KO<9J;=[WDQB[QB=[9SQBKOCQY[V=PQ=<[CJ[I=[:Y[RB=[3R9R=[#KJPQCQSRCKJ[9J<[ PR9RUR=P[K>[QB=[3Q9R=[K>[#9FD>KOJC9[9J<[DJ[L9OQD;TG9O[ (KV=OJH=JR[#K<=[P=;QCKJP[ [[9J<[[<K[B=O=:Y[CPPU=[QB=[>KFFKWCJ@[0O<=O[RK[:=;KI=[=>>=;RDV=[ CIH=<D9Q=FY[
 
 4K[LO=P=OV=[QB=[LT:GD;[B=9FRB[9J<[P9>=QY[9J<[QK[=JPSO=[RB=[B=9GQB;9O= <=FCV=OY[PYPQ=H[CP[;9L9:F=[K>[P=OVDJ@[9FG[9J<[LOCKODQDZCJ@[QBKP=[9R[RB= BC@B=PR[ODPE[9J<[VUGJ=O9:CGCRY[9GG[O=PC<=JQP[9O=[<CO=;R=<[RK[DHI=<C9Q=GY B==<[RB=[;SOO=JQ[3Q9Q=[LS:FD;[B=9GQB[<CO=;RCV=P[WBC;B[+[KO<=O=<[QB= $=L9ORH=JQ[K>[1S:FC;[ *=9GRB[QK[<=V=FKL[>KO[ RB=[;TOO=JR[PR9Q=WC<= PR9QSP[K>[#07,$ [5BKP=[<CO=;RDV=P[9O=[;KJPDPQ=JR[WCQB[RB=[/9O;B[ [ /=HKO9J<UH[KJ[-<=JRD>C;9QCKJ[K?[ %PP=JRC9G[#OCQD;9G[ +J>O9PQOS;QUO= 8KOE=OP[$UOCJ@[#07-$[2=PLKJP=[>KTJ<[9Q[BRQMP;KVC<[
;9AKV 5BKP=[<DO=;QDV=P[>KGGKW
02$%2[ 0'[5)%[ 35!5&[ 16".-#[)&!.5)[0''-#&2[ /9O;B[[[
5K[LOKR=;R[LS:FC;[B=9GRB[-[9P[3R9R=[1U:GD;[)=9GRB[0>>C;=O[9J<[$CO=;QKO[ K>[QB=[#9GC>KOJD9[$=L9OQH=JQ[K>[ 1T:GC;[ *=9GQB[KO<=O[9GF[CJ<DVD<U9FP[GDVDJ@[ CJ[QB=[3Q9R=[K>[#9GC>KOJC9[RK[PQ9Y[BKH=[KO 9Q[RB=DO[LG9;=[K>[O=PC<=J;=[ =X;=LR[9P J==<=<[QK[H9DJR9DJ[;KJRDJTDRY[K>[KL=O9RCKJP[K>[QB=[>=<=O9G[ ;ODRC;9F[DJ>O9PQOS;QSO=[P=;RKOP[9P[KSQFCJ=<[9Q[ BQQNPWWW;CP9AKVD<=JRD>YDJA;OCRD;9GCJ>O9PROS;RSO=<SODJA;KVD<[ +J[9<<CQCKJ[9J<[DJ ;KJPTGQ9RCKJ[WDRB QB=[$CO=;RKO[K>[RB=[(KV=OJKOP[ 0>>C;=[ K>[%I=O@=J;Y[3=OVD;=P[ +[H9Y[<=PC@J9Q=[9<<CQCKJ9G[P=;RKOP[9P[ ;OCRD;9F[DJ KO<=O[QK[LOKQ=;R[QB=[B=9GRB[9J<[W=FF:=DJ@[K>[9GG[#9FC>KOJC9JP[
1SOPU9JQ[RK[QB=[9SRBKODRY[SJ<=O[RB=[)=9FQB[9J<[39>=QY[#K<=[[ [ [ ;[ [ [ [9J<[[ QBCP KO<=O[CP[RK[@K[CJQK[=>>=;R[CHI=<C9Q=GY[9J<[PB9GG[PR9Y[DJ[=>>=;R[SJQDG[ >SORB=O[JKRD;=[

C3*CJ*840=A;4*;BJG=A65<2J5<JC3/B/J J,A5C4,*7J4;0A*BCAD,CDA/JB/,C=ABJ9*HJ Case 3:20-c,v-=0<0C84;6D5/-AJCJ3B/-5MAJGDD=A6JD+o/c,u*mDeBn/tJ=10JCF3i/leJd590?5=/0A8C*/2;0,/PJ=a1gJeC3ID/.B5/0JB/P,aCg=eABJ5C0=Jof 128
*840=A;4*;BJ 3/*8C3J*<-JG/87+/4;2J
%35BJ"A-/AJ5BJ+/4;2J4BBD/-JC=J?A=C/,CJC3/J?D+85,J3/*7C3J=0J*751=A;5*;BJ %3/J*750=A;5*J/?*AC9/;CJ=0J #D+84,J /*8C3J7==6BJC=J/BC*+75B3J ,=;B5BC/<,HJ*,A=BBJC3/JBC*C/J4;J=A-/AJC=J/;BDA/JC3*CJG/J94C42*C/JC3/J 49?*,CJ=1J"'J"DAJ2=*7J4BJB49?7/JG/JG*;CJC=J+/<-JC3/J,DAF/J *<-J-5BAD?CJC3/JB?A/*-J=1JC3/JF5ADBJ
%3/JBD??8HJ,3*4;J9DBCJ,=<C4;D/J*;-J*840=A;4*;BJ9DBCJ3*F/J*,,/BBJC=J BD,3J;/,/BB4C4/BJ*BJ 0==-J?A/B,A4?C4=<BJ *;-J3/*8C3J,*A/J (3/;J ?/=?7/J ;//-JC=J8/*F/JC3/4AJ3=9/BJ=AJ?7*,/BJ=0JA/B5-/;,/JG3/C3/AJC=J=+C*5;J =AJ?/A0=A9JC3/J0D;,C4=;BJ*+=F/J=AJC=J=C3/AG4B/J0*,475C*C/J*DC3=A5I/-J ;/,/BB*AHJ*,C5F4C5/BJC3/HJB3=D7-J*CJ*88JC59/BJ?A*,C4,/JB=,5*7J-5BC*;,5;2J
 %3/J3/*8C3,*A/J-/74F/AHJBHBC/9JB3*77J?A5=A5C4I/JB/AF5,/BJC=JB/AF5<2JC3=B/ G3=J*A/JC3/JB5,6/BCJ*;-JB3*87J?A4=A5C4I/JA/B=EA,/BJ5;,8D-5;2J?/AB=;*7 ?A=C/,C4F/J/@D5?9/;CJ0=AJC3/J?A=F4-/ABJ?A=F4-5<2J-4A/,CJ,*A/JC=JC3/9
 %3/J"115,/J=0J9/A2/;,HJ$/AF5,/BJ5BJ-5A/,C/-JC=JC*6/J</,/BB*AHJBC/?BJC= /<BDA/J,=9?84*;,/JG5C3JC34BJ"A-/A

 %35BJ"A-/AJB3*77J+/J/<0=A,/*+7/J?DABD*;CJC=J*740=A;5*J7*GJ4;,7D-5;2 +DCJ;=CJ8495C/-JC=J =F/A;9/<CJ=-/JB/,C5=;J
&J
C3*CJ*BJB==;J*BJ3/A/*0C/AJ?=BB5+8/JC35BJ"A-/AJ+/J 148/-J5<JC3/J"114,/J=1JC3/J$/,A/C*AHJ=1J$C*C/J*<-JC3*CJG4-/B?A/*-J?D+74,4CHJ*;-J <=C5,/J+/J24F/<J=0JC35BJ"A-/AJ
%35BJ"A-/AJ4BJ;=CJ5<C/;-/-JC=J*;-J-=/BJ;=CJ,A/*C/J*;HJA423CBJ=AJ+/;/05CBJ BD+BC*<C5F/J=AJ?A=,/-DA*8J/<0=A,/*+7/J*CJ8*GJ=AJ5<J/@D4CHJ*2*4;BCJC3/J$C*C/J=1J *840=A;5*J4CBJ*2/;,5/BJ-/?*AC9/<CBJ/;C4C5/BJ=105,/ABJ/:?8=H//BJ=AJ*;HJ=C3/AJ ?/AB=;J
  
J3*F/J 3/A/D<C=JB/CJ9HJ3*;-J*<-J,*DB/-J C3/JA/J CJ$/*7J=0JC3/J C>C/J=1J
.J 35BJ C3J-*HJ


Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.51 Page 51 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.52 Page 52 of 128 April 28, 2020
ESSENTIAL WORKFORCE
On March 19, 2020, Governor Newsom issued Executive Order N-33-20 directing all residents immediately to heed current State public health directives to stay home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer may designate as critical to protect health and well-being of all Californians. In accordance with this order, the State Public Health Officer has designated the following list of “Essential Critical Infrastructure Workers” to help state, local, tribal, and industry partners as they work to protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.
Sector Index: 1. Health and Public Health Sector 2. Emergency Services Sector 3. Food and Agriculture Sector 4. Energy Sector 5. Water and Wastewater Sector 6. Transportation and Logistics Sector 7. Communications and Information Technology Sector 8. Government Operations and Other Community-Based Essential Functions 9. Critical Manufacturing Sector 10. Financial Services Sector 11. Chemical Sector 12. Defense Industrial Base Sector 13. Industrial, Commercial, Residential and Sheltering Facilities and Services
Relevant Guidance For All Sectors: x Face Coverings Guidance
x Orientación Sobre el Uso de Mascarillas de Tela x Self-Isolation for Older Adults and Those Who Have Elevated Risk
x Aislamiento para Adultos Mayores y Personas que Tienen un Riesgo Elevado x Employers, health care workers and workers in general industry
1

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.53 Page 53 of 128
April 28, 2020
1. HEALTHCARE / PUBLIC HEALTH
Sector Profile
The Healthcare and Public Health (HPH) Sector is large, diverse, and open, spanning both the public and private sectors. It includes publicly accessible healthcare facilities, research centers, suppliers, manufacturers, and other physical assets and vast, complex public-private information technology systems required for care delivery and to support the rapid, secure transmission and storage of large amounts of HPH data.
Essential Workforce, if remote working is not practical:
1. Health care providers and caregivers (including physicians, dentists, psychologists, mid-level practitioners, nurses, assistants, and aids; infection control and quality assurance personnel; pharmacists; physical, respiratory, speech and occupational therapists and assistants; social workers and providers serving individuals with disabilities including developmental disabilities; optometrists; speech pathologists; chiropractors; diagnostic and therapeutic technicians; and radiology technologists).
2. Workers required for effective clinical, command, infrastructure, support service, administrative, security and intelligence operations across the direct patient care and full healthcare and public health spectrum, including accounting, administrative, admitting and discharge, engineering, accrediting, certification, licensing, credentialing, epidemiological, source plasma and blood donation, food service, environmental services, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians; emergency medical services workers; prehospital workers including but not limited to urgent care workers; inpatient and hospital workers; outpatient care workers; home care workers; workers at long-term care facilities, residential and community-based providers; workplace safety workers).
3. Workers needed to support transportation to and from healthcare facilities and provider appointments.
4. Workers needed to provide laundry services, food services, reprocessing of medical equipment, and waste management.
5. Vendors and suppliers (including imaging, pharmacy, oxygen services, durable medical equipment)
6. Workers who perform critical clinical research, development, and testing needed for COVID-19 response.
7. Workers in other medical and life science facilities (including Ambulatory Health and Surgical, Blood Banks, Clinics, Community Mental Health, Comprehensive Outpatient rehabilitation, End Stage Renal Disease, Health Departments, Home Health care, Hospices, Hospitals, Long Term Care, Organ Pharmacies, Procurement Organizations, Psychiatric, Residential, Rural Health Clinics and Federally Qualified Health Centers, and retail facilities specializing in medical goods and supplies, including cannabis).
8. Workers for health manufacturing (including life science companies, and companies that have shifted production to medical supplies), materials and parts suppliers, technicians, logistics and warehouse operators, printers, packagers, and distributors of medical equipment (including those who test and repair), personal protective equipment (PPE), isolation barriers, medical
2

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.54 Page 54 of 128
April 28, 2020
gases, pharmaceuticals (including materials used in radioactive drugs, and cannabis products), dietary supplements, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, personal hygiene products, and tissue and paper towel products. 9. Public health / community health workers, including those who compile, model, analyze and communicate public health information. 10. Behavioral and mental health workers responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or behavioral services. 11. Donors of blood bone marrow, blood stem cell, or plasma and the workers of the organizations that operate and manage related activities. 12. Workers that manage health plans, billing, and health information. 13. Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information. 14. Workers performing IT and cybersecurity functions at healthcare and public health facilities. 15. Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions. 16. Pharmacy employees, including workers necessary to maintain uninterrupted prescription filling. 17. Workers in retail facilities specializing in medical goods and supplies. 18. Public health and environmental health workers, including workers specializing in environmental health that focus on implementing environmental controls, sanitary and infection control interventions, healthcare facility safety and emergency preparedness planning, engineered work practices, and developing guidance and protocols for appropriate PPE to prevent COVID-19 disease transmission; Public health/ community health workers (including call center workers) who conduct community- based public health functions, conducting epidemiologic surveillance and compiling, analyzing, and communicating public health information. 19. Mortuary services providers, including workers performing mortuary, funeral, cremation burial, cemetery, and related services, including funeral homes, crematoriums, cemetery workers and coffin makers. 20. Workers who coordinate with other organizations to ensure the proper recovery, handling, identification, transportation, tracking, storage, and disposal of human remains and personal effects; certify cause of death; and facilitate access to behavioral and mental health services to the family members, responders, and survivors of an incident. 21. Workers supporting veterinary hospitals and clinics.
Relevant Sector Guidance:
x All Facility Letters for health care facilities, including long-term care facilities x Health care facilities, Skilled Nursing Facilities x Individuals with Access and Functional Needs x Medical Waste Management - Interim Guidelines x Outpatient Healthcare Facility Infection Control Recommendations for Suspect COVID-19 Patients x Prioritization of Patients for Laboratory Testing for COVID-19 x Veterinary Professionals and Premises x Regional Centers:
x Visits to Licensed Residential Facilities x Risk Mitigation Strategies for ARFPSHN, ICF/DD-CN x Adult and Senior Care Facilities
3

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.55 Page 55 of 128 April 28, 2020
x Cuidado a los Adultos Mayores x Community care facilities, including assisted living facilities and child care x Medi-Cal Managed Care Health Plans: COVID – 19 Screening and Testing x Coverage Options Fact Sheet
x Opciones De Cobertura x Department of Managed Health Care All Plan Letter x California Department of Insurance Bulletin
4

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.56 Page 56 of 128
April 28, 2020
2. EMERGENCY SERVICES SECTOR
Sector Profile The Emergency Services Sector (ESS) is a community of highly-skilled, trained personnel, along with the physical and cyber resources, that provide a wide range of prevention, preparedness, response, and recovery services during both day-to-day operations and incident response. The ESS includes geographically distributed facilities and equipment in both paid and volunteer capacities organized primarily at the federal, state, local, tribal, and territorial levels of government, such as city police departments and fire stations, county sheriff’s offices, Department of Defense police and fire departments, and town public works departments. The ESS also includes private sector resources, such as industrial fire departments, private security organizations, and private emergency medical services providers.
Essential Workforce, if remote working is not practical:
1. Public, private, and voluntary personnel (front line and management) in emergency management, law enforcement, fire and rescue services, emergency medical services, corrections, rehabilitation and reentry, search and rescue, hazardous material response, and technicians supporting maritime and aviation emergency response.
2. Public Safety Answering Points and 911 call center employees; personnel involved in access to emergency services including the emergency alert system and wireless emergency alerts.
3. Fusion Center employees 4. Workers who support weather disaster / natural hazard monitoring, response, mitigation, and
prevention, including personnel conducting, supporting, or facilitating wildfire mitigation activities 5. Workers – including contracted vendors -- who maintain, manufacture, or supply equipment and services supporting law enforcement, fire, EMS, and and emergency service response operations (including safety equipment, electronic security, and uniforms) 6. Workers responding to abuse and neglect of children, elders and dependent adults. 7. Animal control officers and humane officers 8. Security staff to maintain building access control and physical security measures 9. Workers and contracted vendors who maintain and provide services and supplies to public safety facilities, including emergency communication center, public safety answering points, public safety communications centers, emergency operation centers, fire and emergency medical services stations, police and law enforcement stations and facilities.
Relevant Sector Guidance: x Public Health Guidance about COVID-19 for California State Prisons x First responders, including paramedics and EMTs
5

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.57 Page 57 of 128
April 28, 2020
3. FOOD AND AGRICULTURE
Sector Profile
The Food and Agricultural (FA) Sector is composed of complex production, processing, and delivery systems and has the capacity to feed people and animals both within and beyond the boundaries of the United States. Beyond domestic food production, the FA Sector also imports many ingredients and finished products, leading to a complex web of growers, processors, suppliers, transporters, distributors, and consumers. This sector is critical to maintaining and securing our food supply.
Essential Workforce, if remote working is not practical:
1. Workers supporting groceries, pharmacies, convenience stores, and other retail that sells food or beverage products, and animal/pet food, retail customer support service, information technology support staff, for online orders, pickup/takeout or delivery.
2. Workers supporting restaurant carry-out and quick serve food operations, including food preparation, carry-out and delivery food employees.
3. Food manufacturer employees and their supplier employees to include those employed in food ingredient production and processing facilities; aquaculture and seafood harvesting facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging, including recycling operations and processing.
4. Farmers, farm and ranch workers, and agribusiness support services to include those employed in auction and sales; grain and oilseed handling, storage, processing and distribution; animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport.
5. Farmers, farm and ranch workers, support service workers and their supplier employees producing food supply domestically and for export to include those engaged in raising, cultivating, harvesting, packing, storing, or delivering to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity for human consumption; those engaged in producing and harvesting field crops; cannabis growers; agricultural and commodity inspection; fuel ethanol facilities; storage facilities; biodiesel and renewable diesel facilities; and other agricultural inputs
6. Employees and firms supporting food, feed, and beverage distribution and ingredients used in these products including warehouse workers, vendor-managed inventory controllers, and blockchain managers.
7. Workers supporting the sanitation of all food manufacturing processes and operations from wholesale to retail.
8. Workers supporting the growth and distribution of plants and associated products for home gardens.
9. Workers in cafeterias used to feed workers, particularly worker populations sheltered against COVID-19
10. Workers in animal diagnostic and food testing laboratories 11. Workers essential for assistance programs and government payments 12. Government, private, and non-governmental organizations’ workers essential for food
assistance programs (including school lunch programs) and government payments.
6

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.58 Page 58 of 128 April 28, 2020
13. Employees of companies engaged in the production, storage, transport, and distribution of chemicals; medicines, including cannabis; vaccines; and other substances used by the food and agriculture industry, including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids.
14. Animal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services); raising of animals for food; animal production operations; livestock markets; slaughter and packing plants, manufacturers, renderers, and associated regulatory and government workforce.
15. Transportation supporting animal agricultural industries, including movement of animal medical and reproductive supplies and material, animal vaccines, animal drugs, feed ingredients, feed, and bedding, live animals, animal medical materials; transportation of deceased animals for disposal; and associated regulatory and government workforce
16. Workers who support sawmills and the manufacture and distribution of fiber and forest products, including, but not limited to timber, paper, and other wood and fiber products
17. Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary to agricultural production and distribution
18. Workers at animal care facilities that provide food, shelter, veterinary and/or routine care and other necessities of life for animals.
Relevant Sector Guidance: x Food, Beverage, Other Services
x Alimentos, Bebidas y Otros Sitios de Servicios Relacionados x Food Industry and Food Supply Chain
7

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.59 Page 59 of 128
April 28, 2020
4. ENERGY
Sector Profile
The Energy Sector consists of widely diverse and geographically dispersed critical assets and systems that are often interdependent of one another. This critical infrastructure is divided into three interrelated segments or subsectors—electricity, oil, and natural gas—to include the production, refining, storage, and distribution of oil, gas, and electric power. The Energy Sector supplies fuels to the transportation industry, electricity to households and businesses, and other sources of energy that are integral to growth and production across the Nation. In turn, it depends on the Nation’s transportation, information technology, communications, finance, water, and government infrastructures.
Essential Workforce, if remote working is not possible:
1. Workers supporting the energy sector, regardless of the energy source, segment of the system, or infrastructure the worker is involved in, or who are needed to monitor, operate, engineer, and maintain the reliability, safety, environmental health, physical and cyber security of the energy system, including power generation, transmission and distribution.
2. Workers supporting the energy sector, regardless of the energy source, needed for construction, manufacturing, transportation and logistics, maintenance, and permitting.
3. IT and OT technology for essential energy sector operations including support workers, customer service operations, call centers, and emergency response and customer emergency operations; energy management systems, control systems, Supervisory Control and Data Acquisition SCADA systems, and energy sector entity data centers; cybersecurity engineers; and cybersecurity risk management.
4. Workers providing services related to energy sector fuels and supply chains, supporting the procurement, mining, drilling, processing, refining, manufacturing, refueling, construction, logistics, transportation (including marine transport, terminals, rail and vehicle transport), permitting operation and maintenance, security, waste disposal, storage, and monitoring of support for resources;
5. Workers supporting environmental remediation and monitoring. 6. Workers supporting manufacturing and distribution of equipment, supplies, and parts necessary
to maintain production, maintenance, restoration, and service at energy sector facilities across all energy sectors, and regardless of the energy source. 7. Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and technicians to manage the network or operate facilities. 8. Workers at Reliability Coordinator, Balancing Authorities, and primary and backup Control Centers, including but not limited to independent system operators, regional transmission organizations, and balancing authorities; and workers involved in energy commodity trading and scheduling. 9. Mutual assistance personnel, which may include workers from outside of the state or local jurisdiction 10. Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them.
8

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.60 Page 60 of 128 April 28, 2020
5. WATER AND WASTEWATER
Sector Profile The Water and Wastewater Sector is a complex sector composed of drinking water and wastewater infrastructure of varying sizes and ownership types. Multiple governing authorities pertaining to the Water and Wastewater Sector provide for public health, environmental protection, and security measures, among others. Essential Workforce, if remote working is not practical: Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including: 1. Operational staff at water authorities 2. Operational staff at community water systems 3. Operational staff at wastewater treatment facilities 4. Workers repairing water and wastewater conveyances and performing required sampling or
monitoring 5. Operational staff for water distribution and testing 6. Operational staff at wastewater collection facilities 7. Operational staff and technical support for SCADA Control systems 8. Chemical disinfectant suppliers for water and wastewater and personnel protection 9. Workers that maintain digital systems infrastructure supporting water and wastewater
operations
9

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.61 Page 61 of 128
April 28, 2020
6. TRANSPORTATION AND LOGISTICS
Sector Profile
The Transportation Systems Sector consists of seven key subsectors, or modes:
x Aviation includes aircraft, air traffic control systems, and airports, heliports, and landing strips. Commercial aviation services at civil and joint-use military airports, heliports, and sea plane bases. In addition, the aviation mode includes commercial and recreational aircraft (manned and unmanned) and a wide variety of support services, such as aircraft repair stations, fueling facilities, navigation aids, and flight schools.
x Highway and Motor Carrier encompasses roadway, bridges, and tunnels. Vehicles include trucks, including those carrying hazardous materials; other commercial vehicles, including bicycles, commercial motor coaches and school buses; vehicle and driver licensing systems; taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies; traffic management systems; AND cyber systems used for operational management.
x Maritime Transportation System consists of coastline, ports, waterways, and intermodal landside connections that allow the various modes of transportation to move people and goods to, from, and on the water.
x Mass Transit and Passenger Rail includes terminals, operational systems, and supporting infrastructure for passenger services by transit buses, trolleybuses, monorail, heavy rail—also known as subways or metros—light rail, passenger rail, and vanpool/rideshare.
x Pipeline Systems consist of pipelines carrying natural gas hazardous liquids, as well as various chemicals. Above-ground assets, such as compressor stations and pumping stations, are also included.
x Freight Rail consists of major carriers, smaller railroads, active railroad, freight cars, and locomotives.
x Postal and Shipping includes large integrated carriers, regional and local courier services, mail services, mail management firms, and chartered and delivery services.
Essential Workforce, if remote working is not practical:
1. Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, towing and recovery services, roadside assistance workers, intermodal transportation personnel, and workers that maintain and inspect infrastructure
2. Working supporting or providing services that enable logistics operations for essential sectors, wholesale and retail sale, including warehousing, cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
3. Workers supporting maintenance and operation of essential highway infrastructure, including roads, bridges, and tunnels.
10

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.62 Page 62 of 128
April 28, 2020
4. Workers of firms providing services, supplies, and equipment that enable warehouse and operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
5. Mass transit workers providing critical transit services and/or performing critical or routine maintenance to mass transit infrastructure or equipment.
6. Employees supporting personal and commercial transportation services, including taxis, bicycle services, Transportation Network Companies, and delivery services including Delivery Network Companies
7. Workers responsible for operating dispatching passenger, commuter and freight trains and maintaining rail infrastructure and equipment
8. Maritime transportation and inland waterway workers – to include maintenance and repair – including port authority and commercial facility personnel, dredgers, port workers, mariners, ship crewmembers, ship pilots and tugboat operators, ship supply, chandler, and equipment operators.
9. Workers who support the operation, inspection, and maintenance of essential dams, locks, and levees.
10. Workers who support the inspection and maintenance of aids to navigation and other government-provided services that ensure continued maritime commerce.
11. Workers supporting transportation of chemicals, hazardous, medical, waste and recyclable materials to support critical sectors and infrastructure.
12. Automotive repair, maintenance, and transportation equipment manufacturing and distribution facilities.
13. Transportation safety inspectors, including hazardous material inspectors and accident investigator inspectors
14. Manufacturers and distributors (to include service centers and related operations) of lighting and communication systems, specialized signage and structural systems, emergency response equipment and support materials, printers, printed materials, packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations
15. Postal, parcel, courier, last-mile delivery, and shipping workers, to include private companies who accept, process, transport, and deliver information and goods.
16. Workers who supply equipment and materials for maintenance of transportation equipment. 17. Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, bicycles,
and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers 18. Workers who support air transportation for cargo and passengers, including operation distribution, maintenance, and sanitation. This includes air traffic controllers, flight dispatchers, maintenance personnel, ramp workers, fueling agents, flight crews, airport safety inspectors and engineers, airport operations personnel, aviation and aerospace safety workers, security, commercial space personnel, operations personnel, accident investigators, flight instructors, and other on- and off-airport facilities workers. 19. Workers critical to the manufacturing, distribution, sales, rental, leasing, repair, and maintenance of vehicles and other transportation equipment (including electric vehicle charging stations) and the supply chains that enable these operations, subject to adhering public health guidance issued by CDPH. 20. Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, construction material
11

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.63 Page 63 of 128 April 28, 2020
suppliers, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues 21. Workers who support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications.
12

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.64 Page 64 of 128
April 28, 2020
7. COMMUNICATIONS AND INFORMATION TECHNOLOGY
Sector Profile
The Communications Sector provides products and services that support the efficient operation of today’s global information-based society. Communication networks enable people around the world to contact one another, access information instantly, and communicate from remote areas. This involves creating a link between a sender (including voice signals) and one or more recipients using technology (e.g., a telephone system or the Internet) to transmit information from one location to another. Technologies are changing at a rapid pace, increasing the number of products, services, service providers, and communication options. The national communications architecture is a complex collection of networks that are owned and operated by individual service providers. Many of this sector’s products and services are foundational or necessary for the operations and services provided by other critical infrastructure sectors. The nature of communication networks involves both physical infrastructure (buildings, switches, towers, antennas, etc.) and cyber infrastructure (routing and switching software, operational support systems, user applications, etc.), representing a holistic challenge to address the entire physical-cyber infrastructure.
The IT Sector provides products and services that support the efficient operation of today’s global information-based society and are integral to the operations and services provided by other critical infrastructure Sectors. The IT Sector is comprised of small and medium businesses, as well as large multinational companies. Unlike many critical infrastructure Sectors composed of finite and easily identifiable physical assets, the IT Sector is a functions-based Sector that comprises not only physical assets but also virtual systems and networks that enable key capabilities and services in both the public and private sectors.
Essential Workforce – Communications, if remote working is not practical:
1. Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, Internet Exchange Points, Network Access Points, back haul and front haul facilities, and manufacturers and distributors of communications equipment.
2. Workers performing functions related to undersea cable infrastructure and support facilities, including cable landing sites, beach manhole vaults and covers, submarine cable depots, and submarine cable ship facilities
3. Government and private sector employees supporting Department of Dense internet and communications facilities.
4. Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering, reporting, and publishing news.
5. Network Operations staff, engineers and/or technicians to include IT managers and staff, HVAC & electrical engineers, security personnel, software and hardware engineers, and database administrators that manage the network or operate facilities
6. Workers responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes construction of
13

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.65 Page 65 of 128
April 28, 2020
new facilities and deployment of new technology required to address congestion or customer usage on remote services. 7. Installation, maintenance and repair technicians that establish, support or repair service as needed. 8. Central office personnel to maintain and operate central office, data centers, and other network office facilities, and critical support personnel assisting front line employees 9. Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, logistics and troubleshooting 10. Workers providing electronic security, fire, monitoring, and life safety services, and who ensure physical security, cleanliness, and the safety of facilities and personnel, including those who provide temporary licensing waivers for security personnel to work in other States or Municipalities. 11. Dispatchers involved with service repair and restoration 12. Retail customer service personnel at critical service center locations for onboarding customers, distributing and repairing equipment and other supply chain personnel, to support individuals’ remote emergency communications needs; 13. External Affairs personnel to assist in coordinating with local, state, and federal officials to address communications needs supporting COVID-19 response, public safety, and national security. 14. Workers responsible for ensuring that persons with disabilities have access to and the benefits of various communications platforms, including those involved in the provision of telecommunication relay services, closed captioning of broadcast television for the deaf, video relay services for deaf citizens who prefer communication via American Sign Language over text, and audio-description for television programming.
Essential Workforce - Information Technology, if remote working is not practical:
15. Workers who support command centers, including, but not limited to Network Operations Command Centers, Broadcast Operations Control Center and Security Operations Command Centers
16. Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers and purchasers, data transfer solutions engineers, software and hardware engineers, and database administrators
17. Workers who support client service centers, field engineers, and other workers supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, support services, research and development, information technology equipment (to include microelectronics and semiconductors), and HVAC and electrical equipment for critical infrastructure and test labs and certification agencies that qualify such equipment for critical infrastructure.
18. Workers needed to pre-empt and respond to cyber incidents involving critical infrastructure,, and entities supporting the functioning of critical infrastructure sectors
19. Suppliers, designers, transporters and other workers supporting the manufacture, distribution, and construction of essential global, national and local infrastructure for computing services (including cloud computing services and teleworking capabilities), business infrastructure, financial transactions, web-based services, and critical manufacturing
14

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.66 Page 66 of 128 April 28, 2020
20. Workers supporting communications systems, information technology, and work from home solutions
21. Employees required to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.
15

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.67 Page 67 of 128
April 28, 2020
8. GOVERNMENT OPERATIONS AND OTHER COMMUNITY-BASED ESSENTIAL FUNCTIONS
Essential Workforce, if remote working is not practical.
1. Critical government workers, as defined by the employer and consistent with Continuity of Operations Plans and Continuity of Government plans.
2. County workers responsible for determining eligibility for safety net benefits 3. The Courts, consistent with guidance released by the California Chief Justice 4. Workers who support administration and delivery of unemployment insurance programs,
income maintenance, employment service, disaster assistance, workers’ compensation insurance and benefits programs, and pandemic assistance 5. Workers to ensure continuity of building functions, including but not limited to security and environmental controls, the manufacturing and distribution of the products required for these functions, and the permits and inspection for construction. 6. Elections personnel 7. Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential Functions and communications networks 8. Trade Officials (FTA negotiators; international data flow administrators) 9. Weather forecasters 10. Workers that maintain digital systems infrastructure supporting other critical government operations 11. Workers who support necessary credentialing, vetting and licensing operations for critical sector workers and operations. 12. Workers who are critical to facilitating trade in support of the national, state, and local emergency response supply chain 13. Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors 14. Staff at government offices who perform title search, notary, and recoding services in support of mortgage and real estate services and transactions; 15. Workers and instructors supporting academies and training facilities and courses for the purpose of graduating students and cadets that comprise the essential workforce for all identified critical sectors 16. Clergy for essential support and faith-based services that are provided through streaming or other technologies that support physical distancing and state public health guidelines. 17. Human services providers, especially for at risk populations, including home delivered meal providers for older adults, people with disabilities, and others with chronic health conditions; home-maker services for frail, homebound, older adults; personal assistance services providers to support activities of daily living for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services; home health providers who deliver health care services for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services. 18. Government entities, and contractors that work in support of local, state, and federal public health and medical mission sets, including but not limited to supporting access to healthcare and associated payment functions, conducting public health functions, providing medical care,
16

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.68 Page 68 of 128 April 28, 2020
supporting emergency management, or other services necessary for supporting the COVID-19 response. Relevant Sector Guidance: x Schools and institutions of higher education
x Guidance for schools (PDF) x Directrices para las escuelas sobre el nuevo coronavirus o COVID-19 (PDF) x Guidance for colleges and universities x Directrices para las instituciones de educación superior sobre el nuevo coronavirus o
COVID-19 x Guidance for K-12 Schools: Distance Learning, School Meals, Child Care and Student Supervision x Guidance for Using Disinfectants at Schools and Child Cares
x Recordatorios para el uso de desinfectantes en las escuelas y guarderías x Community care facilities, including assisted living facilities and child care
17

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.69 Page 69 of 128 April 28, 2020
9. CRITICAL MANUFACTURING
Sector Profile The Critical Manufacturing Sector identifies several industries to serve as the core of the sector: Primary Metals Manufacturing, Machinery Manufacturing, Electrical Equipment, Appliance, and Component Manufacturing, Transportation Equipment Manufacturing Products made by these manufacturing industries are essential to many other critical infrastructure sectors. Essential Workforce, if remote working is not practical 1. Workers necessary for the manufacturing of metals, industrial minerals, semiconductors,
materials and products needed for supply chains of the critical infrastructure sectors. 2. Workers necessary for the manufacturing of materials and products needed to manufacture
medical equipment and personal protective equipment 3. Workers necessary for mining and production of critical minerals, materials and associated
essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for mining production and distribution. 4. Workers who produce or manufacture parts or equipment that supports continued operations for any essential services and increase in remote workforce, including computing and communication devices, semiconductors, and equipment such as security tools for Security Operations Centers (SOCs) or data centers. 5. Workers manufacturing or providing parts and equipment that enable the maintenance and continued operation of essential businesses and facilities.
18

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.70 Page 70 of 128 April 28, 2020
10. FINANCIAL SERVICES
Sector Profile The Financial Services Sector includes thousands of depository institutions, providers of investment products, insurance companies, other credit and financing organizations, and the providers of the critical financial utilities and services that support these functions. Financial institutions vary widely in size and presence, ranging from some of the world’s largest global companies with thousands of employees and many billions of dollars in assets, to community banks and credit unions with a small number of employees serving individual communities. Whether an individual savings account, financial derivatives, credit extended to a large organization, or investments made to a foreign country, these products allow customers to: Deposit funds and make payments to other parties; Provide credit and liquidity to customers; Invest funds for both long and short periods; Transfer financial risks between customers.
Essential Workforce, if remote working is not practical: 1. Workers who are needed to process and maintain systems for processing financial transactions
and services, including payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities 2. Workers who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services. 3. Workers who are needed to provide business, commercial, and consumer access to banking and non-bank financial and lending services, including ATMs, lending money transmission, and to move currency, checks, securities, and payments 4. Workers who support financial operations, such as those staffing call, data and security operations centers, managing physical security, or providing accounting services. 5. Workers supporting production and distribution of debit and credit cards. 6. Workers providing electronic point of sale support personnel for essential businesses and workers.
19

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.71 Page 71 of 128 April 28, 2020
11. CHEMICAL & HAZARDOUS MATERIALS
Sector Profile The Chemical Sector—composed of a complex, global supply chain—converts various raw materials into diverse products that are essential to modern life. Based on the product produced, the sector can be divided into five main segments, each of which has distinct characteristics, growth dynamics, markets, new developments, and issues: Basic chemicals; Specialty chemicals; Agricultural chemicals; Pharmaceuticals; Consumer products.
Essential Workforce, if remote working is not practical: 1. Workers supporting the chemical and industrial gas supply chains, including workers at chemical
manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, textiles, building materials, plumbing, electrical and paper products. 2. Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items 3. Workers supporting the production of protective cleaning and medical solutions, personal protective equipment, disinfectants, and packaging that prevents the contamination of food, water, medicine, among others essential products 4. Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections 5. Workers who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products, including glass container manufacturing 6. Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits 7. Workers who support hazardous materials response and cleanup 8. Workers who maintain digital systems infrastructure supporting hazardous materials management operations 9. Workers who support the removal, storage, and disposal of residential and commercial solid waste and hazardous waste, including landfill and recycling operations.
20

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.72 Page 72 of 128 April 28, 2020
12. DEFENSE INDUSTRIAL BASE
Sector Profile The Defense Industrial Base Sector is the worldwide industrial complex that enables research and development, as well as design, production, delivery, and maintenance of military weapons systems, subsystems, and components or parts, to meet U.S. military requirements. The Defense Industrial Base partnership consists of Department of Defense components, Defense Industrial Base companies and their subcontractors who perform under contract to the Department of Defense, companies providing incidental materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities. Defense Industrial Base companies include domestic and foreign entities, with production assets located in many countries. The sector provides products and services that are essential to mobilize, deploy, and sustain military operations.
Essential Workforce, if remote working is not practical: 1. Workers who support the essential services required to meet national security commitments to
the federal government and U.S. Military, including, but are not limited to, space and aerospace workers, nuclear matters workers, mechanical and software engineers (various disciplines), manufacturing and production workers, IT support, security staff, security personnel, intelligence support, aircraft and weapon system mechanics and maintainers, and sanitary workers who maintain the hygienic viability of necessary facilities. 2. Personnel working for companies, and their subcontractors, who perform under contract or subcontract to the Department of Defense (DoD) and the Department of Energy (DoE) (on nuclear matters), as well as personnel at government-owned/contractor operated facilities, and who provide materials and services to the DoD and DoE (on nuclear matters), including support for weapon systems, software systems and cybersecurity, defense and intelligence communications, surveillance, sale of U.S. defense articles and services for export to foreign allies and partners (as authorized by the U.S. government), and space systems and other activities in support of our military, intelligence, and space forces.
21

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.73 Page 73 of 128
April 28, 2020
13. INDUSTRIAL, COMMERCIAL, RESIDENTIAL, and SHELTERING FACILITIES AND SERVICES
Essential Workforce, if remote working is not practical:
1. Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing, commercial, and mixed-use construction); and workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions.
2. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, recycling and disposal of solid waste and hazardous waste)
3. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses, and buildings such as hospitals and senior living facilities, including any facility supporting COVID-19 response.
4. Workers who support the supply chain of building materials from production through application and installation, including cabinetry, fixtures, doors, cement, hardware, plumbing (including parts and services), electrical, heating and cooling, refrigeration, appliances, paint and coatings, and workers who provide services that enable repair materials and equipment for essential functions.
5. Workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant retailers, wholesalers and distributors that support essential workforce functions where sales and operations cannot be conducted online
6. Warehouse operators, including vendors and support personnel critical for business continuity (including heating, ventilation, and air conditioning (HVAC) and electrical engineers, security personnel, and janitorial staff), e-commerce or online commerce, and customer service for essential functions.
7. Workers supporting the operations of commercial buildings that are critical to safety, security, and the continuance of essential activities, such as on-site property managers, building engineers, security staff, fire safety directors, janitorial personnel, and service technicians (e.g., mechanical, HVAC, plumbers, electricians, and elevator).
8. Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions, that accept, store, and process goods, and that facilitate their transportation and delivery
9. Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.
10. Workers managing or servicing hotels or other commercial and residential buildings that are used for COVID-19 mitigation and containment measures, treatment measures, provide accommodation for essential workers, or providing housing solutions, including measures to protect homeless populations.
22

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.74 Page 74 of 128
April 28, 2020
11. Workers responsible for the leasing of residential and commercial properties to provide individuals and families with ready access to available housing.
12. Residential and commercial real estate workers, limited to scheduled property viewings to a potential buying party. This does not extend to open-house viewings, nor viewings with more than one buying party at a time.
13. Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services
14. Workers responsible for handling property management, maintenance, and related service calls who can coordinate the response to emergency “at-home” situations requiring immediate attention, as well as facilitate the reception of deliveries, mail, and other necessary services.
15. Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around physical distancing.
16. Workers that provide or determine eligibility for food, shelter, in-home supportive services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
17. Workers performing services in support of the elderly and disabled populations who coordinate a variety of services, including health care appointments and activities of daily living.
18. Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers.
19. Workers providing dependent care services, particularly those whose services ensure essential workers can continue to work.
20. Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters.
21. Workers in laundromats, laundry services, and dry cleaners. 22. Workers providing disinfection services, for all essential facilities in essential sectors 23. Workers necessary for the installation, maintenance, distribution, and manufacturing of water
and space heating equipment and its components. 24. Support required for continuity of services, including commercial disinfectant services,
janitorial/cleaning personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line employees.
Relevant Sector Guidance:
x Cleaning & Waste Management for Residences 2/2020 x Essential/Emergency Personnel Providing Critical In-Home Services x Home cleaning with COVID-19 positive individuals x Recommended Strategic Approaches for COVID-19 Response for Individuals Experiencing
Homelessness x Flow Chart: COVID-19 Recommended Protocol for People Experiencing Homelessness x Homeless Assistance Providers x Immigrant Communities
x Las Comunidades de Inmigrantes x Pets & People
23

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.75 Page 75 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.76 Page 76 of 128

'EPMJSVRME'SVSREZMVYW'3:-(6IWTSRWI

6HDUFK

7IPIGXPERKYEKI

6IWMPMIRGI6SEHQET
0EWXYTHEXIH1E]EX41

b1IRY

'EPMJSVRMERWLEZIFIIRWXE]MRKLSQIERHWEZMRKPMZIWWMRGIXLIWXEVXSJSYVWXEXI[MHIWXE]EX LSQISVHIVMWWYIHSR1EVGL8LIWIIJJSVXWLEZIEPPS[IHXLIWXEXIXSQSZIJSV[EVHSR SYVVSEHQETJSVQSHMJ]MRKXLIWXEXI[MHISVHIVc
;IEVIRS[QSZMRKMRXS7XEKI[LIVIWSQIPS[IVVMWO[SVOTPEGIWGERKVEHYEPP]STIR[MXL EHETXEXMSRW8LIWXEXIMWMWWYMRKKYMHERGIXSLIPTXLIWI[SVOTPEGIWVISTIRWEJIP]

Ã
78%+) 7EJIX]ERHTVITEVIHRIWW
1EOI[SVOTPEGIWWEJIJSVSYVIWWIRXMEP[SVOIVW
'YVVIRXWXEKI

Ã
78%+) 0S[IVVMWO[SVOTPEGIW
+VEHYEPP]VISTIRVIXEMPGYVFWMHISRP]QERYJEGXYVMRK
PSKMWXMGW0EXIVVIPE\ VIXEMPVIWXVMGXMSRWEHETX
VISTIRWGLSSPWGLMPHGEVISJçGIW
PMQMXIH LSWTMXEPMX]TIVWSREPWIVZMGIW
,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.77 Page 77 of 128
Ã
78%+) ,MKLIVVMWO[SVOTPEGIW
%HETXERHVISTIRQSZMIXLIEXIVWVIPMKMSYWWIVZMGIW
QSVI TIVWSREPc
cLSWTMXEPMX]WIVZMGIW

Ã

78%+) )RHSJ7XE],SQI3VHIV
6ISTIREVIEWSJLMKLIWXVMWOcIK'SRGIVXWGSRZIRXMSRWWTSVXWEVIREW

;LIRQSHMçGEXMSRWEVIEHZERGIHERHXLIWXEXIÙWWM\MRHMGEXSVWWLS[[IÙZIQEHIIRSYKL TVSKVIWW[IGERQSZIXSXLIRI\XWXEKISJXLIVSEHQETc
7XEKII\TERWMSR[MPPFITLEWIHMRKVEHYEPP]7SQIGSQQYRMXMIWQE]QSZIXLVSYKL7XEKI JEWXIVMJXLI]EVIEFPIXSWLS[KVIEXIVTVSKVIWWERHGSYRXMIWXLEXLEZIQIXXLIVIEHMRIWWGVMXIVME ERH[SVOIH[MXLXLI'EPMJSVRME(ITEVXQIRXSJ4YFPMG,IEPXLGERSTIRQSVI[SVOTPEGIWEW SYXPMRIHMRXLI'SYRX]:EVMERGI+YMHERGI

-RHYWXV]KYMHERGIXSVIHYGIXLIVMWO

'EPMJSVRME[MPPQSZIMRXS7XEKISJQSHMJ]MRKXLIWXEXIÙW7XE]EX,SQISVHIVSR1E] 3YVTVSKVIWWMREGLMIZMRKOI]TYFPMGLIEPXLQIXVMGW[MPPEPPS[EKVEHYEPVISTIRMRKSJ 'EPMJSVRMEÙWIGSRSQ]
;IVIGSKRM^IXLIMQTEGXSJIGSRSQMGLEVHWLMT;IQYWXKIXSYVIGSRSQ]VSEVMRKSRGIEKEMR ERHTYXTE]GLIGOWMRTISTPIÙWTSGOIXW&YXXLIVMWOSJ'3:-(MRJIGXMSRMWWXMPPVIEPJSVEPP 'EPMJSVRMERWERHGSRXMRYIWXSFIJEXEP
8LEXMW[L]IZIV]FYWMRIWWWLSYPHXEOIIZIV]WXITLYQERP]TSWWMFPIXSVIHYGIXLIVMWOSJ MRJIGXMSR

4PERERHTVITEVIJSVVISTIRMRK

,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.78 Page 78 of 128 1EOIVEHMGEPGLERKIW[MXLMRXLI[SVOTPEGI %HNYWXTVEGXMGIWF]IQTPS]IIWERHLIPTIHYGEXIGYWXSQIVW
&IPS[EVIKYMHERGIJSVIEGLIEVP]7XEKIFYWMRIWWXSJSPPS[8LIKSEPMWEWEJIGPIER IRZMVSRQIRXJSV[SVOIVWERHGYWXSQIVW&YWMRIWWIWQE]YWIIJJIGXMZIEPXIVREXMZISVMRRSZEXMZI QIXLSHWXSFYMPHYTSRXLIKYMHERGI
6IZMI[XLIKYMHERGIXLEXMWVIPIZERXXS]SYV[SVOTPEGITVITEVIETPERFEWIHSRXLIKYMHERGI JSV]SYVMRHYWXV]ERHTYXMXMRXSEGXMSRc
;LIRGSQTPIXI]SYGERTSWXXLIMRHYWXV]WTIGMçGGLIGOPMWXFIPS[MR]SYV[SVOTPEGIXSWLS[ ]SYVGYWXSQIVWERH]SYVIQTPS]IIWXLEX]SYÙZIVIHYGIHXLIVMWOERHSTIRJSVFYWMRIWW
&IJSVIVISTIRMRKEPPJEGMPMXMIWQYWX
4IVJSVQEHIXEMPIHVMWOEWWIWWQIRXERHMQTPIQIRXEWMXIWTIGMçGTVSXIGXMSRTPER 8VEMRIQTPS]IIWSRLS[XSPMQMXXLIWTVIEHSJ'3:-(MRGPYHMRKLS[XSWGVIIR
XLIQWIPZIWJSVW]QTXSQWERHWXE]LSQIMJXLI]LEZIXLIQ -QTPIQIRXMRHMZMHYEPGSRXVSPQIEWYVIWERHWGVIIRMRKW -QTPIQIRXHMWMRJIGXMRKTVSXSGSPW -QTPIQIRXTL]WMGEPHMWXERGMRKKYMHIPMRIW
8STVSZMHI]SYVMRTYXSRJYXYVIMRHYWXV]KYMHERGIçPPSYXXLI'EPMJSVRME6IGSZIV]6SEHQET WYVZI]
-XMWGVMXMGEPXLEXIQTPS]IIWRIIHMRKXSWIPJMWSPEXIFIGEYWISJ'3:-(EVIIRGSYVEKIHXSWXE] EXLSQI[MXLWMGOPIEZITSPMGMIWXSWYTTSVXXLEXXSTVIZIRXJYVXLIVMRJIGXMSRMR]SYV[SVOTPEGI %HHMXMSREPMRJSVQEXMSRSRKSZIVRQIRXTVSKVEQWWYTTSVXMRKWMGOPIEZIERH[SVOIVÙW GSQTIRWEXMSRJSV'3:-(GERFIJSYRHLIVI
ŋ%KVMGYPXYVIERHPMZIWXSGO
8LIKYMHERGIJSVXLIEKVMGYPXYVIERHPMZIWXSGOMRHYWXV]TVSZMHIWKYMHIPMRIWXS GVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIEKVMGYPXYVI ERHPMZIWXSGOMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX ]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.79 Page 79 of 128
%YXSHIEPIVWLMTW
8LIKYMHERGIJSVXLIEYXSQSFMPIHIEPIVWLMTWERHVIRXEPSTIVEXSVWMRHYWXV] TVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIEYXSQSFMPI HIEPIVWLMTWERHVIRXEPSTIVEXSVWMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVW ERHIQTPS]IIWXLEX]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
Ĝ'SQQYRMGEXMSRWMRJVEWXVYGXYVI
8LIKYMHERGIJSVXLIGSQQYRMGEXMSRWMRJVEWXVYGXYVIMRHYWXV]TVSZMHIW KYMHIPMRIWXSGVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLI GSQQYRMGEXMSRWMRJVEWXVYGXYVIMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVW ERHIQTPS]IIWXLEX]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
š'SRWXVYGXMSR
8LMWKYMHERGIJSVXLIGSRWXVYGXMSRMRHYWXV]TVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIV IRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIGSRWXVYGXMSR MRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZI VIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
(IPMZIV]WIVZMGIW
8LIKYMHERGIJSVXLIHIPMZIV]WIVZMGIWMRHYWXV]TVSZMHIWKYMHIPMRIWXSGVIEXIE WEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIHIPMZIV]
,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.80 Page 80 of 128
WIVZMGIWMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX ]SYÙZI VIHYGIH XLI VMWO ERH EVI STIR JSV FYWMRIWW
Ĵ)RIVK]ERHYXMPMXMIW
8LIKYMHERGIJSVXLIIRIVK]ERHYXMPMXMIWMRHYWXV]TVSZMHIWKYMHIPMRIWXSGVIEXIE WEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXcXLIGLIGOPMWXJSVXLIIRIVK]ERH YXMPMXMIWMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX ]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW

â*SSHTEGOMRK
8LIKYMHERGIJSVJEGMPMXMIWXLEXTVSGIWWSVTEGOQIEXHEMV]cTVSZMHIWKYMHIPMRIW XSGVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVJEGMPMXMIWXLEX TVSGIWWSVTEGOQIEXHEMV]SVTVSHYGIMR]SYV[SVOTPEGIXSWLS[GYWXSQIVW ERHIQTPS]IIWXLEX]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW

_,SXIPWERHPSHKMRK
8LIKYMHERGIJSVXLILSXIPWERHPSHKMRKMRHYWXV]TVSZMHIWKYMHIPMRIWXSGVIEXIE WEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLILSXIPWERH PSHKMRKMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX ]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW

)0MJIWGMIRGIW

8LIKYMHERGIJSVXLIPMJIWGMIRGIWMRHYWXV]cTVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIV

IRZMVSRQIRXJSV[SVOIVW

,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.81 Page 81 of 128
6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIPMJIWGMIRGIW MRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZI VIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
X0SKMWXMGWERH;EVILSYWMRK*EGMPMXMIW
8LIKYMHERGIJSVFYWMRIWWIWSTIVEXMRKMRXLIPSKMWXMGW[EVILSYWMRKMRHYWXV] TVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXcXLIGLIGOPMWXJSVXLI PSKMWXMGW[EVILSYWMRKMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERH IQTPS]IIWXLEX]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW

1ERYJEGXYVMRK
8LIKYMHERGIJSVXLIQERYJEGXYVMRKMRHYWXV]TVSZMHIWKYMHIPMRIWXSGVIEXIE WEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLI QERYJEGXYVMRKMRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIW XLEX]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW

P1MRMRKERHPSKKMRK
8LIKYMHERGIJSVXLIQMRMRKERHPSKKMRKMRHYWXVMIWTVSZMHIWKYMHIPMRIWXSGVIEXI EWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIQMRMRKERH PSKKMRKMRHYWXVMIWMR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX ]SYÙZIVIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW

_3JçGI[SVOWTEGIW

,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.82 Page 82 of 128
8LIKYMHERGIJSVFYWMRIWWIWSTIVEXMRKMRSJçGI[SVOWTEGIWTVSZMHIWKYMHIPMRIW XSGVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXcXLIGLIGOPMWXJSVSJçGI [SVOWTEGIWcMR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZI VIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
4SVXW
8LMW+YMHERGIJSVXLITSVXMRHYWXV]TVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIV IRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLITSVXMRHYWXV] MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZIVIHYGIHXLI VMWOERHEVISTIRJSVFYWMRIWW
¥4YFPMG8VERWMXERH-RXIVGMX]4EWWIRKIV6EMP
8LMWKYMHERGIJSVTYFPMGXVERWMXEKIRGMIWTVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIV IRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVTYFPMGXVERWMX EKIRGMIWMR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZI VIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
6IEPIWXEXIXVERWEGXMSR
8LMW+YMHERGIJSVFYWMRIWWIWSTIVEXMRKMRXLIVIEPIWXEXIMRHYWXV]TVSZMHIW KYMHIPMRIWXSGVIEXIEWEJIVIRZMVSRQIRXJSV[SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVXLIVIEPIWXEXI MRHYWXV]MR]SYV[SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZI VIHYGIHXLIVMWOERHEVISTIRJSVFYWMRIWW
,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.83 Page 83 of 128
¥6IXEMP
8LMWKYMHERGIJSVVIXEMPIVWTVSZMHIWKYMHIPMRIWXSGVIEXIEWEJIVIRZMVSRQIRXJSV [SVOIVW 6IZMI[XLIKYMHERGITVITEVIETPERERHTSWXXLIGLIGOPMWXJSVVIXEMPIVWMR]SYV [SVOTPEGIXSWLS[GYWXSQIVWERHIQTPS]IIWXLEX]SYÙZIVIHYGIHXLIVMWOERH EVISTIRJSVFYWMRIWW
'YWXSQIVWERHMRHMZMHYEPW
'YWXSQIVWERHMRHMZMHYEPWEVIIRGSYVEKIHXSWXE]LSQIMJXLI]LEZIEJIZIVSVSXLIV'3:-( W]QTXSQW8LSWI[MXLW]QTXSQWSVIPIZEXIHXIQTIVEXYVIWWLSYPHRSXWLSTKIXWIVZMGIWMR TIVWSRKSXS[SVOSVGSRKVIKEXI[MXLSXLIVW-J]SYÙVIRSXWYVIMJXLMWETTPMIWXS]SYGLIGO]SYV W]QTXSQW[MXLXLMW7]QTXSQ7GVIIRIV
,MKLIVVMWOMRHMZMHYEPWWLSYPHGSRXMRYIXSWXE]LSQIYRXMP7XEKI
6SEHQETJSV6ISTIRMRK&YWMRIWWIW
&IJSVIVISTIRMRKEPPJEGMPMXMIWQYWXçVWXTIVJSVQEHIXEMPIHVMWOEWWIWWQIRXERHMQTPIQIRXE WMXIWTIGMçGTVSXIGXMSRTPER%HETXEXMSRWRIIHXSFIQEHIFIJSVI7XEKI[SVOTPEGIWGERSTIR ÖGYVVIRXP]XLEXMRGPYHIWQSHMçGEXMSRWPMOIGYVFWMHITMGOYTEXVIXEMPPSGEXMSRWc
78%+)7EJIX]ERH4VITEVIHRIWW
Ã
3RP]IWWIRXMEPFYWMRIWWIWERH[SVOTPEGIWEVISTIR
7IIXLIJYPPPMWXSJIWWIRXMEP[SVOJSVGIHIWMKREXMSRWSRXLIIWWIRXMEP[SVOJSVGI TEKI

78%+)0S[IVVMWO[SVOTPEGIW

,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.84 Page 84 of 128
Ã
'ERSTIR[MXLQSHMçGEXMSRW
'YVFWMHIVIXEMPMRGPYHMRKFYXRSXPMQMXIHXS&SSOWXSVIWNI[IPV]WXSVIWXS] WXSVIWGPSXLMRKWXSVIWWLSIWXSVIWLSQIERHJYVRMWLMRKWXSVIWWTSVXMRK KSSHWWXSVIWERXMUYIWXSVIWQYWMGWXSVIWèSVMWXW2SXIXLMW[MPPFITLEWIH MRWXEVXMRKçVWX[MXLGYVFWMHITMGOYTERHHIPMZIV]SRP]YRXMPJYVXLIVRSXMGI 7YTTP]GLEMRWWYTTSVXMRKXLIEFSZIFYWMRIWWIWMRQERYJEGXYVMRKERH PSKMWXMGEPWIGXSVW
'ERSTIRPEXIVMR7XEKI
(IWXMREXMSRVIXEMPMRGPYHMRKWLSTTMRKQEPPWERHW[ETQIIXW 4IVWSREPWIVZMGIWPMQMXIHXSGEV[EWLIWTIXKVSSQMRKXERRMRKJEGMPMXMIW ERHPERHWGETIKEVHIRMRK 3JçGIFEWIHFYWMRIWWIWXIPI[SVOVIQEMRWWXVSRKP]IRGSYVEKIH (MRIMRVIWXEYVERXWSXLIVJEGMPMX]EQIRMXMIWPMOIFEVWSVKEQMRKEVIEWEVI RSXTIVQMXXIH 7GLSSPWERHGLMPHGEVIJEGMPMXMIW 3YXHSSVQYWIYQWERHSTIRKEPPIV]WTEGIW
238MR7XEKISV,MKLIVVMWO;SVOTPEGIW
4IVWSREPWIVZMGIWWYGLEWREMPWEPSRWXEXXSSTEVPSVWK]QWERHçXRIWW WXYHMSW ,SWTMXEPMX]WIVZMGIWWYGLEWFEVWERHPSYRKIW )RXIVXEMRQIRXZIRYIWWYGLEWQSZMIXLIEXIVWKEQMRKJEGMPMXMIWERHTVS WTSVXW -RHSSVQYWIYQWOMHWQYWIYQWERHKEPPIV]WTEGIW^SSWERHPMFVEVMIW 'SQQYRMX]GIRXIVWMRGPYHMRKTYFPMGTSSPWTPE]KVS,YSQRIHW7EIERVGHLTMG&REGMOGXSEXVSIT EW1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.85 Page 85 of 128
6IPMKMSYWWIVZMGIWERHGYPXYVEPGIVIQSRMIW 2MKLXGPYFW 'SRGIVXZIRYIW *IWXMZEPW 8LIQI TEVOW
(ITEVXQIRXSJ4YFPMG,IEPXL +SZIVRSVÙW2I[WVSSQ 7XEXI[MHI'3:-(,SXPMRI %GGIWWMFMPMX] 4VMZEG]4SPMG] *IIHFEGO 3JçGMEP'EPMJSVRME7XEXI+SZIVRQIRX;IFWMXI
,SQI 7IEVGL &EGOXSXST 1IRY

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.86 Page 86 of 128
COVID-19 INDUSTRY GUIDANCE:
Manufacturing
May 7, 2020
1
covid19.ca.gov

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.87 Page 87 of 128
OVERVIEW
On March 19, 2020, the State Public Health Officer and Director of the California Department of Public Health issued an order requiring most Californians to stay at home to disrupt the spread of COVID-19 among the population.
The impact of COVID-19 on the health of Californians is not yet fully known. Reported illness ranges from very mild (some people have no symptoms) to severe illness that may result in death. Certain groups, including people aged 65 or older and those with serious underlying medical conditions, such as heart or lung disease or diabetes, are at higher risk of hospitalization and serious complications. Transmission is most likely when people are in close contact with an infected person, even if that person does not have any symptoms or has not yet developed symptoms.
Precise information about the number and rates of COVID-19 by industry or occupational groups, including among critical infrastructure workers, is not available at this time. There have been multiple outbreaks in a range of workplaces, indicating that workers are at risk of acquiring or transmitting COVID-19 infection. Examples of these workplaces include long-term care facilities, prisons, food production, warehouses, meat processing plants, and grocery stores.
As stay-at-home orders are modified, it is essential that all possible steps be taken to ensure the safety of workers and the public.
Key prevention practices include: 9 physical distancing to the maximum extent possible, 9 use of face coverings by employees (where respiratory protection is not required) and customers/clients, 9 frequent handwashing and regular cleaning and disinfection, 9 training employees on these and other elements of the COVID-19 prevention plan.
In addition, it will be critical to have in place appropriate processes to identify new cases of illness in workplaces and, when they are identified, to intervene quickly and work with public health authorities to halt the spread of the virus.
Purpose
This document provides guidance for the manufacturing industry to support a safe, clean environment for workers. The guidance is not intended to revoke or repeal any employee rights, either statutory, regulatory or collectively bargained, and is not exhaustive, as it does not include county health orders, nor is it a substitute for any existing safety and health-related regulatory requirements such as those of Cal/OSHA.1 Stay current on changes to public health guidance and state/local orders, as the COVID-19 situation continues. Cal/OSHA has additional safety and health guidance on their Cal/OSHA COVID-19 Infection Prevention for Logistics Employers and Employees

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.88 Page 88 of 128
webpage. CDC has additional information on their guidance for businesses and employers.
Worksite Specific Plan
x Establish a written, worksite-specific COVID-19 prevention plan at every facility, perform a comprehensive risk assessment of all work areas, and designate a person at each facility to implement the plan.
x Identify contact information for the local health department where the facility is located for communicating information about COVID-19 outbreaks among employees.
x Train and communicate with employees and employee representatives on the plan.
x Regularly evaluate the workplace for compliance with the plan and document and correct deficiencies identified.
x Investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection. Update the plan as needed to prevent further cases.
x Identify close contacts (within six feet for 10 minutes or more) of an infected employee and take steps to isolate COVID-19 positive employee(s) and close contacts.
x Adhere to the guidelines below. Failure to do so could result in workplace illnesses that may cause operations to be temporarily closed or limited.
Topics for Employee Training
x Information on COVID-19, how to prevent it from spreading, and which underlying health conditions may make individuals more susceptible to contracting the virus.
x Self-screening at home, including temperature and/or symptom checks using CDC guidelines.
x The importance of not coming to work if employees have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, recent loss of taste or smell, or if they or someone they live with have been diagnosed with COVID-19. 3

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.89 Page 89 of 128
x To seek medical attention if their symptoms become severe, including persistent pain or pressure in the chest, confusion, or bluish lips or face. Updates and further details are available on CDC’s webpage.
x The importance of frequent handwashing with soap and water, including scrubbing with soap for 20 seconds (or using hand sanitizer with at least 60% ethanol or 70% isopropanol when employees cannot get to a sink or handwashing station, per CDC guidelines).
x The importance of physical distancing, both at work and off work time (see Physical Distancing section below).
x Proper use of face coverings, including:
o Face coverings do not protect the wearer and are not personal protective equipment (PPE).
o Face coverings can help protect people near the wearer, but do not replace the need for physical distancing and frequent handwashing.
o Employees should wash or sanitize hands before and after using or adjusting face coverings.
o Avoid touching eyes, nose, and mouth.
o Face coverings should be washed after each shift.
Individual Control Measures and Screening
x Provide temperature and/or symptom screenings for all workers at the beginning of their shift and any personnel entering the facility. Make sure the temperature/symptom screener avoids close contact with workers to the extent possible. Both screeners and employees should wear face coverings for the screening.
x Encourage workers who are sick or exhibiting symptoms of COVID-19 to stay home.
x Employers should provide and ensure workers use all required protective equipment. Employers should consider where disposable glove use may be helpful to supplement frequent handwashing or use of hand sanitizer; examples are for workers who are screening others for symptoms or handling commonly touched items.
x Face coverings are strongly recommended when employees are not required to wear respirators for other hazards and are in the vicinity of others. Workers should have face coverings available and wear them
4

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.90 Page 90 of 128
when at work, in offices, or in a vehicle for work-related travel with others. Face coverings must not be shared.
x Non-employees entering the facility should be restricted to only those classified as essential by management and they must complete a temperature and/or symptom screening before entering. Contractors, vendors, and all others entering the facility are strongly recommended to wear face coverings.
Cleaning and Disinfecting Protocols
x Perform thorough cleaning on high traffic areas such as break rooms, lunch areas, and changing areas, and areas of ingress and egress including, stairways and stairwells, handrails, and elevators controls. Frequently disinfect commonly used surfaces, including, doorknobs, toilets, and handwashing facilities.
x Clean touchable surfaces between shifts or between users, whichever is more frequent, including but not limited to working surfaces, tools, handles and latches, and controls on stationary and mobile equipment, including surfaces in the cabs of all vehicles.
x Avoid sharing phones, office supplies, other work tools, or handheld mobile communications equipment wherever possible. Individuallyassigned peripheral equipment (keyboards, handsets, headsets, chairs, etc.) should be provided wherever possible. If necessary, clean and disinfect them before and after each use. Never share PPE.
x Provide sufficient time for workers to implement cleaning practices before, during, and after shifts. If cleaning is assigned to the worker, they must be compensated for that time.
• Ensure sanitary facilities restrooms and handwashing stations with soap and hand sanitizer are provided at all sites. Ensure that sanitary facilities stay operational and stocked at all times and provide additional soap, paper towels, and hand sanitizer when needed.
x Stagger breaks and provide additional sanitary facilities (including portable toilets and handwashing stations) if feasible and necessary to maintain physical distancing during scheduled breaks. No-touch sinks, soap dispensers, sanitizer dispensers, and paper towel dispensers should be installed whenever possible.
x When choosing cleaning chemicals, employers should use product approved for use against COVID-19 on the Environmental Protection Agency (EPA)-approved list and follow product instructions. Use disinfectant labels labeled to be effective against emerging viral 5

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.91 Page 91 of 128
pathogens, diluted household bleach solutions (5 tablespoons per gallon of water), or alcohol solutions with at least 70% alcohol that are appropriate for the surface. Provide employees training on manufacturer’s directions and Cal/OSHA requirements for safe use. Workers using cleaners or disinfectants should wear gloves as required by the product instructions.
x Employees must be provided and use protective equipment when offloading and storing delivered goods. Employees should inspect deliveries and perform disinfection measures prior to storing goods in warehouses and facilities, when deliveries appear tampered with.
x Require that hard hats and face shields be sanitized at the end of each shift. Clean the inside of the face shield, then the outside, then wash hands.
x Clean delivery vehicles and equipment before and after delivery routes, carry additional sanitation materials during deliveries, and use clean personal protective equipment for each delivery stop.
x For delivery drivers, normally accessible restrooms on routes (e.g., restaurants, coffee shops) may be closed. Employers should provide employees alternative restroom locations and allow time for employees to use them.
x Consider installing portable high-efficiency air cleaners, upgrading the building’s air filters to the highest efficiency possible, and making other modifications to increase the quantity of outside air and ventilation in work and break areas.
x Modify offerings in on-site cafeterias, including using prepackaged foods, and safe options for drink, condiment, and flatware dispensing.
Physical Distancing Guidelines
x Implement measures to ensure physical distancing of at least six feet between workers. This can include use of physical partitions or visual cues (e.g., floor markings, or signs to indicate to where workers should stand).
x Adjust safety or other in-person meetings, including interviews, to ensure physical distance and use smaller individual meetings at facilities to maintain physical distancing guidelines.
x Utilize work practices, when feasible, to limit the number of workers on site at one time. This may include scheduling (e.g., staggering shift
6

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.92 Page 92 of 128
start/end times) or rotating access to a designated area during a shift. Stage facilities to stagger work and limit overlap of work crews.
x Stagger employee breaks, within compliance with wage and hour regulations, to maintain physical distancing protocols. Reassign lockers or limit/stagger locker use to increase distance between employees.
x Place additional limitations on the number of workers in enclosed areas, to ensure at least six feet of separation to limit transmission of the virus.
x Close breakrooms, use barriers, or increase distance between tables/chairs to separate workers and discourage congregating during breaks. Where possible, create outdoor break areas with shade covers and seating that ensures physical distancing.
x Workers should consider bringing a lunch made at home or purchase take out or delivery where available as long as they can avoid congested areas.
x Use the following hierarchy to prevent transmission of COVID-19 in work areas especially where physical distancing is difficult to maintain: engineering controls, administrative controls, and PPE.
o Engineering controls include creating physical or spatial barriers between employees such as Plexiglas or other sturdy and impermeable partitions.
o Administrative controls include increasing the number of shifts to reduce the number of personnel present at one time and ensure adequate physical distancing.
o PPE includes face shields, some masks, and impermeable gloves. Note that some disposable equipment such as some face shields and respirators are prioritized for health care workers and workers that handle pathogens and should not otherwise be used.
x Install production transfer-aiding materials, such as shelving and bulletin boards, to reduce person-to-person production hand-offs.
x Designate separate entrance and exits and post signage to this effect.
7

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.93 Page 93 of 128 1Additional requirements must be considered for vulnerable populations. The manufacturing industry must comply with all Cal/OSHA standards and be prepared to adhere to its guidance as well as guidance from the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). Additionally, employers must be prepared to alter their operations as those guidelines change.
8

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.94 Page 94 of 128
COVID-19 INDUSTRY GUIDANCE:
Logistics and Warehousing Facilities
May 7, 2020
1
covid19.ca.gov

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.95 Page 95 of 128
OVERVIEW
On March 19, 2020, the State Public Health Officer and Director of the California Department of Public Health issued an order requiring most Californians to stay at home to disrupt the spread of COVID-19 among the population.
The impact of COVID-19 on the health of Californians is not yet fully known. Reported illness ranges from very mild (some people have no symptoms) to severe illness that may result in death. Certain groups, including people aged 65 or older and those with serious underlying medical conditions, such as heart or lung disease or diabetes, are at higher risk of hospitalization and serious complications. Transmission is most likely when people are in close contact with an infected person, even if that person does not have any symptoms or has not yet developed symptoms.
Precise information about the number and rates of COVID-19 by industry or occupational groups, including among critical infrastructure workers, is not available at this time. There have been multiple outbreaks in a range of workplaces, indicating that workers are at risk of acquiring or transmitting COVID-19 infection. Examples of these workplaces include long-term care facilities, prisons, food production, warehouses, meat processing plants, and grocery stores.
As stay-at-home orders are modified, it is essential that all possible steps be taken to ensure the safety of workers and the public.
Key prevention practices include: 9 physical distancing to the maximum extent possible, 9 use of face coverings by employees (where respiratory protection is not required) and customers/clients, 9 frequent handwashing and regular cleaning and disinfection, 9 training employees on these and other elements of the COVID-19 prevention plan.
In addition, it will be critical to have in place appropriate processes to identify new cases of illness in workplaces and, when they are identified, to intervene quickly and work with public health authorities to halt the spread of the virus.
Purpose
This document provides guidance for businesses operating in the logistics/warehousing industry to support a safe, clean environment for employees. The guidance is not intended to revoke or repeal any employee rights, either statutory, regulatory or collectively bargained, and is not exhaustive, as it does not include county health orders, nor is it a substitute for any existing safety and health-related regulatory requirements such as those of Cal/OSHA.1 Stay current on changes to public health guidance and state/local orders, as the COVID-19 situation continues. Cal/OSHA has more safety and health guidance on their Cal/OSHA COVID-19 Infection Prevention for Logistics Employers and Employees webpage. CDC has additional requirements in their guidance for businesses and employers and specific guidance for mail and parcel delivery.

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.96 Page 96 of 128
Worksite Specific Plan
x Establish a written, worksite-specific COVID-19 prevention plan at every facility, perform a comprehensive risk assessment of all work areas, and designate a person at each facility to implement the plan.
x Identify contact information for the local health department where the facility is located for communicating information about COVID-19 outbreaks among employees.
x Train and communicate with employees and employee representatives on the plan.
x Regularly evaluate the workplace for compliance with the plan and document and correct deficiencies identified.
x Investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection. Update the plan as needed to prevent further cases.
x Identify close contacts (within six feet for 10 minutes or more) of an infected employee and take steps to isolate COVID-19 positive employee(s) and close contacts.
x Adhere to the guidelines below. Failure to do so could result in workplace illnesses that may cause operations to be temporarily closed or limited.
Topics for Employee Training
x Information on COVID-19, how to prevent it from spreading, and which underlying health conditions may make individuals more susceptible to contracting the virus.
x Self-screening at home, including temperature and/or symptom checks using CDC guidelines.
x The importance of not coming to work if employees have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, recent loss of taste or smell, or if they or someone they live with have been diagnosed with COVID-19.
x To seek medical attention if their symptoms become severe, including persistent pain or pressure in the chest, confusion, or bluish lips or face. Updates and further details are available on CDC’s webpage.
3

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.97 Page 97 of 128
x The importance of frequent handwashing with soap and water, including scrubbing with soap for 20 seconds (or using hand sanitizer with at least 60% ethanol or 70% isopropanol when employees cannot get to a sink or handwashing station, per CDC guidelines).
x The importance of physical distancing, both at work and off work time (see Physical Distancing section below).
x Proper use of face coverings, including:
o Face coverings do not protect the wearer and are not personal protective equipment (PPE).
o Face coverings can help protect people near the wearer, but do not replace the need for physical distancing and frequent handwashing.
o Employees should wash or sanitize hands before and after using or adjusting face coverings.
o Avoid touching eyes, nose, and mouth.
o Face coverings should be washed after each shift.
Individual Control Measures and Screening
x Provide temperature and/or symptom screenings for all workers at the beginning of their shift and any personnel entering the facility. Make sure the temperature/symptom screener avoids close contact with workers to the extent possible. Both screeners and employees should wear face coverings for the screening.
x Encourage workers who are sick or exhibiting symptoms of COVID-19 to stay home.
x Employers should provide and ensure workers use all required protective equipment. Employers should consider where disposable glove use may be helpful to supplement frequent handwashing or use of hand sanitizer; examples are for workers who are screening others for symptoms or handling commonly touched items.
x Face coverings are strongly encouraged when employees are in the vicinity of others. Workers should have face coverings available and wear them when at work, in offices, or in a vehicle for work-related travel with others. Face coverings must not be shared.
4

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.98 Page 98 of 128
Cleaning and Disinfecting Protocols
x Perform thorough cleaning on high traffic areas such as break rooms, lunch areas, and changing areas, and areas of ingress and egress including stairways and stairwells, handrails, elevator controls. Frequently disinfect commonly used surfaces, including tables, amenities, doorknobs, toilets, and handwashing facilities.
x Clean touchable surfaces between shifts or between users, whichever is more frequent, including but not limited to working surfaces, machinery, tools, equipment, shelves, storage rooms, handles, latches and locks, and controls on stationary and mobile equipment.
x Require employees to wash hands or use sanitizer between use of shared equipment, such as time clocks and forklifts, and allow work time to do so. Avoid sharing phones, other work tools, or equipment wherever possible. Never share PPE.
x Clean delivery vehicles and equipment before and after delivery, carry additional sanitation materials during deliveries, and use clean personal protective equipment for each delivery stop.
x For delivery drivers, normally accessible restrooms on routes (e.g., restaurants, coffee shops) may be closed. Employers should provide employees alternative restroom locations and allow time for employees to use them.
x Provide time for workers to implement cleaning practices before and after shifts. If cleaning is assigned to the worker, they must be compensated for that time.
x Ensure that sanitary facilities stay operational and stocked at all times and provide additional soap, paper towels, and hand sanitizer when needed. Provide additional sanitary facilities (portable toilets and handwashing stations) if necessary and practical.
x Stagger breaks if feasible to ensure physical distancing and the chance to clean restrooms frequently.
x When choosing cleaning chemicals, employers should use products approved for use against COVID-19 included on the Environmental Protection Agency (EPA)-approved list and follow product instructions. Use disinfectants labeled to be effective against emerging viral pathogens, diluted household bleach solutions (5 tablespoons per gallon of water), or alcohol solutions with at least 70% alcohol that are appropriate for the surface. Provide employees training on 5

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.99 Page 99 of 128
manufacturer’s directions and Cal/OSHA requirements for safe use. Workers using cleaners or disinfectants should wear gloves as required by the product instructions.
x Employees should be provided and use protective equipment when offloading and storing delivered goods. Employees should inspect deliveries and perform disinfection measures prior to storing goods in warehouses and facilities when deliveries appear tampered with.
x Consider installing portable high-efficiency air cleaners, upgrading the building’s air filters to the highest efficiency possible, and making other modifications to increase the quantity of outside air and ventilation in work and break areas.
Physical Distancing Guidelines
x Implement measures to ensure physical distancing of at least six feet between workers, including transportation personnel. These can include use of physical partitions or visual cues such as floor markings, colored tape, or signs to indicate to where workers should stand.
x Minimize transaction time between warehouse employees and transportation personnel. Perform gate check-ins and paperwork digitally if feasible. Require employees to put on face coverings prior to interfacing with transportation personnel and other people entering and exiting the facility.
x Redesign workspaces and shared outdoor spaces to allow for at least six feet between employees.
x Use the following hierarchy to prevent transmission of COVID-19 in work areas especially where physical distancing is difficult to maintain: engineering controls, administrative controls, and PPE.
o Engineering controls include creating physical or spatial barriers between employees such as Plexiglas or other sturdy and impermeable partitions.
o Administrative controls include increasing the number of shifts to reduce the number of personnel present at one time and ensure adequate physical distancing.
o PPE includes face shields, some masks, and impermeable gloves. Note that some disposable equipment such as some face shields and respirators are prioritized for health care workers and workers that handle pathogens and should not otherwise be used.
6

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.100 Page 100 of 128
x Adjust safety and other meetings to ensure physical distance and conduct smaller individual meetings at facilities to maintain physical distancing guidelines.
x Utilize work practices, when feasible, to limit the number of workers on the jobsite at one time. This may include scheduling (e.g., staggering shift start/end times) or rotating crew access to a designated area during a shift. Stage the jobsite to stagger work and limit overlap of work crews.
x Place additional limitations on the number of workers in enclosed areas, where six feet of separation may not be sufficient to limit transmission of the virus.
x Stagger employee breaks, in compliance with wage and hour regulations, to maintain physical distancing protocols.
x Close breakrooms, use barriers, or increase distance between tables/chairs to separate workers and discourage congregating during breaks. Where possible, create outdoor break areas with shade covers and seating that ensures physical distancing.
x Close common areas where personnel are likely to congregate and interact (e.g., kitchenettes, break rooms, etc.). Discourage employees from congregating in high traffic areas.
1Additional requirements must be considered for vulnerable populations. The logistics and warehousing industry must comply with all Cal/OSHA standards and be prepared to adhere to its guidance as well as guidance from the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). Additionally, employers must be prepared to alter their operations as those guidelines change.
7

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.101 Page 101 of 128
(;+,%,7

 "$*)'1-$) ''*2.!*-*0)/$ ./*(*1 !0-/# -$)/*/" с2# )/# 4// .//*( /$)" -/$)-$/ -$ Ҍ*''*2$)"0C+a*se)/3#:20./-c/v-ҁ0.08)6)5*-0A)JB(-MD)/D/#D/o$/c2um$''ent"1$)(F*ile$d!40$)5"/0/#8/2.0/4Pa/g#e*I(D.1*0-2 -P*a)ge-$1024Ѷof142ч8Ѷ*1 -)*- 0+/ $)0./-4"0$) Ҍ$)'0$)"!*-- /$'Ѷ()0!/0-$)")'*"$./$.Ҍ/* "$)- *+ )$)"2$/#(*$!$/$*)./#/- )1$-*)( )/!*-2*-& -.)0./*( -.ѵ
/# ) 2"0$) ѵ 2*-&$)"/*" /# -Ѷ#1 !'// ) /# 0-1 ѵ 0. *!/#/2*-&Ѷ*0-# '/#// ''.0./#/'$!*-)$) )/ -/# ) 3/./ "-0''4 "$)/*- ./-/+*-/$*).*!*0- *)*(4Ѷ҃.$*1 -)*- 2.*(ѵ҂
/ҁ.-$/$'/#/0.$) .. .) (+'*4 -.0)
/# -$.&*!/-).($..$*)) // -+-*/ //# $-2*-& -.)0./*( -.ѵ
Ҋрш2$'' +- . )/$)*0-*((0)$/$ .0)/$ + 0/$Ѷ)$/2$'' 0+/*''*!0./*#)" *0- #1$*-) '$($)/ *++*-/0)$/$ .!*-/# $. . /*.+- ѵ҃ (+ !'// )$)"/# 0-1 .+-/*!/# ./4/#*( *- -$..0 *)-#ршѶспспѵ# .  Ȃ*-/.#1 ''*2 /# .// /*(*1 *-(*$!4$)"/# .// 2$ *- -ѵ# ‫ ގ‬.$'$ ) *(+‫ގ‬./" ./#/'$!*-)$$.0.$)"/*"0$ $/."-0'- *+ )$)"+-*
/4)- +- ) .. -Ҋ$.&*-&+' . # -Ҋ$.&*-&+' . *!/4/ *( - -
/$*).- 1) )/# .// ҁ.‫ގ‬.$3$)$/*-.‫ގ‬.#*22 ҁ1 (  )*0"#+-*"- ..Ѷ2 )(*1 /*/# ) 3/./" *!/# -* "$)/*/" сѶ2# - .*( '*2 -Ҋ-$.&2*-&+' .)"-0''4*+ )2$/#+//$*).ѵ/" с 3+).$*)2$'' +#. $) $/$ .(4(*1 /#-*0"#/" с!./ -$!/# 4- ' /*.#*2"- / -+-*"- ..Ѷ)*0)/$ ./#/#1 ( //# - $) ..-
'$!*-)$ +-/( )/*!0'$ '/#)*+ )(*- 2*-&+' ..*0/'$) $)/# ‫*ގ‬0)/4-$) 0$) ѵ
40$) /*- 0 /# -$.&
(*1 $)/*/" с*!(*$!4$)"/# .// ҁ../4/#*( *- -*)4чѶспспѵ# .// ҁ.+-*"- ..$)#$ 1$)"& 4‫ގ‬+0'$# *2"-0'- *+ )$)"*!'$!*-)$ҁ. *)*(4ѵ ")$5 ./# $(+/*! *)*($#-.#$+Ѷ0//# -$.&*!
Ҋрш$)! /$*)$../$''- '!*-'''$!*-)$).)*)/$)0 ./*  -40.$) ...#*0'/&  1 -4./ ++*..$' /*- 0 /# -$.&*!$)! /$*)ѷ
+- !*-- *+ )$)" #)" .2$/#$)/# 2*-&+'  .4 (+'*4 .)# '+ 0/ 0./*( -.
0/'$) "0$) ‫*!ގ‬- # -'4/" с0.$) ../*!*''*2ѵ# "*'$..! - )1$-*)( )/!*-2*-& -.)0./*( -.ѵ0.$) /$1 *-$))*1/$1 ( /#*./*0$'0+*)/# "0$) ѵ .#*0'- 1$ 2/# "0$) /#/$.- ' 1)//*/# $-2*-&+' Ѷ+- +- +'). *)/# "0$) !*-/# $-$)0./-4Ѷ)
Ѷ0.$) .. .)+*.//# $)0./-4Ҋ.+ $!$# &'$./җ '*2Ҙ$)/# $-2*-&+' /*.#*20./*( -.) (+'*4 ./#//# 4 *+ )!*-0.$) ..ѵ
)"Ѷ''!$'$/$ ..#*0'ѷ

.#*0'($)$($5 /-)./$*)/$(  /2 )2- #*0.  (+'*4 .)/-).+*-//$*)+ -.*)) 'ѵ -!*-("/ # &Ҋ$).) .$' ѵ Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.103 Page 103 of 128 2*-& -..#*0'' ) '$1 -41 #$' .) ,0$+( )/ !*- )ȅ - '$1 -4Ѷ--4$/$*)'.)$//$*)(/ -$'.0-$)" )+ -.*)'+-*/ /$1  ,0$+( )/!*- # '$1 -4./*+ѵ
ҿҿҿ

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.104 Page 104 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.105 Page 105 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.106 Page 106 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.107 Page 107 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.108 Page 108 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.109 Page 109 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.110 Page 110 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.111 Page 111 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.112 Page 112 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.113 Page 113 of 128
SOCIAL DISTANCING AND SANITATION PROTOCOL
Business Name:
Facility Address:
Businesses must implement all mandatory measures listed in A, B, and F below. Businesses shall select applicable measures listed in C, D, and E below and be prepared to explain why any measure that is not implemented is inapplicable to the business.
A. Signage (Mandatory):
Signage at each public entrance of the facility to inform all employees and customers that they should: avoid entering the facility if they have a cough or fever; maintain a minimum six-foot distance from one another; and not shake hands or engage in any unnecessary physical contact. Signage posting a copy of the Social Distancing Protocol at each public entrance to the facility.
B. Measures To Protect Employee Health (Mandatory):
Everyone who can carry out their work duties from home has been directed to do so. All employees have been told not to come to work if sick. All desks or individual work stations are separated by at least six feet. Break rooms, bathrooms, and other common areas are being disinfected frequently, on the following schedule:
o Breakrooms:

o Bathrooms:

o K ƚŚĞƌ͗

͗

Disinfectant and related supplies are available to all employees at the following location(Ɛ):

Hand sanitizer effective against COVID-19 is available to all employees at the following location(s):

Page 1 of 3

REV 04/0Ϯ/2020 County of San Diego

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.114 Page 114 of 128
SOCIAL DISTANCING AND SANITATION PROTOCOL
B. Measures To Protect Employee Health (Mandatory)ŽŶƚŝŶƵĞĚ͗ Soap and water are available to all employees at the following location(s):
Copies of the Protocol have been distributed to all employees. C. Measures To Prevent Crowds From Gathering (heck all that apply to the facility):
Limit the number of customers in the store at any one time towhich allows for customers and employees to easily maintain at least six-foot distance from one another at all practicable times. ŶƐƵƌĞan employee ŝƐat the door to ŵŽŶŝƚŽƌ that the maximum number of customers in the facility set forth above is not exceeded. Placing per-person limits on goods that are selling out quickly to reduce crowds and lines. Optional – Describe other measures:
D. Measures To Keep People At Least Six Feet Apart (heck all that apply to the facility)͗ Placing signs outside the store reminding people to be at least six feet apart, including when in line. Placing tape or other markings at least six feet apart in customer line areas inside the store and on sidewalks at public entrances with signs directing customers to use the markings to maintain distance. Separate order areas from delivery areas to prevent customers from gathering. All employees have been instructed to maintain at least six feet distance from customers and from each other, except employees may momentarily come closer when necessary to accept payment, deliver goods or services, or as otherwise necessary. Optional – Describe other measures:

Page 2 of 3

REV 04/0Ϯ/2020 County of San Diego

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.115 Page 115 of 128
SOCIAL DISTANCING AND SANITATION PROTOCOL
E. Measures To Prevent Unnecessary Contact (heck all that apply to the facility):
Preventing people from self-serving any items that are food-related. o Lids for cups and food-bar type items are provided by staff; not to customers to grab. o Bulk-item food bins are not available for customer self-service use.
Not permitting customers to bring their own bags, mugs, or other reusable items from home. Providing for contactless payment systems or, if not feasible, sanitizing payment systems regularly. DescribeďĞůŽǁ:

Optional – Describe other measures (e.g.͕ providing senior-only hours):

F. Measures To Increase Sanitization (Mandatory):
Disinfecting wipes that are effective against COVID-19 are available near shopping carts and shipping baskets. Employee(s) assigned to disinfect carts and baskets regularly. Hand sanitizer, soap, and water, or effective disinfectant is available to the public at or near the entrance of the facility, at checkout counters, and anywhere else inside the store or immediately outside where people have direct interactions. Disinfecting all payment portals, pens, and styluses after each use. Disinfecting all high-contact surfaces frequently.
G. Hospitals/Health Care Facility Only:
Symptoms/temperature checks to ensure any staff or visitors (allowed pursuant to Section 2c of thĞ Order) entering the facility are not ill.

*Any additional measures not included here should be listed on separate pages, which the business should attach to this document.

You may contact the following person with any questions or comments about this protocol:

Name:

Phone Number:

Date of Form Completed:

Page 3 of 3

REV 04/0Ϯ/2020 County of San Diego

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.116 Page 116 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.117 Page 117 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.118 Page 118 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.119 Page 119 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.120 Page 120 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.121 Page 121 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.122 Page 122 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.123 Page 123 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.124 Page 124 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.125 Page 125 of 128
                                      
(;+,%,7 

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.126 Page 126 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.127 Page 127 of 128

Case 3:20-cv-00865-AJB-MDD Document 1 Filed 05/08/20 PageID.128 Page 128 of 128

 
 Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.949 Page 1 of 116

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

Case No.: 3:20-cv-00865-AJB-MDD
FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

23 v.

24 GAVIN NEWSOM, in his official capacity

25 as the Governor of California; XAVIER BECERRA, in his official capacity as the

26 Attorney General of California, SONIA

27

ANGELL, in her official capacity as California Public Health Officer, WILMA J.

28 WOOTEN, in her official capacity as Public

JURY TRIAL DEMANDED

First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.950 Page 2 of 116

1 Health Officer, County of San Diego,

2

HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services,

3 and WILLIAM D. GORE, in his official

capacity as Sheriff of the County of San 4 Diego,

5

Defendants.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.951 Page 3 of 116

1

Why can someone safely walk down a grocery store aisle

2

but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?

3

The Commonwealth has no good answers. While the law

4

may take periodic naps during a pandemic, we will not

let it sleep through one.

5

6

Maryville Baptist Church, Inc. v. Beshear,

No. 20-5427 (6th Cir. May 2, 2020) 7

8

INTRODUCTION

9

1. It is time. California is one of only eight states whose response to the

10 COVID-19 pandemic has included no accommodation for—hardly even a mention

11 of—the religious rights of its citizens. Now, with the pandemic stabilizing, California

12 has moved from “Stage 1” to “Stage 2.” In the first part of Stage 2, beginning on

13 Friday, May 8, retail and manufacturing may begin reopening—but not places of

14 worship. In the latter part of Stage 2, within a “few weeks,” shopping malls, car

15 washes, pet grooming, offices, dine-in restaurants, schools may reopen—but again,

16 not places of worship. No, churches will be allowed to reopen months later in “Stage

17 3,” at the same time as salons, tattoo parlors, gyms, bars, and movie theaters. But

18 worship is not frivolous entertainment: it is the first right protected in the First

19 Amendment. To be sure, “[t]here is no instruction book for a pandemic. The threat

20 evolves. Experts reevaluate.” On Fire Christian Ctr., Inc. v. Fischer, --- F. Supp. 3d ---,

21 2020 WL 1820249, at *10 (W.D. Ky. 2020). And now it is time to reevaluate

22 California’s approach of dismissing the religious rights of its citizens.

23

2. This new regime, where manufacturing, schools, offices, and childcare

24 facilities can reopen—but places of worship cannot—is mindboggling. The churches

25 and pastors of California are no less “essential” than its retail, schools, and offices to

26 the health and well-being of its residents. More confusing is the placement of worship

27 in Stage 3, alongside hair salons, nail salons, and tattoo parlors.

28

3. There is no attempt at tailoring in California’s new regime, much less

1 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.952 Page 4 of 116

1 narrow tailoring. Every church in the state has been shuttered, and every pastor and

2 congregant placed under house arrest, save for “essential” non-religious activities.

3 This has now gone on for almost a month and a half, with several more months to

4 come, and with no true end in sight. No consideration has been made for church size.

5 No allowance has been made in relation to particular individuals’ risk factors for

6 coronavirus.

7

4. Defendants have thus intentionally denigrated California churches and

8 pastors and people of faith by relegating them to third class citizenship. Defendants

9 have no compelling justification for their discriminatory treatment of churches and

10 pastors and people of faith, nor have they attempted in any way to tailor their

11 regulations to the least restrictive means necessary to meet any arguable compelling

12 interest.

13

5. In light of this denigration, this Action presents facial and as-applied

14 challenges to the Governor of California’s March 19, 2020, Executive Order N-33-

15 20, April 28, 2020, Essential Workforce memorandum, and May 7, 2020, Resilience

16 Roadmap (the “State Orders”);1 and the County of San Diego’s May 10, 2020,

17 Order of the Health Officer and Emergency Regulations and corresponding Protocol

18 documents (the “County Order”)2—each of which violate the constitutional rights

19

20 1 Attached hereto as Exhibits 1-1, 1-2, 1-3, and 1-4: https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf;

21 https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf;

22

https://covid19.ca.gov/roadmap/; https://www.gov.ca.gov/2020/05/07/governor-newsom-releases-updated-industry-

23 guidance/

24

2 Attached hereto as Exhibits 2-1, 2-2, and 2-3: https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol

25 ogy/HealthOfficerOrderCOVID19.pdf; https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol

26 ogy/covid19/SOCIAL_DISTANCING_AND_SANITATION_PROTOCOL_040

27

22020_V1.pdf; https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol

28 ogy/covid19/Community_Sector_Support/BusinessesandEmployers/SafeReopenin

2 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.953 Page 5 of 116

1 of Plaintiffs and the people of California (collectively, the “Orders” or the

2 “Reopening Plan”).

3

JURISDICTION AND VENUE

4

6. This action arises under 42 U.S.C. § 1983 in relation to Defendants’

5 deprivation of Plaintiffs’ constitutional rights to freedom of religion, speech, and

6 assembly, due process, and equal protection rights under the First and Fourteenth

7 Amendments to the U.S. Constitution. Accordingly, this Court has federal question

8 jurisdiction under 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over the

9 claims asserting violations of the California Constitution through supplemental

10 jurisdiction under 28 U.S.C. § 1367(a). This Court has authority to award the

11 requested declaratory relief under 28 U.S.C. § 2201; the requested injunctive relief

12 and damages under 28 U.S.C. § 1343(a); and attorneys’ fees and costs under 42

13 U.S.C. § 1988.

14

7. The Southern District of California is the appropriate venue for this

15 action pursuant to 28 U.S.C. §§ 1391(b)(1) and (2) because it is the District in which

16 Defendants maintain offices, exercise their authority in their official capacities, and

17 will enforce the Orders; and it is the District in which substantially all of the events

18 giving rise to the claims occurred.

19

THE PARTIES

20

8. Founded in 1956, Plaintiff South Bay United Pentecostal Church is a

21 California non-profit corporation, located in Chula Vista, California. The Church

22 sues in its own capacity and on behalf of its congregants. It is a multi-national, multi-

23 cultural congregation. The majority of its members are Hispanic, with the balance

24 consisting of Filipino, Caucasian, African-American, and other ethnic groups. It is an

25 open and accepting community that believes all humans are children of God.

26

9. Plaintiff Bishop Arthur Hodges III is a resident of the County of San

27 Diego, California. He has served as the Chief Executive Officer and Senior Pastor of

28 gPlanTemplate.pdf.
3 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.954 Page 6 of 116

1 the South Bay United Pentecostal Church for thirty-five years. He also serves as

2 Superintendent for the SoCal District of the United Pentecostal Church International.

3

10. Defendant Gavin Newsom is sued in his official capacity as the

4 Governor of California. The California Constitution vests the “supreme executive

5 power of the State” in the Governor, who “shall see that the law is faithfully

6 executed.” Cal. Const. Art. V, § 1. Governor Newsom signed the State Orders.

7

11. Defendant Xavier Becerra is the Attorney General of California. As the

8 State’s chief law enforcement officer, Becerra is responsible for executing the State’s

9 police powers. He is sued in his official capacity.

10

12. Defendant Sonia Angell is California’s Public Health Officer. Under the

11 authority of the State Order, Angell decided which employees in the State are to be

12 “Essential Critical Infrastructure Workers.” She is sued in her official capacity.

13

13. Defendant Wilma J. Wooten is San Diego County’s Public Health

14 Officer. Wooten signed the County Order. She is sued in her official capacity.

15

14. Defendant Helen Robbins-Meyer is made a party to this Action in her

16 official capacity as the Director of Emergency Services, County of San Diego. She

17 signed the County Orders.

18

15. Defendant William D. Gore is made a party to this Action in his official

19 capacity as Sheriff of the County of San Diego. He is responsible for enforcing the

20 State Orders and the County Order.

21

16. Each and every Defendant acted under color of state law with respect to

22 all acts or omissions herein alleged.

23

FACTUAL ALLEGATIONS

24

Introduction

25

17. On or about March 13, 2020, President Donald J. Trump proclaimed a

26 National State of Emergency as a result of the threat of the emergence of a novel

27

28
4 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.955 Page 7 of 116

1 coronavirus, COVID-19.3 Fear of the coronavirus epidemic has gripped California,

2 the nation, and the world. The coronavirus outbreak has turned the world upside-

3 down, causing profound damage to the lives of all Americans and to the national

4 economy.

5

18. In response to the virus, many states imposed “stay-at-home” orders to

6 “flatten the curve” of the spread of the virus. In the vast majority of states, these stay-

7 at-home orders protected the constitutional rights of churches and religious believers

8 during the coronavirus pandemic.4 When those orders did not protect their

9 constitutional rights, the Courts quickly corrected them. See, e.g., Maryville Baptist

10 Church, Inc. v. Beshear, --- F.3d ---, 2020 WL 2111316 (6th Cir. 2020) (enjoining order

11 that restricted attendance at religious services); On Fire Christian Ctr., Inc. v. Fischer, --

12 - F. Supp. 3d ---, 2020 WL 1820249 (W.D. Ky. 2020) (same); First Baptist Church v.

13 Kelly, --- F. Supp. 3d ---, 2020 WL 1910021 (D. Kan. 2020) (same); Tabernacle Baptist

14 Church, Inc. of Nicholasville, Kentucky v. Beshear, No. 3:20-CV-00033-GFVT, 2020

15 WL 2305307 (E.D. Ky. May 8, 2020) (same).

16

19. Those states recognized that, during this pandemic, Americans need the

17 Spirit of Almighty God even more to help them weather these dark times—and that

18 this need is no less “essential” than any other need. They understood that the rules

19 of constitutional interpretation are not as rigidly fixed in a time of national

20 3 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-

21 national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/

22

4 According to a recent article, only nine states did not have religious exemptions from their stay-at-home orders. See Chris Field, 9 states still prohibit religious

23 gatherings during pandemic. All others have religious exemptions for stay-at-home orders,

24

THE BLAZE (Apr. 28, 2020); https://www.theblaze.com/news/states-prohibitreligious-gatherings-pandemic (listing states with no religious protections as: Alaska,

25 California, Idaho, Illinois, Minnesota, New Jersey, New York, Vermont, Washington.) On May 1, 2020, in response to a lawsuit, Illinois removed itself from

26 that list. See Tina Sfondeles, Freedom to worship? Pritzker adds ‘free exercise of religion’

27

as ‘essential’ activity in new order—but not large gatherings, CHICAGO SUN-TIMES (Apr. 30, 2020, 9:58 p.m.), https://chicago.suntimes.com/2020/4/30/21243640/illinois-

28 stay-at-home-order-jb-pritzker-free-exercise-religion.

5 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.956 Page 8 of 116

1 emergency. Jacobson v. Massachusetts, 197 U.S. 11 (1905). “But[, they understood,]

2 even under Jacobson, constitutional rights still exist. Among them is the freedom to

3 worship as we choose.” On Fire Christian Ctr., 2020 WL 1820249, at *8 (citing

4 Jacobson, 197 U.S. at 31).

5

20. Those states had it right. See, e.g., Statement of Attorney General

6 William P. Barr on Religious Practice and Social Distancing (Apr. 14, 2020);5

7 Memorandum for the Assistant Attorney General for Civil Rights and All United

8 States Attorneys (Apr. 27, 2020).6

9

21. “To be sure, individual rights secured by the Constitution do not

10 disappear during a public health crisis.” In re Abbott, 954 F.3d 772, 784 (5th Cir.

11 2020). Fundamental and unalienable rights are, by their very nature, “essential”—

12 they are the essential rights which led to the founding of this country and this state.

13 For, “[h]istory reveals that the initial steps in the erosion of individual rights are

14 usually excused on the basis of an ‘emergency’ or threat to the public. But the

15 ultimate strength of our constitutional guarantees lies in the unhesitating application

16 in times of crisis and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d

17 Cir. 1972) (Mansfield, J., concurring).

18

22. For more than four hundred years, people have come to America in a

19 quest for religious freedom. Like the Puritans, most of these pilgrims were fleeing

20 religious persecution in Europe. They understood that “[n]o place, not even the

21 unknown, is worse than any place whose state forbids the exercise of your sincerely

22 held religious beliefs.” On Fire Christian Ctr., 2020 WL 1820249, at *2.

23

23. Stretching back to the formation of colonies like Pennsylvania and

24 Rhode Island, where citizens could practice religion in a way that would not be

25 impeded by the government, this basic freedom that was sought by so many colonists

26

27

5 https://www.justice.gov/opa/pr/attorney-general-william-p-barr-issues-statementreligious-practice-and-social-distancing-0

28 6 https://www.justice.gov/opa/page/file/1271456/download

6 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.957 Page 9 of 116

1 was enshrined in the constitutions of the states and, most importantly, in the First

2 Amendment to the United States Constitution: “Congress shall make no law

3 respecting the establishment of religion or prohibiting the free exercise thereof.”

4 U.S. Const. amend I. This religious heritage is evident even today in the names of

5 California’s cities, and specifically San Diego, whose founding 250 years ago by Fray

6 St. Junípero Serra, the City celebrated just last year.

7

24. Yet in March of this year, the Golden State criminalized all religious

8 assembly and communal religious worship. With the pandemic as justification,

9 Governor Newsom and the County of San Diego expanded their authority by

10 extraordinary lengths, depriving all Californians of fundamental rights protected by

11 the U.S. and California Constitutions, including freedom of religion, speech, and

12 assembly, and due process and equal protection under the law.

13

25. Unlike forty-two other states issuing stay-at-home orders, California did

14 not mention religion or churches in its executive order. At the State level, the only

15 reference to religious rights was a single line in a 23-page memorandum that clergy are

16 “essential” for “faith-based services that are provided through streaming or other

17 technologies that support physical distancing and state public health guidelines.” (Ex.

18 1-2, at 16.) And at the County level, the orders make no reference to religion. (Ex. 2-1,

19 Ex. 2-2, Ex. 2-3.)

20

26. Oddly “mental health workers” could keep their business open for in-

21 person counseling and services.” (Ex. 1-2, at 2.) Thus, California apparently

22 recognized the benefit of providing mental health and substance abuse support

23 services—as long as they are not provided by pastors and churches.

24

27. At the same time as criminalizing worship—each of the Orders had a

25 paragraph threatening criminal enforcement—the State Order (adopted and expanded

26 upon by the County Order) allowed citizens to gather at liquor stores, pot-dispensaries,

27 Planned Parenthood, Walmart, CVS, Costco, Home Depot, and many other locations

28 deemed “essential.” The State Order deemed the entirety of the “entertainment
7 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.958 Page 10 of 116

1 industries” essential. (Ex. 1-2, at 23.)

2

28. This was not a hypothetical situation from an Orwellian novel describing

3 a bleak future—this was the current and very real nightmare endured by millions of

4 religious citizens who maintained the conviction that the faithful practice of regularly

5 gathering together was absolutely “essential.” But those citizens decided to wait

6 anyway. Religious Americans are no less patriotic than any other Americans, and are

7 absolutely willing to do their part to “flatten the curve.” But they are not willing to

8 have their faith denigrated, demeaned, and compared to attending a movie theater.

9

The History of the Executive Orders

10

29. On March 4, 2020, California Governor Gavin Newsom proclaimed a

11 State of Emergency as a result of the threat of COVID-19.7

12

30. On March 19, 2020, California Governor Newsom issued Executive

13 Order N-33-20 in which he ordered that “all residents are directed to immediately

14 heed the current State public health directives.” (Ex. 1-1.)

15

31. The state public health directive requires “all individuals living in the

16 State of California to stay home or at their place of residence except as needed to

17 maintain continuity of operations of the federal critical infrastructure sectors. . . .”8

18

32. On March 22, 2020, the California Public Health Officer designated a

19 list of “Essential Critical Infrastructure Workers.” (Ex. 1-2.) Included on the list of

20 the “essential workforce” are “faith based services that are provided through

21 streaming or other technology.”

22

33. Accordingly, this list prohibits all religious leaders from conducting in-

23 person and out-of-home religious services, regardless of the measures taken to reduce

24 or eliminate the risk of the virus spreading. Meanwhile, the list deems the continuity

25 of services provided by coffee baristas, burger flippers, and laundromat technicians to

26

27

7 https://www.gov.ca.gov/wp-content/uploads/2020/03/3.4.20-Coronavirus-SOEProclamation.pdf.

28 8 The State Public Health Directive was included in the text of the State Order.

8 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.959 Page 11 of 116

1 be so necessary for society that these activities are permitted to continue under the

2 State Order, despite the existence of the very same risk Defendants rely on to stymie

3 the exercise of fundamental rights.

4

34. The state public health directive, included in Executive Order N-33-20,

5 provides that its directives “shall stay in effect until further notice.”

6

35. The County has issued orders alongside California, but those Orders

7 have always viewed Executive Order N-33-20 as the floor. As such, the County

8 Orders have always simply provided guidance on how to follow Executive Order N-

9 33-20 within the County. For example, the County published a Social Distancing and

10 Sanitation Protocol for Stage 1 essential business to follow. (Ex. 2-2.)

11

36. On April 28, 2020, Governor Newsom held a press conference in which

12 he announced California’s current four stage Reopening Plan, and his intention on

13 how he will modify his Executive Order N-33-20. That plan relegates religious

14 services to the bottom of the pile, next to attending the cinema, and prioritizes

15 reopening manufacturing and offices.

16

37. On May 4, 2020, Governor Newsom published a press release in which

17 he announced that Stage 2 of the Reopening Plan—where offices and manufacturing

18 will re-open—will begin, in part, on Friday, May 8, 2020.

19

38. On May 7, 2020, Governor Newsom published his Resilience Roadmap,

20 which provided the means of beginning of Stage 2 of the Reopening Plan on Friday,

21 May 8, 2020. (Ex. 1-3.)

22

Bishop Arthur Hodges and

23

the South Bay United Pentecostal Church

24

39. South Bay Pentecostal Church is a reflection of the Chula Vista

25 community. It is a multi-national, multi-cultural congregation. The majority of its

26 members are Hispanic, with the balance consisting of Filipino, Caucasian, African-

27 American, and other ethnic groups. The congregation represents a cross-section of

28 society, from rich to poor and encompassing people of all ages. The congregation also
9 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.960 Page 12 of 116

1 includes members and visitors who run the gamut of essential workers. These

2 essential workers and service providers receive spiritual support, comfort, guidance,

3 and shelter from our ministry. The Church is an open and accepting community that

4 believes all humans are children of God.

5

40. Bishop Hodges has served as senior Pastor and Bishop of the South Bay

6 Pentecostal Church for thirty-five years. He also serves as a District Superintendent

7 of the United Pentecostal Church International. He oversees more than two-hundred

8 pastors and ministers, representing more than one-hundred churches across

9 Southern California.

10

41. Bishop Hodges’ vocation was settled from an early age. He is the son of

11 a Pentecostal Pastor. His father repeatedly built churches from scratch, establishing

12 the community and moving on to repeat the same process in another town.

13

42. At the age of ten, he felt God calling him to the same ministry. However,

14 sensing the labors of his Father, who was tasked with raising a family, maintaining his

15 electrician business, and serving as a Pastor all at the same time, he understood the

16 tremendous sacrifice that pastors are expected to make. At that age, he was

17 frightened by the burden. As such, he was reluctant to accept God’s call.

18

43. When he was twelve, he attended a youth class. The teacher of that

19 particular class was very passionate about the power of prayer. Frequently, he would

20 end those classes in prayer meetings. At one prayer meeting, Bishop Hodges heard

21 God asking him, “Are you willing to be my preacher? Will you be my minister?” In

22 that moment, he said yes, and the fear of his father’s burden finally left him.

23 However, it would be a number of years before he would make good on that promise.

24

44. Upon graduating from high school, Bishop Hodges believed he would

25 become an airline pilot. However, his father requested that he honor his sacrifices in

26 raising him and asked him to give Bible College a chance. Out of a sense of filial duty,

27 Bishop Hodges enrolled at the Apostolic Bible Institute in St. Paul, Minnesota. While

28 at the Institute, God’s call became too loud to ignore. With a missionary’s zeal, he
10 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.961 Page 13 of 116

1 threw himself into full-time ministry. He began preaching at youth camps,

2 conferences, and other venues, traveling from city to city and state to state, sharing

3 God’s Word with all who would open their hearts to listen.

4

45. Two years later, Bishop Hodges’ father invited him to serve as Assistant

5 Pastor at South Bay Pentecostal Church. Sensing that life on the road was no place to

6 grow a family, and with his wife pregnant with their first child, he agreed to accept

7 the position. The passage of time brought change, and his father once more felt the

8 call to move on to a new church. In his stead, Bishop Hodges was unanimously voted

9 to take his place at South Bay, where he has served ever since.

10

46. Bishop Hodges is a sincere, strong believer that the Bible is the infallible

11 and immutable word of God. This belief is one that he shares with South Bay

12 Pentecostal Church. They believe that there is one God—the creator of all. They

13 practice as best they know how and can according to their abilities and understanding

14 of Scripture. “Not forsaking the assembling of ourselves together, as the manner of

15 some is; but exhorting one another: and so much the more, as ye see the day

16 approaching.” (Hebrews 10:25.)

17

47. The South Bay Pentecostal Church’s model is the New Testament

18 church founded and described in the book of the Acts of the Apostles: “And when

19 the day of Pentecost was fully come, they were all with one accord in one place.” (Acts

20 2:1 [emphasis added].) They believe that “all” being gathered in “one place” is

21 fundamental in order to fulfill Christ’s final charge that “you will be my witnesses.”

22 (Acts 1:8.) Thus, at the Church’s very beginning, they believe that the foundational

23 function of the church, all gathering together with one accord, was established.

24

48. The Book of Acts, which chronicles the founding of the Church, uses

25 the word “together” thirty-one times, thus providing thirty-one reasons for the

26 church to come together with one accord. Being “together” spiritually and physically

27 is key in their preaching, teaching, and worship practice. This experience of

28 worshipping together occurs both in the home and in the communal setting,
11 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.962 Page 14 of 116

1 “continuing daily with one accord in the temple, and breaking bread from house to

2 house.” (Acts 2:46–47 [emphasis added].)

3

49. In observance of this sacred charge and sincerely held religious belief,

4 South Bay Pentecostal Church holds between three and five services each Sunday. The

5 average attendance at some of these services lies between two-hundred and three-

6 hundred congregants. The Church’s sanctuary can hold up to six-hundred people.

7

50. The services focus on the scriptural charge to be “together”—both

8 spiritually and physically. Services begin with Bible classes spread across different

9 ages and groups. Each class may have between ten and one-hundred participants.

10 When these classes conclude, congregants gather together with one accord for praise

11 and worship. Those with special needs or sickness come forward and stand around

12 the altar, where hands are laid upon them and they are then anointed. This sacrament

13 observes the Scriptural charge to “let them pray over him, anointing him with oil in

14 the name of the LORD.” (James 5:14.)

15

51. The Church believes that the act of laying on hands also assists in

16 conferring, in a real sense, the gift of the Holy Ghost: “And when Paul had laid his

17 hands on them, the Holy Ghost came on them.” (Acts 19:6.) The service concludes

18 with preaching followed by a challenge to physical action, where the congregation is

19 challenged to approach the altar to “come believing, come praying.” As mandated by

20 Scripture, the service concludes with fellowship both inside and outside the

21 sanctuary: “And they continued steadfastly in the apostles’ doctrine and fellowship,

22 and in the breaking of bread, and in prayers.” (Acts 2:42.)

23

52. South Bay Pentecostal Church also perform baptisms, funerals,

24 weddings, and other religious ceremonies.

25

53. They believe Scripture exhorts them to “[r]epent, and be baptized every

26 one of you in the name of Jesus Christ for the remission of sins, and ye shall receive

27 the gift of the Holy Ghost.” (Acts 2:38.) They believe this sacrament of “new birth”

28 cannot be performed on one’s own, or by staying at home. One may repent on their
12 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.963 Page 15 of 116

1 own, but they cannot baptize themselves. They believe there is no justifiable reason for

2 postponing the sacrament of baptism, as it is a necessary part of salvation.

3

54. Since the Orders prohibiting physical religious assembly were put in

4 place, the Church’s ability to carry out its ministry has been dramatically curtailed.

5 Bishop Hodges has neither experienced symptoms of nor been diagnosed with

6 COVID-19.

7

55. These orders forbid the assembly required to come together with one

8 accord. These orders forbid baptism, gathering around the altar, and any form of

9 “being together” that is both physical and spiritual.

10

56. “Zoom Meetings” and other tele-conferencing applications are

11 inadequate substitutes as they curtail a minister’s ability to lay hands upon a

12 congregant or perform a baptism. They also curtail the congregation’s ability to

13 approach the altar, which is central to their experience of faith.

14

57. As a result of the Orders, South Bay Pentecostal Church is prohibited

15 from holding the services mandated by Scripture. These include the important

16 milestone services that mark life events and even the end of a life.

17

58. South Bay Pentecostal Church desires to hold services in a manner that

18 properly protects its congregants so that they may observe the inviolable precepts of

19 Scripture and encourage and comfort one another during these troubling times of the

20 COVID-19 outbreak. The Church’s congregation needs to connect with one another

21 in order to receive the hope and encouragement they need to heal and grow in their

22 faith and in order to observe the Scriptural requirement of gathering together with

23 one accord.

24

59. The Orders’ outright ban on religious services are overbroad and

25 unnecessary because Sunday services, baptisms, and funerals may be held in a

26 manner consistent with the social distancing guidelines. If restaurants, auto

27 mechanics, and marijuana dispensaries are capable of following these guidelines, the

28 congregation of South Bay Pentecostal Church is certainly capable.
13 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.964 Page 16 of 116

1

60. As the below photo demonstrates, South Bay Pentecostal Church

2 possesses a large sanctuary that provides ample room to accommodate the six feet of

3 social distancing required by the County and CDC requirements. Moreover, should

4 the amount of congregants threaten to overwhelm the social distancing guidelines,

5 additional services can be added to accommodate smaller gatherings that would

6 satisfy those guidelines.

7

8

9

10

11

12

13

61. In addition, the Church can integrate masks, gloves, screens, veils, and

14 other screening mechanisms in order to protect congregants and inhibit the spread of

15 COVID-19 during all services, including Sunday worship, baptisms, and funerals.

16 Furthermore, the Church will encourage anyone uncomfortable with gathering

17 during the pandemic to stay at home. The Church will also require that anyone who

18 is sick or has symptoms to stay at home.

19

62. In other words, the Church can and will abide by the County’s Social

20 Distancing and Sanitation Protocol and Safe Reopening Plan, and any other necessary

21 guidelines, just like any other organization.

22

63. These services are essential for the spiritual health of the congregation

23 so that the congregants can exhort one another and the will of God during these

24 difficult times.

25

64. The Church has previously demonstrated its ability to adopt and enforce

26 suitable guidelines for social distancing practices through its work as what may be the

27 largest food distributor to needy people in the South Bay region of San Diego County.

28 Since the closure orders were placed, the Church worked with the Chula Vista Police
14 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.965 Page 17 of 116

1 Department to develop a drive-through food distribution system so that hundreds of

2 cars may drive into and around the Church parking lot. Volunteers are provided

3 masks and gloves and deliver groceries, contact-free, directly into each driver’s trunk

4 or cargo area. During any given week, the Church distributes between three and

5 twelve tons of food. The Church has also been publicly fêted for its efforts by the

6 Mayor of Chula Vista.

7

8

9

10

11

12

13

14

15

16

17

18

65. If the Church is capable of demonstrating and implementing proper

19 social distance protocols for the purposes of food distribution, it is clearly capable of

20 demonstrating and implementing similar protocols when engaging in its Scripturally

21 mandated worship practices.

22

The Current State of the Pandemic

23

66. Due to the unified efforts of the American people, efforts to curb the

24 coronavirus have proven successful.

25

67. The flattening of the curve has been well documented by a medical

26 expert, Dr. George Deglado, M.D., who has been providing medical support and

27 direction to a COVID-19 planning group using Monte Carlo simulations to create

28 accurate planning models—models which have been consistently more accurate than
15 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.966 Page 18 of 116

1 the State’s models. According to Dr. Delgado:

2

It is clear that due to mitigation measures carried out

3

throughout California, the trajectory of the COVID-19 pandemic has been altered; the “curve has been

4

flattened.” . . .

5

Hospitalizations and deaths are both lagging indicators. In

6

fact, deaths reflect infections that started approximately three

weeks prior. Except in certain geographic pockets where flare-

7

ups may occur, level or decreasing hospitalizations and death

8

rates are reassuring that we have reached a plateau or even a

9

decrease in the number of new infections.

10

In California, the statistics support the flattening of the curve. Hospitalizations have remained at a relatively steady level and

11

ICU admissions have trended downward. Deaths have been at

12

a plateau since early April 6 with the daily death count from

April 6 to May 2 ranging from 31 to 115 per day. Only one of

13

those days had 100 or more deaths. Eight of those days had

14

counts less than 50. Again, deaths are the last lagging

indicator. 15

16

Los Angeles County has reported about 1,200 deaths (out of California’s approximate total of 2,200). The curve of new

17

deaths has flattened, similar to the California curve. The

18

Monte Carlo model predicts that total deaths in Los Angeles

County will be approximately 1,900, for this year.

19

The measure R0 (“R naught”) gives an indication of how

20

many additional persons an infected person can infect. When

21

R0 drops below one, an outbreak loses steam and begins to

subside. Our model shows that in Los Angeles County R0

22

decreased to less than one in early April.

23

68. The flattening is also well documented by Kevin Systrom and Mike

24 Krieger, the founders of Instagram, who have created a website called Rt.live to track

25 the transmission rate nationwide. Like Dr. Delgado, their website shows that the

26 curve has effectively flattened.9

27

28 9 https://www.vox.com/recode/2020/4/21/21227855/coronavirus-spreading-by-
16 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.967 Page 19 of 116

1

69. The flattening of the curve was also impressively illustrated in a graphic

2 published10 by Elon Musk:

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

70. This flattening is also illustrated by a review of the death rates in

21 California. According to publicly available documents, as of July 1, 2019, the

22 population of California is estimated to be 39,512,223 persons.11 As of May 2, 2020,

23 there are a total of only 2,215 deaths in California.12 Thus, the probability of dying of

24 COVID-19 in California is 5.6 out of 100,000. A comparison of California with other

25 state-instagram-effective-reproduction-rate

26 10 https://twitter.com/elonmusk/status/1255678979043778560

27

11 https://www.census.gov/quickfacts/fact/table/CA/PST045219 12 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/

28 ncov2019.aspx#COVID-19%20by%20the%20Numbers.

17 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.968 Page 20 of 116

1 states by the Statista.com shows that California is doing amazingly well.13

2

71. Finally, the flattening is also well corroborated by reports that California

3 hospitals are laying off their staff because they have very few COVID-19 patients and

4 they are precluded from performing elective procedures (i.e., cancer surgery, heart

5 surgery).14

6

California’s Four Stage Reopening Plan

7

72. As a result of their unified efforts, Americans began anticipating the day

8 when they could reap the benefits of their hard work—their sacrifice. They began

9 anticipating a lessening of the extreme measures imposed on them by their

10 Governors, and began pushing for that lessening to come soon.

11

73. In response to that pressure, on Tuesday, April 27, 2020, Governor

12 Newsom held a press conference in which he outlined how we “have not only bent

13 the curve in the state of California, but stabilized it.”15 As a result, “[t]he reality is,

14 we are just a few weeks away, not months away, from making measurable and

15 meaningful changes to our stay-at-home order.”16 This was supported by Governor

16 Newsom’s later recitation of the statistics:

17

The number of hospitalizations, 1.4% increase. Um, again,

18

we’re seeing some stabilization, decrease, modest increase, decrease, modest increase, uh, in the total number of

19

people hospitalized. The number of people in ICU’s

20

basically flat from yesterday, just one individual, uh, more

than in the last 24 hours in the ICU—so again,

21

stabilization.17

22 Towards the end of the press conference, Governor Newsom announced that during

23

24

13 https://www.statista.com/statistics/1109011/coronavirus-covid19-death-rates-usby-state/

25 14 https://www.kusi.com/palomar-health-to-lay-off-317-employees-citing-lack-of-

revenue/; https://calmatters.org/health/coronavirus/2020/05/health-care-workers-

26 layoffs-california-coronavirus-nurses-furloughs-pay-cuts-hospitals/.

27

15 https://www.facebook.com/CAgovernor/videos/239711700434134/ at 6:03. 16 Id. at 6:40.

28 17 Id. at 25:04.

18 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.969 Page 21 of 116

1 a press conference on the next day, he would outline the forthcoming “measurable

2 and meaningful changes to our stay-at-home order.”

3

74. On Wednesday, Aril 28, 2020, Governor Newsom announced that those

4 “meaningful modifications” would come in the form of a four stage plan—with the

5 present situation representing Stage 1.18 During the press conference, Governor

6 Newsom stressed that “the foundational point of emphasis we want to advance today

7 is phase 2 . . . is in weeks not months, phase 3 and 4, months not weeks.”19

8

75. During the press conference, Dr. Sonia Angell—the Director of the

9 California Department of Public Health—explained Stage 2 as follows, and showed

10 the following graphic:

11

12

13

14

15

16

17

18

19

20

In stage 2, we’re going to really start focusing on lower risk

21

workplaces, that means gradually opening some of those

workplaces with adaptions. These include things like:

22

Retail, allowing for curbside pickup; Manufacturing, which

23

can include things like toys, clothing, other things,

furniture, that was not a part of the essential sector;

24

Talking about offices, this can include things like PR firms,

25

and consulting, and other places where telework is not

26

possible, but by modifying the environment itself, it can make it lower risk for individuals; and then ultimately

27 18 https://www.facebook.com/CAgovernor/videos/524013811808326/ 28 19 Id. at 48:43.

19 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.970 Page 22 of 116

1

talking about opening more public spaces, things like parks

2

and trails, that may have historically been limited because of our concerns, trying to think about how we can modify

3

that to make them safer for individuals to enjoy the outdoor

4

spaces because we know physical activity is so important to

our health, and this is also about health, clearly.20

5

6

76. Dr. Angell then described Stage 3 and 4 as follows: “The third stage is

7 when we get into those areas that may be higher risk, those sectors that we think will

8 take a lot more modification to adapt in a way that can make them places where people

9 can move with lower risk.”21 “Those are things like getting your hair cut, uh getting

10 your nails done, doing anything that has very close inherent relationships with other

11 people, where the proximity is very close.”22 “And then ultimately, the space that we

12 all look forward to, someday as we move forward and work diligently together, is Stage

13 4, which would be the end of the stay-at-home order. And that’s when we’d be

14 opening all of our highest risk workplaces without modification necessary at that time,

15 because at that time we will know that we have identified a way that we can keep

16 people safe from COVID-19.23

17

18

19

20

21

22

23

24

25

26 20 Id. at 37:29.

27

21 Id. at 35:22. 22 Id. at 35:52.

28 23 Id. at 46:49.

20 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.971 Page 23 of 116

1

77. Then, on May 4, 2020, Governor Newsom issued a press release in

2 which he stated that Stage 2 will begin, in part, on Friday, May 8, 2020. According to

3 that press release, only some businesses will be allowed to reopen, like “bookstores,

4 clothing stores, florists and sporting goods stores,” but not yet “offices, seated dining

5 at restaurants, shopping malls or schools.”24

6

78. On May 7, 2020, Governor Newsom held a press conference to

7 announce the beginning of Stage 2, and the publication of his Resilience Roadmap

8 (Ex. 1-3.) During that press conference, Governor Newsom was asked by a journalist

9 why schools were being prioritized over places of worship. The following exchange

10 followed:

11

Q: Thank you Governor. Can you clarify why churches and

12

salons are in Stage 3 and not Stage 2. Um, what makes

13

them more high risk than schools, for example? Uh, what factors are you weighing here when you decide what goes

14

into what phase?

15

A: Yeah, we’re, we’re looking at the science,

16

epidemiology, looking again at frequency, duration, time,

17

uh, and looking at low risk-high reward, low risk-low reward, looking at a series of conditions and criteria, as well

18

as best practices uh from other states and nations.25

19 In other words, places of worship are being sidelined because they provide a “low

20 reward” in the eyes of California.

21

79. On May 7, 2020, Governor Newsom also published his Resilience

22 Roadmap online. (Ex. 1-3.) That Roadmap identifies the industries that may open

23 immediately (retail for curbside pickup, manufacturing and logistics), those that will 24 open in a few weeks (shopping malls, car washes, schools, restaurants), and those 25 that cannot open for several months, until Stage 3 is announced (salons, tattoo

26

27

24 https://www.gov.ca.gov/2020/05/04/governor-newsom-provides-update-oncalifornias-progress-toward-stage-2-reopening/

28 25 https://www.facebook.com/CAgovernor/videos/260976601615609/, at 50:36.

21 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.972 Page 24 of 116

1 parlors, gyms, bars, movie theaters, and places of worship). (Ex. 1-3, at 9). For each

2 industry that will be allowed to open in Stage 2, the Roadmap also linked to industry-

3 specific Pandemic Guidance that the industry must comply with. The industry must

4 both comply with the guidance, and certify to the state that it is in compliance. The

5 Guidance for two industries opening immediately—manufacturing and logistics—is

6 included in Exhibits 1-3. At the same time, Governor Newsom published a press

7 release announcing the Resilience Roadmap, and explaining the same. (Ex. 1-4.)

8

80. On May 10, 2020, the County of San Diego issued an Order of the

9 Health Office and Emergency Regulations. (Ex. 2-1.) That order incorporated

10 Governor Newsom’s Executive Order N-33-20, and set further guidelines for

11 “essential businesses” and “reopening businesses” operating in San Diego County.

12 Specifically, that order promulgated the County of San Diego “Social Distancing and

13 Sanitation Protocol” that all essential businesses were required to fill out and adhere

14 to. (Ex. 2-2.) The order also promulgated the County of San Diego “Safe Reopening

15 Plan” Protocol that all businesses reopening pursuant to Governor Newsom’s May 7

16 orders were required to fill out and adhere to. (Ex. 2-3.) The order also banned all

17 gatherings of “more than one person” except at essential and reopening businesses

18 or transit places. (Ex. 2-1, at 4.)

19

Conclusion

20

81. In full understanding of the public and private danger posed by the

21 coronavirus, churches and people of faith have conducted themselves, and intend to

22 continue conducting themselves, in a manner that adheres to CDC and California

23 guidelines on social distancing and safe gatherings. There is no generic protocol

24 published by the State of California, but the County of San Diego’s Order includes a

25 requirement that essential businesses complete and comply with its Protocols. (Ex. 2-

26 2; Ex. 2-3.) Plaintiffs are fully willing to comply with these Protocols—and any

27 reasonable Guidance mandated by the state—but they cannot abide by an indefinite

28 shut down of their churches.
22 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.973 Page 25 of 116

1

82. To be blunt, California’s present regime, which mandates that

2 Californians who need the Spirit of Almighty God settle for the lesser spirits

3 dispensed out of California’s liquor stores, is demeaning and denigrating to all

4 persons of faith. Plaintiffs contend that, at least for their congregants, their

5 assemblies are an “essential service” and should therefore, because of fundamental

6 First Amendment Protections, be treated equal to Stage 2 “essential” businesses.

7

83. California’s targeting of religious adherents and total ban from religious

8 assembly, even in a manner consistent with governmental social distancing

9 guidelines, while permitting similar (and at times even more intimate) social

10 interaction to continue unabated in retail and commercial establishments, flouts the

11 protections of the U.S. and California Constitutions.

12

84. Thus, Plaintiffs bring this case to highlight the troubling erosion of

13 fundamental and cherished liberties wrought by the imposition of the Orders and the

14 Four Stage Reopening Plan, and their unconstitutional enforcement by the California

15 Attorney General and San Diego police.

16

85. Plaintiffs do not seek to discredit or discard the government’s

17 unquestionable interest in doing that task for which it was instituted—protecting the

18 citizenry. But, as is often true in times of crisis and fear, Plaintiffs respectfully submit

19 that to uphold its sworn duties, California has—perhaps unwittingly, perhaps not—

20 stepped over a line the U.S. and California Constitutions do not permit. Plaintiffs

21 thus bring this action to ensure that this Court safeguard the cherished liberties for

22 which millions have fought, bled, and died. For, “[i]f the provisions of the

23 Constitution be not upheld when they pinch as well as when they comfort, they may

24 as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934)

25 (Sutherland, J., dissenting).

26 ///

27 ///

28 ///

23 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.974 Page 26 of 116

1

FIRST CLAIM FOR RELIEF

2

Free Exercise Clause of First Amendment to U.S. Constitution

3

(By all Plaintiffs against All Defendants)

4

86. Plaintiffs incorporate by reference all allegations contained in the

5 preceding paragraphs as though fully set forth herein.

6

87. The Orders and Defendants’ enforcement thereof violate the First

7 Amendment, both facially and as-applied to Plaintiffs. The First Amendment of the

8 Constitution protects the “free exercise” of religion. Fundamental to this protection

9 is the right to gather and worship. See W. Va. State Bd. of Educ. v. Barnette, 319 U.S.

10 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain

11 subjects from the vicissitudes of political controversy, to place them beyond the reach

12 of majorities and officials and to establish them as legal principles to be applied by the

13 courts . . . [such as the] freedom of worship and assembly.”). The Free Exercise

14 Clause applies to the states through the Due Process Clause of the Fourteenth

15 Amendment. Cantwell v. Connecticut, 310 U.S. 296 (1940).

16

88. As the Supreme Court has noted, “a law burdening religious practice

17 that is not neutral or not of general application must undergo the most rigorous of

18 scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993).

19 “A law is not generally applicable if its prohibitions substantially underinclude non-

20 religiously motivated conduct that might endanger the same governmental interest

21 that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079

22 (9th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). “In other words, if a law pursues

23 the government’s interest ‘only against conduct motivated by religious belief,’ but

24 fails to include in its prohibitions substantial, comparable secular conduct that would

25 similarly threaten the government’s interest, then the law is not generally

26 applicable.” Id.

27

89. The Orders and Reopening Plan are neither neutral nor of general

28 application. Defendants’ restrictions have specifically and explicitly targeted religious
24 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.975 Page 27 of 116

1 and “faith-based” services and are thus not neutral on their face. Defendants have

2 prohibited certain public and private gatherings deemed “non-essential,” including

3 out-of-home religious services, while exempting a laundry list of industries and

4 services purportedly “essential” to the government’s various interests, including

5 medical cannabis dispensaries and other medical providers, courts, public utilities,

6 daycare and childcare, and “necessary” shopping.

7

90. In addition to relegating all faith activities to a third-class status (at best),

8 Defendants have threatened criminal penalties for holding in person services, and

9 have thus substantially burdened Plaintiffs’ religious exercise. Defendants have

10 forced Plaintiffs to choose between their sincerely held religious beliefs and their

11 desire to follow secular rules, in many cases imposed by unelected officials.

12

91. Laws and government actions that burden religious practice and are

13 either not neutral or not generally applicable must satisfy a compelling governmental

14 interest and be narrowly tailored to achieve that end.

15

92. Defendants’ mandates are not “narrowly tailored” to further any

16 compelling governmental interest. Defendants have granted numerous special

17 exemptions to their bans on public gatherings and conduct, including for purportedly

18 “essential” businesses and activities, provided that social distancing practices are

19 observed. Since these gatherings may be permitted, there can be no doubt that

20 Defendants must permit Plaintiffs to engage in religious activities and services

21 provided that Plaintiffs also adhere to the social distancing guidelines currently in

22 place.

23

93. Requiring Plaintiffs to abstain from religious gatherings, despite

24 substantial modifications to satisfy the public health interests at stake, violates

25 Plaintiffs’ Constitutional right to free exercise of religion. The state does not have the

26 power under our Constitutional scheme to decree that as to faith activities,

27 “streaming” (for those congregations and parishioners with the wealth and

28 technological acumen to partake of such truncated substitutes) is “good enough”
25 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.976 Page 28 of 116

1 when at the same time the state protects the entertainment industry and media

2 organizations’ First Amendment rights while denying the Plaintiffs their First

3 Amendment rights.

4

94. Plaintiffs have no adequate remedy at law and will suffer serious and

5 irreparable harm to their constitutional rights unless Defendants are enjoined from

6 implementing and enforcing the Orders.

7

95. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

8 declaratory relief and temporary, preliminary, and permanent injunctive relief

9 invalidating and restraining enforcement of the Orders.

10

96. Plaintiffs found it necessary to engage the services of private counsel to

11 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

12 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

13

SECOND CLAIM FOR RELIEF

14 Free Exercise of Religion of Article I, Section 4, of the Cal. Constitution

15

(By all Plaintiffs against All Defendants)

16

97. Plaintiffs incorporate by reference all allegations contained in the

17 preceding paragraphs as though fully set forth herein.

18

98. In California “[f]ree exercise and enjoyment of religion without

19 discrimination or preference are guaranteed.” Cal. Const. Art. 1, §4.

20

99. “In general, the religion clauses of the California Constitution are read

21 more broadly than their counterparts in the federal Constitution.” Carpenter v. City

22 and County of San Francisco, 93 F.3d 627, 629 (9th Cir. 1996). Courts “therefore

23 review [a] challenge. . . under the free exercise clause of the California Constitution

24 in the same way [they] might have reviewed a similar challenge under the federal

25 Constitution after Sherbert, and before Smith. In other words, we apply strict

26 scrutiny.” Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 562

27 (2004) (citations omitted).

28

100. For the reasons stated in Plaintiffs’ First Claim for Relief, requiring

26 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.977 Page 29 of 116

1 Plaintiffs to abstain from its religious gatherings, despite substantial modifications to

2 satisfy the public health interests at stake, violates Plaintiffs’ free exercise rights

3 under the California Constitution as well.

4

101. Plaintiffs have no adequate remedy at law and will suffer serious and

5 irreparable harm to their constitutional rights unless Defendants are enjoined from

6 implementing and enforcing the Orders, or are enjoined from at least finding religious

7 services to be stage-two “essential.”

8

102. Plaintiffs have found it necessary to engage the services of private

9 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

10 award of attorney fees and costs pursuant to California Code of Civil Procedure

11 Section 1021.5.

12

THIRD CLAIM FOR RELIEF

13

Establishment Clause of First Amendment to U.S. Constitution

14

(By all Plaintiffs against All Defendants)

15

103. Plaintiffs incorporate by reference all allegations contained in the

16 preceding paragraphs as though fully Set forth herein.

17

104. The Orders and Defendants’ enforcement thereof violate the First

18 Amendment, both facially and as-applied to Plaintiffs. The Establishment Clause of

19 the “First Amendment mandates governmental neutrality between religion and

20 religion, and between religion and nonreligion.” McCreary Cty., Ky. v. Am. Civil

21 Liberties Union of Ky., 545 U.S. 844, 860 (2005) (citing Epperson v. Arkansas, 393 U.S.

22 97, 104 (1968)). The Establishment Clause applies to the states through the Due

23 Process Clause of the Fourteenth Amendment. Everson v. Board of Ed. of Ewing, 330

24 U.S. 1 (1947).

25

105. The Orders, as stated, advance no secular purpose. Defendants have

26 made numerous exceptions to their Orders, permitting the same conduct

27 (counseling) if performed by secular practitioners but not religious ministers.

28 Defendants have also distinguished between religions, permitting services that can be
27 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.978 Page 30 of 116

1 performed via livestream to proceed, but banning all services that require in-person

2 participation. It is not for Defendants to determine which faiths may have their

3 services proceed.

4

106. The Orders and Defendants’ ad hoc enforcement of them have the

5 primary effect of inhibiting religious activity.

6

107. Defendants have failed to avoid excessive government entanglement

7 with religion. Defendants permit only some forms of religious observance, such as

8 livestreamed, at-home religious activities.

9

108. There is no historical precedent in the United States for inhibiting

10 religious practices on terms more restrictive than those imposed on identical secular

11 activities, as Defendants do now.

12

109. Plaintiffs have no adequate remedy at law and will suffer serious and

13 irreparable harm to their constitutional rights unless Defendants are enjoined from

14 implementing and enforcing the Orders.

15

110. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

16 declaratory relief and temporary, preliminary, and permanent injunctive relief

17 invalidating and restraining enforcement of the Orders.

18

111. Plaintiffs found it necessary to engage the services of private counsel to

19 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

20 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

21

FOURTH CLAIM FOR RELIEF

22

Free Speech Clause of First Amendment to U.S. Constitution

23

(By all Plaintiffs against All Defendants)

24

112. Plaintiffs incorporate by reference all allegations contained in the

25 preceding paragraphs as though fully Set forth herein.

26

113. The Orders and Defendants’ enforcement thereof violate the First

27 Amendment, both facially and as-applied to Plaintiffs.

28

114. Under Defendants’ Orders, public gatherings and church services are

28 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.979 Page 31 of 116

1 prohibited.

2

115. Plaintiffs engage in protected speech through worship, religious

3 discussions, singing hymns, and praying with their congregation.

4

116. Defendants’ imposition of the Orders is unreasonable and has a chilling

5 effect on protected speech by outright banning in-person church services at the pain

6 of criminal penalty. Additionally, the State Orders were accompanied by statements

7 that they would generally not be enforced by police, and that officers should exercise

8 discretion before considering doing so. But the Orders fail to provide any guidance as

9 to what violations would be prioritized, leaving it up to the officers’ unfettered

10 discretion to decide which violations to enforce. Such a lack of standards along with a

11 grant of such discretion renders the Orders unconstitutional both facially and as they

12 are applied.

13

117. The Orders are unconstitutionally overbroad, and therefore void as a

14 matter of law, both on their faces, and as it is applied.

15

118. Plaintiffs have no adequate remedy at law and will suffer serious and

16 irreparable harm to their constitutional rights unless Defendants are enjoined from

17 implementing and enforcing the Orders.

18

119. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

19 declaratory relief and temporary, preliminary, and permanent injunctive relief

20 invalidating and restraining enforcement of the Orders.

21

120. Plaintiffs found it necessary to engage the services of private counsel to

22 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

23 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

24

FIFTH CLAIM FOR RELIEF

25

Freedom of Speech of Article I, Section 2, of the Cal. Constitution

26

(By all Plaintiffs against All Defendants)

27

121. Plaintiffs incorporate by reference all allegations contained in the

28 preceding paragraphs as though fully set forth herein.
29 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.980 Page 32 of 116

1

122. In California, “[e]very person may freely speak, write and publish his or

2 her sentiments on all subjects, being responsible for the abuse of this right. A law may

3 not restrain or abridge liberty of speech or press.” Cal. Const. Art. 1, §2.

4

123. “The California Supreme Court has recognized that the California

5 Constitution is ‘more protective, definitive and inclusive of rights to expression and

6 speech’ than the First Amendment to the United States Constitution.” Rosenbaum v.

7 City and County of San Francisco, 484 F.3d 1142, 1167 (9th Cir. 2007).

8

124. For the reasons stated in Plaintiffs’ Fourth Claim for Relief, requiring

9 Plaintiffs to abstain from their religious gatherings, despite substantial modifications

10 to satisfy the public health interests at stake, violates Plaintiffs’ liberty of speech

11 rights under the California Constitution as well.

12

125. Plaintiffs have no adequate remedy at law and will suffer serious and

13 irreparable harm to their constitutional rights unless Defendants are enjoined from

14 implementing and enforcing the Orders.

15

126. Plaintiffs have found it necessary to engage the services of private

16 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

17 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure

18 Section 1021.5.

19

SIXTH CLAIM FOR RELIEF

20

Violation of First Amendment Freedom of Assembly Clause

21

(By all Plaintiffs against All Defendants)

22

127. Plaintiffs incorporate by reference all allegations contained in the

23 preceding paragraphs as though fully set forth herein.

24

128. The Orders and Defendants’ enforcement thereof violate the First

25 Amendment, both facially and as-applied to Plaintiffs. The First Amendment of the

26 Constitution protects the “right of the people peaceably to assemble.” The Freedom

27 of Assembly Clause was incorporated against the states in De Jonge v. Oregon, 299

28 U.S. 353 (1937).
30 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.981 Page 33 of 116

1

129. “The right of free speech, the right to teach, and the right of assembly

2 are, of course, fundamental rights.” Whitney v. California, 274 U.S. 357, 373 (1927).

3 When a government practice restricts fundamental rights, it is subject to “strict

4 scrutiny” and can be justified only if it furthers a compelling government purpose

5 and, even then, only if no less restrictive alternative is available. See, e.g., San Antonio

6 Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U.S.

7 330 (1972).

8

130. By denying Plaintiffs the ability to conduct services, Defendants are in

9 violation of the Freedom of Assembly Clause. Defendants cannot meet the no-less-

10 restrictive-alternative test. The CDC’s and the County’s social distancing guidelines

11 are appropriate to limit the spread of COVID-19. Imposing more restrictive

12 requirements that target churches while at the same time allowing manufacturing,

13 logistics, offices, retail, and restaurants to open is not the least restrictive means of

14 achieving Defendants’ public safety goals.

15

131. Requiring Plaintiffs to abstain from religious gatherings, despite

16 substantial modifications to satisfy the public health interests at stake, violates

17 Plaintiffs’ Constitutional right to peaceably assemble.

18

132. Plaintiffs have no adequate remedy at law and will suffer serious and

19 irreparable harm to their constitutional rights unless Defendants are enjoined from

20 implementing and enforcing the Orders.

21

133. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

22 declaratory relief and temporary, preliminary, and permanent injunctive relief

23 invalidating and restraining enforcement of the Orders.

24

134. Plaintiffs found it necessary to engage the services of private counsel to

25 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

26 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

27 ///

28 ///

31 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.982 Page 34 of 116

1

SEVENTH CLAIM FOR RELIEF

2 Freedom of Assembly of Article I, Section 3, of the California Constitution

3

(By all Plaintiffs against All Defendants)

4

135. Plaintiffs incorporate by reference all allegations contained in the

5 preceding paragraphs as though fully set forth herein.

6

136. In California “[t]he people have the right to . . . assemble freely to

7 consult for the common good.” Cal. Const. Art. 1, §3.

8

137. For the reasons stated in Plaintiffs’ Sixth Claim for Relief, requiring

9 Plaintiffs to abstain from their religious gatherings, despite substantial modifications

10 to satisfy the public health interests at stake, violates Plaintiffs’ right to assemble

11 freely under the California Constitution as well.

12

138. Plaintiffs have no adequate remedy at law and will suffer serious and

13 irreparable harm to their constitutional rights unless Defendants are enjoined from

14 implementing and enforcing the Orders.

15

139. Plaintiffs have found it necessary to engage the services of private

16 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

17 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure

18 Section 1021.5.

19

EIGHTH CLAIM FOR RELIEF

20

Right to Liberty of Article I, Section 1, of the California Constitution

21

(By all Plaintiffs against All Defendants)

22

140. Plaintiffs incorporate by reference all allegations contained in the

23 preceding paragraphs as though fully set forth herein.

24

141. In California, “[a]ll people are by nature free and independent and have

25 inalienable rights. Among these are enjoying and defending life and liberty, acquiring,

26 possessing, and protecting property, and pursuing and obtaining safety, happiness,

27 and privacy.” Cal. Const. Art. 1, §1.

28

142. California courts have found that Public Health Officials could not

32 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.983 Page 35 of 116

1 quarantine 12 blocks of San Francisco Chinatown because of nine deaths due to

2 bubonic plague. See Jew Ho v. Williamson, 103 F. 10 (C.C. Cal. 1900); Wong Wai v.

3 Williamson, 103 F. 1 (C.C. Cal. 1900).

4

143. In Jew Ho and Wong Wai, the California courts found that there were

5 more than 15,000 people living in the twelve blocks of San Francisco Chinatown who

6 were to be quarantined. The courts found it unreasonable to shut down the ability of

7 over 15,000 people to make a living because of nine deaths. This was one death for

8 every 1,666 inhabitants of Chinatown.

9

144. In Jew Ho, the court stated that it was “purely arbitrary, unreasonable,

10 unwarranted, wrongful, and oppressive interference with the personal liberty of

11 complainant” who had “never had or contracted said bubonic plague; that he has

12 never been at any time exposed to the danger of contracting it, and has never been in

13 any locality where said bubonic plague, or any germs of bacteria thereof, has or have

14 existed.” Jew Ho, 103 F. 10.

15

145. California courts have instead focused on the necessity of there being

16 “reasonable grounds [] to support the belief that the person so held [quarantined] is

17 infected.” Ex parte Martin, 83 Cal. App. 2d 164 (1948). Public Health Officials must

18 be able to show “probable cause to believe the person so held has an infectious

19 disease. . . .” Id. “[A] mere suspicion [of a contagious disease], unsupported by facts

20 giving rise to reasonable or probable cause, will afford no justification at all for

21 depriving persons of their liberty and subjecting them to virtual imprisonment under a

22 purported order of quarantine.” Ex parte Arta, 52 Cal. App. 380, 383 (1921)

23 (emphasis added).

24

146. As stated above, as of May 2, 2020, COVID-19 is responsible for 2,215

25 deaths in California. As of July 1, 2019, the population of California is estimated to be

26 39,512,223 persons. Thus, the probability of dying of COVID-19 in California is 5.6

27 out of 100,000.

28

147. Plaintiffs have never had or contracted said coronavirus, and have not

33 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.984 Page 36 of 116

1 had any contact with individuals who have tested positive.

2

148. Requiring Plaintiffs to abstain from all religious gatherings, despite

3 substantial modifications to satisfy the public health interests at stake, violates their

4 California Constitutional liberty rights.

5

149. Plaintiffs have no adequate remedy at law and will suffer serious and

6 irreparable harm to their constitutional rights unless Defendants are enjoined from

7 implementing and enforcing the Orders.

8

150. Plaintiffs have found it necessary to engage the services of private

9 counsel to vindicate their rights under the law. Plaintiffs are therefore entitled to an

10 award of attorneys’ fees and costs pursuant to California Code of Civil Procedure

11 Section 1021.5.

12

NINTH CLAIM FOR RELIEF

13

Violation of Substantive Rights in the Due Process Clause of

14

Fourteenth Amendment to U.S. Constitution

15

(By all Plaintiffs against All Defendants)

16

151. Plaintiffs incorporate by reference all allegations contained in the

17 preceding paragraphs as though fully set forth herein.

18

152. The Orders and Defendants’ enforcement thereof violate Plaintiffs’

19 substantive due process rights secured by the Fourteenth Amendment to the U.S.

20 Constitution. Under the Due Process Clause of the Fourteenth Amendment, no State

21 shall “deprive any person of life, liberty, or property, without due process of law.”

22 The fundamental liberties protected by this Clause include most of the rights

23 enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U.S. 145, 147–149

24 (1968). In addition, these liberties extend to certain personal choices central to

25 individual dignity and autonomy, including intimate choices that define personal

26 identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Griswold v.

27 Connecticut, 381 U.S. 479, 484–486 (1965).

28

153. Plaintiffs’ rights to freedom of religion, assembly, speech, and travel are

34 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.985 Page 37 of 116

1 fundamental rights protected by the U.S. Constitution. See, e.g., Aptheker v. Secretary

2 of State, 378 U.S. 500, 520 (1964); Kent v. Dulles, 357 U.S. 116, 127 (1958).

3

154. When a government practice restricts fundamental rights such as the

4 right to practice religion freely, assemble peacefully, speak, and travel, it is subject to

5 “strict scrutiny” and can be justified only if it furthers a compelling government

6 purpose, and, even then, only if no less restrictive alternative is available. See, e.g.

7 Memorial Hospital v. Maricopa County, 415 U.S. 250, 257–58 (1974); Dunn v.

8 Blumstein, 405 U.S. 330, 339-341 (1972); Shapiro v. Thompson, 394 U.S. 618, 89

9 (1969), Maher v. Roe, 432 U.S. 464, 488 (1977).

10

155. Strict scrutiny applies to Plaintiffs’ claims because the Orders mandate

11 that Plaintiffs stay at home, impinging on their fundamental rights to freedom of

12 religion, assembly, speech, and travel. These Orders do not permit Plaintiffs to

13 exercise these rights, even while conforming to the CDC and County guidelines for

14 social distancing, unless Defendants deem them “essential” or as participating in

15 “essential” activities.

16

156. Defendants’ mandates are not “narrowly tailored” to further any

17 compelling governmental interest. Defendants have granted numerous special

18 exemptions to their bans on public gatherings, including for purportedly “essential”

19 businesses and activities, provided that social distancing practices are observed; and

20 even for out-of-home religious services during Easter, an important day of religious

21 significance for Christians. Since these gatherings can be permitted, there can be no

22 doubt that Defendants may, and therefore must, permit Plaintiffs to engage in

23 equivalent constitutionally-protected activities provided that Plaintiffs also adhere to

24 the social distancing guidelines.

25

157. Plaintiffs have no adequate remedy at law and will suffer serious and

26 irreparable harm to their constitutional rights unless Defendants are enjoined from

27 implementing and enforcing the Orders.

28

158. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

35 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.986 Page 38 of 116

1 declaratory relief and temporary, preliminary, and permanent injunctive relief

2 invalidating and restraining enforcement of the Orders.

3

159. Plaintiffs found it necessary to engage the services of private counsel to

4 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

5 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

6

TENTH CLAIM FOR RELIEF

7 Equal Protection Clause of Fourteenth Amendment to U.S. Constitution

8

(By all Plaintiffs against All Defendants)

9

160. Plaintiffs incorporate by reference all allegations contained in the

10 preceding paragraphs as though fully set forth herein.

11

161. The Orders and Defendants’ enforcement thereof violate the

12 Fourteenth Amendment, both facially and as-applied to Plaintiffs. The Fourteenth

13 Amendment of the Constitution provides that “[n]o State shall . . . deny to any

14 person within its jurisdiction the equal protection of the laws.” Equal protection

15 requires the state to govern impartially—not draw arbitrary distinctions between

16 individuals based solely on differences that are irrelevant to a legitimate

17 governmental objection.

18

162. Defendants intentionally and arbitrarily categorize individuals and

19 conduct as either “essential” or “non-essential.” Those persons classified as

20 “essential,” or as participating in essential services, are permitted to go about their

21 business and activities provided certain social distancing practices are employed.

22 Those classified as “nonessential,” or as engaging in non-essential activities, are

23 required to stay in their residence, unless it becomes necessary for them to leave for

24 one of the enumerated “essential” activities.

25

163. Strict scrutiny under the Equal Protection Clause applies where, as here,

26 the classification impinges on a fundamental right, including the right to practice

27 religion freely, the right to free speech and assembly, and the right to travel, among

28 others.
36 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.987 Page 39 of 116

1

164. Defendants cannot satisfy strict scrutiny, because their arbitrary

2 classifications are not narrowly tailored measures that further compelling government

3 interests, for the reasons stated above.

4

165. Plaintiffs have no adequate remedy at law and will suffer serious and

5 irreparable harm to their constitutional rights unless Defendants are enjoined from

6 implementing and enforcing the Orders.

7

166. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

8 declaratory relief and temporary, preliminary, and permanent injunctive relief

9 invalidating and restraining enforcement of the Orders.

10

167. Plaintiffs found it necessary to engage the services of private counsel to

11 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

12 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

13

ELEVENTH CLAIM FOR RELIEF

14

Vagueness in Violation of the Due Process Clause of

15

Fourteenth Amendment to U.S. Constitution

16

(By all Plaintiffs against All Defendants)

17

168. Plaintiffs incorporate by reference all allegations contained in the

18 preceding paragraphs as though fully set forth herein.

19

169. The Orders and Defendants’ enforcement thereof violate the Due

20 Process Clause of the Fourteenth Amendment, both facially and as-applied to

21 Plaintiffs.

22

170. A regulation is constitutionally void on its face when, as matter of due

23 process, it is so vague that persons “of common intelligence must necessarily guess at

24 its meaning and differ as to its application” Connally v. General Const. Co., 269 U.S.

25 385, 391 (1926); People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 1115 (1997). The void

26 for vagueness doctrine is designed to prevent arbitrary and discriminatory

27 enforcement. The problem with a vague regulation is that it “impermissibly delegates

28 basic policy matters to policemen, judges, and juries for resolution on an ad hoc and
37 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.988 Page 40 of 116

1 subjective basis. . . .” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972).

2

171. Defendants’ Orders are void for vagueness for the following reasons:

3

a. The State Order provides that individuals are ordered to “heed”

4

State public health directives. The word “heed” is defined by

5

Webster’s Dictionary to mean “to give consideration or attention

6

to”—not specifically to adhere to those directives. Yet, the State

7

Order is widely reported in the media and cited by local and state

8

officials, including the County Orders, as compelling compliance

9

with State public health directives to shelter in place unless

10

conducting essential business. The State Order also includes the text

11

of the public health directive, which includes language that ostensibly

12

“order[s]” compliance, creating further ambiguity as to whether

13

Plaintiffs must comply with, or merely heed, the public health

14

directive. Accordingly, the State Order is vague as to what precisely

15

is being ordered, and what actions may result in criminal penalties,

16

fines, or imprisonment.

17

b. All of the Orders, when issued, were surrounded by statements in

18

press conferences or press releases stating that they can be enforced,

19

but will not always be enforced. And that citizens should police

20

themselves, and that officers should exercise good faith judgment.

21

Thus, without guidance, no reasonable person would know whether

22

his conduct is going to subject him to prosecution. In a March 19,

23

2020, press conference, Governor Newsom stressed that there will

24

be no police enforcement of the State Orders.26 And in March 18,

25

2020, press conference, the County’s Dr. Wilma Wooten stressed

26

that she was only expecting 80%-90% compliance—which would be

27 26 https://www.facebook.com/CAgovernor/videos/494465634769746/, at 4:00 and 28 34:00.
38 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.989 Page 41 of 116

1

sufficient.27

2

172. As a result of these ambiguities, no reasonable person could understand

3 what conduct violates the Orders and might subject that person to criminal penalties.

4

173. Plaintiffs have no adequate remedy at law and will suffer serious and

5 irreparable harm to their constitutional rights unless Defendants are enjoined from

6 implementing and enforcing the Orders.

7

174. Pursuant to 42 U.S.C. §§ 1983 and 1988, Plaintiffs are entitled to

8 declaratory relief and temporary, preliminary, and permanent injunctive relief

9 invalidating and restraining enforcement of the Orders.

10

175. Plaintiffs found it necessary to engage the services of private counsel to

11 vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

12 attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.

13

PRAYER FOR RELIEF

14

WHEREFORE, Plaintiffs respectfully pray for judgment against Defendants

15 and request the following relief:

16

A. An order and judgment declaring that the Orders, facially and as-applied to

17

Plaintiffs, violate the First and Fourteenth Amendments to the U.S.

18

Constitution and Article 1, Sections 1, 2, and 4 of the California

19

Constitution;

20

B. An order temporarily, preliminarily, and permanently enjoining and

21

prohibiting Defendants from enforcing the Orders except as to requiring

22

Plaintiffs to comply with the County of San Diego’s Social Distancing and

23

Sanitation Protocol and Safe Reopening Plan, and any other reasonable

24

protocol;

25

C. For attorneys’ fees and costs; and

26

D. Such other and further relief as the Court deems appropriate and just.

27

28 27 https://youtu.be/sogjrotTCSw, at 1:10:15.
39 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.990 Page 42 of 116

1

2

Respectfully submitted,

3

LiMANDRI & JONNA LLP

4

5 Dated: May 11, 2020 6 7 8

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

9

10 11
Dated: May 11, 2020 12 13 14

THOMAS MORE SOCIETY
By: ____________________ Thomas Brejcha Peter Breen Attorneys for Plaintiffs

15

16 DHILLON LAW GROUP INC.
17

18 Dated: May 11, 2020
19 20 21 22

By: ____________________ Harmeet K. Dhillon Mark P. Meuser Gregory R. Michael Attorneys for Plaintiffs

23

24

25

26

27

28
40 First Amended Complaint for Declaratory & Injunctive Relief

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.991 Page 43 of 116
EXHIBIT 1-1

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.992 Page 44 of 116 EXECUTIVE DEPARTMENT STATE OF CALIFORNIA
EXECUTIVE ORDER N-33·20
WHEREAS on March 4, 2020. I proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19: and
WHEREAS in a short period of time, COVID-19 has rapidly spread throughout California, necessitating updated and more stringent guidance from federal, state. and local public health officials; and
WHEREAS for the preservation of public health and safety throughout the entire State of California. I find it necessary for all Californians to heed the State public health directives from the Department of Public Health.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes of the State of California, and in particular. Government Code sections 8567, 8627, and 8665 do hereby issue the following Order to become effective immediately:
IT IS HEREBY ORDERED THAT:
1) To preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all, and prioritizing those at the highest risk and vulnerability, all residents are directed to immediately heed the current State public health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19. Those directives are consistent with the March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, found at: https://covid19.ca.gov/. Those directives follow:
ORDER OF THE STATE PUBLIC HEALTH OFFICER Morch 19. 2020
To protect public health, I as State Public Health Officer and Director of the California Department of Public Health order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at httos:Uwww.cisa.gov/identifying-critical-infrostructure-during-covia -19. In addition. and in consultation with the Director of the Governor's Office of Emergency Services, I may designate additional sectors as critical in order to protect the health and well-being of all Californians.
Pursuant to the authority under the Health and Safety Code 120125. 120140, 131080, 120130(c}. 120135, 120145, 120175 and 120150, this order is to go into effect immediately and shall stay in effect until further notice.
The federal government has identified 16 critical infrastructure sectors whose assets. systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.993 Page 45 of 116
destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof. I order that Californians working in these 16 critical infrastructure sectors ma}". continue their work because of the importance of these sectors to Californians' health and well-being.
This Order is being issued to protect the public health of Californians. The California Department of Public Health looks to establish consistency across the state in order to ensure that we mitigate the impact of COVID-19. Our goal is simple, we want to bend the curve, and disrupt the spread of the virus.
The supply chain must continue, and Californians must have access to such necessities as food, prescriptions, and health care. When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.
2) The healthcare delivery system shall prioritize services to serving those who are the sickest and shall prioritize resources, including personal protective equipment, for the providers providing direct care to them.
3) The Office of Emergency Services is directed to take necessary steps to ensure compliance with this Order.
4) This Order shall be enforceable pursuant to California law, including, but not limited to, Government Code section 8665.
IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order.
This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.
IN WITNESS WHEREOF I have
ATTEST:
ALEX PADILLA Secretary of State

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.994 Page 46 of 116
EXHIBIT 1-2

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.995 Page 47 of 116 April 28, 2020
ESSENTIAL WORKFORCE
On March 19, 2020, Governor Newsom issued Executive Order N-33-20 directing all residents immediately to heed current State public health directives to stay home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer may designate as critical to protect health and well-being of all Californians. In accordance with this order, the State Public Health Officer has designated the following list of to protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.
Sector Index: 1. Health and Public Health Sector 2. Emergency Services Sector 3. Food and Agriculture Sector 4. Energy Sector 5. Water and Wastewater Sector 6. Transportation and Logistics Sector 7. Communications and Information Technology Sector 8. Government Operations and Other Community-Based Essential Functions 9. Critical Manufacturing Sector 10. Financial Services Sector 11. Chemical Sector 12. Defense Industrial Base Sector 13. Industrial, Commercial, Residential and Sheltering Facilities and Services
Relevant Guidance For All Sectors: Face Coverings Guidance Orientación Sobre el Uso de Mascarillas de Tela Self-Isolation for Older Adults and Those Who Have Elevated Risk Aislamiento para Adultos Mayores y Personas que Tienen un Riesgo Elevado Employers, health care workers and workers in general industry
1

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.996 Page 48 of 116
April 28, 2020
1. HEALTHCARE / PUBLIC HEALTH
Sector Profile
The Healthcare and Public Health (HPH) Sector is large, diverse, and open, spanning both the public and private sectors. It includes publicly accessible healthcare facilities, research centers, suppliers, manufacturers, and other physical assets and vast, complex public-private information technology systems required for care delivery and to support the rapid, secure transmission and storage of large amounts of HPH data.
Essential Workforce, if remote working is not practical:
1. Health care providers and caregivers (including physicians, dentists, psychologists, mid-level practitioners, nurses, assistants, and aids; infection control and quality assurance personnel; pharmacists; physical, respiratory, speech and occupational therapists and assistants; social workers and providers serving individuals with disabilities including developmental disabilities; optometrists; speech pathologists; chiropractors; diagnostic and therapeutic technicians; and radiology technologists).
2. Workers required for effective clinical, command, infrastructure, support service, administrative, security and intelligence operations across the direct patient care and full healthcare and public health spectrum, including accounting, administrative, admitting and discharge, engineering, accrediting, certification, licensing, credentialing, epidemiological, source plasma and blood donation, food service, environmental services, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians; emergency medical services workers; prehospital workers including but not limited to urgent care workers; inpatient and hospital workers; outpatient care workers; home care workers; workers at long-term care facilities, residential and community-based providers; workplace safety workers).
3. Workers needed to support transportation to and from healthcare facilities and provider appointments.
4. Workers needed to provide laundry services, food services, reprocessing of medical equipment, and waste management.
5. Vendors and suppliers (including imaging, pharmacy, oxygen services, durable medical equipment)
6. Workers who perform critical clinical research, development, and testing needed for COVID-19 response.
7. Workers in other medical and life science facilities (including Ambulatory Health and Surgical, Blood Banks, Clinics, Community Mental Health, Comprehensive Outpatient rehabilitation, End Stage Renal Disease, Health Departments, Home Health care, Hospices, Hospitals, Long Term Care, Organ Pharmacies, Procurement Organizations, Psychiatric, Residential, Rural Health Clinics and Federally Qualified Health Centers, and retail facilities specializing in medical goods and supplies, including cannabis).
8. Workers for health manufacturing (including life science companies, and companies that have shifted production to medical supplies), materials and parts suppliers, technicians, logistics and warehouse operators, printers, packagers, and distributors of medical equipment (including those who test and repair), personal protective equipment (PPE), isolation barriers, medical
2

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.997 Page 49 of 116
April 28, 2020
gases, pharmaceuticals (including materials used in radioactive drugs, and cannabis products), dietary supplements, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, personal hygiene products, and tissue and paper towel products. 9. Public health / community health workers, including those who compile, model, analyze and communicate public health information. 10. Behavioral and mental health workers responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or behavioral services. 11. Donors of blood bone marrow, blood stem cell, or plasma and the workers of the organizations that operate and manage related activities. 12. Workers that manage health plans, billing, and health information. 13. Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information. 14. Workers performing IT and cybersecurity functions at healthcare and public health facilities. 15. Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions. 16. Pharmacy employees, including workers necessary to maintain uninterrupted prescription filling. 17. Workers in retail facilities specializing in medical goods and supplies. 18. Public health and environmental health workers, including workers specializing in environmental health that focus on implementing environmental controls, sanitary and infection control interventions, healthcare facility safety and emergency preparedness planning, engineered work practices, and developing guidance and protocols for appropriate PPE to prevent COVID-19 disease transmission; Public health/ community health workers (including call center workers) who conduct community- based public health functions, conducting epidemiologic surveillance and compiling, analyzing, and communicating public health information. 19. Mortuary services providers, including workers performing mortuary, funeral, cremation burial, cemetery, and related services, including funeral homes, crematoriums, cemetery workers and coffin makers. 20. Workers who coordinate with other organizations to ensure the proper recovery, handling, identification, transportation, tracking, storage, and disposal of human remains and personal effects; certify cause of death; and facilitate access to behavioral and mental health services to the family members, responders, and survivors of an incident. 21. Workers supporting veterinary hospitals and clinics.
Relevant Sector Guidance:
All Facility Letters for health care facilities, including long-term care facilities Health care facilities, Skilled Nursing Facilities Individuals with Access and Functional Needs Medical Waste Management - Interim Guidelines Outpatient Healthcare Facility Infection Control Recommendations for Suspect COVID-19 Patients Prioritization of Patients for Laboratory Testing for COVID-19 Veterinary Professionals and Premises Regional Centers:
Visits to Licensed Residential Facilities Risk Mitigation Strategies for ARFPSHN, ICF/DD-CN Adult and Senior Care Facilities
3

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.998 Page 50 of 116 April 28, 2020
Cuidado a los Adultos Mayores Community care facilities, including assisted living facilities and child care Medi-Cal Managed Care Health Plans: COVID 19 Screening and Testing Coverage Options Fact Sheet
Opciones De Cobertura Department of Managed Health Care All Plan Letter California Department of Insurance Bulletin
4

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.999 Page 51 of 116 April 28, 2020
2. EMERGENCY SERVICES SECTOR
Sector Profile The Emergency Services Sector (ESS) is a community of highly-skilled, trained personnel, along with the physical and cyber resources, that provide a wide range of prevention, preparedness, response, and recovery services during both day-to-day operations and incident response. The ESS includes geographically distributed facilities and equipment in both paid and volunteer capacities organized primarily at the federal, state, local, tribal, and territorial levels of government, such as city police
departments, and town public works departments. The ESS also includes private sector resources, such as industrial fire departments, private security organizations, and private emergency medical services providers.
Essential Workforce, if remote working is not practical: 1. Public, private, and voluntary personnel (front line and management) in emergency
management, law enforcement, fire and rescue services, emergency medical services, corrections, rehabilitation and reentry, search and rescue, hazardous material response, and technicians supporting maritime and aviation emergency response. 2. Public Safety Answering Points and 911 call center employees; personnel involved in access to emergency services including the emergency alert system and wireless emergency alerts. 3. Fusion Center employees 4. Workers who support weather disaster / natural hazard monitoring, response, mitigation, and prevention, including personnel conducting, supporting, or facilitating wildfire mitigation activities 5. Workers including contracted vendors -- who maintain, manufacture, or supply equipment and services supporting law enforcement, fire, EMS, and and emergency service response operations (including safety equipment, electronic security, and uniforms) 6. Workers responding to abuse and neglect of children, elders and dependent adults. 7. Animal control officers and humane officers 8. Security staff to maintain building access control and physical security measures 9. Workers and contracted vendors who maintain and provide services and supplies to public safety facilities, including emergency communication center, public safety answering points, public safety communications centers, emergency operation centers, fire and emergency medical services stations, police and law enforcement stations and facilities.
Relevant Sector Guidance: Public Health Guidance about COVID-19 for California State Prisons First responders, including paramedics and EMTs
5

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1000 Page 52 of 116
April 28, 2020
3. FOOD AND AGRICULTURE
Sector Profile
The Food and Agricultural (FA) Sector is composed of complex production, processing, and delivery systems and has the capacity to feed people and animals both within and beyond the boundaries of the United States. Beyond domestic food production, the FA Sector also imports many ingredients and finished products, leading to a complex web of growers, processors, suppliers, transporters, distributors, and consumers. This sector is critical to maintaining and securing our food supply.
Essential Workforce, if remote working is not practical:
1. Workers supporting groceries, pharmacies, convenience stores, and other retail that sells food or beverage products, and animal/pet food, retail customer support service, information technology support staff, for online orders, pickup/takeout or delivery.
2. Workers supporting restaurant carry-out and quick serve food operations, including food preparation, carry-out and delivery food employees.
3. Food manufacturer employees and their supplier employees to include those employed in food ingredient production and processing facilities; aquaculture and seafood harvesting facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging, including recycling operations and processing.
4. Farmers, farm and ranch workers, and agribusiness support services to include those employed in auction and sales; grain and oilseed handling, storage, processing and distribution; animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport.
5. Farmers, farm and ranch workers, support service workers and their supplier employees producing food supply domestically and for export to include those engaged in raising, cultivating, harvesting, packing, storing, or delivering to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity for human consumption; those engaged in producing and harvesting field crops; cannabis growers; agricultural and commodity inspection; fuel ethanol facilities; storage facilities; biodiesel and renewable diesel facilities; and other agricultural inputs
6. Employees and firms supporting food, feed, and beverage distribution and ingredients used in these products including warehouse workers, vendor-managed inventory controllers, and blockchain managers.
7. Workers supporting the sanitation of all food manufacturing processes and operations from wholesale to retail.
8. Workers supporting the growth and distribution of plants and associated products for home gardens.
9. Workers in cafeterias used to feed workers, particularly worker populations sheltered against COVID-19
10. Workers in animal diagnostic and food testing laboratories 11. Workers essential for assistance programs and government payments 12. Government, private, and non-
assistance programs (including school lunch programs) and government payments.
6

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1001 Page 53 of 116 April 28, 2020
13. Employees of companies engaged in the production, storage, transport, and distribution of chemicals; medicines, including cannabis; vaccines; and other substances used by the food and agriculture industry, including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids.
14. Animal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services); raising of animals for food; animal production operations; livestock markets; slaughter and packing plants, manufacturers, renderers, and associated regulatory and government workforce.
15. Transportation supporting animal agricultural industries, including movement of animal medical and reproductive supplies and material, animal vaccines, animal drugs, feed ingredients, feed, and bedding, live animals, animal medical materials; transportation of deceased animals for disposal; and associated regulatory and government workforce
16. Workers who support sawmills and the manufacture and distribution of fiber and forest products, including, but not limited to timber, paper, and other wood and fiber products
17. Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary to agricultural production and distribution
18. Workers at animal care facilities that provide food, shelter, veterinary and/or routine care and other necessities of life for animals.
Relevant Sector Guidance: Food, Beverage, Other Services Alimentos, Bebidas y Otros Sitios de Servicios Relacionados Food Industry and Food Supply Chain
7

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1002 Page 54 of 116
April 28, 2020
4. ENERGY
Sector Profile
The Energy Sector consists of widely diverse and geographically dispersed critical assets and systems that are often interdependent of one another. This critical infrastructure is divided into three interrelated segments or subsectors electricity, oil, and natural gas to include the production, refining, storage, and distribution of oil, gas, and electric power. The Energy Sector supplies fuels to the transportation industry, electricity to households and businesses, and other sources of energy
transportation, information technology, communications, finance, water, and government infrastructures.
Essential Workforce, if remote working is not possible:
1. Workers supporting the energy sector, regardless of the energy source, segment of the system, or infrastructure the worker is involved in, or who are needed to monitor, operate, engineer, and maintain the reliability, safety, environmental health, physical and cyber security of the energy system, including power generation, transmission and distribution.
2. Workers supporting the energy sector, regardless of the energy source, needed for construction, manufacturing, transportation and logistics, maintenance, and permitting.
3. IT and OT technology for essential energy sector operations including support workers, customer service operations, call centers, and emergency response and customer emergency operations; energy management systems, control systems, Supervisory Control and Data Acquisition SCADA systems, and energy sector entity data centers; cybersecurity engineers; and cybersecurity risk management.
4. Workers providing services related to energy sector fuels and supply chains, supporting the procurement, mining, drilling, processing, refining, manufacturing, refueling, construction, logistics, transportation (including marine transport, terminals, rail and vehicle transport), permitting operation and maintenance, security, waste disposal, storage, and monitoring of support for resources;
5. Workers supporting environmental remediation and monitoring. 6. Workers supporting manufacturing and distribution of equipment, supplies, and parts necessary
to maintain production, maintenance, restoration, and service at energy sector facilities across all energy sectors, and regardless of the energy source. 7. Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and technicians to manage the network or operate facilities. 8. Workers at Reliability Coordinator, Balancing Authorities, and primary and backup Control Centers, including but not limited to independent system operators, regional transmission organizations, and balancing authorities; and workers involved in energy commodity trading and scheduling. 9. Mutual assistance personnel, which may include workers from outside of the state or local jurisdiction 10. Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them.
8

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1003 Page 55 of 116 April 28, 2020
5. WATER AND WASTEWATER
Sector Profile The Water and Wastewater Sector is a complex sector composed of drinking water and wastewater infrastructure of varying sizes and ownership types. Multiple governing authorities pertaining to the Water and Wastewater Sector provide for public health, environmental protection, and security measures, among others. Essential Workforce, if remote working is not practical: Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including: 1. Operational staff at water authorities 2. Operational staff at community water systems 3. Operational staff at wastewater treatment facilities 4. Workers repairing water and wastewater conveyances and performing required sampling or
monitoring 5. Operational staff for water distribution and testing 6. Operational staff at wastewater collection facilities 7. Operational staff and technical support for SCADA Control systems 8. Chemical disinfectant suppliers for water and wastewater and personnel protection 9. Workers that maintain digital systems infrastructure supporting water and wastewater
operations
9

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1004 Page 56 of 116
April 28, 2020
6. TRANSPORTATION AND LOGISTICS
Sector Profile
The Transportation Systems Sector consists of seven key subsectors, or modes:
Aviation includes aircraft, air traffic control systems, and airports, heliports, and landing strips. Commercial aviation services at civil and joint-use military airports, heliports, and sea plane bases. In addition, the aviation mode includes commercial and recreational aircraft (manned and unmanned) and a wide variety of support services, such as aircraft repair stations, fueling facilities, navigation aids, and flight schools.
Highway and Motor Carrier encompasses roadway, bridges, and tunnels. Vehicles include trucks, including those carrying hazardous materials; other commercial vehicles, including bicycles, commercial motor coaches and school buses; vehicle and driver licensing systems; taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies; traffic management systems; AND cyber systems used for operational management.
Maritime Transportation System consists of coastline, ports, waterways, and intermodal landside connections that allow the various modes of transportation to move people and goods to, from, and on the water.
Mass Transit and Passenger Rail includes terminals, operational systems, and supporting infrastructure for passenger services by transit buses, trolleybuses, monorail, heavy rail also known as subways or metros light rail, passenger rail, and vanpool/rideshare.
Pipeline Systems consist of pipelines carrying natural gas hazardous liquids, as well as various chemicals. Above-ground assets, such as compressor stations and pumping stations, are also included.
Freight Rail consists of major carriers, smaller railroads, active railroad, freight cars, and locomotives.
Postal and Shipping includes large integrated carriers, regional and local courier services, mail services, mail management firms, and chartered and delivery services.
Essential Workforce, if remote working is not practical:
1. Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, towing and recovery services, roadside assistance workers, intermodal transportation personnel, and workers that maintain and inspect infrastructure
2. Working supporting or providing services that enable logistics operations for essential sectors, wholesale and retail sale, including warehousing, cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
3. Workers supporting maintenance and operation of essential highway infrastructure, including roads, bridges, and tunnels.
10

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1005 Page 57 of 116
April 28, 2020
4. Workers of firms providing services, supplies, and equipment that enable warehouse and operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
5. Mass transit workers providing critical transit services and/or performing critical or routine maintenance to mass transit infrastructure or equipment.
6. Employees supporting personal and commercial transportation services, including taxis, bicycle services, Transportation Network Companies, and delivery services including Delivery Network Companies
7. Workers responsible for operating dispatching passenger, commuter and freight trains and maintaining rail infrastructure and equipment
8. Maritime transportation and inland waterway workers to include maintenance and repair including port authority and commercial facility personnel, dredgers, port workers, mariners, ship crewmembers, ship pilots and tugboat operators, ship supply, chandler, and equipment operators.
9. Workers who support the operation, inspection, and maintenance of essential dams, locks, and levees.
10. Workers who support the inspection and maintenance of aids to navigation and other government-provided services that ensure continued maritime commerce.
11. Workers supporting transportation of chemicals, hazardous, medical, waste and recyclable materials to support critical sectors and infrastructure.
12. Automotive repair, maintenance, and transportation equipment manufacturing and distribution facilities.
13. Transportation safety inspectors, including hazardous material inspectors and accident investigator inspectors
14. Manufacturers and distributors (to include service centers and related operations) of lighting and communication systems, specialized signage and structural systems, emergency response equipment and support materials, printers, printed materials, packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations
15. Postal, parcel, courier, last-mile delivery, and shipping workers, to include private companies who accept, process, transport, and deliver information and goods.
16. Workers who supply equipment and materials for maintenance of transportation equipment. 17. Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, bicycles,
and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers 18. Workers who support air transportation for cargo and passengers, including operation distribution, maintenance, and sanitation. This includes air traffic controllers, flight dispatchers, maintenance personnel, ramp workers, fueling agents, flight crews, airport safety inspectors and engineers, airport operations personnel, aviation and aerospace safety workers, security, commercial space personnel, operations personnel, accident investigators, flight instructors, and other on- and off-airport facilities workers. 19. Workers critical to the manufacturing, distribution, sales, rental, leasing, repair, and maintenance of vehicles and other transportation equipment (including electric vehicle charging stations) and the supply chains that enable these operations, subject to adhering public health guidance issued by CDPH. 20. Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, construction material
11

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1006 Page 58 of 116 April 28, 2020
suppliers, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues 21. Workers who support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications.
12

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1007 Page 59 of 116
April 28, 2020
7. COMMUNICATIONS AND INFORMATION TECHNOLOGY
Sector Profile
The Communications Sector provides products and services that support the efficient operation of -based society. Communication networks enable people around the world
to contact one another, access information instantly, and communicate from remote areas. This involves creating a link between a sender (including voice signals) and one or more recipients using technology (e.g., a telephone system or the Internet) to transmit information from one location to another. Technologies are changing at a rapid pace, increasing the number of products, services, service providers, and communication options. The national communications architecture is a complex collection of networks that are owned and operated by individual service providers. Many
provided by other critical infrastructure sectors. The nature of communication networks involves both physical infrastructure (buildings, switches, towers, antennas, etc.) and cyber infrastructure (routing and switching software, operational support systems, user applications, etc.), representing a holistic challenge to address the entire physical-cyber infrastructure.
The IT Sector provides products and information-based society and are integral to the operations and services provided by other critical infrastructure Sectors. The IT Sector is comprised of small and medium businesses, as well as large multinational companies. Unlike many critical infrastructure Sectors composed of finite and easily identifiable physical assets, the IT Sector is a functions-based Sector that comprises not only physical assets but also virtual systems and networks that enable key capabilities and services in both the public and private sectors.
Essential Workforce Communications, if remote working is not practical:
1. Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, Internet Exchange Points, Network Access Points, back haul and front haul facilities, and manufacturers and distributors of communications equipment.
2. Workers performing functions related to undersea cable infrastructure and support facilities, including cable landing sites, beach manhole vaults and covers, submarine cable depots, and submarine cable ship facilities
3. Government and private sector employees supporting Department of Dense internet and communications facilities.
4. Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering, reporting, and publishing news.
5. Network Operations staff, engineers and/or technicians to include IT managers and staff, HVAC & electrical engineers, security personnel, software and hardware engineers, and database administrators that manage the network or operate facilities
6. Workers responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes construction of
13

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1008 Page 60 of 116
April 28, 2020
new facilities and deployment of new technology required to address congestion or customer usage on remote services. 7. Installation, maintenance and repair technicians that establish, support or repair service as needed. 8. Central office personnel to maintain and operate central office, data centers, and other network office facilities, and critical support personnel assisting front line employees 9. Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, logistics and troubleshooting 10. Workers providing electronic security, fire, monitoring, and life safety services, and who ensure physical security, cleanliness, and the safety of facilities and personnel, including those who provide temporary licensing waivers for security personnel to work in other States or Municipalities. 11. Dispatchers involved with service repair and restoration 12. Retail customer service personnel at critical service center locations for onboarding customers, distributing and repairing remote emergency communications needs; 13. External Affairs personnel to assist in coordinating with local, state, and federal officials to address communications needs supporting COVID-19 response, public safety, and national security. 14. Workers responsible for ensuring that persons with disabilities have access to and the benefits of various communications platforms, including those involved in the provision of telecommunication relay services, closed captioning of broadcast television for the deaf, video relay services for deaf citizens who prefer communication via American Sign Language over text, and audio-description for television programming.
Essential Workforce - Information Technology, if remote working is not practical:
15. Workers who support command centers, including, but not limited to Network Operations Command Centers, Broadcast Operations Control Center and Security Operations Command Centers
16. Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers and purchasers, data transfer solutions engineers, software and hardware engineers, and database administrators
17. Workers who support client service centers, field engineers, and other workers supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, support services, research and development, information technology equipment (to include microelectronics and semiconductors), and HVAC and electrical equipment for critical infrastructure and test labs and certification agencies that qualify such equipment for critical infrastructure.
18. Workers needed to pre-empt and respond to cyber incidents involving critical infrastructure,, and entities supporting the functioning of critical infrastructure sectors
19. Suppliers, designers, transporters and other workers supporting the manufacture, distribution, and construction of essential global, national and local infrastructure for computing services (including cloud computing services and teleworking capabilities), business infrastructure, financial transactions, web-based services, and critical manufacturing
14

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1009 Page 61 of 116 April 28, 2020
20. Workers supporting communications systems, information technology, and work from home solutions
21. Employees required to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.
15

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1010 Page 62 of 116
April 28, 2020
8. GOVERNMENT OPERATIONS AND OTHER COMMUNITY-BASED ESSENTIAL FUNCTIONS
Essential Workforce, if remote working is not practical.
1. Critical government workers, as defined by the employer and consistent with Continuity of Operations Plans and Continuity of Government plans.
2. County workers responsible for determining eligibility for safety net benefits 3. The Courts, consistent with guidance released by the California Chief Justice 4. Workers who support administration and delivery of unemployment insurance programs,
insurance and benefits programs, and pandemic assistance 5. Workers to ensure continuity of building functions, including but not limited to security and
environmental controls, the manufacturing and distribution of the products required for these functions, and the permits and inspection for construction. 6. Elections personnel 7. Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential Functions and communications networks 8. Trade Officials (FTA negotiators; international data flow administrators) 9. Weather forecasters 10. Workers that maintain digital systems infrastructure supporting other critical government operations 11. Workers who support necessary credentialing, vetting and licensing operations for critical sector workers and operations. 12. Workers who are critical to facilitating trade in support of the national, state, and local emergency response supply chain 13. Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors 14. Staff at government offices who perform title search, notary, and recoding services in support of mortgage and real estate services and transactions; 15. Workers and instructors supporting academies and training facilities and courses for the purpose of graduating students and cadets that comprise the essential workforce for all identified critical sectors 16. Clergy for essential support and faith-based services that are provided through streaming or other technologies that support physical distancing and state public health guidelines. 17. Human services providers, especially for at risk populations, including home delivered meal providers for older adults, people with disabilities, and others with chronic health conditions; home-maker services for frail, homebound, older adults; personal assistance services providers to support activities of daily living for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services; home health providers who deliver health care services for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services. 18. Government entities, and contractors that work in support of local, state, and federal public health and medical mission sets, including but not limited to supporting access to healthcare and associated payment functions, conducting public health functions, providing medical care,
16

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1011 Page 63 of 116 April 28, 2020
supporting emergency management, or other services necessary for supporting the COVID-19 response. Relevant Sector Guidance: Schools and institutions of higher education
Guidance for schools (PDF) Directrices para las escuelas sobre el nuevo coronavirus o COVID-19 (PDF) Guidance for colleges and universities Directrices para las instituciones de educación superior sobre el nuevo coronavirus o COVID-19 Guidance for K-12 Schools: Distance Learning, School Meals, Child Care and Student Supervision Guidance for Using Disinfectants at Schools and Child Cares Recordatorios para el uso de desinfectantes en las escuelas y guarderías Community care facilities, including assisted living facilities and child care
17

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1012 Page 64 of 116 April 28, 2020
9. CRITICAL MANUFACTURING
Sector Profile The Critical Manufacturing Sector identifies several industries to serve as the core of the sector: Primary Metals Manufacturing, Machinery Manufacturing, Electrical Equipment, Appliance, and Component Manufacturing, Transportation Equipment Manufacturing Products made by these manufacturing industries are essential to many other critical infrastructure sectors. Essential Workforce, if remote working is not practical 1. Workers necessary for the manufacturing of metals, industrial minerals, semiconductors,
materials and products needed for supply chains of the critical infrastructure sectors. 2. Workers necessary for the manufacturing of materials and products needed to manufacture
medical equipment and personal protective equipment 3. Workers necessary for mining and production of critical minerals, materials and associated
essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for mining production and distribution. 4. Workers who produce or manufacture parts or equipment that supports continued operations for any essential services and increase in remote workforce, including computing and communication devices, semiconductors, and equipment such as security tools for Security Operations Centers (SOCs) or data centers. 5. Workers manufacturing or providing parts and equipment that enable the maintenance and continued operation of essential businesses and facilities.
18

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1013 Page 65 of 116 April 28, 2020
10. FINANCIAL SERVICES
Sector Profile The Financial Services Sector includes thousands of depository institutions, providers of investment products, insurance companies, other credit and financing organizations, and the providers of the critical financial utilities and services that support these functions. Financial institutions vary widely employees and many billions of dollars in assets, to community banks and credit unions with a small number of employees serving individual communities. Whether an individual savings account, financial derivatives, credit extended to a large organization, or investments made to a foreign country, these products allow customers to: Deposit funds and make payments to other parties; Provide credit and liquidity to customers; Invest funds for both long and short periods; Transfer financial risks between customers.
Essential Workforce, if remote working is not practical: 1. Workers who are needed to process and maintain systems for processing financial transactions
and services, including payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities 2. Workers who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services. 3. Workers who are needed to provide business, commercial, and consumer access to banking and non-bank financial and lending services, including ATMs, lending money transmission, and to move currency, checks, securities, and payments 4. Workers who support financial operations, such as those staffing call, data and security operations centers, managing physical security, or providing accounting services. 5. Workers supporting production and distribution of debit and credit cards. 6. Workers providing electronic point of sale support personnel for essential businesses and workers.
19

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1014 Page 66 of 116 April 28, 2020
11. CHEMICAL & HAZARDOUS MATERIALS
Sector Profile The Chemical Sector composed of a complex, global supply chain converts various raw materials into diverse products that are essential to modern life. Based on the product produced, the sector can be divided into five main segments, each of which has distinct characteristics, growth dynamics, markets, new developments, and issues: Basic chemicals; Specialty chemicals; Agricultural chemicals; Pharmaceuticals; Consumer products.
Essential Workforce, if remote working is not practical: 1. Workers supporting the chemical and industrial gas supply chains, including workers at chemical
manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, textiles, building materials, plumbing, electrical and paper products. 2. Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items 3. Workers supporting the production of protective cleaning and medical solutions, personal protective equipment, disinfectants, and packaging that prevents the contamination of food, water, medicine, among others essential products 4. Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections 5. Workers who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products, including glass container manufacturing 6. Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits 7. Workers who support hazardous materials response and cleanup 8. Workers who maintain digital systems infrastructure supporting hazardous materials management operations 9. Workers who support the removal, storage, and disposal of residential and commercial solid waste and hazardous waste, including landfill and recycling operations.
20

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1015 Page 67 of 116 April 28, 2020
12. DEFENSE INDUSTRIAL BASE
Sector Profile The Defense Industrial Base Sector is the worldwide industrial complex that enables research and development, as well as design, production, delivery, and maintenance of military weapons systems, subsystems, and components or parts, to meet U.S. military requirements. The Defense Industrial Base partnership consists of Department of Defense components, Defense Industrial Base companies and their subcontractors who perform under contract to the Department of Defense, companies providing incidental materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities. Defense Industrial Base companies include domestic and foreign entities, with production assets located in many countries. The sector provides products and services that are essential to mobilize, deploy, and sustain military operations.
Essential Workforce, if remote working is not practical: 1. Workers who support the essential services required to meet national security commitments to
the federal government and U.S. Military, including, but are not limited to, space and aerospace workers, nuclear matters workers, mechanical and software engineers (various disciplines), manufacturing and production workers, IT support, security staff, security personnel, intelligence support, aircraft and weapon system mechanics and maintainers, and sanitary workers who maintain the hygienic viability of necessary facilities. 2. Personnel working for companies, and their subcontractors, who perform under contract or subcontract to the Department of Defense (DoD) and the Department of Energy (DoE) (on nuclear matters), as well as personnel at government-owned/contractor operated facilities, and who provide materials and services to the DoD and DoE (on nuclear matters), including support for weapon systems, software systems and cybersecurity, defense and intelligence communications, surveillance, sale of U.S. defense articles and services for export to foreign allies and partners (as authorized by the U.S. government), and space systems and other activities in support of our military, intelligence, and space forces.
21

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1016 Page 68 of 116
April 28, 2020
13. INDUSTRIAL, COMMERCIAL, RESIDENTIAL, and SHELTERING FACILITIES AND SERVICES
Essential Workforce, if remote working is not practical:
1. Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing, commercial, and mixed-use construction); and workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions.
2. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, recycling and disposal of solid waste and hazardous waste)
3. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses, and buildings such as hospitals and senior living facilities, including any facility supporting COVID-19 response.
4. Workers who support the supply chain of building materials from production through application and installation, including cabinetry, fixtures, doors, cement, hardware, plumbing (including parts and services), electrical, heating and cooling, refrigeration, appliances, paint and coatings, and workers who provide services that enable repair materials and equipment for essential functions.
5. Workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant retailers, wholesalers and distributors that support essential workforce functions where sales and operations cannot be conducted online
6. Warehouse operators, including vendors and support personnel critical for business continuity (including heating, ventilation, and air conditioning (HVAC) and electrical engineers, security personnel, and janitorial staff), e-commerce or online commerce, and customer service for essential functions.
7. Workers supporting the operations of commercial buildings that are critical to safety, security, and the continuance of essential activities, such as on-site property managers, building engineers, security staff, fire safety directors, janitorial personnel, and service technicians (e.g., mechanical, HVAC, plumbers, electricians, and elevator).
8. Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions, that accept, store, and process goods, and that facilitate their transportation and delivery
9. Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.
10. Workers managing or servicing hotels or other commercial and residential buildings that are used for COVID-19 mitigation and containment measures, treatment measures, provide accommodation for essential workers, or providing housing solutions, including measures to protect homeless populations.
22

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1017 Page 69 of 116 April 28, 2020

11. Workers responsible for the leasing of residential and commercial properties to provide

individuals and families with ready access to available housing.

12. Residential and commercial real estate workers, limited to scheduled property viewings to a

potential buying party. This does not extend to open-house viewings, nor viewings with more

than one buying party at a time.

13. Professional services, such as legal or accounting services, when necessary to assist in

compliance with legally mandated activities and critical sector services

14. Workers responsible for handling property management, maintenance, and related service calls

who can coordinate the response to emerg

-

attention, as well as facilitate the reception of deliveries, mail, and other necessary services.

15. Workers supporting the entertainment industries, studios, and other related establishments,

provided they follow covid-19 public health guidance around physical distancing.

16. Workers that provide or determine eligibility for food, shelter, in-home supportive services,

child welfare, adult protective services and social services, and other necessities of life for

economically disadvantaged or otherwise needy individuals (including family members)

17. Workers performing services in support of the elderly and disabled populations who coordinate

a variety of services, including health care appointments and activities of daily living.

18. Workers who provide support to vulnerable populations to ensure their health and well-being

including family care providers.

19. Workers providing dependent care services, particularly those whose services ensure essential

workers can continue to work.

20. Workers who support food, shelter, and social services, and other necessities of life for

economically disadvantaged or otherwise needy individuals, such as those residing in shelters.

21. Workers in laundromats, laundry services, and dry cleaners.

22. Workers providing disinfection services, for all essential facilities in essential sectors

23. Workers necessary for the installation, maintenance, distribution, and manufacturing of water

and space heating equipment and its components.

24. Support required for continuity of services, including commercial disinfectant services,

janitorial/cleaning personnel, and support personnel functions that need freedom of movement

to access facilities in support of front-line employees.

Relevant Sector Guidance:
Cleaning & Waste Management for Residences 2/2020 Essential/Emergency Personnel Providing Critical In-Home Services Home cleaning with COVID-19 positive individuals Recommended Strategic Approaches for COVID-19 Response for Individuals Experiencing Homelessness Flow Chart: COVID-19 Recommended Protocol for People Experiencing Homelessness Homeless Assistance Providers Immigrant Communities
Las Comunidades de Inmigrantes Pets & People

23

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1018 Page 70 of 116
EXHIBIT 1-3

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1019 Page 71 of 116

.GOVCalifornia Coronavirus (COVID-19) Response

Search

Select language

Resilience Roadmap
Last updated May 7, 2020at12:34 PM

= Menu

Californians have been staying home and saving lives since the start of our statewide stay-athome order issued on March 19, 2020. These efforts have allowed the state to move forward on our road ma~ for modifying the statewide order.
We are now moving into Stage 2, where some lower-risk workplaces can gradually open with adaptations. The state is issuing guidance to help these workplaces reopen safely.

STAGE 1: Safety and preparedness

>

Make workplaces safe for our essential workers.
(Current stage)

STAGE2: Lower-risk workplaces

>

Gradually reopen retail (curbside only), manufacturing & logistics. Later, relax retail restrictions, adapt & reopen schools, child care, offices & limited hospitality, personal services.
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1020 Page 72 of 116
>
STAGE3: Higher-risk workplaces
Adapt and reopen movie theaters, religious services, & more personal & hospitality services.

STAGE4: End of Stay Home Order

>

Reopen areas of highest risk: e.g. Concerts, conventions, sports arenas.

When modifications are advanced and the state's six indicators show we've made enough progress, we can move to the next stage of the roadmap.
Stage 2 expansion will be phased in gradually. Some communities may move through Stage 2 faster if they are able to show greater progress and counties that have met the readiness criteria and worked with the California Department of Public Health can open more workplaces as outlined in the County,: Variance Guidance.

Industry guidance to reduce the risk
California will move into Stage 2 of modifying the state's Stay-at-Home order on May 8, 2020. Our progress in achieving key P-Ublic health metrics will allow a gradual re-opening of California's economy.
We recognize the impact of economic hardship. We must get our economy roaring once again and put paychecks in people's pockets. But the risk of COVID-19 infection is still real for all Californians and continues to be fatal.
That is why every business should take every step humanly possible to reduce the risk of infection:

Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1021 Page 73 of 116 • Make radical changes within the workplace • Adjust practices by employees and help educate customers
Below are guidance for each early Stage 2 business to follow. The goal is a safe, clean environment for workers and customers. Businesses may use effective alternative or innovative methods to build upon the guidance.
Review the guidance that is relevant to your workplace, prepare a plan based on the guidance for your industry, and put it into action.
When complete, you can post the industry-specific checklist (below) in your workplace to show your customers and your employees that you've reduced the risk and open for business.
Before, reopening, all facilities must:
1. Perform a detailed risk assessment and implement a site-specific protection plan 2. Train employees on how to limit the spread of COVID-19, including how to screen
themselves for sy:mgtoms and stay home if they have them 3. Implement individual control measures and screenings 4. Implement disinfecting protocols 5. Implement physical distancing guidelines
To provide your input on future industry guidance, fill out the California Recovery: RoadmaPsurvey:.
It is critical that employees needing to self-isolate because of COVID-19 are encouraged to stay at home, with sick leave policies to support that, to prevent further infection in your workplace. Additional information on government programs supporting sick leave and worker's compensation for COVID-19 can be found here.
I! Agriculture and livestock
The guidance for the agriculture and livestock jndustr:v. provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the agriculture and livestock industr:v. in your workplace to show customers and employees that you've reduced the risk and are open for business.
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1022 Page 74 of 116
rw., Auto-dealerships
The guidance for the automobile dealershiQs and rental OQerators industrY. provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the automobile dealershiQs and rental oQerators industry in your workplace to show customers and employees that you've reduced the risk and are open for business.
Ii Communications infrastructure
The guidance for the communications infrastructure jndustn~ provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the communications infrastructure industrY. in your workplace to show customers and employees that you've reduced the risk and are open for business.
~ Construction
This guidance for the construction industry_provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the construction industrY. in your workplace to show customers and employees that you've reduced the risk and are open for business.
C> Delivery services
The guidance for the deliverY. services industrY. provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the deliverY.
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1023 Page 75 of 116
services industry_in your workplace to show customers and employees that
& Energy and utilities
The guidance for the energy and utilities industry: provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the energy....a.n.d. utilities industry: in your workplace to show customers and employees that you've reduced the risk and are open for business.

~ Food packing
The guidance for facilities that process or pack meat, dairy:, provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for facilities that process or pack meat,...d..filry....QLproduce in your workplace to show customers and employees that you've reduced the risk and are open for business.

Iii Hotels and lodging
The guidance for the hotels and lodging industry: provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the hotels and lodging industry: in your workplace to show customers and employees that you've reduced the risk and are open for business.

$ Life sciences

Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1024 Page 76 of 116
Review the guidance, prepare a plan, and post the checklist for the Life sciences industrY- in your workplace to show customers and employees that you've reduced the risk and are open for business.
mLogistics and Warehousing Facilities
The guidance for businesses OQerating in the logistics/warehousing industrYprovides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the .lggistics/warehousing industrY- in your workplace to show customers and employees that you've reduced the risk and are open for business.
Manufacturing
The guidance for the manufacturing industry_provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the manufacturing industrY- in your workplace to show customers and employees that you've reduced the risk and are open for business.
Ill Mining and logging
The guidance for the mining and logging industries provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the mining and logging industries in your workplace to show customers and employees that you've reduced the risk and are open for business.
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1025 Page 77 of 116
The guidance for businesses operating in office workspaces provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for office workspaces in your workplace to show customers and employees that you've reduced the risk and are open for business.
0 Ports
This Guidance for the port industrY- provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the port jndustrYin your workplace to show customers and employees that you've reduced the risk and are open for business.
~ Public Transit and Intercity Passenger Rail
This guidance for public transit agencies provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for public transit .agencies in your workplace to show customers and employees that you've reduced the risk and are open for business.
0 Real estate transaction
This Guidance for businesses operating in the real estate industrY- provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for the real estate industrY- in your workplace to show customers and employees that you've reduced the risk and are open for business.
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1026 Page 78 of 116 ~Retail
This guidance for retailers provides guidelines to create a safer environment for workers. Review the guidance, prepare a plan, and post the checklist for retailers in your workplace to show customers and employees that you've reduced the risk and are open for business.
Customers and individuals
Customers and individuals are encouraged to stay home if they have a fever or other COVID-19 symptoms. Those with symptoms or elevated temperatures should not shop, get services in person, go to work or congregate with others. If you're not sure if this applies to you, check your symptoms with this SY.mgtom Screener. Higher risk individuals should continue to stay home until Stage 4.
Roadmap for Reopening Businesses
Before re-opening, all facilities must first perform a detailed risk assessment and implement a site-specific protection plan. Adaptations need to be made before Stage 2 workplaces can open - currently that includes modifications like curbside pickup at retail locations.
STAGE 1: Safety and Preparedness
>
Only essential businesses and workplaces are open
See the full list of essential workforce designations on the essential workforce page.

STAGE 2: Lower-risk workplaces

Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1027 Page 79 of 116
>
Can open with modifications
• Curbside retail, including but not limited to: Bookstores, jewelry stores, toy stores, clothing stores, shoe stores, home and furnishing stores, sporting goods stores, antique stores, music stores, florists. Note: this will be phasedin, starting first with curbside pickup and delivery only until further notice.
• Supply chains supporting the above businesses, in manufacturing and logistical sectors
Can open later in Stage 2:
• Destination retail, including shopping malls and swap meets. • Personal services, limited to: car washes, pet grooming, tanning facilities,
and landscape gardening. • Office-based businesses (telework remains strongly encouraged) • Dine-in restaurants (other facility amenities, like bars or gaming areas, are
not permitted) • Schools and childcare facilities • Outdoor museums and open gallery spaces
NOT in Stage 1 or 2: Higher-risk Workplaces
• Personal services such as nail salons, tattoo parlors, gyms and fitness studios
• Hospitality services, such as bars and lounges • Entertainment venues, such as movie theaters, gaming facilities, and pro
sports • Indoor museums, kids museums and gallery spaces, zoos, and libraries
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1028 Page 80 of 116
• Religious services and cultural ceremonies • Nightclubs • Concert venues • Festivals
• Thome n~rlcc::
Department of Public Health Governor's Newsroom Statewide COVID19 Hotline Accessibility Privacy Policy Feedback Official California State Government Website
Home Search Back to top Menu

~ Case 3:20-cv-00865-BAS-AHG Document 11 9 ~~EJj PublicHealth

Filed 05/11/20 PageID.1029 Page 81 of 116
m::~
DEPARTMENT OF INDUSTRIAL RELA1iONS

CALIFORNIA
ALL
Your Actions Save Lives
~ nv1d 19 ( c1 q( v

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1030 Page 82 of 116
OVERVIEW
On March 19, 2020, the State Public Health Officer and Director of the California Department of Public Health issued an order requiring most Californians to stay at home to disrupt the spread of COVID-19 among the population.
The impact of COVID-19 on the health of Californians is not yet fully known. Reported illness ranges from very mild (some people have no symptoms] to severe illness that may result in death. Certain groups, including people aged 65 or older and those with serious underlying medical conditions, such as heart or lung disease or diabetes, are at higher risk of hospitalization and serious complications. Transmission is most likely when people are in close contact with an infected person, even if that person does not have any symptoms or has not yet developed symptoms.
Precise information about the number and rates of COVID-19 by industry or occupational groups, including among critical infrastructure workers, is not available at this time. There have been multiple outbreaks in a range of workplaces, indicating that workers are at risk of acquiring or transmitting COVID-19 infection. Examples of these workplaces include long-term care facilities, prisons, food production, warehouses, meat processing plants, and grocery stores.
As stay-at-home orders are modified, it is essential that all possible steps be taken to ensure the safety of workers and the public.
Key prevention practices include: v" physical distancing to the maximum extent possible, v" use of face coverings by employees (where respiratory protection is not required] and customers/clients, v" frequent handwashing and regular cleaning and disinfection, v" training employees on these and other elements of the COVID-19 prevention plan.
In addition, it will be critical to have in place appropriate processes to identify new cases of illness in workplaces and, when they are identified, to intervene quickly and work with public health authorities to halt the spread of the virus.
Purpose
This document provides guidance for the manufacturing industry to support a safe, clean environment for workers. The guidance is not intended to revoke or repeal any employee rights, either statutory, regulatory or collectively bargained, and is not exhaustive, as it does not include county health orders, nor is it a substitute for any existing safety and health-related regulatory requirements such as those of Cal/OSHA.l Stay current on changes to public health guidance and state/local orders, as the COVID-19 situation continues. Cal/OSHA has additional safety and health guidance on their Cal/OSHA COVID-19 Infection Prevention for Logistics Employers and Employees

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1031 Page 83 of 116
webpage. CDC has additional information on their guidance for businesses and employers.
Worksite Specific Plan
• Establish a written, worksite-specific COVID-19 prevention plan at every facility, perform a comprehensive risk assessment of all work areas, and designate a person at each facility to implement the plan.
• Identify contact information for the local health department where the facility is located for communicating information about COVID-19 outbreaks among employees.
• Train and communicate with employees and employee representatives on the plan.
• Regularly evaluate the workplace for compliance with the plan and document and correct deficiencies identified.
• Investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection. Update the plan as needed to prevent further cases.
• Identify close contacts (within six feet for 10 minutes or more) of an infected employee and take steps to isolate COVID-19 positive employee(s) and close contacts.
• Adhere to the guidelines below. Failure to do so could result in workplace illnesses that may cause operations to be temporarily closed or limited.
Topics for Employee Training
• Information on COVID-19, how to prevent it from spreading, and which underlying health conditions may make individuals more susceptible to contracting the virus.
• Self-screening at home, including temperature and/or symptom checks using CDC guidelines.
• The importance of not coming to work if employees have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, recent loss of taste or smell, or if they or someone they live with have been diagnosed with COVID-19.
3

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1032 Page 84 of 116
• To seek medical attention if their symptoms become severe, including persistent pain or pressure in the chest, confusion, or bluish lips or face. Updates and further details are available on CDC's webpage.
• The importance of frequent handwashing with soap and water, including scrubbing with soap for 20 seconds (or using hand sanitizer with at least 603 ethanol or 703 isopropanol when employees cannot get to a sink or handwashing station, per CDC guidelines).
• The importance of physical distancing, both at work and off work time (see Physical Distancing section below).
• Proper use of face coverings, including:
o Face coverings do not protect the wearer and are not personal protective equipment (PPE).
o Face coverings can help protect people near the wearer, but do not replace the need for physical distancing and frequent handwashing.
o Employees should wash or sanitize hands before and after using or adjusting face coverings.
o Avoid touching eyes, nose, and mouth.
o Face coverings should be washed after each shift.
Individual Control Measures and Screening
• Provide temperature and/or symptom screenings for all workers at the beginning of their shift and any personnel entering the facility. Make sure the temperature/symptom screener avoids close contact with workers to the extent possible. Both screeners and employees should wear face coverings for the screening.
• Encourage workers who are sick or exhibiting symptoms of COVID-19 to stay home.
• Employers should provide and ensure workers use all required protective equipment. Employers should consider where disposable glove use may be helpful to supplement frequent handwashing or use of hand sanitizer; examples are for workers who are screening others for symptoms or handling commonly touched items.
• Face coverings are strongly recommended when employees are not required to wear respirators for other hazards and are in the vicinity of others. Workers should have face coverings available and wear them
4

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1033 Page 85 of 116
when at work, in offices, or in a vehicle for work-related travel with others. Face coverings must not be shared.
• Non-employees entering the facility should be restricted to only those classified as essential by management and they must complete a temperature and/or symptom screening before entering. Contractors, vendors, and all others entering the facility are strongly recommended to wear face coverings.
Cleaning and Disinfecting Protocols
• Perform thorough cleaning on high traffic areas such as break rooms, lunch areas, and changing areas, and areas of ingress and egress including, stairways and stairwells, handrails, and elevators controls. Frequently disinfect commonly used surfaces, including, doorknobs, toilets, and handwashing facilities.
• Clean touchable surfaces between shifts or between users, whichever is more frequent, including but not limited to working surfaces, tools, handles and latches, and controls on stationary and mobile equipment, including surfaces in the cabs of all vehicles.
• Avoid sharing phones, office supplies, other work tools, or handheld mobile communications equipment wherever possible. Individuallyassigned peripheral equipment [keyboards, handsets, headsets, chairs, etc.} should be provided wherever possible. If necessary, clean and disinfect them before and after each use. Never share PPE.
• Provide sufficient time for workers to implement cleaning practices before, during, and after shifts. If cleaning is assigned to the worker, they must be compensated for that time.
• Ensure sanitary facilities restrooms and handwashing stations with soap and hand sanitizer are provided at all sites. Ensure that sanitary facilities stay operational and stocked at all times and provide additional soap, paper towels, and hand sanitizer when needed.
• Stagger breaks and provide additional sanitary facilities [including portable toilets and handwashing stations} if feasible and necessary to maintain physical distancing during scheduled breaks. No-touch sinks, soap dispensers, sanitizer dispensers, and paper towel dispensers should be installed whenever possible.
• When choosing cleaning chemicals, employers should use product approved for use against COVID-19 on the Environmental Protection Agency (EPAl-approved list and follow product instructions. Use disinfectant labels labeled to be effective against emerging viral
5

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1034 Page 86 of 116

pathogens, diluted household bleach solutions {5 tablespoons per gallon of water), or alcohol solutions with at least 703 alcohol that are appropriate for the surface. Provide employees training on manufacturer's directions and Cal/OSHA requirements for safe use. Workers using cleaners or disinfectants should wear gloves as required by the product instructions.

• Employees must be provided and use protective equipment when offloading and storing delivered goods. Employees should inspect deliveries and perform disinfection measures prior to storing goods in warehouses and facilities, when deliveries appear tampered with.

• Require that hard hats and face shields be sanitized at the end of each shift. Clean the inside of the face shield, then the outside, then wash hands.

• Clean delivery vehicles and equipment before and after delivery routes, carry additional sanitation materials during deliveries, and use clean personal protective equipment for each delivery stop.
• For delivery drivers, normally accessible restrooms on routes {e.g., restaurants, coffee shops) may be closed. Employers should provide employees alternative restroom locations and allow time for employees to use them.
• Consider installing portable high-efficiency air cleaners, upgrading the building's air filters to the highest efficiency possible, and making other modifications to increase the quantity of outside air and ventilation in work and break areas.

• Modify offerings in on-site cafeterias, including using prepackaged foods, and safe options for drink, condiment, and flatware dispensing.

t t I

I Physical Distancing Guidelines

• Implement measures to ensure physical distancing of at least six feet between workers. This can include use of physical partitions or visual cues {e.g., floor markings, or signs to indicate to where workers should stand}.

• Adjust safety or other in-person meetings, including interviews, to ensure physical distance and use smaller individual meetings at facilities to maintain physical distancing guidelines.
• Utilize work practices, when feasible, to limit the number of workers on site at one time. This may include scheduling {e.g., staggering shift

6

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1035 Page 87 of 116
start/end times) or rotating access to a designated area during a shift. Stage facilities to stagger work and limit overlap of work crews.
• Stagger employee breaks, within compliance with wage and hour regulations, to maintain physical distancing protocols. Reassign lockers or limit/stagger locker use to increase distance between employees.
• Place additional limitations on the number of workers in enclosed areas, to ensure at least six feet of separation to limit transmission of the virus.
• Close breakrooms, use barriers, or increase distance between tables/chairs to separate workers and discourage congregating during breaks. Where possible, create outdoor break areas with shade covers and seating that ensures physical distancing.
• Workers should consider bringing a lunch made at home or purchase take out or delivery where available as long as they can avoid congested areas.
• Use the following hierarchy to prevent transmission of COVID-19 in work areas especially where physical distancing is difficult to maintain: engineering controls, administrative controls, and PPE.
o Engineering controls include creating physical or spatial barriers between employees such as Plexiglas or other sturdy and impermeable partitions.
o Administrative controls include increasing the number of shifts to reduce the number of personnel present at one time and ensure adequate physical distancing.
o PPE includes face shields, some masks, and impermeable gloves. Note that some disposable equipment such as some face shields and respirators are prioritized for health care workers and workers that handle pathogens and should not otherwise be used.
• Install production transfer-aiding materials, such as shelving and bulletin boards, to reduce person-to-person production hand-offs.
• Designate separate entrance and exits and post signage to this effect.
7

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1036 Page 88 of 116
1Additional requirements must be considered for vulnerable populations. The manufacturing industry must comply with all Cal/OSHA standards and be prepared to adhere to its guidance as well as guidance from the Centers for Disease Control and Prevention fCDC! and the California Department of Public Health (CDPHl. Additionally, employers must be prepared to alter their operations as those guidelines change.

covid19.ca.gov \\\\\

~11

IEilJ

~ Case 3:20-cv-00865-BAS-AHG Document 11 9 ~~EJj PublicHealth

Filed 05/11/20 PageID.1037 Page 89 of 116
m::~
DEPARTMENT OF INDUSTRIAL RELA1iONS

CALIFORNIA
ALL
Your Actions Save Lives
~ nv1d 19 ( c1 q( v

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1038 Page 90 of 116
OVERVIEW
On March 19, 2020, the State Public Health Officer and Director of the California Department of Public Health issued an order requiring most Californians to stay at home to disrupt the spread of COVID-19 among the population.
The impact of COVID-19 on the health of Californians is not yet fully known. Reported illness ranges from very mild (some people have no symptoms] to severe illness that may result in death. Certain groups, including people aged 65 or older and those with serious underlying medical conditions, such as heart or lung disease or diabetes, are at higher risk of hospitalization and serious complications. Transmission is most likely when people are in close contact with an infected person, even if that person does not have any symptoms or has not yet developed symptoms.
Precise information about the number and rates of COVID-19 by industry or occupational groups, including among critical infrastructure workers, is not available at this time. There have been multiple outbreaks in a range of workplaces, indicating that workers are at risk of acquiring or transmitting COVID-19 infection. Examples of these workplaces include long-term care facilities, prisons, food production, warehouses, meat processing plants, and grocery stores.
As stay-at-home orders are modified, it is essential that all possible steps be taken to ensure the safety of workers and the public.
Key prevention practices include: ~ physical distancing to the maximum extent possible, ~ use of face coverings by employees (where respiratory protection is not required] and customers/clients, ~ frequent handwashing and regular cleaning and disinfection, ~ training employees on these and other elements of the COVID-19 prevention plan.
In addition, it will be critical to have in place appropriate processes to identify new cases of illness in workplaces and, when they are identified, to intervene quickly and work with public health authorities to halt the spread of the virus.
Purpose
This document provides guidance for businesses operating in the logistics/warehousing industry to support a safe, clean environment for employees. The guidance is not intended to revoke or repeal any employee rights, either statutory, regulatory or collectively bargained, and is not exhaustive, as it does not include county health orders, nor is it a substitute for any existing safety and health-related regulatory requirements such as those of Cal/OSHA.l Stay current on changes to public health guidance and state/local orders, as the COVID-19 situation continues. Cal/OSHA has more safety and health guidance on their Cal/OSHA COVID-19 Infection Prevention for Logistics Employers and Employees webpage. CDC has additional requirements in their guidance for businesses and employers and specific guidance for mail and parcel deliverv.

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1039 Page 91 of 116
Worksite Specific Plan
• Establish a written, worksite-specific COVID-19 prevention plan at every facility, perform a comprehensive risk assessment of all work areas, and designate a person at each facility to implement the plan.
• Identify contact information for the local health department where the facility is located for communicating information about COVID-19 outbreaks among employees.
• Train and communicate with employees and employee representatives on the plan.
• Regularly evaluate the workplace for compliance with the plan and document and correct deficiencies identified.
• Investigate any COVID-19 illness and determine if any work-related factors could have contributed to risk of infection. Update the plan as needed to prevent further cases.
• Identify close contacts (within six feet for 10 minutes or more) of an infected employee and take steps to isolate COYID-19 positive employee(s) and close contacts.
• Adhere to the guidelines below. Failure to do so could result in workplace illnesses that may cause operations to be temporarily closed or limited.
Topics for Employee Training
• Information on COVID-19, how to prevent it from spreading, and which underlying health conditions may make individuals more susceptible to contracting the virus.
• Self-screening at home, including temperature and/or symptom checks using CDC guidelines.
• The importance of not coming to work if employees have a frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, recent loss of taste or smell, or if they or someone they live with have been diagnosed with COYID-19.
• To seek medical attention if their symptoms become severe, including persistent pain or pressure in the chest, confusion, or bluish lips or face. Updates and further details are available on CDC's webpage.
3

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1040 Page 92 of 116
• The importance of frequent handwashing with soap and water, including scrubbing with soap for 20 seconds (or using hand sanitizer with at least 603 ethanol or 703 isopropanol when employees cannot get to a sink or handwashing station, per CDC guidelines).
• The importance of physical distancing, both at work and off work time (see Physical Distancing section below).
• Proper use of face coverings, including:
o Face coverings do not protect the wearer and are not personal protective equipment (PPE).
o Face coverings can help protect people near the wearer, but do not replace the need for physical distancing and frequent handwashing.
o Employees should wash or sanitize hands before and after using or adjusting face coverings.
o Avoid touching eyes, nose, and mouth.
o Face coverings should be washed after each shift.
Individual Control Measures and Screening
• Provide temperature and/or symptom screenings for all workers at the beginning of their shift and any personnel entering the facility. Make sure the temperature/symptom screener avoids close contact with workers to the extent possible. Both screeners and employees should wear face coverings for the screening.
• Encourage workers who are sick or exhibiting symptoms of COVID-19 to stay home.
• Employers should provide and ensure workers use all required protective equipment. Employers should consider where disposable glove use may be helpful to supplement frequent handwashing or use of hand sanitizer; examples are for workers who are screening others for symptoms or handling commonly touched items.
• Face coverings are strongly encouraged when employees are in the vicinity of others. Workers should have face coverings available and wear them when at work, in offices, or in a vehicle for work-related travel with others. Face coverings must not be shared.
4

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1041 Page 93 of 116
Cleaning and Disinfecting Protocols
• Perform thorough cleaning on high traffic areas such as break rooms, lunch areas, and changing areas, and areas of ingress and egress including stairways and stairwells, handrails, elevator controls. Frequently disinfect commonly used surfaces, including tables, amenities, doorknobs, toilets, and handwashing facilities.
• Clean touchable surfaces between shifts or between users, whichever is more frequent, including but not limited to working surfaces, machinery, tools, equipment, shelves, storage rooms, handles, latches and locks, and controls on stationary and mobile equipment.
• Require employees to wash hands or use sanitizer between use of shared equipment, such as time clocks and forklifts, and allow work time to do so. Avoid sharing phones, other work tools, or equipment wherever possible. Never share PPE.
• Clean delivery vehicles and equipment before and after delivery, carry additional sanitation materials during deliveries, and use clean personal protective equipment for each delivery stop.
• For delivery drivers, normally accessible restrooms on routes (e.g., restaurants, coffee shops) may be closed. Employers should provide employees alternative restroom locations and allow time for employees to use them.
• Provide time for workers to implement cleaning practices before and after shifts. If cleaning is assigned to the worker, they must be compensated for that time.
• Ensure that sanitary facilities stay operational and stocked at all times and provide additional soap, paper towels, and hand sanitizer when needed. Provide additional sanitary facilities (portable toilets and handwashing stations) if necessary and practical.
• Stagger breaks if feasible to ensure physical distancing and the chance to clean restrooms frequently.
• When choosing cleaning chemicals, employers should use products approved for use against COVID-19 included on the Environmental Protection Agency (EPAl-approved list and follow product instructions. Use disinfectants labeled to be effective against emerging viral pathogens, diluted household bleach solutions {5 tablespoons per gallon of water), or alcohol solutions with at least 703 alcohol that are appropriate for the surface. Provide employees training on
5

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1042 Page 94 of 116

manufacturer's directions and Cal/OSHA requirements for safe use. Workers using cleaners or disinfectants should wear gloves as required by the product instructions.
• Employees should be provided and use protective equipment when offloading and storing delivered goods. Employees should inspect deliveries and perform disinfection measures prior to storing goods in warehouses and facilities when deliveries appear tampered with.
• Consider installing portable high-efficiency air cleaners, upgrading the building's air filters to the highest efficiency possible, and making other modifications to increase the quantity of outside air and ventilation in work and break areas.

t t l

J Physical Distancing Guidelines

• Implement measures to ensure physical distancing of at least six feet between workers, including transportation personnel. These can include use of physical partitions or visual cues such as floor markings, colored tape, or signs to indicate to where workers should stand.
• Minimize transaction time between warehouse employees and transportation personnel. Perform gate check-ins and paperwork digitally if feasible. Require employees to put on face coverings prior to interfacing with transportation personnel and other people entering and exiting the facility.
• Redesign workspaces and shared outdoor spaces to allow for at least six feet between employees.
• Use the following hierarchy to prevent transmission of COYID-19 in work areas especially where physical distancing is difficult to maintain: engineering controls, administrative controls, and PPE.
o Engineering controls include creating physical or spatial barriers between employees such as Plexiglas or other sturdy and impermeable partitions.
o Administrative controls include increasing the number of shifts to reduce the number of personnel present at one time and ensure adequate physical distancing.
o PPE includes face shields, some masks, and impermeable gloves. Note that some disposable equipment such as some face shields and respirators are prioritized for health care workers and workers that handle pathogens and should not otherwise be used.

6

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1043 Page 95 of 116
• Adjust safety and other meetings to ensure physical distance and conduct smaller individual meetings at facilities to maintain physical distancing guidelines.
• Utilize work practices, when feasible, to limit the number of workers on the jobsite at one time. This may include scheduling {e.g., staggering shift start/end times) or rotating crew access to a designated area during a shift. Stage the jobsite to stagger work and limit overlap of work crews.
• Place additional limitations on the number of workers in enclosed areas, where six feet of separation may not be sufficient to limit transmission of the virus.
• Stagger employee breaks, in compliance with wage and hour regulations, to maintain physical distancing protocols.
• Close breakrooms, use barriers, or increase distance between tables/chairs to separate workers and discourage congregating during breaks. Where possible, create outdoor break areas with shade covers and seating that ensures physical distancing.
• Close common areas where personnel are likely to congregate and interact {e.g., kitchenettes, break rooms, etc.). Discourage employees from congregating in high traffic areas.

1Additional requirements must be considered for vulnerable populations. The logistics and warehousing industry must comply with all Cal/OSHA standards and be prepared to adhere to its guidance as well as guidance from the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH). Additionally, employers must be prepared to alter their operations as those guidelines change.

covid19.ca.gov \\\\\

~11

IEilJ

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1044 Page 96 of 116
EXHIBIT 1-4

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1045 Page 97 of 116
Governor Newsom Releases Updated Industry Guidance
Published: May 07, 2020
Guidance will help drive reopening for some sectors - including retail, manufacturingandlogistics - with modifications, beginningFriday, May 8
Regional variance allows for counties to move further into Stage 2 when theyattest to meeting certain criteria
SACRAMENTO- Following up on the state's announcement that it will begin modifying the stay at home order on Friday, May 8, Governor Gavin Newsom today released updated industry guidanee - including for reta ii, manufacturing and logistics - to begin reopening with modifications that reduce risk and establish asafer environment for workers and customers. Click here to see the new guidance. MCalifornians, working together, have flattened the curve. Because of that work, our health data tells us that California can enter the next stage of this pandemic and gradually begin to restart portions of our economy," said Governor Newsom. "It's critical that businesses and employers understand how they can reduce the risk oftransmission and better protect their workers and customers. COVID-19 will be present in our communities until there is a vaccine or therapeutic, and it will be up to all ofus to change our behavior and eliminate opportunities for the disease to spread." ReslUence Roadmap Californians are flattening the curve as pa rt ofthe stay at home order issued on March 19, 2020. These efforts have allowed the state to move forward on the roadmap for modifying the statewide order. The Resilience Roadmap stages that California is using to guide its gradual reopening process are:
• Stage 1: Safety and Preparedness • Stage 2: Lower-Risk Workplaces • Stage 3: Higher-Risk Workplaces • Stage 4: End of Stay at Home Order
When modifications are advanced and the state's six indicators show we've made enough progress, we can move to the next stage of the roadmap. We are now moving into Stage 2, where some lower-risk workplaces can gradually open with adaptations. Stage 2 expansion will be phased in gradually. Some communities may move through Stage 2 faster if they are able to show greater progress, and counties that have met the readiness criteria and worked with the California Department of Public Health can open more workplaces as outlined in the County variance Guidance.
Industry Guidance to reduce the risk
California will move into Stage 2 of modifying the state's stay at home order on May 8, 2020. The state's progress in achieving key public health
metrics will allow a gradual reopening of califomia's economy. The state recognizes the impact of economic hardship, but the risk of COVID-19 infection is still real for all Californians and continues to be fatal. That is why every business should take every step possible to reduce the risk of infection:
• Plan and prepare for reopening • Make radical changes within the workplace • Adjust practices by employees and help educate customers
The state has outlined guidance for each early Stage 2 business to follow. The goal is asafer environment for workers and customers. Businesses may use effective alternative or innovative methods to build upon the guidance. Each business should review the guidance that is relevantto their workplace, prepa re a plan based on the guidanee for their industry, and put it into action. When complete, businesses can post the industry-specific checklist (below) in their workplace to show customers and employees that they've reduced the risk and are open for business. Before reopening, all facilities should:
L Perform a detailed risk assessment and implement a site-specific protection plan 2. Train employees on how to limitthe spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them 3. Implement individual control measures and screenings 4. Implement disinfecting protocols 5. Implement physical distancing guidance
The state has also set up a mechanism to gather input on future industry guidance through the California Recovery Roadmap survey.

WChailesmean3y:e2le0m-ecntvs-o0f t0he8g6ui5da-nBceAaSre-thAeHsaGme acDrososcinudumsterienst-s1uc1h asFdeilaenidng0an5d/p1h1ys/i2ca0l distPanacignge-IcDon.s1id0er4at6ion wPasaggiveen 9to8indoufstr1y-16
specific methods. For example:
• Retailers should increase pickup and delivery service options and encourage physical distancing during pickup- like loading items directly into a customer's trunk or leaving items at their door.
• Retailers should install hands-free devices, if possible, including motion sensor lights, contactless payment systems, automatic soap and paper towel dispensers, and timecard systems.
• Manufacturing companies should close breakrooms, use barriers, or increase distance between tables/chairs to separate workers and discourage congregating during breaks. Where possible, create outdoor break areas with shade covers and seating that ensures physical distancing.
• Warehouses should minimize transaction time between warehouse employees and transportation personnel. Perform gate check-ins and paperwork digitally if feasible.
• Warehouse workers should clean delivery vehicles and equipment before and after delivery, carry additional sanitation materials during deliveries, and use clean personal protective equipment for each delivery stop.
###

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1047 Page 99 of 116
EXHIBIT2-1

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1048 Page 100 of 116

NICK MACCHIONE, FACHE

HEALTH AND HUMAN SERVICES AGENCY PUBLIC HEALTH SERVICES
3851 ROSECRANS STREET, MAIL STOP P-578 SAN DIEGO. CA92110-3134
(819) 531-5800 •FA)( (819) 542-4188
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
(Effective May 10, 2020)

WILMA J. WOOTEN, M.D.
PUBLIC HEALTH OFFICER

Pursuant to California Health and Safety Code sections 101040, 120175, and 120175.5 (b) the Health Officer ofthe County of San Diego (Health Officer) ORDERS AS FOLLOWS:

Effective 12:00 a.m. on Sunday, May l 0, 2020, and continuing until further notice, the following will be in effect for San Diego County (county):
l. All persons are to remain in their homes or at their place of residence, except for employees or customers travelling to and from essential businesses, reopened businesses, or essential activities as defined in section 18, below, or to participate in individual or family outdoor activity as allowed by this Order.

2. All public or private "gatherings," as defined in section 18 below, are prohibited.

3. All businesses not meeting the definition of essential business or reopened business in section 18 below are referred to in this Order as "non-essential businesses" and shall be and remain closed for the duration of this Order. All essential businesses and reopened businesses must comply with the requirements of this Order. Notwithstanding the foregoing, a non-essential business may remain open if its employees and owners can provide its services from home, including by telecommuting, without direct contact with the public.

4. All public or private schools, colleges, and universities shall not hold classes or other school activities where students gather on the school campus. Parents of minor children shall take steps to ensure said children are not participating in activities prohibited by this Order.

5. Child daycare and child care providers shall operate under the following conditions: i) child

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1049 Page 101 of 116
care should be carried out in stable groups of 12 or fewer ("stable" means that the same I2 or fewer children are in the same group each day); ii) children should not change from one group to another; iii) ifmore than one group ofchildren is cared for at one facility, each group should be in a separate area; iv) groups should not mix with each other; and v) childcare providers should remain solely with one group of children, to the extent possible. Employees of such businesses, and the children being cared for, are not required to wear face coverings as described in section 9 while present at the daycare of child care facility. Child daycare and childcare providers shall establish health check and temperature screening requirements to ensure children and employees with a temperature of 100 degrees or above do not enter the facility. Restroom and other surfaces children regularly contact shall be sanitized with a disinfectant effective against coronavirus on a regular schedule and between groups occupying a particular area.
6. "Non-essential personnel," as defined in section 18 below, are prohibited from entry into any hospital or long-term care facility. All essential personnel who are COVID-19 positive or show any potential signs or symptoms of COVID-19 are strictly prohibited from entry into hospitals or long-term care facilities. Notwithstanding the foregoing, individuals requiring medical care for COVID-19 or related conditions may be admitted to hospitals or other medical facilities if the hospital or medical facility is appropriate for treating COVID-19 and has adequate precautions in place to protect its patients, medical personnel and staff.
7. Hospitals and healthcare providers, including dentists shall: a. Take measures to preserve and prioritize resources; and, b. May authorize and perform non-emergent or elective surgeries or procedures based on their determination of clinical need and supply capacity, and where consistent with State guidance. c. Nothing in this Order shall prevent physicians and other healthcare providers from conducting routine preventive care provided it conforms to any applicable State guidance. d. Nothing in this Order shall prevent dentists or dental hygienists from conducting routine preventive care provided it conforms to any applicable State guidance.
8. Hospitals, healthcare providers, and commercial testing laboratories shall report all COVID19 test results to the Public Health Officer immediately after such results are received.
9. All persons two year old or older who are present in the county shall have possession ofa face Page 2 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1050 Page 102 of 116
covering described in California Department ofPublic Health Face Covering Guidance issued on April l, 2020, (available at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/FaceCoverings-Guidance.aspx ), when they leave their home or place ofresidence, shall wear the face covering whenever they are in a business or within six feet of another person who is not a member of their family or household. Persons with a medical or mental health condition, or developmental disability that prevents wearing a face covering shall be exempt from this requirement.
10. All essential businesses that allow members of the public to enter a facility must prepare and post a "Social Distancing and Sanitation Protocol" on the form available at: https ://www.sandiegocounty [gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/SOCIAL DISTANCING AND SANITATION PROTOCOL 04022020 Vl .pdf ), or on a form required by another governmental entity requiring substantially similar information, for each oftheir facilities open to the public in the county. The Social Distancing and Sanitation Protocol must be posted at or near the entrance of the relevant facility, and shall be easily viewable by the public and employees. A copy ofthe Social Distancing and Sanitation Protocol must also be provided to each employee performing work at the facility. All essential businesses shall implement the Social Distancing and Sanitation Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand. The Social Distancing and Sanitation Protocol must ensure all required measures are implemented and must identify and require measures necessary to implement social distancing are implemented at each facility that will ensure social distancing and sanitation at that particular facility. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Social Distancing and Sanitation Protocols to ensure proper social distancing and sanitation. Any business that fails to successfully implement social distancing and sanitation may be required to close.
11. All reopened businesses must prepare and post a "Safe Reopening Plan" on the form available
~https ://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid
19/Community Sector Support/BusinessesandEmployers/SafeReopeningPlanTemplate.pdf for each of their facilities in the county. The Safe Reopening Plan must be posted at or near the entrance ofthe relevant facility, and shall be easily viewable by the public and employees. A copy ofthe Safe Reopening Plan must also be provided to each employee performing work at the facility. All reopened businesses shall implement the Safe Reopening Plan and provide evidence of its implementation to any authority enforcing this Order upon demand. The Safe Reopening Plan must ensure all required measures are implemented. Ifthe measures identified
Page 3 of9 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1051 Page 103 of 116

and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Safe Reopening Plan to ensure proper social distancing and sanitation. Any business that fails to comply with its Safe Reopening Plan may be required to close.

12. Each essential business and reopened business shall: a. Require all employees to wear face coverings as described in section 9 above; and, b. Shall conduct temperature screening of all employees prohibiting employees with a temperature of 100 degrees or more from entering the workplace. Symptom screening (prohibiting employees from entering if they have a cough, shortness of breath or trouble breathing or at least two of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat or new loss of taste or smell) may be used only when a thermometer is not available.

13. Outdoor Recreation

a. Each public park and recreation area, shall operate in compliance with the Protocol

found

at

https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiolog;y/c

ovidl9/parks-beaches-social-distancing-protocol.pdf created and implemented by the

operator of the park. The public shall not congregate or participate in active sport

activities at a park with the exception of members of a single family or household if

authorized pursuant to the Protocol applicable to the park. Any park at which the

Protocol requirements cannot be effectively implemented may be required to close.

b. Campgrounds may be open provided a vacant campsite separates each occupied

campsite and each campsite is occupied only by members ofthe same household.

c. Recreational boating is allowed provided all occupants of a boat are from the same

household.

d. For Beaches Only - All parking lots at public beaches shall be closed. Beaches shall be

used solely for walking, running, hiking, equestrian or bicycle riding (where allowed).

The public shall not congregate or participate in active sport activities at said facilities.

Swimming, body surfing, boogie boarding, surfing, kite surfing, paddle boarding,

kayaking, snorkeling and scuba diving from the shore may be allowed in the ocean and

bays connected thereto. Beaches where social distancing requirements cannot be

effectively implemented shall close. All other restrictions applicable to beaches

pursuant to other sections of this Order shall remain in effect.

e. To enhance recreational opportunities in the county, private and public golf courses

Page 4 of9

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1052 Page 104 of 116

and, other public or private outdoor recreational facilities (other than community pools per State order), including recreational equipment (such as bicycle, boat, kayak, equestrian and surfboard) rentals may be open for limited use.
1. The owner or operator of a golf course shall complete and fully implement a Golf Course Physical Distancing & Safety Plan for San Diego County and shall submit a copy of the completed form to the Public Health Officer at least two days prior to opening. Golf courses shall conduct temperature screening of all employees and customers and anyone with a temperature of 100 degrees or higher shall not be permitted to enter the facility.
11. The owner or operator of an outdoor recreational facility shall limit use of recreational equipment or areas to individuals able to practice social distancing before, during or after the activity, or members of the same household. The owner or operator shall prepare a Safe Reopening Plan pursuant to section 11 which shall include a requirement that all equipment be sanitized with a disinfectant effective against coronavirus immediately after every use.

14. All essential businesses and reopened businesses that remain in operation in accordance with the Order shall make every effort to use telecommuting for their workforces.

15. A strong recommendation is made that all persons who are 65 years old or older, have a chronic underlying condition, or have a compromised immune system self-quarantine themselves at home or other suitable location.

16. All persons arriving in the county from international locations identified on the Centers for Disease Control and Prevention (CDC) Warning Level 2 or 3 Travel Advisory (available at: https://wwwnc.cdc.gov/travel/notices) shall be subject to 14-day home or other suitable location quarantine and self-monitoring.

17. Persons who have been diagnosed with COVID-19, or who are likely to have COVID-19, shall

comply with the Order of the Health Officer titled: "Isolation of All Persons with or Likely to

have COVID-19", or as subsequently amended. Persons who have a close contact with a person

who either has COVID-19, or is likely to have COVID-19, shall comply with the Order of the

Health Officer titled: "Quarantine of Persons Exposed to COVID-19," or as subsequently

amended.

Both orders are available at: https://www.sandiegocounty.gov/

content/sdc/hhsa/programs/phs/community epidemiology/dc/2019-nCoV/health-order.html.

Ifa more specific isolation or quarantine order is issued to a person, that order shall be followed.

Page 5 of9

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1053 Page 105 of 116
18.For purposes of this Order: a. "Essential business" is any business or activity (or a business/activity that employs/utilizes workers) designated by the State Public Health Officer as "Essential Critical Infrastructure Workers" set forth in: https://covidl 9.ca.gov/img/Essential CriticallnfrastructureWorkers.pdt) as that list may be updated from time-to-time, and referenced in Executive Order N-33-20 issued by the Governor of the State of California. For the purposes of this Order, the following businesses in the Food and Agriculture Sector are considered "groceries" or "other retail that sells food and beverages": grocery stores, comer stores and convenience stores, liquor stores that sell food, farmer's markets, food banks, farm and produce stands, supermarkets, big box stores that sell groceries and essentials, or similar business that sell food so long as the store has a current permit related to the sale of food and/or beverages from the San Diego County Department of Environmental Health. b. "Gathering" is any event or convening that brings together more than one person in a single room or single indoor or outdoor s ace at the same time, including people in multi le vehicles in one location. A gathering does not include: i. A gathering consisting only of members of a single family or household. 11. Operations at airports, public transportation or other spaces where persons in transit are able to practice social distancing. m. Operations at essential businesses as defined in section 19a above and reopened businesses as defined in 18f below and where the other requirements set forth in this Order are followed. c. "Long term care facility" is a facility serving adults that require assistance with activities ofdaily living, including a skilled nursing facility, and that is licensed by the California Department ofCommunity Care and Licensing, or the California Department ofPublic Health. d. "Non-essential personnel" are employees, contractors, or members of the public who do not perform treatment, maintenance, support, or administrative tasks deemed essential to the healthcare mission of the long-term care facility or hospital. Nonessential personnel do not include first responders, nor State, federal, or local officials, investigators, or medical personnel carrying out lawful duties. Non-essential personnel do not include visitors to hospitals and long-term care facilities who are granted entry by the facility's director, or designee, because they are family or friends who are visiting a resident in an end of life or similar situation, are parents or guardians visiting a child who is a patient, or because of any other circumstances deemed appropriate by the Page 6 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1054 Page 106 of 116
facility director, or designee, and where appropriate precautions by the facility that follow federal, State, and local public health guidance regarding COVID-19 are followed. e. "Social distancing" is maintaining a six-foot separation from all persons except for household members, first responders and medical providers or employees conducting temperature screenings. f. "Reopened business" is a business that is not an essential business as stated in section 18a above, and has reoRened in conformance with the State of California's Resilience Roadmap (available at: https://covidl 9.ca.gov/roadmapO, as may be subsequently amended
19. This Order is issued as a result ofthe World Health Organization's declaration ofa worldwide pandemic ofCOVID-19 disease, also known as "novel coronavirus."
20. This Order is issued based on scientific evidence regarding the most effective approaches to slow the transmission ofcommunicable diseases generally and COVID-19 specifically, as well as best practices as currently known and available to protect vulnerable members ofthe public from avoidable risk ofserious illness or death resulting from exposure to COVID-19. The age, condition, and health of a significant portion of the population of the county places it at risk for serious health complications, including death, from COVID-19. Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the publicsuch as older adults, and those with underlying health conditions-at significant risk.
21. The actions required by this Order are necessary to reduce the number of individuals who will be exposed to COVID-19, and will thereby slow the spread of COVID-19 in the county. By reducing the spread ofCOVID-19, this Order will help preserve critical and limited healthcare capacity in the county and will save lives.
22. This Order is issued in accordance with, and incorporates by reference: a) the Declaration of Local Health Emergency issued by the Health Officer on February 14, 2020; b) the Proclamation of Local Emergency issued by the County Director of Emergency Services on February 14, 2020; c) the action of the County Board of Supervisors to ratify and continue both the local health emergency and local emergency on February 19, 2020; d) the Proclamation of a State of Emergency issued by the Governor of the State of California on March 4, 2020; e) Executive Order N-25-20 issued by the Governor ofthe State of California on March 12, 2020 which orders that "All residents are to heed any orders and guidance of Page 7 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1055 Page 107 of 116
state and local health officials, including but not limited to the imposition of social distancing measures, to control COVID-19"; f) Proclamation 9984 regarding COVID-19 issued by the President of the United States on March 11, 2020; g) Executive Order N-33-20 issued by the Governor ofthe State of California on March 19, 2020; h) the "Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes" issued by the CDC; i) COVID-19 guidance issued by the California Department of Public Health on including, but not limited to the Face Coverings Guidance issued on April 1, 2020; andj) the State of California's "Resilience Roadmap."
23. This Order is issued to prevent circumstances often present in gatherings that may exacerbate the spread ofCOVID-19, such as: 1) the increased likelihood that gatherings will attract people from a broad geographic area; 2) the prolonged time period in which large numbers of people are in close proximity; 3) the difficulty in tracing exposure when large numbers of people attend a single event or are at a single location; and 4) the inability to ensure that such persons follow adequate hygienic practices.
24. This Order is issued to provide additional opportunities for recreational activities while also requiring additional protections from the spread of COVID-19 to the public who are taking advantage ofthese opportunities for recreational activities. And providing additional protections for employees of essential businesses or reopened business and their customers/clients by increasing facial covering requirements and health checks and temperature screening.
25. This Order comes after the release of substantial guidance from the Health Officer, the California Department ofPublic Health, the CDC, and other public health officials throughout the United States and around the world.
26. Pursuant to Health and Safety Code section 120175.5 (b) all governmental entities in the county shall take necessary measures within the governmental entity's control to ensure compliance with this Order and to disseminate this Order to venues or locations within the entity's jurisdiction where gatherings may occur.
27. Violation ofthis Order is subject to fine, imprisonment, or both. (California Health and Safety Code section 120295.)
28. To the extent necessary, this Order may be enforced by the Sheriff or chiefs ofpolice pursuant to Government Code sections 26602 and 41601 and Health and Safety Code section 101029. Page 8 of9 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1056 Page 108 of 116
29. Once this Order takes effect it shall supersede the Order of the Health Officer and Emergency Regulations dated May 8, 2020.

IT IS SO ORDERED: Date: May 9, 2020

Public Health Officer County of San Diego

EMERGENCY REGULATIONS
As Director of Emergency Services for the County of San Diego, I am authorized to promulgate regulations for the protection of life and property pursuant to Government Code Section 8634 and San Diego County Code section 31.103. The following shall be in effect for the duration of the Health Officer Order issued above which is incorporated in its entirety by reference:
The Health Officer Order shall be promulgated as a regulation for the protection of life and property.
Any person who violates or who refuses or willfully neglects to obey this regulation is subject to fine, imprisonment, or both. (Government Code section 8665.)
Date: May 9, 2020

Director ofEmergency Services County of San Diego

Page 9 of9 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1057 Page 109 of 116
EXHIBIT2-2

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1058 Page 110 of 116
Business Name: Facility Address: Businesses must implement all mandatory measures listed in A, B, and F below. Businesses shall select applicable measures listed in C, D, and E below and be prepared to explain why any measure that is not implemented is inapplicable to the business. A. Signage (Mandatory):
Signage at each public entrance of the facility to inform all employees and customers that they should: avoid entering the facility if they have a cough or fever; maintain a minimum six-foot distance from one another; and not shake hands or engage in any unnecessary physical contact. Signage posting a copy of the Social Distancing Protocol at each public entrance to the facility. B. Measures To Protect Employee Health (Mandatory): Everyone who can carry out their work duties from home has been directed to do so. All employees have been told not to come to work if sick. All desks or individual work stations are separated by at least six feet. Break rooms, bathrooms, and other common areas are being disinfected frequently, on the following schedule:
o Breakrooms:
o Bathrooms:
o
Disinfectant and related supplies are available to all employees at the following location( ):

Hand sanitizer effective against COVID-19 is available to all employees at the following location(s):

Page 1 of 3

REV 04/0 /2020 County of San Diego

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1059 Page 111 of 116 B. Measures To Protect Employee Health (Mandatory)
Soap and water are available to all employees at the following location(s):

Copies of the Protocol have been distributed to all employees.

C. Measures To Prevent Crowds From Gathering ( heck all that apply to the facility):

Limit the number of customers in the store at any one time to

which allows for customers

and employees to easily maintain at least six-foot distance from one another at all practicable times.

an employee at the door to above is not exceeded.

that the maximum number of customers in the facility set forth

Placing per-person limits on goods that are selling out quickly to reduce crowds and lines.

Optional – Describe other measures:

D. Measures To Keep People At Least Six Feet Apart ( heck all that apply to the facility)
Placing signs outside the store reminding people to be at least six feet apart, including when in line. Placing tape or other markings at least six feet apart in customer line areas inside the store and on sidewalks at public entrances with signs directing customers to use the markings to maintain distance. Separate order areas from delivery areas to prevent customers from gathering. All employees have been instructed to maintain at least six feet distance from customers and from each other, except employees may momentarily come closer when necessary to accept payment, deliver goods or services, or as otherwise necessary. Optional – Describe other measures:

Page 2 of 3

REV 04/0 /2020 County of San Diego

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1060 Page 112 of 116

E. Measures To Prevent Unnecessary Contact ( heck all that apply to the facility):

Preventing people from self-serving any items that are food-related.

o Lids for cups and food-bar type items are provided by staff; not to customers to grab.

o Bulk-item food bins are not available for customer self-service use.

Not permitting customers to bring their own bags, mugs, or other reusable items from home.

Providing for contactless payment systems or, if not feasible, sanitizing payment systems

regularly. Describe

:

Optional – Describe other measures (e.g. providing senior-only hours):

F. Measures To Increase Sanitization (Mandatory):
Disinfecting wipes that are effective against COVID-19 are available near shopping carts and shipping baskets. Employee(s) assigned to disinfect carts and baskets regularly. Hand sanitizer, soap, and water, or effective disinfectant is available to the public at or near the entrance of the facility, at checkout counters, and anywhere else inside the store or immediately outside where people have direct interactions. Disinfecting all payment portals, pens, and styluses after each use. Disinfecting all high-contact surfaces frequently.
G. Hospitals/Health Care Facility Only:
Symptoms/temperature checks to ensure any staff or visitors (allowed pursuant to Section 2c of th Order) entering the facility are not ill.

*Any additional measures not included here should be listed on separate pages, which the business should attach to this document.

You may contact the following person with any questions or comments about this protocol:

Name:

Phone Number:

Date of Form Completed:

Page 3 of 3

REV 04/0 /2020 County of San Diego

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1061 Page 113 of 116
EXHIBIT2-3

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1062 Page 114 of 116

Business Name: Facility Address:

Businesses must implement all mandatory measures listed

below. Businesses shall select applicable measures listed in

C

below and be prepared to explain why any measure that is not implemented is inapplicable to the business.

A. Signage (Mandatory):

Signage at each public entrance of the facility to inform all employees and customers that they should: avoid

entering the facility if they have a cough or fever;

maintain a minimum six-foot distance

from one another; and not shake hands or engage in any unnecessary physical contact.

Signage posting a copy of the S

at each public entrance to the facility.

B. Measures To Protect Employee Health (Mandatory):

All employees have been told not to come to work if sick.

All

.

All desks or individual work stations are separated by at least six feet.

Break rooms, bathrooms, and other common areas are being disinfected frequently, on the following schedule:

Page 1 of 3

REV 04/0 /2020 County of San Diego

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1063 Page 115 of 116

B. Measures To Protect Employee

(Mandatory)

Soap and water are available to all employees at the following location(s):

Copies of the Protocol have been distributed to all employees.

C. Measures To Pr

( heck all that apply to the facility):

Limit the number of customers in the store at any one time to

which allows for customers

and employees to easily maintain at least six-foot distance from one another at all practicable times.

Optional – Describe other measures:

D. Measures To Keep People At Least Six Feet Apart ( heck all that apply to the facility) Placing signs outside the store reminding people to be at least six feet apart, including when in line.
Placing tape or other markings at least six feet apart in customer line areas inside the store and on sidewalks at public entrances with signs directing customers to use the markings to maintain distance. All employees have been instructed to maintain at least six feet distance from customers and from each other, except employees may momentarily come closer when necessary to accept payment, deliver goods or services, or as otherwise necessary.
Optional – Describe other measures:

Page 2 of 3

REV 04/0 /2020 County of San Diego

Case 3:20-cv-00865-BAS-AHG Document 11 Filed 05/11/20 PageID.1064 Page 116 of 116

.

Measures

(Mandatory):

*Any additional measures not included here should be listed on separate pages, which the business should attach to this document.

You may contact the

with any questions or comments about this protocol:

Name:

Phone Number:

Date of Form Completed:

Page 3 of 3

REV

/2020

County of San Diego

Case 3:20-cv-00865-BAS-AHG Docu(AmMenEtN1D1-E1D)Filed 05/11/20 PageID.1065 Page 1 of 1
San Diego X

X

42 U.S.C. 1983 California's pandemic reopening plan beginning on May 8, 2020, unconstitutionally discriminates against places of worship.

May 11, 2020

Charles S. LiMandri, Esq.

Case 3:20-cv-00865-BAS-AHG Document 11-2 Filed 05/11/20 PageID.1066 Page 1 of 1
(AMENDED) GAVIN NEWSOM, in his official capacity as the Governor of California Office of the Governor 1303 10th Street, Suite 1173 Sacramento, CA 95814

Case 3:20-cv-00865-BAS-AHG Document 11-3 Filed 05/11/20 PageID.1067 Page 1 of 1
(AMENDED) XAVIER BECERRA, in his official capacity as the Attorney General of California California Department of Justice STATE OF CALIFORNIA 1300 “I” Street, Suite 125 Sacramento, CA 94244-2550

Case 3:20-cv-00865-BAS-AHG Document 11-4 Filed 05/11/20 PageID.1068 Page 1 of 1
(AMENDED) SONIA ANGELL, in her official capacity as California Public Health Officer California Department of Public Health 1415 "L" Street, 5th Floor Sacramento, CA 95814

Case 3:20-cv-00865-BAS-AHG Document 11-5 Filed 05/11/20 PageID.1069 Page 1 of 1
(AMENDED) WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego Timothy M. White, Esq. Office of County Counsel 1600 Pacific Highway, Room 355 San Diego, CA 92101

Case 3:20-cv-00865-BAS-AHG Document 11-6 Filed 05/11/20 PageID.1070 Page 1 of 1
(AMENDED) HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services Timothy M. White, Esq. Office of County Counsel 1600 Pacific Highway, Room 355 San Diego, CA 92101

Case 3:20-cv-00865-BAS-AHG Document 11-7 Filed 05/11/20 PageID.1071 Page 1 of 1
(AMENDED) WILLIAM D. GORE, in his official capacity as Sheriff of the County of San Diego San Diego County Sheriff's Office 9621 Ridgehaven Court San Diego, CA 92123

 
 Case 3:20-cv-00865-BAS-AHG Document 12 Filed 05/11/20 PageID.1072 Page 1 of 4

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California non-profit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

Case No.: 3:20-cv-00865-AJB-MDD
Notice of Application and Application for a Temporary Restraining Order, and Order to Show Cause re: Preliminary Injunction
Judge: Anthony J. Battaglia Courtroom: 4A
Oral Argument Requested

27

28

Ntc. of App. for a TRO; and OSC re Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12 Filed 05/11/20 PageID.1073 Page 2 of 4

1 TO: THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

2

RECORD:

3

PLEASE TAKE NOTICE that Plaintiffs South Bay United Pentecostal

4 Church and Bishop Arthur Hodges III, by and through counsel, will and hereby do

5 apply to this Court pursuant to Fed. R. Civ. P. 65(b) for a temporary restraining order

6 against Defendants Gavin Newsom, in his official capacity as the Governor of

7 California; Xavier Becerra, in his official capacity as the Attorney General of

8 California, Sonia Angell, in her official capacity as California Public Health Officer,

9 Wilma J. Wooten, in her official capacity as Public Health Officer, County of San

10 Diego, Helen Robbins-Meyer, in her official capacity as Director of Emergency

11 Services, and William D. Gore, in his official capacity as Sheriff of the County of San

12 Diego (“Defendants”), and for the issuance of an order to show cause why a

13 preliminary injunction should not issue, as follows:

14

1. Defendants, their agents, employees, and successors in office, are

15 restrained and enjoined from enforcing, trying to enforce, threatening to enforce, or

16 otherwise requiring compliance with any prohibition on Plaintiffs’ engagement in

17 religious services, practices, or activities at which the County of San Diego’s Social

18 Distancing and Sanitation Protocol and Safe Reopening Plan is being followed.

19

2. Defendants shall show cause, on _____________, 2020, at

20 _______ why a preliminary injunction should not issue requiring Defendants to act

21 as described in above; the temporary restraining order shall remain effective until

22 such time as the Court has ruled on whether a preliminary injunction should issue.

23 Such relief is necessary to prevent Defendants from further violating Plaintiffs’

24 constitutional rights, pending trial on the merits of Plaintiffs’ claims.

25

Plaintiffs request that this temporary restraining order issue prior to the

26 weekend of May 16–17, 2020, so that religious services can be celebrated.

27

This Application is made on the grounds that Plaintiffs are likely to succeed on

28 the merits of this case, they will suffer irreparable harm without injunctive relief, the
1 Ntc. of App. for a TRO; and OSC re Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12 Filed 05/11/20 PageID.1074 Page 3 of 4

1 balance of equities tips sharply in their favor, and the relief sought is in the public

2 interest.

3

Good cause exists to issue the requested Order to preserve Plaintiffs’ rights

4 under the Constitution of the United States and the Constitution of the State of

5 California, and to avoid irreparable harm to those rights. This Application is

6 supported by the accompanying Memorandum of Points and Authorities, by the

7 declarations of Bishop Arthur Hodges III, Dr. George Delgado, M.D., and Jeffrey M.

8 Trissell, Esq., and all exhibits attached thereto, by accompanying Request for Judicial

9 Notice, and by such further argument and evidence that may be adduced at any

10 hearing on this matter or of which the Court may take judicial notice.

11

The Complaint in this action was filed in the morning of Friday, May 8, 2020,

12 and a First Amended Complaint was filed on May 11, 2020. Counsel for all parties

13 participated in a conference call on May 11, 2020, in which the relief sought by this ex

14 parte application was discussed, and it became clear that Defendants opposed the

15 relief. This Application followed. All papers relating to this Application will be

16 delivered by email to the Defendants’ counsel immediately after they are filed.

17

Plaintiffs request that the Court waive any bond requirement, because

18 enjoining Defendants from unconstitutionally prohibiting religious practices will not

19 financially affect Defendants.

20

21

Respectfully submitted,

22

LiMANDRI & JONNA LLP

23

24 Dated: May 11, 2020
25 26 27 28

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

2 Ntc. of App. for a TRO; and OSC re Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12 Filed 05/11/20 PageID.1075 Page 4 of 4

1

2

THOMAS MORE SOCIETY

3 Dated: May 11, 2020 4 5 6

By: ____________________ Thomas Brejcha Peter Breen Attorneys for Plaintiffs

7

DHILLON LAW GROUP INC.

8

9 Dated: May 11, 2020
10
11
12
13

By: ____________________ Harmeet K. Dhillon Mark P. Meuser Gregory R. Michael Attorneys for Plaintiffs

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3 Ntc. of App. for a TRO; and OSC re Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1076 Page 1 of 33

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9520
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9948 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16
UNITED STATES DISTRICT COURT 17
SOUTHERN DISTRICT OF CALIFORNIA 18

19 SOUTH BAY UNITED PENTECOSTAL

20 CHURCH, a California non-profit

21

corporation, and BISHOP ARTHUR HODGES III, an individual,

22 Plaintiffs,

23 v.
24

GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

Case No.: 3:20-cv-00865-AJB-MDD
Memorandum of Points & Authorities in Support of Application for a Temporary Restraining Order; and Order to Show Cause re: Preliminary Injunction
Judge: Anthony J. Battaglia Courtroom: 4A
Oral Argument Requested

28

Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1077 Page 2 of 33

1

TABLE OF CONTENTS

2 INTRODUCTION ................................................................................................ 1

3 FACTUAL BACKGROUND ................................................................................3

4

A. The Government “Stay-at-Home” Orders.........................................3

5 B. Plaintiffs Bishop Hodges and South Bay Pentecostal Church. ............ 4
6

7 LEGAL STANDARD ............................................................................................5

8 ARGUMENT........................................................................................................ 6

9

1. Plaintiffs Will Likely Succeed on the Merits of Their

10

Constitutional Claims ......................................................................... 6

11

1.1. The Orders violate Plaintiffs’ Free Exercise Rights

because they impose a penalty on their sincerely held

12

religious practices. ................................................................... 6

13

1.1.1. The Orders are not generally applicable

14

because they are riddled with exceptions. ...........................7

15

1.1.2. The prior lawsuits the California Attorney

16

General has litigated are distinguishable......................... 9

17

1.1.3. The Orders are not also neutral because they

18

impose special burdens on Plaintiffs because of their religious practices. ................................................ 12

19

1.1.4. The California Constitution mandates strict

20

scrutiny. ........................................................................ 14

21

1.1.5. The Orders fail strict scrutiny because they are

22

not narrowly tailored to curbing the pandemic. .............14

23

1.1.6. If Jacobson applies, it is only minimally

24

relevant. ........................................................................ 16

25

1.2. The Orders also violate the Federal Equal Protection

26

Clause. .................................................................................... 19

27

1.3. The Orders violate the Fourteenth Amendment’s Due

Process Clause. ....................................................................... 20

28

i Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1078 Page 3 of 33

1

TABLE OF CONTENTS

2

2. Plaintiffs Face Irreparable Harm Absent Immediate

3

Injunctive Relief............................................................................... 22

4

3. The Balance of Hardships Tips Sharply in Plaintiffs’ Favor. ............. 22

5

4. A Temporary Restraining Order is in the Public Interest ..................23

6

5. The Court Should Dispense with Any Bond Requirement. .............. 24

7 CONCLUSION....................................................................................................25 8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
ii Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1079 Page 4 of 33

1

TABLE OF AUTHORITES

2 Cases:

3 Adams & Boyle, P.C. v. Slatery,

4

No. 20-5408, 2020 WL 1982210 (6th Cir. Apr. 24, 2020)

5

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir.2011)

6

Bible Club v. Placentia-Yorba Linda Sch. Dist.,

7

573 F. Supp. 2d 1291 (C.D. Cal. 2008)

17, 18 6
24

8 Blackhawk v. Pennsylvania,

8

9

381 F.3d 202 (3d Cir. 2004)

10 Burwell v. Hobby Lobby Stores, Inc.,

15

11

573 U.S. 682 (2014)

12

Canyon Ridge Baptist Church, Inc. v. City of San Diego, No. 05CV2313 R (CAB), 2006 WL 8455354 (S.D. Cal. June 15, 2006)

22

13

Carpenter v. City and County of San Francisco,

14

14

93 F.3d 627 (9th Cir. 1996)

15 Catholic Charities of Sacramento, Inc. v. Superior Court,

14

16

32 Cal. 4th 527 (2004)

17 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

18

508 U.S. 520 (1993)

19

City of Boerne v. Flores, 521 U.S. 507 (1997)

20

City of Cleburne, Tex. v. Cleburne Living Ctr.,

21

473 U.S. 432 (1985)

22 Coll. Republicans at San Francisco State Univ. v. Reed,

23

523 F. Supp. 2d 1005 (N.D. Cal. 2007).

6, 7, 8, 9, 10, 12, 13, 15, 16 15 19
22, 23

24 Cross Culture Christian Ctr. v. Newsom,

8, 10, 11, 12

25

No. 2:20-CV-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020)

26

De Jonge v. Oregon, 299 U.S. 353 (1937)

17

27

Doctor John’s, Inc. v. Sioux City,

24

28

305 F. Supp. 2d 1022 (N.D. Iowa 2004)

iii Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1080 Page 5 of 33

1

TABLE OF AUTHORITES (Cont.)

2 Cases:

3 Doe v. Harris,

23

4

772 F.3d 563 (9th Cir. 2014)

5

Edwards v. South Carolina, 372 U.S. 229 (1963)

17

6

Elrod v. Burns,

22

7

427 U.S. 347 (1976)

8 Emp’t Div. v. Smith,

9

494 U.S. 872 (1990)

6, 12, 14, 21

10 First Baptist Church v. Kelly,

11

--- F. Supp. 3d ---, 2020 WL 1910021 (D. Kan. 2020)

12

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3d Cir. 1999)

13

Friends of the Earth, Inc. v. Brinegar,

14

518 F.2d 322 (9th Cir. 1975)

10, 17, 23 8, 12 24

15 Gish v. Newsom,

10, 11, 12

16

No. EDCV 20-755 JGB (KKx), 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020)

17 Gitlow v. New York,

18

268 U.S. 652 (1925)

19

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)

20

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC,

21

565 U.S. 171 (2012)

22 In re Abbott,

23

954 F.3d 772 (5th Cir. 2020)

17 15 21, 22 17

24 In re Rutledge,

17

25

No. 20-1791, 2020 WL 1933122 (8th Cir. Apr. 22, 2020)

26

Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)

27

Jorgensen v. Cassiday,

28

320 F.3d 906 (9th Cir. 2003)

10, 15, 16, 17, 18, 19, 21 24

iv Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1081 Page 6 of 33

1

TABLE OF AUTHORITES (Cont.)

2 Cases:

3 Kedroff v. St. Nichols Cathedral of Russian Orthodox Church in N. Am.,

21

4

344 U.S. 94 (1952)

5

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963)

6

Maryville Baptist Church v. Beshear,

7

--- F.3d ---, 2020 WL 2111316 (6th Cir. 2020)

2 9, 10, 12, 13, 16, 17, 23

8 Maynard v. U.S. Dist. Court for Cent. Dist. of California,

19

9

915 F.2d 1581 (9th Cir. 1990)

10 Maynard v. U.S. Dist. Court for the Cent. Dist. of California,

11

701 F. Supp. 738 (C.D. Cal. 1988)

12

Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250 (1974)

13

Moore v. City of E. Cleveland,

14

431 U.S. 494 (1977)

15 On Fire Christian Ctr., Inc. v. Fischer,

16

--- F. Supp. 3d ---, 2020 WL 1820249 (W.D. Ky. 2020)

19 19 20 10, 23

17 Palko v. Connecticut,

18

302 U.S. 319 (1937)

19

People of State of Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319 (9th Cir. 1985)

20

Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church,

21

393 U.S. 440 (1969)

20 24 11, 21

22 Reno v. Flores,

20

23

507 U.S. 292 (1993)

24 Robinson v. Attorney Gen.,

25

No. 20-11401-B, 2020 WL 1952370 (11th Cir. Apr. 23, 2020)

26

S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020)

27

Sammartano v. First Judicial District Court,

28

303 F.3d 959 (9th Cir. 2002)

v Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

17, 18 17 22

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1082 Page 7 of 33

1

TABLE OF AUTHORITES (Cont.)

2 Cases:

3 Save Our Sonoran, Inc. v. Flowers,

4

408 F.3d 1113 (9th Cir. 2005)

5

Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696 (1976)

6

Snyder v. Commonwealth,

7

291 U.S. 97 (1934)

24 11, 21
20

8 Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co., Inc.,

6

9

240 F.3d 832 (9th Cir. 2001)

10 Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear,

9, 23

11

No. 3:20-CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020)

12

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)

13

Ward v. Polite,

14

667 F.3d 727 (6th Cir. 2012)

7, 12, 13, 14 7

15 Washington v. Glucksberg,

20

16

521 U.S. 702 (1997)

17 Winter v. Natural Res. Def. Council,

6

18

555 U.S. 7 (2008)

19

Wisconsin v. Yoder, 406 U.S. 205 (1972)

15

20 Constitutional Amendments:
21

22 U.S. Const. amend. I

6

23 U.S. Const. amend. XIV

19

24 Federal Rules:

25 Fed. R. Civ. P. 65(c)

23, 24

26 Other Authorities:

27 11A CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. CIV. (3d ed.)

22

28

vi Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1083 Page 8 of 33

1

INTRODUCTION

2

This case concerns a series of “Stay-At-Home” Orders issued by the State and

3 the County of San Diego, as most recently amended on May 7 and 10, 2020, as part of

4 an effort to curb the coronavirus pandemic. This case is not about whether the

5 government has a compelling interest in curbing pandemics. It does. Nor is this case

6 about whether the government may limit some personal liberties. It can. Nor is this

7 case about the constitutionality of the prior executive orders issued in March that

8 permitted “life-sustaining” businesses to stay open. Those orders are irrelevant.

9

No, this case is about California’s modifications to its Stay-At-Home order

10 made by Governor Newsom’s May 7, 2020, “Resilience Roadmap,” and the County

11 of San Diego’s May 10, 2020, order implementing it. (generally, the “Orders” or the

12 “Reopening Plan”). (Complaint Ex. 1-3; Ex. 2-1.) Under the Reopening Plan,

13 manufacturing and retail (bookstores, clothing stores, florists, and sporting goods)

14 opened on Friday, May 8 (Stage 2a). Offices, seated dining at restaurants, shopping

15 malls, and schools will open a few weeks after that (Stage 2b). And churches will open

16 a few months after that, alongside movie theaters as well as hair and nail salons, and

17 tattoo parlors (Stage 3). Under the Supreme Court’s well-settled Free Exercise

18 jurisprudence, this Reopening Plan is unconstitutional.

19

The original orders from March 2020 allowed “essential businesses” (as

20 determined by government officials on an ad hoc basis) to continue operations subject

21 to strict social distancing guidelines. For example, these orders permitted marijuana

22 dispensaries, fast food restaurants, liquor stores, “the entertainment industries,” and

23 movie studios to continue operations. (Complaint Ex. 1-2, at 23.) By contrast, the

24 original orders prohibited religious leaders and churches like Plaintiffs from holding

25 worship services and ceremonies.

26

Under the original orders, Defendants insisted that all religious worship take

27 place only at home, by live-streaming—apparently assuming that all Californians have

28 access to high-speed internet, computer equipment, a desire to add intrusive, data-
1 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1084 Page 9 of 33

1 collecting apps to their computer devices, and the willingness to suspend a lifetime of

2 worship practices at the command of the government. And in doing their part to curb

3 their pandemic, Plaintiffs chose to abide by them.

4

But the Reopening Plan is beyond the pale. Communal worship and ministry are

5 at the heart of Plaintiffs’ religious beliefs and practices. But these new stay-at-home

6 orders continue making it a crime for a congregant to even step foot inside a synagogue,

7 while permitting visits to bookstores and clothing stores, and soon offices and dine-in

8 restaurants. (Complaint, Ex. 1-3.)

9

The hard-fought rights afforded by the U.S. and California Constitutions are not

10 up for debate; these rights belong to the People. “The imperative necessity for

11 safeguarding these rights to procedural due process under the gravest of emergencies

12 has existed throughout our constitutional history, for it is then, under the pressing

13 exigencies of crisis, that there is the greatest temptation to dispense with fundamental

14 constitutional guarantees which, it is feared, will inhibit governmental action.”

15 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164–65 (1963).

16

Because the Reopening Plan imposes substantial burdens on their religious

17 beliefs and practices, Plaintiffs are suffering immediate, irreparable harm to their

18 fundamental constitutional rights. Accordingly, Plaintiffs seek a narrow temporary

19 restraining order enjoining Defendants’ enforcement of the Reopening Plan as applied

20 against Plaintiffs—and thus moving them from Stage 3 of the Reopening Plan to Stage

21 2—so they can conduct services on the weekend of May 16–17, 2020. Essentially, they

22 seek an order precluding the enforcement of the Reopening Plan so long as they comply

23 with the general guidelines that permit other businesses to keep their doors open.

24

Plaintiffs meet the standards for a temporary restraining order. First, they are

25 likely to succeed on the merits of their claims. In both purpose and effect, the Reopening

26 Plan targets Plaintiffs for discriminatory treatment merely because of their religious

27 beliefs and practices in violation of the First Amendment’s Free Exercise Clause.

28 Second, the religiously discriminatory Reopening Plan is irreparably harming Plaintiffs’
2 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1085 Page 10 of 33

1 fundamental constitutional rights. Without relief, Plaintiffs will continue to suffer

2 irreparable harm, and will remain subject to fines and criminal penalties for exercising

3 their religious beliefs. Third, the balance of harms tips sharply in Plaintiffs’ favor. As

4 noted, Plaintiffs face the loss of core constitutional rights and the inability to practice

5 their faith. The cost of an injunction to the government, by contrast, is negligible,

6 especially because the orders already allow countless activities and operations that

7 engage in precisely what Plaintiffs seek to do. Fourth, a restraining order is warranted

8 because vindicating constitutional rights is always in the public interest.

9

FACTUAL BACKGROUND

10 A. The Government “Stay-at-Home” Orders

11

This case arises from executive orders issued by the State and the County of San

12 Diego to prevent the spread of the novel coronavirus. On March 4, 2020, California

13 Governor Gavin Newsom proclaimed a State of Emergency as a result of the threat of

14 COVID-19. (Trissell Decl., Ex. A.) Two weeks later, on March 19, 2020, the Governor

15 issued Executive Order N-33-20, which ordered all individuals living in the State of

16 California to stay home or at their place of residence. (Complaint, Ex. 1-1, Ex. 1-2.) On

17 May 7, 2020, the Governor published his Resilience Roadmap which modified the

18 prior order with respect to certain businesses. (Complaint, Ex. 1-3.) For all other

19 entities, Governor Newsom’s directives remain in effect, prohibiting all religious

20 leaders from conducting in-person and out-of-home religious services.

21

Governor Newsom’s stay-at-home order has exceptions, namely workers

22 “needed to maintain continuity of operations of the federal critical infrastructure

23 sectors.” (Complaint, Ex. 1-1.) On March 22, 2020, the State elaborated on the

24 exception by releasing a list of “Essential Critical Infrastructure Workers.”

25 (Complaint, Ex. 1-2.) Included on this list are “faith based services that are provided

26 through streaming or other technology.” (Complaint, Ex. 1-2, at 16.)

27

Since Governor Newsom’s Executive Order was first signed on March 16, 2020,

28 the COVID-19 pandemic has flattened considerably and, in the Governor’s words,
3 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1086 Page 11 of 33

1 “stabilized.” (See Trissell Decl., ¶¶ 12–19, Exs. B–D; Delgado Decl., ¶¶ 5–23; Req.

2 for Jud. Ntc., Exs. O–P.) As a result, on April 28, 2020, Governor Newsom held a press

3 conference in which he announced California’s current four-stage Reopening Plan.

4 (Trissell Decl., ¶¶ 20–27, Ex. E.)

5

“Stage 1” of the plan began on March 16, and will continue until the Executive

6 Order is modified. (Trissell Decl., ¶ 20, Ex. E.) “Stage 2” of the Reopening Plan

7 allows retail (“bookstores, clothing stores, florists and sporting goods stores,”) as well

8 as offices and manufacturing businesses, to begin reopening on Friday, May 8. (Trissell

9 Decl., ¶¶ 22, 28, Ex. E; Ex. F.) Religious services are relegated to “Stage 3” along with

10 movie theaters and hair and nail salons: “[T]hings like getting your hair cut, uh getting

11 your nails done, doing anything that has very close inherent relationships with other

12 people, where the proximity is very close.” (Trissell Decl., ¶¶ 23–27, Ex. E.) “Stage

13 4” is the end of all COVID-19 related executive orders. (Trissell Decl., ¶ 20.)

14

On May 8, 2020, California’s Reopening Plan became effective, and was

15 published online. (Complaint, Ex. 1-3; Ex. 1-4.) On May 10, 2020, the County of San

16 Diego issued an order that incorporated Governor Newsom’s executive orders and

17 further established a “Social Distancing and Sanitation Protocol” for “essential

18 businesses” operating in San Diego County. (Complaint, Ex. 2-2.) The order also

19 established a “Safe Reopening Plan” Protocol for “reopening businesses” that will be

20 resuming business. (Complaint, Ex. 2-3.) The order also banned all gatherings of

21 “more than one person” except at essential businesses, reopening businesses, or

22 transit places. (Complaint, Ex 2-1.)

23 B. Plaintiffs Bishop Hodges and South Bay Pentecostal Church.

24

Bishop Arthur Hodges III is Senior Pastor of South Bay Pentecostal Church, a

25 diverse Christian community in Chula Vista, California. Every Sunday, the church

26 holds three to five worship services, where congregants “come together with one

27 accord” to pray and worship. (Bishop Hodges Decl., ¶ 12.) Along with worship

28 services, the church ministers to the faithful by performing baptisms, funerals,
4 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1087 Page 12 of 33

1 weddings, and other religious ceremonies. (Bishop Hodges Decl. ¶ 15.)

2

The Orders have upended South Bay Pentecostal Church’s ministry, shuttered

3 its sanctuary, and stifled Bishop Hodge’s God-given call to shepherd his flock. The

4 Orders prohibit Bishop Hodges from baptizing believers. They shut out the sick from

5 receiving spiritual healing at the altar. And they criminalize the 2,000-year-old

6 tradition of Christians gathering together so that Christ may be in their midst. (Bishop

7 Hodges Decl., ¶ 10.) In short, the Orders have both suppressed and repressed Bishop

8 Hodges and his church’s religious beliefs and practices.

9

Bishop Hodges is prepared to carry on the South Bay Pentecostal Church’s

10 religious ministries consistent with federal, state, and county social distancing

11 guidelines and other preventative measures. For example:

12

• South Bay Pentecostal Church is large enough to ensure the six feet of

13

separation between congregants.

14

• The Church can provide or allow masks, gloves, and other screening

15

mechanisms to protect congregants and inhibit the spread of COVID-19

16

during services and ceremonies.

17

• The Church will require any congregant who is sick or is displaying

18

symptoms to stay at home.

19 (Bishop Hodges Decl., ¶¶ 24–31.)

20

Plaintiffs are not seeking special treatment; they deserve equal treatment. If

21 retail, manufacturing, offices, and restaurants can abide by the government’s social

22 distancing guidelines, then so can a church.

23

LEGAL STANDARD

24

The standards for issuing a temporary restraining order and a preliminary

25 injunction are the same. See, e.g., Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & Co.,

26 Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A plaintiff seeking a temporary restraining

27 order must establish (1) that he is likely to succeed on the merits, (2) that he is likely

28 to suffer irreparable harm without injunctive relief, (3) that the balance of harm tips in
5 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1088 Page 13 of 33

1 his favor, and (4) that a temporary restraining order is in the public interest. See All. for

2 the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011) (citing Winter v. Natural

3 Res. Def. Council, 555 U.S. 7, 20(2008). The Ninth Circuit evaluates these factors

4 through a “sliding scale approach.” All. for the Wild Rockies, 632 F.3d at 1131. So, for

5 example, “a stronger showing of irreparable harm to plaintiff might offset a lesser

6 showing of likelihood of success on the merits.” Id.

7

ARGUMENT

8 1. Plaintiffs Will Likely Succeed on the Merits of Their Constitutional Claims

9

1.1. The Orders violate Plaintiffs’ Free Exercise Rights because they

10

impose a penalty on their sincerely held religious practices.

11

The Free Exercise Clause of the First Amendment provides: “Congress shall

12 make no law respecting an establishment of religion, or prohibiting the free exercise

13 thereof.” U.S. Const. amend. I (emphasis added). Under the Free Exercise Clause, a

14 law that “discriminates against some or all religious beliefs or regulates or prohibits

15 conduct because it is undertaken for religious reasons” is subject to strict scrutiny.

16 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993). To

17 survive that “stringent standard,” the government must prove that the law is narrowly

18 tailored to further a compelling government interest. Trinity Lutheran Church of

19 Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017). As discussed below, the

20 Reopening Plan cannot survive strict scrutiny.

21

To be sure, “the right of free exercise does not relieve an individual of the

22 obligation to comply with a ‘valid and neutral law of general applicability.’” Emp’t Div.

23 v. Smith, 494 U.S. 872, 879 (1990). Thus, a law that is “neutral” and “generally

24 applicable” is not subject to strict scrutiny even if it has the incidental effect of

25 burdening a religious belief or practice. See id. But this “rule comes with an

26 exception.” Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012). When the policy

27 “appears to be neutral and generally applicable on its face, but in practice is riddled

28 with exemptions,” it “must run the gauntlet of strict scrutiny.” Id. at 740.
6 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1089 Page 14 of 33

1

1.1.1. The Orders are not generally applicable because they are

2

riddled with exceptions.

3

A law is not generally applicable if it targets a particular religious belief or

4 practice for discriminatory treatment “through [its] design, construction, or

5 enforcement.” Lukumi, 508 U.S. at 557 (Scalia, J., concurring). Here, the Reopening

6 Plan and the Orders fail the generally applicable requirement because they are

7 underinclusive, exempting “nonreligious conduct that endangers [the government’s]

8 interests in a similar or greater degree than [the prohibited religious conduct].” Id. at

9 543. For example, the Reopening Plan exempts a laundry list of industries and services

10 purportedly “essential” to the government’s various interests, including originally the

11 entire entertainment industry, medical cannabis dispensaries and liquor stores, and

12 now retail stores and manufacturing related to retail stores. (Complaint, Ex. 1-2, Ex. 1-

13 3.) And the Reopening Plan will soon reopen offices and restaurants. (Complaint Ex.

14 1-3; Ex. 1-4.)

15

By contrast, the Reopening Plan, “in a selective manner[,] impose[s] burdens

16 only on conduct [because it is] motivated by religious belief.” Lukumi, 508 U.S. at 543.

17 That religiously motivated conduct is Plaintiffs’ holding communal worship services

18 and faith-based ceremonies, both of which the Reopening Plan prohibits. To be sure,

19 that ban has burdened Plaintiffs’ religious rights:

20

[Despite Bishop Hodges’ 600 capacity church] [o]ne

21

congregant’s service was held in a funeral home that limited

22

attendees to ten people and imposed social distancing

measures, which resulted in much of the decedent’s family

23

being denied participation. Funeral personnel filmed the

24

entire proceeding out of concern for liability should one of

25

the participants fall ill. Such a service is a poor substitute to allowing the deceased’s extended family of faith gather to

26

offer comfort, support, and verbal statements of faith in the

27

salvation of the departed.

28 (Bishop Hodges Decl., ¶ 23.)
7 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1090 Page 15 of 33

1

But the government cannot provide exemptions to secular facilities on the

2 ground that they are “essential” while denying parallel exemptions to churches and

3 synagogues that practice the same or similar degree of preventative measures. That is

4 because favoring non-religiously motivated activities over religiously motivated

5 activities constitutes a forbidden governmental “value judgment.” Fraternal Order of

6 Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999).

7

Relatedly, the Orders are not generally applicable because they have been

8 “enforced in a discriminatory manner.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209

9 (3d Cir. 2004). “Discriminatory laws come in many forms.” Maryville Baptist Church,

10 Inc. v. Beshear, --- F.3d ---, 2020 WL 2111316, at *3 (6th Cir. 2020). Although all

11 persons and entities must follow strict social distancing guidelines, the government’s

12 enforcement of these measures are negligible. Yet because South Bay Pentecostal

13 Church is an established place of worship, Plaintiffs have a target on their back were

14 they to restart their religious services and ceremonies. In short, the Government’s

15 practice has been to enforce its Stay-At-Home Orders against religious persons and

16 churches like Plaintiffs while making little effort to enforce them against widespread

17 and widely known violations of the social distancing guidelines that threaten the public

18 health just as much as, or more than, Plaintiffs’ conduct.1 Thus, the Orders are not

19 generally applicable.

20

The Reopening Plan as applied also falls “well below the minimum standard”

21 of general applicability because the scheme is substantially “underinclusive” and

22 riddled with categorical and individualized exemptions. Lukumi, 508 U.S. at 543. This

23

24 1 In Abiding Place Ministries and Cross Culture Christian Ctr., discussed in the next

section, the factual record involved actual police enforcement, or threats of police 25 enforcement, levelled against churches trying to reopen. See Verified Complaint,

26

Abiding Place Ministries v. Cty. of San Diego, No. 20-cv-0683-BAS, 2020 WL 1881323 (S.D. Cal. Apr. 9, 2020); Order, Cross Culture Christian Ctr. v. Newsom, No. 2:20-CV-

27 00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020). This is despite wellpublicized statements by Governor Newsom and San Diego officials that no

28 enforcement would be forthcoming. (Trissell Decl., ¶¶ 9–11.)

8 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1091 Page 16 of 33

1 includes both the original Stage 1 “essential businesses” of the movie industry, liquor

2 stores and cannabis dispensaries, and the new Stage 2 “essential businesses” of retail,

3 offices, manufacturing, and schools. (Complaint, Ex. 1-3.) “Neutrality and general

4 applicability are interrelated,” and “the failure to satisfy one requirement is a likely

5 indication that the other has not been satisfied.” Lukumi, 508 U.S. at 531.

6

In sum, the record shows that the Government has not been, and is not, acting

7 in a neutral manner required under the Free Exercise Clause. Thus, strict scrutiny is

8 required. At least four federal courts have held as much, determining that executive

9 orders distinguishing between “essential” and “non-essential” businesses must

10 satisfy the strict scrutiny analysis set forth in Lukumi. See, e.g., Maryville Baptist

11 Church, 2020 WL 2111316, at *3; On Fire Christian Ctr., Inc. v. Fischer, --- F. Supp. 3d

12 ---, 2020 WL 1820249, at *6 (W.D. Ky. 2020); First Baptist Church v. Kelly, --- F. Supp.

13 3d ---, 2020 WL 1910021, at *6 (D. Kan. 2020); Tabernacle Baptist Church, Inc. of

14 Nicholasville, Kentucky v. Beshear, No. 3:20-CV-00033-GFVT, 2020 WL 2305307, at

15 *5 (E.D. Ky. May 8, 2020) (Trissell Decl., Exs. G–J).

16

And this is the position of the Department of Justice, reflected in multiple

17 memoranda published by Attorney General Barr, as well as briefs filed by the DOJ in

18 cases across the country. See, e.g., Statement of Attorney General William P. Barr on

19 Religious Practice and Social Distancing (Apr. 14, 2020); Memorandum for the

20 Assistant Attorney General for Civil Rights and All United States Attorneys (Apr. 27,

21 2020); U.S. DOJ Statement of Interest, Temple Baptist Church v. City of Greenville, No.

22 4:20-cv-64-DMB-JMV, ECF No. 6 (N.D. Miss. Apr. 14, 2020); U.S. DOJ Statement

23 of Interest, Lighthouse Fellowship Church v. Northam, No. 2:20-cv-00204-AWA-RJK,

24 ECF No. 19 (E.D. Va. May 3, 2020) (Trissell Decl., Exs. K–N).

25

1.1.2. The prior lawsuits the California Attorney General has

26

litigated are distinguishable.

27

In the past month, three other challenges have been brought against California’s

28 suppression of religious rights. Each resulted in a denial of the motion for a temporary
9 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1092 Page 17 of 33

1 restraining order. Abiding Place Ministries v. Cty. of San Diego, No. 20-cv-0683-BAS,

2 ECF No. 10 (S.D. Cal. Apr. 10, 2020);2 Gish v. Newsom, No. EDCV 20-755 JGB (KKx),

3 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020); Cross Culture Christian Ctr. v. Newsom,

4 No. 2:20-CV-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020). All three

5 wrongly asserted that Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905)

6 applied (discussed infra), and on that basis, held that Governor Newsom’s and the

7 county orders at issue there were permissible. But all three also proceeded to analyze

8 the executive orders under Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

9 U.S. 520 (1993). A careful analysis of these cases, however, shows that they are

10 distinguishable or made serious constitutional errors.

11

First, as an exemplar, the court in Gish stated that there was no “palpable

12 invasion” of the plaintiffs’ religious rights because the plaintiffs “remain free to

13 practice their religion in whatever way they see fit so long as they remain within the

14 confines of their own homes. Although physical contact with others is curtailed, a wide

15 swath of religious expression remains untouched by the Orders.” Gish, 2020 WL

16 1979970, at *5. But problematically, this reasoning places the court in the untenable

17 position of deciding which aspects of a faith are important and what are peripheral.

18 This is no place for a court to be. See, e.g., Serbian E. Orthodox Diocese for U. S. of Am.

19 & Canada v. Milivojevich, 426 U.S. 696, 714 (1976) (court could not adjudicate

20 “theological controversy” of whether bishop was properly defrocked); Presbyterian

21 Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440,

22 451 (1969) (court could not adjudicate question of the “tenets of faith and practice” of

23 a church).

24

Second, all three cases dealt with the Governor’s prior list of “essential

25 businesses” (Complaint, Ex. 1-2), not the current list in the Resilience Roadmap of

26

27

2 The court in Abiding Place Ministries did not publish a written opinion, but denied the request for a temporary restraining order on the bases stated at a hearing.

28

10 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1093 Page 18 of 33

1 “reopening businesses.” (Complaint Ex. 1-3). In that respect, Gish focused on how

2 under the prior regime order “schools are closed, restaurants are shuttered” and

3 “citizens cannot visit public recreation spaces” Gish, 2020 WL 1979970, at *6.3 As a

4 result, the court concluded that the Orders were narrowly tailored to only prohibit

5 “activities where people sit together in an enclosed space to share a communal

6 experience.” Id. But this argument is problematic for multiple reasons. In Stage 2,

7 manufacturing, schools, offices, and childcare facilities will reopen. (Complaint, Ex. 1-

8 3.) These are “activities where people sit together in an enclosed space to share a

9 communal experience.” Gish, 2020 WL 1979970, at *6. Thus, at least when offices and

10 restaurants reopen within a “few weeks,” places of worship that follow the same public

11 health guidelines must also be allowed to reopen. (Trissell Decl., ¶¶ 17, 21.)4

12

But of course, as the three California cases themselves acknowledge, the Orders

13 and Reopening Plan already permitted “essential businesses” such as the

14 “entertainment industries” to stay open even if they have “activities where people sit

15 together in an enclosed space to share a communal experience.” Gish, 2020 WL

16 1979970, at *6. Numerous “essential offices” remain open, but “[h]ow are in-person

17 [office] meetings with social distancing any different from . . . church services with

18 social distancing?” Maryville Baptist Church, 2020 WL 2111316, at *2.

19

The courts then incorrectly concluded that the Executive Orders could assert

20 value judgments that worship is not essential: “[T]hese are all essential services: without

21

22 3 The analysis was the same in Abiding Place Ministries, ECF No. 10 at 18 (“To the

23

extent there are secular exemptions like grocery stores, gas stations, banks, the need for these exemptions is clear. There’s no way these services could be provided

24

remotely”); and Cross Culture Christian Ctr., 2020 WL 2121111, at *6 (“[T]he type of gathering that occurs at in-person religious services is much more akin to conduct the

25 orders prohibit—attending movies, restaurants, concerts, and sporting events—than

that which the orders allow.”). 26 4 It appears that by a “few weeks,” the State means that restaurants and similar

27 establishments can open after individual counties certify to the State that they have satisfied

28

certain metrics on the numbers of cases and deaths. www.cdph.ca.gov/Programs/ CID/DCDC/Pages/COVID-19/COVID-19-County-Variance-Attestation-Memo.aspx.

11

Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1094 Page 19 of 33

1 access to the food and medicines sold at these locations, more citizens would become

2 ill or die.” Gish, 2020 WL 1979970, at *6. “The State’s order expressly states it took

3 other considerations into account, i.e., continuing non-COVID-19 emergency services,

4 providing clean water, protecting the state’s supply chains, etc.” Cross Culture

5 Christian Ctr., 2020 WL 2121111, at *6. This is the Government’s position: that

6 worship is not valuable because it is high risk and “low reward.” (Trissell Decl., ¶ 29.)

7

Of course, protecting life is a commendable value, but the imposition of a value

8 judgment at all is problematic and requires imposition of strict scrutiny. Fraternal

9 Order of Police, 170 F.3d at 366 (“[T]he Department has made a value judgment that

10 . . . medical[] motivations . . . are important enough . . . but that religious motivations

11 are not.”). Otherwise, which value judgments will be deemed sufficient? On May 8,

12 “bookstores, clothing stores, florists and sporting goods stores” were allowed to open.

13 (Trissell Decl., ¶¶ 28, Ex. F.) None of these stores are needed to save lives. Perhaps

14 “bookstores” are needed to promote California’s interest in education, but if so, where

15 does the list stop? Mental health could justify opening up restaurants and all recreation

16 facilities—presumably that is why the entertainment industry was deemed essential

17 wholesale. Under Lukumi and its progeny, any exceptions require the application of

18 strict scrutiny. As one court recently noted in enjoining an executive order similar to

19 the one at issue here, “If social distancing is good enough for Home Depot and Kroger,

20 it is good enough for in-person religious services which, unlike the foregoing, benefit

21 from constitutional protection.” Tabernacle Baptist Church, 2020 WL 2305307, at *5.

22

1.1.3. The Orders are not also neutral because they impose special

23

burdens on Plaintiffs because of their religious practices.

24

Under the First Amendment’s Free Exercise Clause, the government may not

25 “discriminate[] against some or all religious beliefs or regulate[] or prohibit[] conduct

26 because it is undertaken for religious reasons.” Lukumi, 508 U.S. at 532 (emphasis

27 added). Nor may the government “target the religious for special disabilities based on

28 their religious status.” Id. at 533 (quoting Smith, 494 U.S. at 877). And it may not
12 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1095 Page 20 of 33

1 punish an organization’s “religiously motivated” conduct. Trinity Lutheran, 137 S. Ct.

2 at 2021. Here, the stay-at-home orders are not neutral because they put Plaintiffs to a

3 choice: They must suppress their sincerely held religious beliefs and practices or face

4 fines and criminal penalties. That discrimination impermissibly “imposes a penalty on

5 the free exercise of religion” that either invalidates the orders or, at the very least,

6 “triggers the most exacting scrutiny.” Id.

7

The Orders are also not neutral because “the interpretation given to [them] by

8 [the government]” favors secular conduct over comparable religious activities.

9 Lukumi, 508 U.S. at 537. Defendants have broad discretion to interpret the Orders on

10 an ad hoc basis and similar discretion to punish conduct based on subjective

11 determinations. For example, Defendants have arbitrarily declared what types of

12 gatherings or groupings of people are permissible, as long as social distancing practices

13 are observed. (Complaint, Ex. 1-2; Ex. 1-3.) Since these gatherings may be permitted,

14 Defendants must permit Plaintiffs to engage in equivalent religious activities and

15 services, as long as Plaintiffs also adhere to the same public health measures.

16

Yet that is not so. The Orders specifically exclude churches and other places of

17 worship from their exceptions. But as asked by the Sixth Circuit:

18

How are in-person [office] meetings with social distancing

19

any different from . . . church services with social

20

distancing? . . . Why can someone safely walk down a grocery store aisle but not a pew? And why can someone

21

safely interact with a brave deliverywoman but not with a

22

stoic minister? . . . While the law may take periodic naps

during a pandemic, we will not let it sleep through one.

23

24 Maryville Baptist Church, 2020 WL 2111316, at *4. And as stated forcefully by Attorney

25 General Barr:

26

But even in times of emergency . . .the First Amendment and

27

federal statutory law prohibit discrimination against religious institutions and religious believers. Thus, government may

28

not impose special restrictions on religious activity that do

13 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1096 Page 21 of 33

1

not also apply to similar nonreligious activity. For example, if

2

a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain

3

open and unrestricted, it may not order houses of worship to

4

close, limit their congregation size, or otherwise impede

religious gatherings. Religious institutions must not be

5

singled out for special burdens.

6 Statement of Attorney General William P. Barr (Trissell Decl., Ex. K).

7

In sum, the Supreme Court has held that a “law targeting religious belief as such

8 is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4. Any attempt to “punish

9 the expression of religious doctrines” or “impose special disabilities on the basis of

10 religious views” is categorically forbidden. Smith, 494 U.S. at 877 (citations omitted).

11 That is what the Government is doing here, and for that reason, the Orders are not

12 neutral toward religion.

13

1.1.4. The California Constitution mandates strict scrutiny.

14

Even if the Reopening Plan were generally applicable, the California

15 Constitution—which essentially acts as a state RFRA—already mandates application

16 of strict scrutiny. Under the California Constitution, “the religion clauses of the

17 California Constitution are read more broadly than their counterparts in the federal

18 Constitution.” Carpenter v. City and County of San Francisco, 93 F.3d 627, 629 (9th Cir.

19 1996). Courts automatically “therefore review [a] challenge . . . under the free exercise

20 clause of the California Constitution in the same way [they] might have reviewed a

21 similar challenge under the federal Constitution after Sherbert, and before Smith. In

22 other words, we apply strict scrutiny.” Catholic Charities of Sacramento, Inc. v. Superior

23 Court, 32 Cal. 4th 527, 562 (2004).

24

1.1.5. The Orders fail strict scrutiny because they are not narrowly

25

tailored to curbing the pandemic.

26

Given that the new Resilience Roadmap violates Plaintiffs’ free exercise of

27 religion, it must withstand “the strictest scrutiny.” Trinity Lutheran, 137 S. Ct. at 2019.

28 The Government thus has the burden to prove that its laws further a compelling
14 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1097 Page 22 of 33

1 government interest and are narrowly tailored to achieve that end. Strict scrutiny is

2 “the most demanding test known to constitutional law,” and government action that

3 imposes special burdens on religious beliefs and practices will survive it “only in rare

4 cases.” City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Governor Newsom’s

5 Reopening Plan is not one of those cases.

6

To satisfy the first prong of strict scrutiny, the Reopening Plan must advance a

7 compelling government interest “of the highest order.” Wisconsin v. Yoder, 406 U.S.

8 205, 215 (1972). Plaintiffs do not dispute that the government has a compelling interest

9 in curbing the novel coronavirus. Nor do Plaintiffs dispute that the Stay-At-Home

10 Orders further that interest. But the Orders fail strict scrutiny—and are therefore

11 unconstitutional—because they are not narrowly tailored to achieve the Government’s

12 objectives. Specifically, the Orders are overbroad and go “far beyond what was

13 reasonably required for the safety of the public.” Jacobson, 197 U.S. at 28.

14

The compelling interest prong requires a “focused inquiry” that does not turn

15 on whether the government has a compelling interest in enforcing the Orders in the

16 abstract. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014). In other words,

17 “then everybody will want an exception” is not a compelling interest. Instead, courts

18 should “look[] beyond broadly formulated interests justifying the general applicability

19 of government mandates and scrutinize[] the asserted harm of granting specific

20 exemptions to particular religious claimants.”Gonzales v. O Centro Espirita Beneficente

21 Uniao do Vegetal, 546 U.S. 418, 431 (2006). Thus, the Court should determine whether

22 the Government has a compelling interest in not permitting South Bay Pentecostal

23 Church to open.

24

Here, any compelling interest the Government may have in violating Plaintiffs’

25 free exercise rights are defeated by the Orders’ under-inclusivity. As noted above, a

26 law cannot further a compelling interest when it “fail[s] to prohibit nonreligious

27 conduct that endangers [its asserted] interests in a similar or greater degree” than the

28 religious conduct. See Lukumi, 508 U.S. at 543.
15 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1098 Page 23 of 33

1

Because the Orders allow broad exemptions to its stay-at-home mandate, the

2 Government cannot claim that stopping the spread of COVID-19 is a compelling

3 enough interest to shutter South Bay Pentecostal Church. The Government must

4 instead identify a compelling interest actually consistent with its broader powers—

5 exemptions and all. Unless it does so, the Government is left with discriminatory

6 decrees that “leave[] appreciable damage to [its] supposedly vital interest

7 unprohibited.” which is fatal under the Free Exercise Clause. Lukumi, 508 U.S. at 547.

8 But there is no compelling interest that requires the shutting only of churches but not

9 other facilities.

10

In this case, treating Plaintiffs equally and permitting them to hold worship

11 services and other religious ceremonies at South Bay Pentecostal Church would not

12 jeopardize the public health. (Delgado Decl., ¶¶ 14–23.) Bishop Hodges is committed

13 to following the County of San Diego and the Center for Disease Control’s public

14 health guidelines, including strict social distancing measures. He is not asking for

15 special treatment; he is only asking for equal treatment. Defendants have “no good

16 reason so far for refusing to trust the congregants who promise to use care in worship

17 in just the same way it trusts accountants, lawyers, and laundromat workers to do the

18 same.” Maryville Baptist Church, 2020 WL 2111316, at *4.

19

1.1.6. If Jacobson applies, it is only minimally relevant.

20

Over a hundred years ago, the Supreme Court addressed whether the

21 constitution protected an individual’s right to refuse the smallpox vaccine in

22 contravention of a local ordinance. Jacobson v. Commonwealth of Massachusetts, 197 U.S.

23 11 (1905). Jacobson explained that governments can validly enact liberty infringing

24 restrictions to stop the spread of diseases, but they cannot do so in “an arbitrary,

25 unreasonable manner,” or in a way that “go[es] so far beyond what was reasonably

26 required for the safety of the public.” Id. at 28. Thus, when evaluating challenges to

27 laws “purporting to have been enacted to protect the public health, the public morals,

28 or the public safety,” courts must ask whether the law “has no real or substantial
16 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1099 Page 24 of 33

1 relation to those objects, or is, beyond all question, a plain, palpable invasion of rights

2 secured by the fundamental law.” Id. (emphasis added). This is a fact-intensive inquiry

3 looking at the “necessities of the case.” Id.

4

Beginning on April 6 with the Western District of Oklahoma, courts have been

5 citing Jacobson with respect to restrictions on abortion rights during the current

6 pandemic. S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094

7 (W.D. Okla. Apr. 6, 2020). Jacobson was decided before most modern constitutional

8 jurisprudence, and is therefore a bit of an outlier. But because it deals with bodily

9 integrity, autonomy, and medicine, it is a decent fit in the context of abortion rights.

10 To date, the Fifth, Sixth, Eighth, and Eleventh have analyzed Jacobson with relation to

11 restrictions on abortion rights during the pandemic.5

12

However, Jacobson was decided decades before the First Amendment was held

13 to apply to the States by incorporation, and was not a case specifically about regulations

14 of churches. So it is not plain that it should apply in this case at all.6 This is implied by

15 the Sixth Circuit’s opinions—the only circuit to yet address a Free Exercise challenge

16 to pandemic restrictions. The Sixth Circuit cited Jacobson in both its abortion and Free

17 Exercise cases, but only analyzed it in the former. In the latter, it largely ignored it and

18 concluded simply that “restrictions inexplicably applied to one group and exempted

19 from another do little to further these goals and do much to burden religious freedom.”

20 Maryville Baptist Church, 2020 WL 2111316, at *4; see also First Baptist Church, 2020

21 WL 1910021, at *6 (concluding that Lukumi, not Jacobson, controlled).

22

If the Court holds that Jacobson does apply, then as indicated above, there are

23 two questions the Court must analyze. Under the second question, “invasion of rights

24

5 In re Abbott, 954 F.3d 772 (5th Cir. 2020); Adams & Boyle, P.C. v. Slatery, No. 20-

25 5408, 2020 WL 1982210 (6th Cir. Apr. 24, 2020); In re Rutledge, No. 20-1791, 2020

26

WL 1933122 (8th Cir. Apr. 22, 2020); Robinson v. Attorney Gen., No. 20-11401-B, 2020 WL 1952370 (11th Cir. Apr. 23, 2020).

27 6 See Gitlow v. New York, 268 U.S. 652 (1925) (incorporating the Free Speech Clause

28

against the States); De Jonge v. Oregon, 299 U.S. 353, 365 (1937) (Free Assembly Clause); Edwards v. South Carolina, 372 U.S. 229 (1963) (Right to Petition).

17

Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1100 Page 25 of 33

1 secured by the fundamental law,” the courts have generally found for practical

2 purposes that the “fundamental law” is simply the constitutional law readily

3 determinable from precedent. See, e.g., Adams & Boyle, 2020 WL 1982210, at *9 (“As

4 of today, a woman’s right to a pre-viability abortion is a part of ‘the fundamental

5 law.’”); Robinson, 2020 WL 1952370, at *6 (“[T]o the extent that the April 3 order

6 effectively operates as a prohibition on a woman’s right to obtain an abortion before

7 viability, the district court [reasonably] concluded that it is substantially likely to be

8 unconstitutional as applied”). This tracks the language of Jacobson itself: “[A]s the

9 laws there involved went beyond the necessity of the case, and, under the guise of

10 exerting a police power, invaded the domain of Federal authority, and violated rights

11 secured by the Constitution, this court deemed it to be its duty to hold such laws invalid.”

12 Jacobson, 197 U.S. at 28 (italics added).

13

Under the first prong, “no real or substantial relation to th[e] objects [of public

14 health],” the courts have again practically treated this as essentially akin to the

15 heightened scrutiny required under the Supreme Court’s much later developed

16 analyses. See, e.g., Adams & Boyle, 2020 WL 1982210, at *9 (“[I]t is much harder to

17 discern that relation here, given the paltry amount of PPE saved, and limited amount

18 of in-person contact avoided, by halting procedural abortions”); Robinson, 2020 WL

19 1952370, at *8 (“[T]he state did not present any evidence that applying the April 3

20 order to proscribe pre-viability abortions would in fact free up hospital space for

21 COVID-19 patients or PPE for medical providers.”). This again tracks the language of

22 Jacobson itself: “[I]f nothing more could be reasonably affirmed of the statute in

23 question” than “prov[ing] to be distressing, inconvenient, or objectionable to some,”

24 only then is it “the duty of the constituted authorities primarily to keep in view the

25 welfare, comfort, and safety of the many.” Jacobson, 197 U.S. at 28–29.

26

In other words, Jacobson is not separate from Plaintiffs’ constitutional claims, but

27 is shot through them. This finally track’s Jacobson’s own emphasis that it should not be

28 relied upon by the courts as a basis to unnecessarily refuse to act: “[I]t might be that an
18 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1101 Page 26 of 33

1 acknowledged power of a local community to protect itself against an epidemic

2 threatening the safety of all might be exercised in particular circumstances and in

3 reference to particular persons in such an arbitrary, unreasonable manner, or might go

4 so far beyond that was reasonably required for the safety of the public, as to authorize or

5 compel the courts to interfere for the protection of such persons.” Jacobson, 197 U.S. at

6 28. Thus, this Court should engage the constitutional arguments in their regular course.

7

1.2. The Orders also violate the Federal Equal Protection Clause.

8

The Orders and Reopening Plan also violate Plaintiffs’ rights under the

9 Fourteenth Amendment. The Equal Protection Clause provides that “[n]o State shall

10 . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S.

11 Const. amend. XIV. Equal protection requires the state to govern impartially—not

12 draw distinctions between individuals based solely on differences that are irrelevant to

13 a legitimate governmental objection. City of Cleburne, Tex. v. Cleburne Living Ctr., 473

14 U.S. 432, 446 (1985).

15

Strict scrutiny under the Equal Protection Clause applies when, as here, the

16 classification impinges on a fundamental right, including the right to practice religion

17 freely, the right to free speech and assembly, and the right to travel, among others.

18 Maynard v. U.S. Dist. Court for the Cent. Dist. of California, 701 F. Supp. 738, 742 (C.D.

19 Cal. 1988) (“When a law disadvantages a suspect class or impinges upon a ‘fundamental

20 right,’ the court will examine the law by applying a strict scrutiny standard”), aff’d sub

21 nom. Maynard v. U.S. Dist. Court for Cent. Dist. of California, 915 F.2d 1581 (9th Cir.

22 1990). Under strict scrutiny review, the law can be justified only if it furthers a

23 compelling government purpose, and, even then, only if no less restrictive alternative is

24 available. See, e.g. Mem’l Hosp. v. Maricopa Cty., 415 U.S. 250, 257–58 (1974).

25

As noted above, Defendants cannot satisfy strict scrutiny. By granting

26 exemptions for any other activity be it highly laudable (medical exemptions) or not

27 (liquor stores and retail generally), Defendants must then explain why an interest of

28 the highest order requires discriminating against Plaintiffs. This they cannot do: any
19 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1102 Page 27 of 33

1 interests high enough to preclude Plaintiffs from holding worship services and funerals

2 is necessarily also high enough to close the entertainment industry, and liquor and

3 clothing stores. Since these places can open, Defendants must permit Plaintiffs to

4 engage in their constitutionally protected activities as long as they also adhere to the

5 same social distancing guidelines.

6

1.3. The Orders violate the Fourteenth Amendment’s Due Process Clause.

7

The Due Process Clause of the Fourteenth Amendment “provides heightened

8 protection against government interference with certain fundamental rights and liberty

9 interests.” Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997). To receive

10 protection under the Due Process Clause, a right must be “deeply rooted in this

11 Nation’s history and tradition and implicit in the concept of ordered liberty such that

12 neither liberty nor justice would exist if it was sacrificed.” Id. (cleaned up) (quoting

13 Moore v. City of E. Cleveland, 431 U.S. 494 (1977), and Palko v. Connecticut, 302 U.S.

14 319 (1937)).

15

When analyzing a due process claim, the “crucial guideposts for responsible

16 decisionmaking” are the nation’s “history, legal traditions, and practices.” Glucksberg,

17 521 U.S. at 720–21. (quotation marks and citations omitted). The question is whether

18 the right is “so rooted in the traditions and conscience of our people as to be ranked as

19 fundamental.” Snyder v. Commonwealth, 291 U.S. 97, 105 (1934). If so, the right may

20 not be infringed “at all, no matter what process is provided, unless the infringement is

21 narrowly tailored to serve a compelling state interest.” Glucksberg, 521 U.S. 702, 721

22 (1997) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)).

23

Here, the fundamental liberty interest at stake is Plaintiffs’ right to freely

24 exercise their religious beliefs. This right is deeply rooted in our nation’s “history,

25 legal traditions, and practices.” Id. at 709. Indeed, the concept of religious liberty

26 stretches back to colonial times, where citizens looked to practice their religion

27 unimpeded by the government. This basic freedom sought by so many colonists was

28 enshrined in the First Amendment. Yet in March of this year, the Golden State
20 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1103 Page 28 of 33

1 criminalized all religious assembly and communal religious worship. Consequently, the

2 Government has deprived Plaintiffs of their fundamental liberties protected under the

3 Due Process Clause.

4

The magnitude of this point should not be overlooked. Never before has the

5 Government had the gall to simply shut down all places of worship—doing so flies into

6 the heart of the prohibition against government entanglement with religion. See

7 Jacobson, 197 U.S. at 360 (“[T]he spirit of an instrument, especially of a constitution,

8 is to be respected not less than its letter”).

9

The Supreme Court has declined to apply its regular jurisprudence under Smith

10 when the government seeks to interfere with church doctrine, teachings, or ministry.

11 In Emp’t Div. v. Smith, 494 U.S. 872 (1990), the Supreme Court cited with approval

12 several prior decisions protecting a church’s right to institutional autonomy—i.e., its

13 ability to decide for itself matters of church government, faith, and doctrine without

14 state interference. Id. at 877 (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S.

15 696 (1976); Presbyterian Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church,

16 393 U.S. 440 (1969); Kedroff v. St. Nichols Cathedral of Russian Orthodox Church in N.

17 Am., 344 U.S. 94 (1952)). Thus, the Supreme Court has never questioned its

18 longstanding holdings that “[l]egislation that regulates church administration, the

19 operation of the churches, [or] the appointment of clergy . . . prohibits the free exercise

20 of religion,” Kedroff, 344 U.S. at 107–08, and federal courts “exercise no jurisdiction[]

21 in a matter which concerns theological controversy, church discipline, [or]

22 ecclesiastical government.” Serbian E. Orthodox Diocese, 426 U.S. at 713–14.

23

Drawing on that line of cases, the Supreme Court held in Hosanna-Tabor that

24 the Free Exercise Clause bars government interference—even through a neutral law

25 of general applicability—with a church’s selection of ministers, which is “an internal

26 church decision that affects the faith and mission of the church itself.” Hosanna-Tabor

27 Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190 (2012) (italics added).

28 The Executive Orders and Reopening Plan are exactly such orders “regulat[ing] . . .
21 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1104 Page 29 of 33

1 the operation of churches,” Kedroff, 344 U.S. at 107–08, and “affect[ing] the faith and

2 mission of the church itself,” Hosanna-Tabor, 565 U.S. at 190, by dictating what type

3 of worship is permissible, and what is not. The above cases may not be on all fours with

4 the present situation, but—if nothing else—they counsel against the governmental

5 overreach at issue here.

6 2. Plaintiffs Face Irreparable Harm Absent Immediate Injunctive Relief.

7

The Supreme Court has made clear that “[t]he loss of First Amendment

8 freedoms, for even minimal periods of time, unquestionably constitutes irreparable

9 injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). In the First Amendment context, a

10 plaintiff establishes irreparable injury “by demonstrating the existence of a colorable

11 First Amendment claim.” Canyon Ridge Baptist Church, Inc. v. City of San Diego, No.

12 05CV2313 R (CAB), 2006 WL 8455354, at *9 (S.D. Cal. June 15, 2006) (quoting

13 Sammartano v. First Judicial District Court, 303 F.3d 959, 973 (9th Cir. 2002); 11A

14 CHARLES ALAN WRIGHT, ET AL., FED. PRAC. & PROC. CIV. § 2948.1 (3d ed.) (“When

15 an alleged deprivation of a constitutional right is involved, such as the right to free

16 speech or freedom of religion, most courts hold that no further showing of irreparable

17 injury is necessary.”) (footnotes omitted).

18

Without an injunction preventing Defendants from further enforcing the

19 Orders, Plaintiffs will suffer irreparable harm to their fundamental constitutional

20 rights. And because of the threat of civil and criminal penalties, Plaintiffs cannot

21 engage in core religious worship, a quintessential irreparable injury.

22

These irreparable injuries cannot adequately be compensated by damages or any

23 other remedy available at law. Thus, Plaintiffs are suffering irreparable injury.

24 3. The Balance of Hardships Tips Sharply in Plaintiffs’ Favor.

25

The balance of hardships tips overwhelming in favor of Plaintiffs. Here, the

26 threatened injury to Plaintiffs is weighty—the loss of constitutional rights and the

27 inability to practice their faith. Plaintiffs have shown that leaving those Orders in place

28 for even a brief period “would substantially chill the exercise of fragile and
22 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1105 Page 30 of 33

1 constitutionally fundamental rights,” and thereby constitute an intolerable hardship to

2 Plaintiffs. Coll. Republicans at San Francisco State Univ. v. Reed, 523 F. Supp. 2d 1005,

3 1012 (N.D. Cal. 2007).

4

By contrast, the cost of a temporary restraining order to the Government is

5 negligible. In fact, Defendants have the authority to adopt, at least on an interim basis,

6 a more narrowly crafted set of equally applied provisions that enable the government

7 to achieve any legitimate ends without unjustifiably invading First and Fourteenth

8 Amendment freedoms. In addition, Defendants will suffer no legitimate harm by

9 accommodating Plaintiffs’ exercise of fundamental rights in the same manner

10 Defendants are accommodating millions of others engaged in secular activities. The

11 Constitution demands no less.

12 4. A Temporary Restraining Order is in the Public Interest

13

A temporary restraining order is in the public interest. As the Ninth Circuit has

14 “consistently recognized,” there is a “significant public interest in upholding First

15 Amendment principles.” Doe v. Harris, 772 F.3d 563, 683 (9th Cir. 2014). As discussed

16 above, Plaintiffs’ core constitutional rights to free exercise of religion, equal

17 protection, and due process will remain in jeopardy so long as Defendants remain free

18 to enforce their Orders. Thus, the public interest favors an injunction. Maryville Baptist

19 Church, 2020 WL 2111316, at *4 (“As for the public interest, treatment of similarly

20 situated entities in comparable ways serves public health interests at the same time it

21 preserves bedrock free-exercise guarantees.”); First Baptist Church, 2020 WL 1910021,

22 at *8 (“The public interest is furthered by preventing the violation of a party’s

23 constitutional rights.”); On Fire Christian Ctr., 2020 WL 1820249, at *10 (“[T]he

24 public has a profound interest in men and women of faith worshiping together this

25 Easter in a manner consistent with their conscience.”); Tabernacle Baptist Church,

26 2020 WL 2305307, at *5 (“[T]he public interest favors the enjoinment of a

27 constitutional violation”).

28 ///

23 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1106 Page 31 of 33

1 5. The Court Should Dispense with Any Bond Requirement.

2

Finally, Rule 65(c) of the Federal Rules of Civil Procedure provides that a

3 temporary restraining order or preliminary injunction may be issued “only if the

4 movant gives security in an amount that the court considers proper to pay the costs

5 and damages sustained by any party found to have been wrongfully enjoined or

6 restrained.” Fed. R. Civ. P. 65(c). Even so, the Court has discretion over whether any

7 security is required and, if so, the amount . See, e.g., Jorgensen v. Cassiday, 320 F.3d

8 906, 919 (9th Cir. 2003). The Ninth Circuit has “long-standing precedent that

9 requiring nominal bonds is perfectly proper in public interest litigation,” especially

10 “where requiring security would effectively deny access to judicial review.” Save Our

11 Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005) (citing People of State of

12 Cal. ex rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325–26 (9th

13 Cir. 1985); Friends of the Earth, Inc. v. Brinegar, 518 F.2d 322, 323 (9th Cir. 1975)).

14

Plaintiffs request that the Court waive any bond requirement, because enjoining

15 Defendants from unconstitutionally enforcing the orders as to religious activities will not

16 financially affect Defendants, who already categorically exempt specified non-religious

17 activities from compliance. A bond would, however, be burdensome on already

18 burdened Plaintiffs under these circumstances. See, e.g., Bible Club v. Placentia-Yorba

19 Linda Sch. Dist., 573 F. Supp. 2d 1291, 1302 n.6 (C.D. Cal. 2008) (waiving requirement

20 of student group to post a bond where case involved “the probable violation of [the

21 club’s] First Amendment rights” and minimal damages to the District of issuing

22 injunction); Doctor John’s, Inc. v. Sioux City, 305 F. Supp. 2d 1022, 1043-44 (N.D. Iowa

23 2004) (“requiring a bond to issue before enjoining potentially unconstitutional conduct

24 by a governmental entity simply seems inappropriate, because the rights potentially

25 impinged by the governmental entity’s actions are of such gravity that protection of

26 those rights should not be contingent upon an ability to pay.”).

27 ///

28 ///

24 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1107 Page 32 of 33

1

CONCLUSION

2

As stated by Attorney General Barr, “Many policies that would be unthinkable

3 in regular times have become commonplace in recent weeks, and we do not want to

4 unduly interfere with the important efforts of state and local officials to protect the

5 public. But the Constitution is not suspended in times of crisis. We must therefore be

6 vigilant to ensure its protections are preserved, at the same time that the public is

7 protected.” Mem. for the Ass. Att’y Gen. for Civ. Rights (Trissell Decl., Ex. L). Thus,

8 Plaintiffs respectfully request that the Court grant a temporary restraining order before

9 May 16, 2020, and issue an order to show cause re: preliminary injunction, as follows:

10

o Defendants, their agents, employees, and successors in office, are

11 restrained and enjoined from enforcing, trying to enforce, threatening to enforce, or

12 otherwise requiring compliance with any prohibition on Plaintiffs’ engagement in

13 religious services, practices, or activities at which the County of San Diego’s Social

14 Distancing and Sanitation Protocol and Safe Reopening Plan is being followed.

15

16

Respectfully submitted,

17

LiMANDRI & JONNA LLP

18

19 Dated: May 11, 2020
20 21 22 23 24

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs
THOMAS MORE SOCIETY

25 Dated: May 11, 2020 26 27

By: ____________________ Thomas Brejcha Peter Breen Attorneys for Plaintiffs

28

25 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-1 Filed 05/11/20 PageID.1108 Page 33 of 33

1

DHILLON LAW GROUP INC.

2

3 Dated: May 11, 2020 4 5 6

By: ____________________ Harmeet K. Dhillon Mark P. Meuser Gregory R. Michael Attorneys for Plaintiffs

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
26 Memo. of P&As ISO App. for a TRO; & OSC re: Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1109 Page 1 of 9

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiff

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19

20

SOUTH BAY UNITED PENTECOSTAL CHURCH, a California non-profit

21 corporation; and BISHOP ARTHUR HODGES III, an individual,
22

23

Plaintiffs,

24

v.

25 GAVIN NEWSOM, in his official capacity
26 as the Governor of California, et al.,

Case No. 3:20-cv-00865-AJB-MDD
Declaration of Bishop Arthur Hodges III in Support of Application for a Temporary Restraining Order, and Order to Show Cause Re: Preliminary Injunction

27

Defendants.

28

BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1110 Page 2 of 9

1

I, Bishop Arthur Hodges, declare and state as follows:

2

1. I, Bishop Arthur Hodges, am a plaintiff in this action. I am a resident of

3 San Diego County, California. I serve as Senior Pastor of South Bay Pentecostal

4 Church. I also serve as Superintendent for the SoCal District of the United 5 Pentecostal Church International. I submit this declaration in support of Plaintiffs’

6 Application for a Temporary Restraining Order, and Order to Show Cause Re:

7 Preliminary Injunction in my capacity as an individual and in my capacity as Senior 8 Pastor of South Bay United Pentecostal Church. I have personal knowledge of the

9 matters set forth below, and could and would testify competently to them if called

10 upon to do so.

11

Background and Ministry

12

2. I have served as senior Pastor of South Bay United Pentecostal Church

13 for thirty-five (35) years. I also serve as District Superintendent of the United

14 Pentecostal Church International. As Bishop, I oversee more than two-hundred (200) 15 pastors and ministers, representing more than one-hundred (100) churches across 16 Southern California.

17

3. South Bay Pentecostal Church is a reflection of the Chula Vista

18 community. It is a multi-national, multi-cultural congregation. The majority of its

19 members are Hispanic, with the balance consisting of Filipino, Caucasian, African-

20 American, and other ethnic groups. It is an open and accepting community that 21 believes all humans are children of God.

22

4. My vocation was settled from an early age. I am the son of a Pentecostal

23 Pastor. My father repeatedly built churches from scratch, establishing the community

24 and moving on to repeat the same process in another town.

25

5. At the age of ten (10), I felt God calling me to the same ministry.

26 However, sensing the labors of my Father, who was tasked with raising a family,

27 maintaining his electrician business, and serving as a Pastor all at the same time, I

28 understood the tremendous sacrifice that pastors are expected to make. At that age, I

1 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1111 Page 3 of 9

1 was frightened by the burden. As such, I was reluctant to accept God’s call.

2

6. When I was twelve (12), I attended a youth class. The teacher of that

3 particular class was very passionate about the power of prayer. Frequently, he would

4 end those classes in prayer meetings. At one prayer meeting, I heard God asking me, 5 “Are you willing to be my preacher? Will you be my minister?” In that moment, I

6 said yes, and the fear of my father’s burden finally left me. However, it would be a

7 number of years before I would make good on that promise.

8

7. Upon graduating from high school, I believed I would become an airline

9 pilot. However, my father requested that I honor his sacrifices in raising me and 10 asked me to give Bible College a chance. Out of a sense of filial duty, I enrolled at the 11 Apostolic Bible Institute in St. Paul, Minnesota. While at the Institute, God’s call

12 became too loud to ignore. With a missionary’s zeal, I threw myself into full-time 13 ministry. I began preaching at youth camps, conferences, and other venues, traveling

14 from city to city and state to state, sharing God’s Word with all who would open their

15 hearts to listen.

16

8. Two years later, my father invited me to serve as Assistant Pastor at

17 South Bay Pentecostal Church. Sensing that life on the road was no place to grow a 18 family, and with my wife pregnant with our first child, I agreed to accept the position. 19 The passage of time brought change, and my father once more felt the call to move on

20 to a new church. In his stead, I was unanimously voted to take his place at South Bay, 21 where I have served ever since.

22

9. I am a sincere, strong believer that the Bible is the infallible and

23 immutable word of God. This belief is one that I share with South Bay Pentecostal

24 Church. We believe that there is one God—the creator of all. We practice as best we

25 know how and can according to our abilities and understanding of Scripture. “Not 26 forsaking the assembling of ourselves together, as the manner of some is; but 27 exhorting one another: and so much the more, as ye see the day approaching.”

28 (Hebrews 10:25)

2 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1112 Page 4 of 9

1

10. Our model is the New Testament church founded and described in the

2 book of the Acts of the Apostles: “And when the day of Pentecost was fully come,

3 they were all with one accord in one place.” (Acts 2:1) (emphasis added) We believe

4 that “all” being gathered in “one place” is fundamental in order to fulfill Christ’s 5 final charge that “you will be my witnesses.” (Acts 1:8) Thus, at the Church’s very

6 beginning, we believe that the foundational function of the church, all gathering

7 together with one accord, was established.

8

11. The Book of Acts, which chronicles the founding of the Church, uses

9 the word “together” thirty-one (31) times, thus providing thirty-one reasons for the 10 church to come together with one accord. Being “together” spiritually and physically 11 is key in our preaching, teaching, and worship practice. This experience of

12 worshipping together occurs both in the home and in the communal setting, 13 “continuing daily with one accord in the temple, and breaking bread from house to

14 house.” (Acts 2:46–47) (emphasis added)

15

12. In observance of this sacred charge and sincerely held religious belief, we

16 hold between three and five services each Sunday. The average attendance at some of

17 these services lies between two-hundred (200) and three-hundred (300) congregants.

18 Our sanctuary can hold up to six-hundred (600) people.

19

13. Our services focus on the scriptural charge to be “together”—both

20 spiritually and physically. Services begin with Bible classes spread across different 21 ages and groups. Each class may have between ten (10) and one-hundred (100)

22 participants. When these classes conclude, congregants gather together with one 23 accord for praise and worship. Those with special needs or sickness come forward 24 and stand around the altar, where hands are laid upon them and they are then

25 anointed. This sacrament observes the Scriptural charge to “let them pray over him,

26 anointing him with oil in the name of the LORD.” (James 5:14)

27

14. We believe that the act of laying on hands also assists in conferring, in a

28 real sense, the gift of the Holy Ghost: “And when Paul had laid his hands on them,

3 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1113 Page 5 of 9

1 the Holy Ghost came on them.” (Acts 19:6) The service concludes with preaching 2 followed by a challenge to physical action, where the congregation is challenged to 3 approach the altar to “come believing, come praying.” As mandated by Scripture,

4 the service concludes with fellowship both inside and outside the sanctuary: “And 5 they continued steadfastly in the apostles’ doctrine and fellowship, and in the

6 breaking of bread, and in prayers.” (Acts 2:42)

7

15. We also perform baptisms, funerals, weddings, and other religious

8 ceremonies.

9

16. We believe Scripture exhorts us to “[r]epent, and be baptized every one

10 of you in the name of Jesus Christ for the remission of sins, and ye shall receive the

11 gift of the Holy Ghost.” (Acts 2:38) We believe this sacrament of “new birth”

12 cannot be performed on one’s own, or by staying at home. One may repent on their 13 own, but they cannot baptize themselves. We practice the sacrament of baptism by

14 immersion in water on a weekly and/or daily basis, based on the need or request of a 15 candidate. We believe there is no justifiable reason for postponing the sacrament of 16 baptism, as it is a necessary part of salvation.

17

17. Our congregation is multi-racial and represents a cross-section of

18 society, from rich to poor and encompassing people of all ages. Our congregation also

19 includes members and visitors who run the gamut of essential workers. These

20 essential workers and service providers receive spiritual support, comfort, guidance, 21 and shelter from our ministry.

22

The Impact of the COVID-19 Orders

23

18. Since Governor Newsom’s, the County of San Diego’s, and the City of

24 San Diego’s orders prohibiting physical religious assembly were put in place (the

25 “Orders”), our ability to carry out our ministry has been dramatically curtailed. I 26 have been forced to curtail my ministry, as well as that of my church, despite the fact 27 that I have neither experienced symptoms of nor been diagnosed with COVID-19.

28

19. These orders forbid the assembly required to come together with one

4 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1114 Page 6 of 9

1 accord. These orders forbid baptism by immersion, gathering around the altar, and

2 any form of “being together” that is both physical and spiritual.

3

20. “Zoom Meetings” and other tele-conferencing applications are

4 inadequate substitutes as they curtail a minister’s ability to lay hands upon a 5 congregant or perform a baptism. They also curtail our congregation’s ability to

6 approach the altar, which is central to our experience of faith.

7

21. As a result of the Orders, I am prohibited from holding the services

8 mandated by Scripture. These include the important milestone services that mark life

9 events and even the end of a life.

10

22. It is particularly heartbreaking and tragic for a congregant to lose a

11 parent or child and not be able to gather with one accord with their family of faith.

12 Because the Orders prohibit religious assembly, funerals have been postponed and/or 13 dramatically curtailed. As a result, I am unable to hold any funerals in our sanctuary,

14 and members of my congregation are left to nurse their heartbreak in silence or

15 through inadequate substitutes.

16

23. One congregant’s service was held in a funeral home that limited

17 attendees to ten people and imposed social distancing measures, which resulted in 18 much of the decedent’s family being denied participation. Funeral personnel filmed 19 the entire proceeding out of concern for liability should one of the participants fall ill.

20 Such a service is a poor substitute to allowing the deceased’s extended family of faith 21 gather to offer comfort, support, and verbal statements of faith in the salvation of the

22 departed.

23

24

24.

Ensuring Social Distancing I desire to hold services at the South Bay Pentecostal Church in a

25 manner that properly protects my congregants so that they may observe the 26 inviolable precepts of Scripture and encourage and comfort one another during these 27 troubling times of the COVID-19 outbreak. My congregation needs to connect with

28 one another in order to receive the hope and encouragement they need to heal and

5 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1115 Page 7 of 9

1 grow in their faith and in order to observe the Scriptural requirement of gathering

2 together with one accord.

3

25. The Orders providing an outright ban on religious services are

4 overbroad and unnecessary because Sunday services, baptisms, and funerals may be

5 held in a manner consistent with the social distancing guidelines. If restaurants, auto

6 mechanics, and marijuana dispensaries are capable of following these guidelines, my

7 congregation is certainly capable. Governor Newsom has made clear that his order is

8 merely a floor, and that regional autonomy permits the imposition of stricter

9 standards. Thus, businesses in San Diego County are practically guided by the

10 County’s Social Distancing and Sanitation Protocol—which appears to follow quite

11 closely the CDC guidelines.

12

26. As the below photo demonstrates, South Bay Pentecostal Church

13 possesses a large sanctuary that provides ample room to accommodate the six (6) feet

14 of social distancing required by the County and CDC requirements. Moreover,

15 should the amount of congregants threaten to overwhelm the social distancing

16 guidelines, additional services can be added to accommodate smaller gatherings that

17 would satisfy those guidelines.

18

19

20

21

22

23

24

25

26

27. In addition, we can integrate masks, gloves, screens, veils, and other

27 screening mechanisms in order to protect congregants and inhibit the spread of

28 COVID-19 during all services, including Sunday worship, baptisms, and funerals.

6 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1116 Page 8 of 9

1 Our full-immersion baptismal font currently uses an ultraviolet light water filtration 2 system to kill pathogens. To further secure against infection. we will also use virus3 killing chlorine in a concentration similar as that used in public swimming pools.

4 Furthermore, we will encourage anyone uncomfortable with gathering during the 5 pandemic to stay at home. We will also require that anyone who is sick or has

6 symptoms to stay at home.

7

28. In other words, we can and will abide by the County’s Social Distancing

8 and Sanitation Protocol just like any other organization.

9

29. These services are essential for the spiritual health of the congregation

10 so that the congregants can exhort one another and the will of God during these

11 difficult times.

12

30. We have previously demonstrated our ability to adopt and enforce

13 suitable guidelines for social distancing practices through our work as what may be

14 the largest food distributor to needy people in the South Bay region of San Diego 15 County. Since the closure orders were placed, we worked with the Chula Vista Police 16 Department to develop a drive-through food distribution system so that hundreds of

17 cars may drive into and around the Church parking lot. Volunteers are provided 18 masks and gloves and deliver groceries, contact-free, directly into each driver’s trunk 19 or cargo area. During any given week, we distribute between three (3) and twelve (12)

20 tons of food. We have also been publicly fêted for our efforts by the Mayor of Chula 21 Vista.

22

31. If we are capable of demonstrating and implementing proper social

23 distance protocols for the purposes of food distribution, our community is clearly

24 capable of demonstrating and implementing similar protocols when engaging in our

25 Scripturally mandated worship practices. 26 / / / 27 / / /

28

7 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-2 Filed 05/11/20 PageID.1117 Page 9 of 9

1

I declare until penalty of perjury under the laws of the United States and the

2 State of California that the foregoing is true and correct. Executed on May 6, 2020.

3

4

5

Bishop Arthur Hodges

6

7

8

9

10

11

12

13

14

15

16

17

18 19

20

21

22

23

24

25

26 27

28

8 BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1118 Page 1 of 7

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19

20

SOUTH BAY UNITED PENTECOSTAL CHURCH, a California non-profit

21 corporation; and BISHOP ARTHUR HODGES III, an individual,
22

23

Plaintiffs,

24

v.

25 GAVIN NEWSOM, in his official capacity
26 as the Governor of California, et al.,

Case No. 3:20-cv-00865-AJB-MDD
Declaration of George Delgado, M.D. in Support of Application for a Temporary Restraining Order, and Order to Show Cause Re: Preliminary Injunction

27

Defendants.

28

GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1119 Page 2 of 7

1

I, George Delgado, M.D., declare and state as follows:

2

1. I am a physician, licensed by the Medical Board of the State of California

3 since 1989. I submit this declaration in support of Plaintiffs’ Application for a

4 Temporary Restraining Order, and Order to Show Cause Re: Preliminary Injunction.

5 I have personal knowledge of the matters set forth below, and could and would testify

6 competently to them if called upon to do so.

7

Background

8

2. I graduated from St. Mary’s College of California with a Bachelor of

9 Science degree, summa cum laude and received my Doctor of Medicine degree from

10 the University of California, Davis. I completed my family residency at Santa Monica

11 Hospital/UCLA and I am board certified in family medicine, hospice, and palliative

12 medicine.

13

3. Since 2005, I have been the medical director of a family medical group.

14 Additionally, I am the chief medical officer of a large hospice.

15

4. Post-residency I have practiced medicine in the State of California for 29

16 years. During that time, I have treated many people with infectious diseases,

17 including viral illnesses such as influenza, which tend to occur in epidemics. I have

18 been intimately involved in planning for the current coronavirus disease 2019

19 (COVID-19) pandemic, caused by the severe acute respiratory syndrome coronavirus

20 2 (SARS-CoV-2) for my family medical group and hospice.

21

Monte Carlo Simulation of COVID-19 Infection Data

22

5. While planning for the pandemic, I have been providing medical support

23 and direction to a COVID-19 planning group headed by William Goyette, an 24 aerospace engineer. Mr. Goyette has long experience with using Monte Carlo

25 simulations in order to solve complex problems in the areas of physics and electrical

26 engineering. He noticed that most of the models that were being used to predict the

27 pandemic’s course were close form models that essentially fit data to a curve. The

28 Monte Carlo model has proven to be more accurate than the models more commonly

1
GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1120 Page 3 of 7

1 being used to predict the impact of the COVID-19 pandemic.

2

6. It is clear that due to mitigation measures carried throughout California,

3 the trajectory of the COVID-19 pandemic has been altered; the “curve has been

4 flattened.” Mitigation measures, like any medical treatment, have untoward

5 consequences, some foreseeable, some not. When they are imprecise, they can lead

6 to civil liberty infringements. Furthermore, the “treatment” that got us to where we

7 are now, is not the “treatment” that is indicated for us now.

8

7. In the clinical practice of medicine, we acknowledge that people have

9 spiritual, psychological and physical dimensions. We know that spiritual and

10 psychological stress and trauma can lead to physical problems, including immune

11 system dysfunction. Arbitrarily declaring religious services to be “non-essential,”

12 besides being unconstitutional, also carries with it certain profound spiritual and

13 psychological risks that, ironically, could actually lead to an increase in mortality from

14 COVID-19 by negatively impacting immune function and by destabilizing the support

15 systems of vulnerable people.

16

8. Different data sets related to the pandemic demonstrate similar curves

17 when graphed over time. The peaks of those curves often follow a predictable

18 sequence, especially when testing is not readily available for a large percentage of the

19 population. Actual cases will peak first, followed by positive tests (in the case of

20 COVID-19, PCR viral RNA tests), followed by hospitalizations, followed by intensive

21 care unit (ICU) admissions, followed by deaths and recovery.

22

9. It is important to keep in mind that positive tests can be misleading

23 when you are still testing relatively low numbers of a population, i.e., you are

24 “catching up.” The more tests preformed, the greater the increase in new cases that

25 will be recorded.

26

10. Hospitalizations and deaths are both lagging indicators. In fact, deaths

27 reflect infections that started approximately three weeks prior to the death. Except in

28 certain geographic pockets where flare-ups may occur, level or decreasing

2
GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1121 Page 4 of 7

1 hospitalizations and death rates are very reassuring indicators that we have reached a 2 plateau or are seeing a decrease in the number of new infections.

3

11. In California, the statistics support the flattening of the curve.

4 Hospitalizations have remained at a relatively steady level and ICU admissions have

5 trended downward. Deaths have been at a plateau since April 6, with the daily death

6 count from April 6 to May 2 ranging from 31 to 115 per day. Only one of those days

7 had 100 or more deaths. Eight of those days had counts less than 50. Again, deaths

8 are the last lagging indicator.

9

12. Los Angeles County has reported about 1,200 deaths (out of California’s

10 approximate total of 2,200). There too, however, the curve of new deaths has

11 flattened, similar to the California curve. The Monte Carlo model predicts that total

12 deaths in Los Angeles County will be approximately 1,900, for this year.

13

13. The measure R0 (“R naught”) provides an indication of how many

14 additional persons an infected person can infect. When R0 drops below one, an

15 outbreak loses steam and begins to subside. Our model shows that in Los Angeles

16 County R0 decreased to less than one in early April.

17

Resumption of Religious Services Will

18

Not Jeopardize Public Health

19

14. I am confident that a resumption of religious services can take place in a

20 manner that does not jeopardize public health. In fact, I feel that going to one’s

21 church, synagogue or mosque should be much safer than going to the grocery store.

22

15. One could easily compare an average grocery store, which serves 1,000

23 customers per day, to a house of worship in terms of risk of contagion. Even with 24 planned flow of foot traffic, the movement of people in the grocery store remains 25 relatively uncontrolled. The aisles are not designed to allow six-foot social distancing.

26 People touch merchandise that they will never buy. By the time a person puts an item

27 in his or her cart, it may have been touched by several, if not hundreds of people in

28 the three previous days (the coronavirus can survive up to three days on smooth

3
GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1122 Page 5 of 7

1 surfaces). The cart may have had its handle sanitized but the carriage itself likely was 2 not. Next, the items are placed on a conveyer belt which has contacted hundreds of

3 items that others have touched. The clerk wears gloves but does not change gloves

4 between customers. He touches nearly every item as well as money.

5

16. The house of worship, on the other hand will likely have far fewer than

6 1,000 attendees and services may even be held outdoors. The participants will be

7 stationary for all or most of their services and their movements can be very

8 controlled, planned, and prescribed, as opposed to the uncontrolled movements in

9 grocery stores. Worshipers will not be touching multiple items. There will be time

10 after each service to thoroughly clean the chairs or pews that they do touch.

11

17. We can calculate the risk of contagion at the house of worship if the

12 guidelines listed below are followed, compared to a grocery store. A relative value

13 greater than 1 makes the house of worship riskier, while a relative risk less than 1

14 makes the house of worship safer.

15

18. *Being in the same building with others at any one time: relative risk is 4

16 (100 in the house of worship 25 in grocery store)

17

19. *People touching multiple objects: relative risk is 0.25. People touch far

18 fewer things in the house of worship; 1,000 people per day touch many things in the

19 grocery store. Chairs and pews can be sanitized after services. It is impracticable, if

20 not impossible, to sanitize all items in a store.

21

20. *Close contact with others: relative risk is 0.25. Worshipers are

22 stationary and socially distanced. They enter and exit in a controlled, spaced manner.

23 Shoppers move about as they wish, even if flow is one way.

24

21. Therefore, the calculation is: Risk in House of Worship = Risk in

25 Grocery Store x 4 x 0.25 x 0.25 = 0.25, which is less than 1.

26

22. Therefore, the calculated risk of contracting COVID-19 at the house

27 of worship is 0.25 or 25% the risk at the grocery store, and no one is arguing that

28 going to the grocery store is not safe.

4
GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1123 Page 6 of 7

1

23. The following commonsense recommendations will facilitate a safe

2 return to meaningful, spiritually rich religious services for the millions of Californians

3 who cherish their religion and do not deem its practice unessential:

4

A. Have a questionnaire that the attendees self-administer before entering.

5

Any who have symptoms of COVID-19 or contact with someone who is

6

infected should be told not to enter.

7

B. All who enter the house of worship should sanitize their hands.

8

C. More services should be offered to allow limiting congregation sizes. There

9

should be no arbitrary limit on congregation size, however, as long as six-

10

foot social distancing can be maintained.

11

D. Shorter sermons and shorter services will allow clergy to offer more

12

services while maintaining their spiritual and physical stamina.

13

E. If feasible, outdoor services should be offered. Alternatively, houses of

14

worship should be well-ventilated, with many doors and windows open.

15

There is less chance of contagion in well-ventilated areas.

16

F. During services, people should sit together as families, with six feet

17

between families. Only allow seating in every other pew or row, leading to

18

six-foot spacing.

19

G. Face coverings or face masks should be worn by attendees. The clergy

20

person, being greater than six feet away from congregants, need not wear a

21

face covering.

22

H. No singing by the assembly should be allowed, as singing can aerosolize the

23

virus. Chanting by the minister should be allowed.

24

I. Where communion is offered, lines can be spaced with families at six-foot

25

intervals, just like in the supermarket.

26

J. The minister who distributes communion should sanitize his or her hands

27

and take great care not to touch any recipient’s mouth or hand. If an

28

inadvertent contact occurs, the minister should re-sanitize the hands,

5
GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-3 Filed 05/11/20 PageID.1124 Page 7 of 7

1

immediately.

2

K. No hugging, kiss of peace, hand shaking or hand holding should be

3

allowed.

4

L. Worship aids and prayers should be projected, if possible. Reusable prayer

5

books should be removed from the building.

6

M. Foot traffic entering and exiting the worship area should be designed as a

7

one-way flow loop.

8

N. Entrance should be in orderly stages, from front to back, in order to avoid

9

close physical contact between worshipers.

10

O. Likewise, egress should be row by row, beginning with the row closest to

11

the exit door.

12

P. After each service, chairs, benches and pews should be sanitized.

13

I declare until penalty of perjury under the laws of the United States and the

14 State of California that the foregoing is true and correct. Executed on May 6, 2020.

15

16

17

George Delgado, M.D.

18

19

20

21

22

23

24

25

26

27

28

6
GEORGE DELGADO, M.D. DECL.

 
 Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1125 Page 1 of 232

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19

20

SOUTH BAY UNITED PENTECOSTAL CHURCH, a California non-profit

Case No. 3:20-cv-00865-AJB-MDD

21 corporation; and BISHOP ARTHUR 22 HODGES III, an individual,

Declaration of Jeffrey M. Trissell, Esq. in Support of Application for a Temporary

23

Plaintiffs,

v.

24

Restraining Order, and Order to Show Cause Re: Preliminary Injunction

25 GAVIN NEWSOM, in his official capacity as the Governor of California, et al.,
26

27

Defendants.

28

Judge: Anthony J. Battaglia Courtroom: 4A
Oral Argument Requested

JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1126 Page 2 of 232

1

I, Jeffrey M. Trissell, Esq., declare and state as follows:

2

1. I am an attorney at law duly licensed to practice in the State of California

3 and in the Southern District of California, and am counsel for Plaintiffs South Bay

4 United Pentecostal Church and Bishop Arthur Hodges III. As such, I have personal 5 knowledge of the matters set forth below and could and would testify thereto if called

6 upon to do so.

7

The Need for Ex Parte Relief

8

2. On Friday, May 8, 2020, Plaintiffs filed their complaint seeking

9 declaratory and injunctive relief for violations of their constitutional rights. On the 10 same day, Plaintiffs filed an ex parte application for a temporary restraining order 11 permitting them to hold worship services on the weekend of May 16–17, 2020.

12

3. On Monday, May 11, 2020, Plaintiffs decided to file a First Amended

13 Complaint omitting Mayor Faulconer and Police Chief Nisleit, and including the

14 County of San Diego’s May 10, 2020, health order. As a result, the only remaining

15 Defendants are those affiliated with the County of San Diego and the State of 16 California—not the City of San Diego.

17

4. On Monday, May 11, 2020, at 1:00 p.m., counsel for Plaintiffs held a

18 meet and confer conference call with counsel for the County-affiliated Defendants

19 (Timothy White) and counsel for the State-affiliated Defendants (Lisa Plank and

20 Todd Grabarsky). On the call, defense counsel made clear that they were not in a 21 position to stipulate to the relief sought by the ex parte application. The County

22 Defendants stated that their Orders were predicated on the State Orders, which they

23 could not violate. The State Defendants stated that they could not agree to the relief 24 sought.

25

5. Because Plaintiffs seek relief by the weekend, Plaintiffs now move for

26 that relief on an ex parte basis. The parties also discussed the possibility of a

27 stipulated briefing schedule. At the time of this filing, however, the parties, could not

28 agree on one. As a result, Plaintiffs will be filing ex parte to set such a schedule.

1 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1127 Page 3 of 232

1

The Executive Orders Prior to Reopening

2

6. On March 4, 2020, California Governor Gavin Newsom proclaimed a

3 State of Emergency as a result of the threat of COVID-19. A true and correct copy of

4 that proclamation is attached hereto as Exhibit A.

5

7. On March 19, 2020, California Governor Newsom issued Executive

6 Order No. N-33-20 in which he ordered that “all residents are directed to

7 immediately heed the current State public health directives.” A true and correct copy 8 of that executive order is attached to the Complaint as Exhibit 1-1.

9

8. On March 22, 2020, the California Public Health Officer designated a

10 list of “Essential Critical Infrastructure Workers.” Included on the list of the

11 “essential workforce” are “faith based services that are provided through streaming

12 or other technology.” A true and correct copy of that list is attached to the Complaint 13 as Exhibit 1-2.

14

9. I watched Governor Newsom’s March 19, 2020, press conference,

15 about his Executive Orders. In that press conference, Governor Newsom stressed

16 that there will be no police enforcement of the State Orders. A recording of that press

17 conference is available online here: https://www.facebook.com/CAgovernor/

18 videos/494465634769746/. The statements were made at approximately the 4:00 and 19 34:00 minute marks.

20

10. I watched the relevant portions of San Diego County Public Health

21 Officer Wilma Wooten’s March 18, 2020, press conference about the County

22 Orders. In that press conference, Dr. Wooten stressed that she was only expecting

23 80%-90% compliance—which would be sufficient. A recording of that press 24 conference is available online here: https://youtu.be/sogjrotTCSw. The statements

25 were made at approximately the 1:10:15 minute mark.

26

11. I watched the relevant portions of the City of San Diego’s Police Chief

27 Nisleit’s March 20, 2020, press conference about the City Orders. In that press

28 conference, Chief Nisleit stated that “the approach that we are taking” is simply

2 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1128 Page 4 of 232

1 “asking for compliance,” and not using police enforcement. A recording of that press 2 conference is available online here: https://youtu.be/zIXUA3lrJYk. The statements 3 were made at approximately the 9:33 and 14:45 minute marks.

4

12. I viewed on the Fox 5 website the article titled “Palomar Health to Lay

5 off 317 employees,” dated Aril 28, 2020, 01:30 PM. As the title indicates, the article

6 reports on a significant layoff of medical personnel due a decline in patient visits.

7 That article is available online here: https://fox5sandiego.com/news/health/ 8 palomar-health-to-lay-off-317-employees/. A true and correct copy of that article is

9 attached hereto as Exhibit B.

10

13. I viewed on the CalMatters website the article titled “Wanted: Health

11 care workers. Wait! Never mind…,” dated May 6, 2020. The article states that 49%

12 of medical practices in California have had to lay off or furlough staff. It further states 13 that hospitals are now seeking a bailout from the California government. The article

14 is available online here: https://calmatters.org/health/coronavirus/2020/05/health-

15 care-workers-layoffs-california-coronavirus-nurses-furloughs-pay-cuts-hospitals/. A 16 true and correct copy of that article is attached hereto as Exhibit C.

17

Governor Newsom’s Reopening Plan

18

14. On Tuesday, April 27, 2020, Governor Newsom held a press conference

19 relating to the coronavirus pandemic. A recording of it is available online here:

20 https://www.facebook.com/CAgovernor/videos/239711700434134/. I watched that 21 press conference in full. During the press conference, the Governor’s main these was

22 how Californians had done a good job during this pandemic, and as a result, have

23 greatly stabilized the spread of the virus.

24

15. This stabilization is corroborated by (1) the website Rt.live; (3) the

25 following page on the Statista.com website: https://www.statista.com/statistics/

26 1109011/coronavirus-covid19-death-rates-us-by-state/; (3) the laying off of health27 care workers shown in the articles attached as Exhibits B and C; and (4) the graphic

28 published by Elon Must: https://twitter.com/elonmusk/status/

3 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1129 Page 5 of 232

1 1255678979043778560.

2

16. Based on my personal transcription of the April 27, 2020, press

3 conference, at 6:03, Governor Newsom stated that we “have not only bent the curve

4 in the state of California, but stabilized it.”

5

17. At 6:40, Governor Newsom stated that “[t]he reality is, we are just a

6 few weeks away, not months away, from making measurable and meaningful changes

7 to our stay-at-home order.”

8

18. At 25:04, Governor Newsom stated the following:

9

The number of hospitalizations, 1.4% increase. Um, again,

10

we’re seeing some stabilization, decrease, modest increase, decrease, modest increase, uh, in the total number of

11

people hospitalized. The number of people in ICU’s

12

basically flat from yesterday, just one individual, uh, more

than in the last 24 hours in the ICU—so again,

13

stabilization.

14

19. I also had a certified transcript made of the recording of that April 27,

15 2020, press conference. That transcript is attached hereto Exhibit D.

16

20. On Wednesday, April 28, 2020, Governor Newsom held another press

17 conference relating to the coronavirus pandemic. A recording of it is available online

18 here: https://www.facebook.com/CAgovernor/videos/524013811808326/. I also

19 watched that press conference in full. During the press conference, the Governor’s

20 main theme was outlining his four stage Reopening Plan. As part of that plan, Stage 1

21 is the period from the issuance of his March 16 executive order until it is modified,

22 Stage 2 and 3 are periods when some businesses will begin opening up, and Stage 4 is

23 when there is no executive order in place.

24

21. Based on my personal transcription, at 48:43, Governor Newsom stated

25 that “the foundational point of emphasis we want to advance today is phase 2 . . . is in

26 weeks not months, phase 3 and 4, months not weeks.”

27

22. During the press conference, at 37:29, Dr. Sonia Angell—the Director of

28 the California Department of Public Health—showed the following graphic and

4 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1130 Page 6 of 232

1 explained Stage 2 as follows:

2

In stage 2, we’re going to really start focusing on lower risk

3

workplaces, that means gradually opening some of those

4

workplaces with adaptions. These include things like: Retail, allowing for curbside pickup; Manufacturing, which

5

can include things like toys, clothing, other things,

6

furniture, that was not a part of the essential sector;

Talking about offices, this can include things like PR firms,

7

and consulting, and other places where telework is not

8

possible, but by modifying the environment itself, it can

make it lower risk for individuals; and then ultimately

9

talking about opening more public spaces, things like parks

10

and trails, that may have historically been limited because

11

of our concerns, trying to think about how we can modify that to make them safer for individuals to enjoy the outdoor

12

spaces because we know physical activity is so important to

13

our health, and this is also about health, clearly.

14

15

16

17

18 19

20

21

22

23

23. At 35:22, Dr. Angell then described Stage 3 as follows: “The third stage is

24 when we get into those areas that may be higher risk, those sectors that we think will

25 take a lot more modification to adapt in a way that can make them places where people

26 can move with lower risk.”

27

24. At 35:52, Dr. Angell further described Stage 3 as follows: “Those are

28 things like getting your hair cut, uh getting your nails done, doing anything that has

5 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1131 Page 7 of 232

1 very close inherent relationships with other people, where the proximity is very close.”

2

25. At 46:49, Dr. Angell described Stage 4 as follows: “And then ultimately,

3 the space that we all look forward to, someday as we move forward and work diligently

4 together, is Stage 4, which would be the end of the stay-at-home order. And that’s 5 when we’d be opening all of our highest risk workplaces without modification

6 necessary at that time, because at that time we will know that we have identified a way

7 that we can keep people safe from COVID-19.

8

26. During this time, Dr. Angell showed the following graphic:

9

10

11

12

13

14

15

16

17

18

27. I also had a certified transcript made of the recording of that April 28,

19 2020, press conference. That transcript is attached hereto Exhibit E. The slides are

20 also available online here: https://www.gov.ca.gov/wp-content/uploads/2020/04/

21 Update-on-California-Pandemic-Roadmap.pdf.

22

28. On May 4, 2020, Governor Newsom issued a press release in which he

23 stated that Stage 2 will begin, in part, on Friday, May 8, 2020. According to that

24 press release, only some businesses will be allowed to reopen, like “bookstores,

25 clothing stores, florists and sporting goods stores,” but not yet “offices, seated dining

26 at restaurants, shopping malls or schools.” A true and correct copy of that press

27 release is attached hereto as Exhibit F.

28

29. On May 7, 2020, Governor Newsom held a press conference to

6 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1132 Page 8 of 232

1 announce the beginning of Stage 2, and the publication of his Resilience Roadmap. A

2 recording of it is available online here: https://www.facebook.com/CAgovernor/

3 videos/260976601615609/. I also watched that press conference in full. During that

4 press conference, at 50:36, Governor Newsom was asked by a journalist a why

5 schools were being prioritized over places of worship. Based on my personal

6 transcript, the following exchange followed:

7

Q: Thank you Governor. Can you clarify why churches and

8

salons are in Stage 3 and not Stage 2. Um, what makes them more high risk than schools, for example? Uh, what

9

factors are you weighing here when you decide what goes

10

into what phase?

11

A: Yeah, we’re, we’re looking at the science,

12

epidemiology, looking again at frequency, duration, time, uh, and looking at low risk-high reward, low risk-low

13

reward, looking at a series of conditions and criteria, as well

14

as best practices uh from other states and nations.

15

30. On May 7, 2020, Governor Newsom also published his Resilience

16 Roadmap online. That Roadmap identifies the industries that may open immediately

17 (retail for curbside pickup, manufacturing and logistics), those that will open in a few

18 weeks (shopping malls, car washes, schools, restaurants), and those that cannot open

19 for several months, until Stage 3 is announced (salons, tattoo parlors, gyms, bars,

20 movie theaters, and places of worship). A true and correct copy of a printout of the

21 webpage containing that Roadmap is attached to the Complaint as Exhibit 1-3.

22

31. Under the Roadmap, for each industry that will be allowed to open in

23 Stage 2, the Roadmap also provides industry-specific Pandemic Guidance that the

24 industry must comply with. The industry must both comply with the guidance, and

25 certify to the state that it is in compliance. True and correct copies of the Guidance

26 for two industries opening immediately—manufacturing and logistics—is attached to

27 the Complaint as part of Exhibit 1-3.

28

32. At the same time, Governor Newsom published a press release

7 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1133 Page 9 of 232

1 announcing the Resilience Roadmap, and explaining the same. A true and correct

2 copy of that press release is attached to the Complaint as Exhibit 1-4.

3

33. On May 10, 2020, the County of San Diego issued an Order of the

4 Health Office and Emergency Regulations. That order incorporated Governor 5 Newsom’s Executive Order No. N-33-20 (Ex. 1-1), and set further guidelines for

6 “essential” and “reopening” businesses operating in San Diego County. A true and

7 correct copy of the County of San Diego order is attached to the Complaint as 8 Exhibit 2-1.

9

34. The County order promulgated the County of San Diego “Social

10 Distancing and Sanitation Protocol” that all essential businesses were required to fill

11 out and adhere to. The County order also promulgated the County of San Diego

12 “Safe Reopening Plan” Protocol that all new businesses that were allowed to reopen 13 were required to fill out and adhere to. The order also banned all gatherings of “more

14 than one person” except at essential businesses or transit places. A true and correct 15 copy of the “Social Distancing and Sanitation Protocol” is attached to the Complaint 16 as Exhibit 2-2. A true and correct copy of the “Safe Reopening Plan” Protocol is

17 attached to the Complaint as Exhibit 2-3.

18

Additional Helpful Exhibits

19

1. Attached hereto as Exhibit G is a true and correct copy of the opinion of

20 the Sixth Circuit in Maryville Baptist Church, Inc. v. Beshear, as downloaded from 21 Westlaw at 2020 WL 2111316.

22

2. Attached hereto as Exhibit H is a true and correct copy of the opinion of

23 the Western District of Kentucky in On Fire Christian Ctr., Inc. v. Fischer, as

24 downloaded from Westlaw at 2020 WL 1820249.

25

3. Attached hereto as Exhibit I is a true and correct copy of the opinion of

26 the District of Kansas in First Baptist Church v. Kelley, as downloaded from Westlaw

27 at 2020 WL 1910021.

28

4. Attached hereto as Exhibit J is a true and correct copy of the opinion of

8 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1134 Page 10 of 232

1 the Eastern District of Kentucky in Tabernacle Baptist Church, Inc. of Nicholasville,

2 Kentucky v. Beshear, as downloaded from Westlaw at 2020 WL 2305307.

3

5. Attached hereto as Exhibit K is a true and correct copy of the Statement

4 of Attorney General William P. Barr on Religious Practice and Social Distancing, 5 dated April 14, 2020.

6

6. Attached hereto as Exhibit L is a true and correct copy of the Attorney

7 General’s Memorandum for the Assistant Attorney General for Civil Rights and All 8 United States Attorneys, dated April 27, 2020.

9

7. Attached hereto as Exhibit M is a true and correct copy of the U.S.

10 Department of Justice’s Statement of Interest filed in Temple Baptist Church v. City of

11 Greenville, No. 4:20-cv-64-DMB-JMV (N.D. Miss. Apr. 14, 2020), at ECF No. 6.

12

8. Attached hereto as Exhibit N is a true and correct copy of the U.S.

13 Department of Justice’s Statement of Interest filed in Lighthouse Fellowship Church v.

14 Northam, No. 2:20-cv-00204-AWA-RJK (E.D. Va. May 3, 2020), at ECF No. 19.

15

9. Additional Exhibits O and P are attached to the Declaration of Jeffrey

16 M. Trissell in Support of Plaintiffs’ Requests for Judicial Notice.

17

I declare until penalty of perjury under the laws of the United States and the

18 State of California that the foregoing is true and correct. Executed on May 11, 2020.

19

20

21

Jeffrey M. Trissell, Esq.

22

23

24

25

26 27

28

9 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1135 Page 11 of 232
EXHIBIT A

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1136 Page 12 of 232
EXECUTIVE DEPARTMENT STATE OF CALIFORNIA
PROCLAMATION OF A STATE OF EMERGENCY
WHEREAS in December 2019, an outbreak of respiratory ill ness due to a novel coronavirus (a disease now known as COVID-19), was first identified in Wuhan City, Hubei Province, China, and has spread outside of China, impacting more than 75 countries, including the United States; and
WHEREAS the State of California has been working in close collaboration with the national Centers for Disease Control and Prevention (CDC), with the United States Health and Human Services Agency, and with local health departments since December 2019 to monitor and plan for the potential spread of COVID-19 to the United States; and
WHEREAS on January 23, 2020, the CDC activated its Emergency Response System to provide ongoing support for the response to COVID19 across the country; and
WHEREAS on January 24, 2020, the California Department of Public Health activated its Medical and Health Coordination Center and on March 2, 2020, the Office of Emergency Services activated the State Operations Center to support and guide state and local actions to preserve public health; and
WHEREAS the California Department of Public Health has been in regular communication with hospitals, clinics and other health providers and has provided guidance to health facilities and providers regarding COVID-19; and
WHEREAS as of March 4, 2020, across the globe, there are more than 94,000 confirmed cases of COVID-19, tragically resulting in more than 3,000 deaths worldwide; and
WHEREAS as of March 4, 2020, there are 129 confirmed cases of COVID-19 in the United States, including 53 in California, and more than 9,400 Californians across 49 counties are in home monitoring based on possible travel-based exposure to the virus, and officials expect the number of cases in California, the United States, and worldwide to increase; and
WHEREAS for more than a decade California has had a robust pandemic influenza plan, supported local governments in the development of local plans, and required that state and local plans be regularly updated and exercised; and
WHEREAS California has a strong federal, state and local public health and health care delivery system that has effectively responded to prior events including the Hl Nl influenza virus in 2009, and most recently Ebola; and

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1137 Page 13 of 232
WHEREAS experts anticipate that while a high percentage of individuals affected by COVID-19 will experience mild flu-like symptoms, some will have more serious symptoms and require hospitalization, particularly individuals who are elderly or already have underlying chronic health conditions; and
WHEREAS it is imperative to prepare for and respond to suspected or confirmed COVID-19 cases in California, to implement measures to mitigate the spread of COVID-19, and to prepare to respond to an increasing number of individuals requiring medical care and hospitalization; and
WHEREAS if COVID-19 spreads in California at a rate comparable to the rate of spread in other countries, the number of persons requiring medical care may exceed locally available resources, and controlling outbreaks minimizes the risk to the public, maintains the health and safety of the people of California, and limits the spread of infection in our communities and within the healthcare delivery system; and
WHEREAS personal protective equipment (PPE) is not necessary for use by the general population but appropriate PPE is one of the most effective ways to preserve and protect California's healthcare workforce at this critical time and to prevent the spread of COVID-19 broadly; and
WHEREAS state and local health departments must use all available preventative measures to combat the spread of COVID-19, which will require access to services, personnel, equipment, facilities, and other resources, potentially including resources beyond those currently available, to prepare for and respond to any potential cases and the spread of the virus; and
WHEREAS I find that conditions of Government Code section 8558(b), relating to the declaration of a State of Emergency, have been met; and
WHEREAS I find that the conditions caused by COVID-19 are likely to require the combined forces of a mutual aid region or regions to appropriately respond; and
WHEREAS under the provisions of Government Code section 8625(c), I find that local authority is inadequate to cope with the threat posed by COVID-19; and
WHEREAS under the provisions of Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this order would prevent. hinder, or delay appropriate actions to prevent and mitigate the effects of the COVID-19.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, Government Code section 8625, HEREBY PROCLAIM A STATE OF EMERGENCY to exist in California.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1138 Page 14 of 232
IT IS HEREBY ORDERED THAT:
l . In preparing for and responding to COVID-19, all agencies of the state government use and employ state personnel, equipment, and facilities or perform any and all activities consistent with the direction of the Office of Emergency Services and the State Emergency Plan, as well as the California Department of Public Health and the Emergency Medical Services Authority. Also, a ll residents are to heed the advice of emergency officials with regard to this emergency in order to protect their safety.
2. As necessary to assist local governments and for the protection of public health, state agencies shall enter into contracts to arrange for the procurement of materials, goods, and services needed to assist in preparing for, containing, responding to, mitigating the effects of, and recovering from the spread of COVID-19. Applicable provisions of the Government Code and the Public Contract Code, including but not limited to travel, advertising, and competitive bidding requirements, are suspended to the extent necessary to address the effects of COVID-19.
3. Any out-of-state personnel, including, but not limited to, medical personnel, entering California to assist in preparing for, responding to, mitigating the effects of, and recovering from COVID-19 shall be permitted to provide services in the same manner as prescribed in Government Code section 179.5, with respect to licensing and certification. Permission for any such individual rendering service is subject to the approval of the Director of the Emergency Medical Services Authority for medical personnel and the Director of the Office of Emergency Services for non-medical personnel and shall be in effect for a period of time not to exceed the duration of this emergency.
4. The time limitation set forth in Penal Code section 396, subdivision (b), prohibiting price gouging in time of emergency is hereby waived as it relates to emergency supplies and medical supplies. These price gouging protections shall be in effect through September 4, 2020.
5. Any state-owned properties that the Office of Emergency Services determines are suitable for use to assist in preparing for, responding to, mitigating the effects of, or recovering from COVID-19 shall be made available to the Office of Emerge nc y Services for this purpose, notwithstanding any state or local law that would restrict, delay, or otherwise inhibit such use.
6. Any fairgrounds that the Office of Emergency Services determines are suitable to assist in preparing for, responding to, mitigating the effects of, or recovering from COVID-19 shall be made available to the Office of Emergenc y Services pursuant to the Emergency Services Act, Government Code section 8589. The Office of Emergency Services shall notify the fairgrounds of the intended use and can immediately use the fairgrounds without the fairground board of directors' approval, and

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1139 Page 15 of 232
notwithstanding any state or local law that would restrict, delay, or otherwise inhibit such use.
7. The 30-day time period in Health and Safety Code section 101080, within which a local governing authority must renew a local health emergency, is hereby waived for the duration of this statewide emergency. Any such local health emergency will remain in effect until each local governing authority terminates its respective local health emergency.
8. The 60-day time period in Government Code section 8630, within which local government authorities must renew a local emergency, is hereby waived for the duration of this statewide emergency. Any local emergency proclaimed will remain in effect until each local governing authority terminates its respective local emergency.
9. The Office of Emergency Services shall provide assistance to local governments that have demonstrated extraordinary or disproportionate impacts from COVID-19, if appropriate and necessary, under the authority of the California Disaster Assistance Act, Government Code section 8680 et seq., and California Code of Regulations, Title 19, section 2900 et seq.
10. To ensure hospitals and other health facilities are able to adequately treat patients legally isolated as a result of COVID19, the Director of the California Department of Public Health may waive any of the licensing requirements of Chapter 2 of Division 2 of the Health and Safety Code and accompanying regulations with respect to any hospital or health facility identified in Health and Safety Code section 1250. Any waiver shall include alternative measures that, under the circumstances, will allow the facilities to treat legally isolated patients while protecting public health and safety. Any facilities being granted a waiver shall be established and operated in accordance with the facility's required disaster and mass casualty plan. Any waivers granted pursuant to this paragraph shall be posted on the Department's website.
11.To support consistent practices across California, state departments, in coordination with the Office of Emergency Services, shall provide updated and specific guidance relating to preventing and mitigating COVID-19 to schools, employers, employees, first responders and community care facilities by no later than March 10, 2020.
12.To promptly respond for the protection of public health, state entities are, notwithstanding any other state or local law, authorized to share relevant medical information, limited to the patient's underlying health conditions, age, current condition, date of exposure, and possible contact tracing, as necessary to address the effect of the COVID-19 outbreak with state, local, federal, and nongovernmental partners, with such information to be used for the limited purposes of monitoring, investigation and control, and treatment and coordination of care. The

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1140 Page 16 of 232
notification requirement of Civil Code section 1798.24, subdivision (i), is suspended.
13. Notwithstanding Health and Safety Code sections 1797.52 and 1797.218, during the course of this emergency, any EMT-P licensees shall have the authority to transport patients to medical facilities other than acute care hospitals when approved by the California EMS Authority. In order to carry out this order, to the extent that the provisions of Health and Safety Code sections 1797.52 and 1797.218 may prohibit EMT-P licensees from transporting patients to facilities other than acute care hospitals, those statutes are hereby suspended until the termination of this State of Emergency.
14. The Department of Social Services may, to the extent the Department deems necessary to respond to the threat of COVID-19, waive any provisions of the Health and Safety Code or Welfare and Institutions Code, and accompanying regulations, interim licensing standards, or other written policies or procedures with respect to the use, licensing, or approval of facilities or homes within the Department's jurisdiction set forth in the California Community Care Facilities Act (Health and Safety Code section 1500 et seq.), the California Child Day Care Facilities Act (Health and Safety Code section 1596.70 et seq.), and the California Residential Care Facilities for the Elderly Act (Health and Safety Code section 1569 et seq.). Any waivers granted pursuant to this paragraph shall be posted on the Department's website.
I FURTHER DIRECT that as soon as hereafter possible, this proclamation be tiled in the Office of the Secretary of State and that widespread publicity and notice be given of this proclamation .
IN WITNESS WHEREOF I have hereunto set my hand and caused the Great Seal of the State of
affixed this 4th day
ATTEST:
ALEX PADILLA Secretary of State

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1141 Page 17 of 232
EXHIBIT

517/20C20ase 3:20-cv-00865-BAS-AHG DPoalcomuamr Heenaltth1to2l-a4y offF31il7eedmp0lo5y/e1e1s I/2fo0x5saPndaieggoe.cIoDm.1142 Page 18 of 232

72° ~•.,:,

~ ~

., .

,..

.

==

· .. I

.

SAN DIEGO (CNS) - Palomar Health announced Tuesday that it is laying off 317 employees effective Wednesday, citing significant patient visit declines and loss of revenue as a result of the COVID-19 pandemic.

According to the hospital, it has seen a 45% to 50% decrease in overall patient visits since the coronavirus outbreak began, absorbing a $5.7 million operating loss in March, "with losses in April expected to be worse, yet hard to estimate given the uncertainty of the virus:'

Palomar Health, which operates multiple medical centers and clinics in north San Diego County in San Marcos, Poway, Escondido, Ramona and Rancho Bernardo, is far from the only health care provider feeling the impact.

UCSD Health Center has lost more than $50 million in revenue since March, Voice of San Diego reported Tuesday.

The 317 positions represent 5% of Palomar's workforce and the majority are parttime workers. The number includes 50 clinical RNs. The remaining 267 positions are spread across the organization, ranging from clerical staff to technicians.

Employees who are affected will receive a severance package and are immediately eligible for unemployment and health insurance coverage through their severance period, Palomar Health officials said.

San Diego County gave the green light last week to hospitals to begin performing elective procedures, if the facility's resources can handle it.

Palomar Health "will resume surgical procedures based on the availability of personal protective equipment and virus testing, but the loss of revenue from shutting down elective surgeries for the past six weeks cannot be recovered quickly," according to a hospital statement.

https://foxSsandiego .com/news/health/palomar-health-to-lay-off-317-employees/

2/11

517/20C20ase 3:20-cv-00865-BAS-AHG DPoalcomuamr Heenaltth1to2l-a4y offF31il7eedmp0lo5y/e1es1I/2fo0x5saPndaieggoe.cIoDm.1143 Page 19 of 232

72° ~•'•:'

~ ~

., .

,..

.

==

. I

.

occupies two formerly vacant floors of Palomar Medical Center Escondido.

Hospital officials noted that future patient visits may also be negatively impacted by the uncertainties of the economy as patients may lose insurance due to unemployment and delay non-emergency surgeries for more prosperous times.

"These are extremely tough decisions that are taken very seriously because we know they affect the livelihood of our employees," said Palomar Health President and CEO Diane Hansen. "However, the sooner we make these tough decisions, the sooner we will be able to stabilize our business and get back on the road to recovery. It is our responsibility to ensure Palomar Health provides high-quality medical care to our community during and after this pandemic:'

Suggest a Correction

SHARE THIS STORY
008800
YOU MAY LIKE Protective Cloth Masks with PM2.5 Filter
Brave New Look

Sponsored Links by Taboola

Before You Renew Amazon Prime, Read This
Wikibuy

Eat Clean In 2020 - Wild Caught Fish To Your Door
Wild Alaskan Company

MD: If You Have Toenail Fungus, Do This Immediately (Watch}
Fungus Clear Supplements

https://foxSsandiego .com/news/health/palomar-health-to-lay-off-317-employees/

3/11

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1144 Page 20 of 232
EXHIBIT

517/20C20ase 3:20-cv-00865-BAS-AHG IroDnoicctwuismt: Ceanliftor1ni2a -h4ealthFcialeredwo0rk5e/r1s 1fac/2e 0layofPfsaI CgaelMIDatt.e1rs145 Page 21 of 232

I I ~ABO ~ CORONAVIRUS

HEALTH

Wanted: Health care workers. Wait! Never mind...

BY ANA B. IBARRA

"#

PUBLISHED: MAY 6, 2020

Iii
Medical staff walk into work as first responders show gratitude by clapping and cheering them on at Santa Clara Valley Medical
Center in San Jose on April 15, 2020. Photo by Randy Vazquez I Bay Area News Group

https://calmatters.org/health/coronavirus/2020/05/health-care-workers-layoffs-california-coronavirus-nurses-furloughs-pay-cuts-hospitals/

1/10

517120C20ase 3:20-cv-00865-BAS-AHG IroDniocctwuismt: Ceanliftor1ni2a-h4ealthFcialeredwo0rk5e/r1s f1ac/2e 0layofPfsaI CgaelMIDatt.e1rs146 Page 22 of 232
CAL MATTERS

Public service journalism for

the

ofour public.

IN SUMMARY
California health care workers face layoffs, furloughs and pay cuts in the coronavirus pandemic, as hospitals and medical practices say they're financially bleeding.
When Aimee Paulson, a nurse practitioner, learned in late March she was being temporarily laid off from the private family practice she'd worked at for the last three years, she was disappointed but not surprised. Patient visits in the San Ramon office had gone down by almost 80% as the coronavirus outbreak kept people at home.
She called her patients, many of whom followed her from her previous workplace, and told them she hoped to be back by June.

In the midst of a public health crisis, Paulson and other health care workers are learning they aren't immune to layoffs, furloughs and pay cuts. It's an ironic twist to the pandemic: When the health care system seems to need workers the most, it can't afford to keep them all. A recent

https://calmatters.org/health/coronavirus/2020/05/health-care-workers-layoffs-califomia-coronavirus-nurses-furloughs-pay-cuts-hospitals/

2110

5!7120C20ase 3:20-cv-00865-BAS-AHG IroDniocctwuismt: Ceanliftor1ni2a -h4ealthFcialeredwo0rk5e/r1s f1ac/2e 0layofPfsaI CgaelMIDatt.e1rs147 Page 23 of 232 survey of more than 3,200 physicians by the California Medical Association, for example, found that 49% of practices have had to lay off or furlough staff.
Now providers and state lawmakers are searching for ways to keep hospitals, clinics and private practices afloat and its workers employed - or face the prospect of a deeper medical jobs shortage months or years from now.
This week, California hospitals are planning to ask the state for $1 billion before June 30 to help with immediate revenue losses, said Carmela Coyle, the CEO of the California Hospital Association. An injection of cash from the state could help hospitals avoid or reduce pay cuts and layoffs, she said. California hospitals so far have received $3 billion in aid from the federal government, she added.
Hospitals have also asked that health insurance plans accelerate payments for claims within 30 days during the pandemic. Currently, claims can take up to 90 days to process, but "we need to move those dollars more quickly," Coyle said during an Assembly budget hearing on Monday.
Coyle said hospitals have done their best to keep their staff, but furloughs and layoffs have begun. "And that is because 60 percent of hospital spending is for labor," she told lawmakers.
At the outset of the pandemic, the state asked hospitals to prepare for a surge and make room for about 40,000 more patients at once. "And we did that, we answered that call. We emptied California's hospitals to make way. That means canceling surgeries and procedures and more," she said. "But as we begin to assess the damage, the toll is enormous."
In late April, Gov. Gavin Newsom allowed hospitals to resume some elective surgeries, which is the bread and butter for many facilities. But some hospitals, especially smaller ones or those in rural areas, are already in a deep hole.
Meanwhile, clinics and doctors' offices continue to struggle with a drop in revenue as patients are advised to avoid non-emergency in-person visits.
This week, the Legislature's Latino Caucus sent a letter to the Newsom administration also warning that many of the state's health centers will not be able to remain open much longer "without significant financial support from the state."
Laying off and furloughing staff is a "recipe for disaster," said Stephanie Roberson with the California Nurses Association. Last month, for instance, about 150 registered nurses in San Jose

https://calmatters.org/health/coronavirus/2020/05/health-care-workers-layoffs-california-coronavirus-nurses-furloughs-pay-cuts-hospitals/

3110

5f7/202C0ase 3:20-cv-00865-BAS-AHG IroDniocctwuismt: Ceanliftor1ni2a -h4ealthFcialeredwo0rk5e/r1s f1ac/2e 0layofPfsaI CgaelMIDatt.e1rs148 Page 24 of 232 and San Diego were temporarily laid off because of department closures and the cancellation of elective procedures, Roberson said.

Her organization has been protesting these layoffs. On Thursday, another union, SEIU-United Healthcare Workers West, will be protesting a 20% pay cut at Stanford Health Care.

"It is a weird dichotomy,'' said Joanne Spetz, associate director of research at the Healthforce Center at the University of California, San Francisco. The labor challenge for health systems, she said, is that not all positions transfer smoothly into surge preparedness. A nurse in a primary care
office or one who specializes in orthopedic care, for example, perhaps wouldn't be the best fit to
care for a coronavirus patient on a ventilator, she explained.

"So you have furloughs happening in community health centers and in certain departments of hospitals, while at the same time there is concern about a surge and we're hearing these calls for things like a health corps," she said.

In late March, Gov. Gavin Newsom announced the California's Health Corps, whose members would tend to coronavirus patients in alternate care facilities. But that surge in anticipated volume hasn't occurred and these facilities across the state remain mostly empty. Out of the approximately 94,000 people who have applied to the state's backup medical reserve, 551 have been accepted into the program.

Of these Health Corps members, 233 are on call to staff the Sleep Train Arena, the former Sacramento Kings playing venue which was prepped for up to 400 patients with mild or moderate cases of COVID-19. As of Tuesday, only five patients were being treated there. Workers are taking turns as needed, according to the state's Department of Health and Human Services. The rest are being used to staff nursing homes that need temporary or emergency support.

Democratic Assemblyman Jim Wood of Healdsburg said it makes more sense to look at laid off workers first for Health Corps jobs, rather than hire people who need to be retrained and recredentialed. "My rationale is they're going to go on unemployment, and then we turn around and pay someone else," Wood said.

The California Department of Health and Human Services confirmed that currently laid off workers are not prioritized for these jobs. Hiring is based on need and geography, according to the agency.

Paulson, the nurse practitioner, applied to the state's Health Corps and was recently offered a position at a clinic in Berkeley. She didn't take it. On Wednesday, she returned to the San Ramon

https://calmatters.org/health/coronavirus/2020/05/health-care-workers-layofls-calWornia-coronavirus-nurses-furloughs-pay-cuts-hospitals/

4/10

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1149 Page 25 of 232
practice after her employer qualified for a Paycheck Protection Program loan. She'll be working partial hours until patient visits pick up again, she said. Others may not be as fortunate. Assemblyman Wood said he believes the pandemic is "going to be a breaking point for some offices and clinics." He said he is concerned about the loss of primary care doctors, especially In rural districts like his that already struggle to attract and retain them.
"This will hasten the retirement of some folks, or the closing of practices,'' he said.
More on the coronavirus in California:
TracklnCJ coronavlrus hospltallzatlons In Callfornla by county
CalMatters is tracking positive and suspected cases of COVID·19 in patients who are hospitalized throughout the state, broken down by county.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1150 Page 26 of 232
EXHIBIT

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1151 Page 27 of 232
TRANSCRIPTION OF GOVERNOR GAVIN NEWSOM 1 S COVID-19 PRESS CONFERENCE
APRIL 27, 2020
[CERTIFIED COPY]

Transcribed by: RENAE E. LOPEZ CSR 12142 No. 20-90688A

rc?GTHE SULLIVAN GROUP ~ OF COURT REPORTERS
SULLIVAN C 0 URTR EP0 RTE RS . C 0 M
PHONE 855.525.3860 I 323.938.8750

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1152 Page 28 of 232

1

TRANSCRIPTION OF

2

GOVERNOR GAVIN NEWSOM'S COVID-19 PRESS CONFERENCE

3

APRIL 27, 2020

4

5 (CERTIFIED COPY)
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23 Transcribed by:
24 RENAE E. LOPEZ CSR 12142
25 No. 20-90688A

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1153 Page 29 of 232

1 APPEARANCES:

2

Gavin Newsom, Governor of the State of California

3

Mark Ghaly, M.D., Secretary, California Health and

Human Services Agency

4

5 Members of the Press:

6

Jonathan Ayestas, KCRA News

Elex Michaelson, Fox 11

7

Stephanie Baer, BuzzFeed News

David Baker, Bloomberg News

8

Jeremy White, Politico

Jim Roope, Westwood One News

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

THE SULLIVAN GROUP OF COURT REPORTERS 2

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1154 Page 30 of 232

1

I NDEX

2 SPEAKER

3 Governor Gavin Newsom

4 Jonathan Ayestas

5 Mark Ghaly, M.D.

6 Elex Michaelson

7 Stephanie Baer

8 David Baker

9 Jeremy White

10 Jim Roope

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

PAGE
4
21 24 26 27 30 33 34

THE SULLIVAN GROUP OF COURT REPORTERS 3

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1155 Page 31 of 232

1

APRIL 27, 2020

2

***

3

4

5

6

GOVERNOR NEWSOM: Well, good afternoon,

7 everybody.

8

I just want to begin by extending, again,

9 gratitude to 40 million Californians that, over the

10 course of the last number of weeks, have not only bent

11 the curve in the State of California, but stabilized

12 -- it. 13

We have made real progress in this state

14 over the course of the last number of weeks, and that's

15 why I want to just confront the topic that is top of

16 mind, and those are the images we saw over the weekend,

17 the images down in Orange County and Ventura County on

18 our beaches.

19

Those images are an example of what not to

20 see, people, what not to do, if we're going to make the

21 meaningful progress that we've made in the last few

22 weeks extend into the next number of -- number of

23 weeks.

24

The reality is we are just a few weeks away,

25 - not months away, from making measurable and meaningful

THE SULLIVAN GROUP OF COURT REPORTERS
4

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1156 Page 32 of 232

changes to our stay-at-home order. That is a very

2 optimistic point to emphasize; however, that's driven

3 by data. It's driven by behavior, and as we change our

4 behavior, we can impact the science, the health, and

5 the data.

6

This virus doesn't take the weekends off.

7 This virus doesn't go home because it's a beautiful,

8 sunny day around our coasts. The likelihood of having

9 a virus-free world is not realistic in the next number

10 of months. we 1 ll look forward to that day, as herd

11 immunity comes into effect, that we have a vaccine that

12 we can distribute and make available to hundreds and

13 millions of people across this country, billions around

14 the rest of the globe.

15

Until then, we have to manage it. We have

16 to manage risks. We have to manage and augment our

17 behavior, and that•s why I cannot impress upon you

18 more, to those Californians watching, that we can't see

19 the images like we saw, particularly on Saturday in

20 Newport Beach and elsewhere in the State of California.

21

Look, I'm not naive. The overwhelming

22 majority of our coastline was appropriately advanced,

23 meaning the stay-at-home orders were advanced. The

24 physical distancing, the social distancing on those

25 beaches was appropriate. You didn't see those images

THE SULLIVAN GROUP OF COURT REPORTERS 5

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1157 Page 33 of 232

1 in L.A. beaches and San Diego beaches and Northern

2 California, around San Mateo County, up further north

3 towards Eureka, because we had strong guidelines that

4 were not only adopted, but were abided by, and we had

5 local partners that supported those efforts and helped

6 create the conditions on those hard park closures that

7 allowed people to continue to conduct themselves

8 appropriately.

9

Unfortunately, there were these exceptions,

10 on Saturday in particular, little less so on Sunday,

11 and we've got to confront that. And I'm encouraged. I

12 want to acknowledge that -- Newport Beach, I want to

13 acknowledge their City Council. I want to acknowledge

14 the County Board of Supervisors in Orange County.

15

I'm told they are looking to consider some

16 augmentations and some more deliberative engagement to

17 address the conditions and those concerns that were

18 highlighted over the course of the weekend, but I want

19 folks to know this as well: We're doing the same at

20 the State level, the California Highway Patrol, with

21 our stakes park -- State parks patrol with other

22 partners, and we will avail ourselves to more

23 aggressive enforcement of the stay-at-home order, of

24 the social distancing, of the guidelines and procedures

25 that we expect to be followed all across the State of

THE SULLIVAN GROUP OF COURT REPORTERS 6

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1158 Page 34 of 232

1 California.

2

I -- I deeply respect localism. I deeply

3 respect local decision making. I deeply respect the

4 work that elected officials do, all up and down this

5 state, of all political stripes, and I recognize your

6 anxiety, and I recognize the pressures. As a former

7 county supervisor, as a former mayor, I understand

8 those local pressures intimately.

9

And I deeply understand the broader public

10 sentiment about their need to get some clarity and get

11 some confidence that we'll go back to whatever modified

12 sense of normalcy that we hope to see, that we'll see

13 that advance sooner than later, but I cannot impress

14 upon people more, the only thing that will set us back

15 is our behavior. The only thing that will set us back

16 is people stopping to practice physical distancing and

17 appropriate social distancing. That's the only thing

18 that's going to slow down our ability to reopen this

19 economy, our re- -- ability to adapt and modify the

20 stay-at-home order, as I said, weeks, not months, if

21 the data continues to be as stable as it has been over

22 the course of the last few weeks. The only thing that

23 can stop that is more images, again, like we saw over

24 this weekend.

25

So I'm looking forward to working with those

THE SULLIVAN GROUP OF COURT REPORTERS
7

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1159 Page 35 of 232

1 local government agencies, working much more

2 aggressively on the enforcement side, and continue to

3 believe that we have remarkable capacity in the State

4 to stabilize this curve and make the kind of

5 modifications that all of us are eager to make, again,

6 none more eager than I am, and I just want to extend to

7 that point tomorrow, we will be laying out more detail.

8

Last week on Wednesday, we laid out details

9 on one of our six indicators. That was on the issues

10 of testing, on tracing, on tracking, on social

11 isolation that is done with economic justice framework,

12 and the issues around quarantine.

13

Tomorrow, we're going to break down the

14 number five indicator, which goes to our business

15 environment, goes to schools and childcare facilities

16 and the like, and, again, the hope and expectation is ~ = that we'll be in a position, in a number of weeks, to

18 make meaningful modifications, but, again, the data

19 will guide that. The indicators will guide that, and

20 the only thing that could disrupt that, to set us back,

21 to slow down our capacity to start to reopen our

22 economy, is behavior that's inconsistent with the

23 statewide guidelines.

24

So I just want to make that clear up top,

25 and, again, just want to thank all the incredible work

THE SULLIVAN GROUP OF COURT REPORTERS 8

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1160 Page 36 of 232

cx:= =that was done over the weekend by parks and by our

2 public partners, and by large cities that really

3 conducted themselves appropriately and truly did

4 justice to the guidelines that, not only they set

5 _ locally, but that the State of California has set.

6

And we'll have a little work to do to

7 improve upon Saturday in particular, but I'm confident

8 that we can do so, and, again, look forward to robust

9 conversations this week, in that respect.

10

Also am very honored that we had some robust

11 conversations with State of Nevada and the State of

12 Colorado over the last week, and those two states have

13 joined our Western States coalition, addition to

14 Colorado and to Nevada, of course, the partners --

15 partnership that was formed a few weeks back with

16 Washington State and Oregon. This now allows all five

17 states to begin to work even more closely and more

18 collaboratively.

19

I must say it is a wonderful thing when

20 chiefs of staff, all the governors get on the phone and

21 are comparing and contrasting best practices in

22 realtime, are are sharing data, sharing information.

23 This partnership has already become very, very

24 meaningful, and -- and I just, again, want to extend my

25 deep gratitude to Mayor Brown, Mayor Inslee, to

THE SULLIVAN GROUP OF COURT REPORTERS
9

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1161 Page 37 of 232

1 Mayor Sisolak, and to Mayor Polis -- or, rather,

2 Governors Polis, Sisolak, Inslee, and Brown for their

3 outstanding leadership and their support in this

4 broader Western States agenda.

5

Also want to update you, just briefly, on a

6 new strategy that we'll also be employing, in terms of

7 getting to the next phase, as it relates to meaningful

8 modifications of our stay-at-home order.

9

As you may know, a few weeks back, we

10 announced a new economic advisory body, a new recovery

11 body. It was some of the best and the brightest minds

12 we can source in the State of California that are

13 advising us on our recovery efforts, short-term,

14 medium, and long-term strategies; long-term around

15 reinventing, reimagining the future.

16

One of the conversations that came out of

17 this task force was the importance of breaking down by

18 sector. We are certainly looking regionally in the

19 State, but also looking by sector, and really drilling

20 down on the specific and unique needs of every sector

21 of our economy.

22

In an effort to further that cause, and to

23 do so with some transparency, we're inviting the press

24 and others in on a series of digital roundtables that

25 I'll be hosting with leaders in small businesses,

THE SULLIVAN GROUP OF COURT REPORTERS
10

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1162 Page 38 of 232

1 medium, and large businesses, by sector, also bringing

2 in customers, and bringing in experts from our advisory

3 committee to help guide the conversations, to really

4 start to break down, not just broad strokes hospitality

5 or retail, but by type of retail, by type of sector

6 within the broader sector of hospitality, bars,

7 restaurants, and the unique nature of -- of dining

8 experiences with tablecloths, without tablecloths, and

9 the issues of bars and restaurants that are combined,

10 issues of different types of licenses and different

11 types of retail, those that could do curbside pickup,

12 those that aren't necessarily afforded that, because of

13 the way their physical construction works, are they in

14 a shopping mall, are they with multiple other

15 businesses, or on they -- a second floor?

16

All of these things will be broken down, and

17 we'll start to socialize those conversations starting

18 tomorrow, again, bringing the press in, into those

19 digital roundtables, and, again, it's not just about

20 the immediacy of working to get specific language on

21 guidance for meaningful modifications of our

22 stay-at-home order in the short term, but it's really

23 about talking about the future and what that retail

24 experience may look like a year from now, two, three

25 years from now.

THE SULLIVAN GROUP OF COURT REPORTERS
11

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1163 Page 39 of 232

1

And so having this dynamic process, these

2 two-way conversations in a more granular level, we

3 think, is not only appropriate, but will be absolutely

4 determinative, in terms of how and when those

5 guidelines are put out over the course of the next few

6 weeks, and so that was something else we wanted to

7 preview. Again, tomorrow, we'll be having that first

8 digital roundtable and inviting people in to

9 participate in that.

10

We're also pleased as well that we made some

11 progress over the course of the last number of days.

12 As you know, I'm apt to remind you of the -- all the

13 N95 masks, procedure masks, and other PPE that we've

14 procured. We have distributed some 43.7 million and 95

15 masks to date in the State of California. We have also

16 distributed roughly three million procedural masks

17 or, rather, four million, excuse me, procedural masks.

18 Over the course of the weekend, we were able to procure

19 3.1 million additional procedure masks, so we'll go

20 from four to over seven million masks that will be

21 distributed.

22

That's very -- (video freezes briefly) -- we

23 continue the physical distancing, we appropriate

24 ourselves in public by putting on face coverings when

25 we are in contact or proximate to other people, and

THE SULLIVAN GROUP OF COURT REPORTERS 12

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1164 Page 40 of 232

1 make sure that we continue to advance our stay-at-home

2 orders.

3

I get the data, by the way. Every morning,

4 we have a dashboard that's provided on movement, a

5 number of companies we are working with that provide

6 that. We made those public a few months ago. We

7 actually showed some of that data here a few weeks

8 back.

9

It says what we all know. Not only did we

10 see an increase in movement and mobility over the

11 weekend, but we've seen, week to week, particularly in

12 the last two weeks, a modest increase. The vast

13 majority of you are still socially distancing and

14 and are abiding by the stay-at-home order, and not

15 everybody that's moving, even an increase of movement,

16 are doing so inappropriately, but it does suggest,

17 again, that we are seeing movement all across the State

18 of California, and, boy, it wasn't just anecdotal.

19 Those photographs from those two county and the beaches

20 this weekend, we saw, specifically, data and movement

21 to the beaches that only reinforced that data, from a

22 very statistical perspective.

23

But, again, data and science and health will

24 drive our decision making, and if we continue to make,

25 again, the kind of progress we've made over the last

THE SULLIVAN GROUP OF COURT REPORTERS
13

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1165 Page 41 of 232

1 few weeks, the next few weeks, I think we can be in a

2 much better place than some had imagined and hoped for.

3 But, again, let's abide by these rules and abide by

4 these guidances.

5

Let me also, just briefly, before I get into

6 the daily numbers, mention one other sector. We've

7 been working very hard on these unemployment insurance

8 claims. Some 4.4 billion dollars has been distributed,

9 4.4 billion dollars since March 15th, just since March

10 15th. It's unprecedented amount of money that has been

11 distributed. 4.3 million checks have been cut, and we

12 continue to see claims increase -- increase. The rate

13 of growth is a little more modest than we saw a few

14 weeks ago, but, again, in record territory.

15

People have rightly commented about the call

16 center needing to be opened up beyond the 8:00 a.m. to

17 noon. We did so a week ago, 8:00 to 8:00, seven days a

18 week. People then rightly commented they're having a

19 hard time getting -- because of the call volume,

20 getting a human being to answer and have expressed

21 frustration.

22

We have acknowledged that frustration on

23 multiple occasions, and we've leaned in. We announced

24 1,340 people have been redeployed to help support our

25 unemployment insurance claim process, including

THE SULLIVAN GROUP OF COURT REPORTERS
14

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1166 Page 42 of 232

1 supporting the call center. Just for the purposes of

2 additional information and advancing that conversation

3 further, we added 600 additional people to that task in

4 the last few days.

5

Later this week, we will be putting text

6 capacity to answer question by text, so SMS. That will

7 go into place in the next few days. We put a new

8 chatbot up a few days ago on the most frequently asked

9 questions, again, all about reducing the stress,

10 reducing the volume.

11

I mentioned, just before the weekend, that

12 we were integrating some of the work around call

13 centers and making sure that we're putting different

14 protocols in place. That substantially started to take

15 shape over the weekend.

16

We're not out of the woods, by any stretch

17 of the imagination. Let me tell you why. Fifteen --

18 just last week, fifteen million calls came in to that

19 call center. Fifteen million, and over one million

20 minutes were spent, one million minutes with a human

21 being answering questions.

22

So one of the things we recognize we need to

23 do is reduce that call volume. We think the SMS, the

24 text -- texting will help in that efforts. These

25 chatbots will certainly, we believe, help in that

THE SULLIVAN GROUP OF COURT REPORTERS
15

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1167 Page 43 of 232

1 effort.

2

And we're also looking at some of the rules

3 and regulation, to loosen them up, in terms of the need

4 to make as many inquiries. That's also an important

5 thing that we started doing, late last week into the

6 weekend, and, hopefully, it will be bearing fruit later

7 this week.

8

So just know, we get it. We're doing

9 everything in our power to get it done. I'm not going

10 to sit here and complain about old IT systems, except

11 we have an old IT system, and let me just acknowledge,

12 head on, that's not the only old IT system in

13 government.

14

Interestingly, this has long been a point of

15 passion for me, a large-scale IT procurement, and while

16 we were making some progress over this last year, we

17 recognize, you know, a lot more progress that needs to

18 be made, including the Department of Motor Vehicles,

19 lest I not remind you of their infamous IT system.

20

These things can't change overnight, but

21 know we're working day and night to begin to do justice

22 to your expectations and your rightful demands for

23 performance from the State of California and all of our

24 partners at the local level, and we're c0111D1itted to

25 doing better every single day.

THE SULLIVAN GROUP OF COURT REPORTERS
16

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1168 Page 44 of 232

1

So I just wanted to update you on

2 unemployment insurance claims as well.

3

As we do every day, I also want to update

4 -- you on some trend lines before they're headlines, as it 5 relates to the data that comes in on the number of

6 deaths, hospitalization, number of positives in the

7 State of California.

8

Over the weekend, we started to see a modest

9 decline from that peak last week in the number of lives

10 lost. Over the last 24 hours, 45 lives lost. Tragic.

11 Again, human beings, not just numbers, not just

12 statistic, but encouraging sign, nonetheless, over the

13 course of the last number of days, from that peak into

14 last week.

15

We'll see where it goes in the next few

16 days. Always a point of caution, lagging indicator,

17 but that number down from over a hundred, just a number

18 of days ago. We did see 1300 new individuals test

19 positive for COVID-19, but we•re also seeing

20 substantial improvement in our total testing. Now over

21 553,000 tests have been performed in the State of

22 California.

23

We're starting to hit those benchmarks that

24 we laid out to you, in terms of substantially

25 increasing our testing. I should just note, we're also

THE SULLIVAN GROUP OF COURT REPORTERS 17

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1169 Page 45 of 232

1 seeing those benchmarks of commitments I made last week

2 on those 80 new testing sites from Optum.Serve, first

3 one up there now in Humboldt, focusing on rural

4 Californians, others going out in realtime today and

5 through the next week.

6

Also, Verily, the partnership with

7 Verily, we talked about a number of weeks ago with

8 Google, they•re also focusing on places like East L.A.,

9 inner city California, not just in the rural parts of

10 the State.

11

So not only are we increasing the numbers of

12 tests, I just want to make sure people understand where

13 we are testing is becoming more appropriate to the

14 needs of 40 million Californians, and so we're trying

15 to meet people where they are, as opposed to demanding

16 they meet where we are.

17

Again, lot of progress in that place, and

18 that progress will certainly help us with those green

19 _ lights of indicators of moving forward with these

20 meaningful modifications of the stay-at-home order that

21 all of us are looking forward to .

22

So that's the number of positives, over 1300

23 more in the last 24 hours. The number of

24 hospitalizations, 1.4 percent increase. Again, we're

25 seeing some stabilization, decrease, modest increase,

THE SULLIVAN GROUP OF COURT REPORTERS 18

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1170 Page 46 of 232

1 decrease, modest increase in the whole number of people

2 hospitalized. The number of people in ICU is basically

3 flat from yesterday, just one individual more than in

4 the last 24 hours in the ICU.

5

So, again, stabilization, but let's keep it

6 that way. That's why I began talking about the

7 beaches. Why run that -- I know, I'll say it again

8 that 90-yard dash? Who does that? You're so close

9 when you've been making so much progress. Let's just

10 get through this thing together, so that we can go so

11 much farther, so much quicker.

12

The worst thing we do is we start, sort of

13 rest on our laurels, thinking somehow the virus has

14 decided to take a break or go on vacation. Virus is as

15 present prevalent as it's ever been. It's as

16 transmissible as it's ever been. Nothing•s changed, in

17 that respect. The only thing that changed is our

18 behavior, for the better, and that mitigated the spread

19 and has provided us the opportunity to build a

20 foundation where we can then begin to make the

21 modifications.

22

And so, again, I just want to encourage

23 people to continue in that spirit, and advance in that

24 space, six feet apart minimum, practicing social

25 distancing, physical distancing, abiding by the

THE SULLIVAN GROUP OF COURT REPORTERS 19

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1171 Page 47 of 232

1 stay-at-home, and we'll do our part to make adjustments

2 and amendments when the data shows those green lights,

3 and the data provides us the indication that we can

4 move there. Hope it's in the next few weeks. I

5 believe it will be, but that's based on our behaviors

6 in the next few weeks.

7

So let's get there together, and let's get

8 there in a much stronger way than we otherwise could.

9

So that•s, broad strokes, the updates

10 for the day, and I, again, want to just express great,

11 great gratitude to to all of you that continue to do

12 everything you can to to -- to really meet the

13 spirit that this moment requires, and -- and that

14 spirit includes all of you that have signed up for the

15 Californiansforall.ca.gov website to contribute your

16 time, your passion, and your expertise to volunteer.

17 It is just a wonderful thing to see those numbers

18 continue to grow and continue to expand, in terms of

19 every part of this state, people participating,

20 contributing, supporting their neighbors, supporting

21 one another at this incredibly important time. Let's

22 also keep that spirit of contribution going as well.

23

With that, happy to take questions.

24

FEMALE SPEAKER: Jonathan Ayestas, KCRA

25 News.

THE SULLIVAN GROUP OF COURT REPORTERS 20

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1172 Page 48 of 232

1

MR. AYESTAS: Hi, Governor. Thank you for

2 taking my question.

3

Earlier, you had mentioned that you had

4 possibly wanted to work with law enforcement agencies

5 to be a little more aggressive with any enforcement.

6 At least in our area, we haven't heard of any

7 citations.

8

Does this mean you're wanting to take a step

9 more towards that, or is the goal still education about

10 social distancing guidelines versus enforcement?

11

GOVERNOR NEWSOM: Yeah, I appreciate it.

12 No, the predominant focus is education. We did a lot

13 of PSAs. We did paid media. I was very explicit last

14 Thursday, little bit on Friday about our concerns and

15 the expectation, particularly in these two counties

16 that had soft openings, as opposed to hard closures,

17 and it manifested, as we were concerned, though I think

18 because of the great work the State parks and their

19 parks patrol and our partners at the local level did,

20 it was mitigated.

21

Look, there were thousands of contacts,

22 particularly on Saturday, substantially less so on

23 Sunday, for multitude of reasons. There were no

24 citations or arrests. There were a few warnings,

25 scattered all throughout the State of California.

THE SULLIVAN GROUP OF COURT REPORTERS 21

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1173 Page 49 of 232

1

I think that's a better approach. I don't

2 want to be punitive. My gosh, someone who's lost their

3 job, last thing they want to do is walk their dog,

4 they're with their kids, and they've got cabin fever,

5 and they just want to take a rest on the beach, and all

6 of a sudden, they get a citation. I don't want -- I

7 don't want to see that happen. You don't want to see

8 that happen.

9

None of us do, but if there are people

10 thumbing their nose and abusing it, putting their lives

11 at risk, because they're impacting the lives of others,

12 and ultimately setting back the cause of reopening the

13 economy as quickly as we'd like to, I think we may have

14 to do a little bit more.

15

And so I mentioned it a moment ago, let me

16 mention it again, and to -- to answer your question a

17 little more specifically. We have a all-hands

18 meeting -- we have a lot of these meetings, but with

19 this as the principal topic, with the Police Chiefs

20 Association, our County Sheriffs' Association, CSAC,

21 that's our -- our county partners, and others to see if

22 we can work even more closely together over the course

23 of this next week and the next few weeks, so that we

24 can keep this momentum going and not see a setback.

25

And everybody's saying the right things. I

THE SULLIVAN GROUP OF COURT REPORTERS 22

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1174 Page 50 of 232

1 think they want to do the right thing, including those

2 local officials that -- that wanted to open up the

3 beaches, I -- I think, to their credit, they saw what

4 happened. They've listened to the concerns, and

5 and -- and some of the criticism that all of us have

6 received, and -- and -- and I think there's an

7 understanding and willingness to work collaborative,

8 together.

9

By the way, extends not just to enforcement.

10 It's also some strategic considerations. When we talk

11 about hard closures, it's primarily these parking

12 facilities. Soft closures include parking facilities,

13 but you broaden some of the parking restrictions even

14 beyond the formal parking areas, you begin to further

15 the efforts to mitigate a surge of visitors.

16

So there's -- there's some other things we

17 can do, and we will be doing a lot more of those things

18 in the next number of days and weeks.

19

FEMALE SPEAKER: Angela Hart, Kaiser Health

20 News.

21

MS. HART: Thanks, Governor. On this

22 testing ramp up that you've discussed, you've talked a

23 lot about increasing -- increasing testing in rural

24 towns and -- and communities of color that have seen

25 inadequate testing, but what we're hearing a lot about

THE SULLIVAN GROUP OF COURT REPORTERS
23

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1175 Page 51 of 232

1 is of -- of challenges when it comes to testing and the

2 uninsured population.

3

So can you talk about that, and to the

4 extent with which California's testing goals are being

5 complicated by a lack of health coverage?

6

GOVERNOR NEWSOM: Yeah, I have -- Dr. Ghaly

7 here could talk more specifically about that. That

8 should not, absolutely should not be an impediment, for

9 a multitude of reasons that we have announced,

10 regardless of your status in the State of California,

11 but for a multitude of reasons, that should not be an

12 issue, but Dr. Ghaly can fill in, more specifically,

13 the blanks, in terms of what those actions have been

14 and why he feels confident that that's not an

15 impediment.

16

DR. GHALY: Thank you, Governor.

17

We do continue to stand up sites across the

18 State, targeting areas that haven't had enough testing,

19 haven't had any testing in some areas, and certainly,

20 as we look at our data to target those neighborhoods

21 and communities where we know there's disparities in

22 outcomes with COVID-19, to make sure those populations

23 receive the testing, in a quantity that they deserve.

24 We're building towards that, and -- and we're making

25 new strides every day.

THE SULLIVAN GROUP OF COURT REPORTERS
24

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1176 Page 52 of 232

1

Early on in our response, the Governor made

2 some very important moves, indications that our

3 commercial health plans should and will support the

4 payment for COVID-19 testing, regardless of where an

5 individual is or what plan they're a part of. He

6 directed our team at the Department of Healthcare

7 Services, who run the Medi-Cal program, to ensure that

8 no individual, Medi-Cal beneficiary, would experience

9 any economic harm while they seek testing.

10

We have worked with our clinic partners to

11 make sure that there's clarification on how that

12 billing arrangement and payment arrangement can be

13 made, so that we don't have any issues getting an

14 individual tested, and for those who do not have either

15 commercial insurance or Medi-Cal, those who are

16 uninsured, that we make sure that anyone who runs a

17 test on an uninsured Californian is able to get

18 reimbursed adequately, so that does not become an

19 impediment.

20

We expect to see these questions more and

21 more, as individual clinics and individual settings

22 that begin to do more testing begin to ask the

23 question, and we look forward to demonstrating how they

24 can get payment for those tests, so that the community

25 message across California is if you think you need to

THE SULLIVAN GROUP OF COURT REPORTERS
25

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1177 Page 53 of 232

1 be tested, especially as we change our prioritization

2 in testing guidelines of who should and can be tested,

3 that there is no impediment to getting that done.

4

We see it as a very important part of

5 opening or modifying our stay-at-home orders in the

6 weeks to come, so we are dogged in working hard with

7 our county partners, health plan partners to make sure

8 that this and any other testing impediment is cleared.

9

GOVERNOR NEWSOM: And, Angela, as always,

10 PPE is an issue as well, accessibility, testing, but

11 you got to have the appropriate amount of personal

12 protective equipment, and so that's why we continue to

13 work so aggressively to make sure we get these masks,

14 in particular, but not just masks, gowns, shields,

15 gloves, and other PPE distributed as quickly and

16 assuredly as we receive them.

17

FEMALE SPEAKER: Elex Michaelson, Fox 11.

18

MR. MICHAELSON: Governor, thanks for taking

19 my call. There -- a lot of people, business owners,

20 employees, are grateful for all the government

21 assistance, grateful for all the charity work, but what

22 they really want to do is get back to work. So in

23 terms of what are the types of businesses that you're

24 looking at that could potentially reopen first? Are we

25 looking at maybe retail businesses with proper social

THE SULLIVAN GROUP OF COURT REPORTERS
26

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1178 Page 54 of 232

1 distancing? Give employees and business owners sort of

2 a -- a sense of what is to come.

3

GOVERNOR NEWSOM: The good news is we'll be

4 laying that out in detail tomorrow. We'll be

5 highlighting Indicator 5 of our six indicators. That

6 indicator is specific to business. We 1 ll talk

7 regional, regions. We'll talk sectors. We'll lay out

8 a strategy for phasing those things, and, as I said,

9 preview, based upon the data to date, and based upon

10 the importance of continuing to practice social

11 distancing and physical distancing.

12

If the data leads us further, and the

13 indicators continue to hold, that in the next few

14 weeks, we'll start making some meaningful

15 modifications, not the next few months. That's why,

16 Elex, I just talked about importance of not seeing what

17 we saw this weekend on our beaches, because the only

18 thing that could set us back is our individual and

19 collective behavior.

20

FEMALE SPEAKER: Stephanie Baer, BuzzFeed

21 News.

22

MS. BAER: Hi, Governor. I have a few

23 questions about the State's contact tracing plan. Is

24 the State working with any tech companies to automate

25 contact tracing through a phone app or other

THE SULLIVAN GROUP OF COURT REPORTERS 27

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1179 Page 55 of 232

1 technology?

2

And then last week, you said that the

3 State's goal was to build a contact tracing workforce

4 of 10,000 people. How many people has the State hired

5 so far, what are their backgrounds, and how is the

6 State going about paying them?

7

GOVERNOR NEWSOM: Yeah, it was just

8 announced a few -- literally a few days ago, but we did

9 our survey. Twenty-two counties have robust tracing

10 capacity that's already in place. We're building off

11 that existing workforce.

12

We are going to announce -- I don't want to

13 get ahead of myself, but partner with a well-known

14 brand in the State of California, but not tech brand

15 yet. This is more of a well-known medical institution

16 in the State of California, guide our efforts.

17

As I specifically said last week, we had

18 done that survey, not just of the counties, but of our

19 existing workforce, on allowing people to fill out

20 forms about what their unique skill set is, so that we

21 can then redeploy that workforce. That will be

22 redeployed from, again, a bottom-up perspective,

23 building on the existing capacity and the expertise and

24 workforce at the county level, supplementing at a State

25 level, and then building capacity of partnerships

THE SULLIVAN GROUP OF COURT REPORTERS
28

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1180 Page 56 of 232

1 institution that we're very, very shortly going to

2 announce that we'll be doing -- substantially doing the

3 training that's required for the workforce.

4

We're well on our way of meeting our

5 internal goals, and over the next few weeks, you're

6 going to see thousands and thousands of people well on

7 our way to hit that 10,000 goal, sooner than actually

8 some of us had even anticipated when we made the

9 announcement last week. And, again, that's based upon

10 the extraordinarily robust existing infrastructure

11 that's in place.

12

May not be the total numbers, but it's the

13 quality of those local efforts that are consistent, by

14 the way, even in this crisis, and this is important to

15 remind people. We've been doing contact tracing for

16 years and years and years, decades in the State of

17 California, TB, measles. Substantively, you'll see a

18 lot of work in this space on STDs, some gonorrhea

19 outbreaks in the last number of years, HIV and AIDS

20 brought to a whole •nother level.

21

And some counties are more enriched in this

22 space than others, so we're building off that local

23 expertise that already exists and then expanding it

24 with this surge workforce, based on the surveys that we

25 had conducted a number of months back, probably almost

THE SULLIVAN GROUP OF COURT REPORTERS 29

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1181 Page 57 of 232

1 two months ago, seven or so weeks, when this crisis

2 first took shape, and we started those surveys.

3

And then we'll augment on those efforts

4 through this online portal and training program that

5 we're just about to announce, and I want to do it

6 today, but I

I don't want to get ahead of myself,

7 and so know, in the next day or two, we'll be even more

8 specific, including the answer to your question on what

9 the tech platform.

10

We have a -- multiple choices in this. I

11 just want to make sure we don't pick one too soon and

12 unnecessarily and lock ourselves in, but we are very

13 close to having that platform set up as well.

14

FEMALE SPEAKER: David Baker, Bloomberg

15 News.

16

MR. BAKER: Yes, hello, Governor. You had,

17 last week, talked about how the federal government, and

18 President Trump in particular, had promised the State a

19 hundred thousand swabs, testing swabs last week, which

20 then got ratcheted back a little bit to -- to 90,000,

21 and 250,000 this week.

22

Did you, indeed, get the 90,000 last week?

23 Are you assured that you will get the 250,000 coming up

24 this week? And, if so, are there any other testing

25 bottlenecks out there in the majorit- -- in the

THE SULLIVAN GROUP OF COURT REPORTERS 30

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1182 Page 58 of 232

1 different bottlenecks you described last week, like

2 with reagents and things like that?

3

GOVERNOR NEWSOM: Yeah, thank you. We

4 received the 90,000, distributed 90,000. Nothing to

5 believe -- it's Monday -- that this week, we won't

6 receive 260,000. They're promising to make up for the

7 10-, but when that comes in, I'll let you know, and --

8 and there's nothing to suggest it won't happen.

9

We'll still need multiples of that, and so,

10 by no stretch of the imagination, is that enough.

11 Remember, it's not just the total number of tests. We

12 want to continue to increase the number of times an

13 individual is tested, including the types of tests, the

14 serology tests, not just the traditional PCR tests, and

15 therein lies answer to the second part of your

16 question.

17

Every week, we tend to shut one concern

18 down, there's another concern that -- that rears its

19 head. And so you're correct, it was, for a while,

20 reagents, and then it was specifically RNA extraction

21 kits, and then it was swabs in this last few weeks, but

22 there's also transport media, which I mentioned in the

23 survey of the 251 largest vendors that we have,

24 including our private and public labs, our private

25 partners and public labs, that continue to be a

THE SULLIVAN GROUP OF COURT REPORTERS
31

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1183 Page 59 of 232

1 problem.

2

Remember, I said in that survey, 50 to 55

3 percent, the 251 largest testing providers said swabs

4 was the number one issue. Fifty percent said some of

5 the testing kits, the the transport media, the tubes

6 were also a problem. So that continues to be a space

7 where we're doing more and working, not just our

8 federal partners, but working to procure directly those

9 specific supplies. But, look, substantial progress is

10 being made, but by no stretch of the imagination does

11 everybody have ample supplies, including, again, PPE,

12 which is critical, in terms of making sure that these

13 tests are conducted at an appropriate level.

14

Optum.Serve -- forgive me for being a little

15 more longwinded, but I want to be precise. Optum.Serve

16 and those 80 sites we announced last week, those are

17 end-to-end tests, all locked in, all fully loaded, in

18 terms of supply and diagnostic capacity, and Verily has

19 substantially made progress on the six additional sites

20 that we announced last week, in terms of their supply

21 chain.

22

So we're confident in those new

23 announcements that supplies, for the moment, are --

24 are -- are -- are ample. And I'll remind you, 1.5

25 million serology tests that Abbott has c0111D1itted to,

THE SULLIVAN GROUP OF COURT REPORTERS 32

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1184 Page 60 of 232

1 and we have procured, those are going to sites where

2 the machines are already in place, and we're confident

3 that those also are fully loaded commitments.

4

FEMALE SPEAKER: Jeremy White, Politico.

5

MR. WHITE: Hey, Governor, thanks for taking

6 my question. I wanted to ask you about the two states

7 that joined the regional pact today, Nevada and

8 Colorado, as you mentioned.

9

The Governor of Nevada noted how many

10 customers -- excuse me, visitors from other Western

11 states come to visit Las Vegas, for example. I'm

12 curious to know the regional framework you're

13 contemplating with other governors, would it

14 potentially include policing the borders between those

15 states, to limit the people crossing those borders,

16 depending on how different governors are rolling back

17 or keeping in place these orders?

18

GOVERNOR NEWSOM: Yeah, I think, look, you

19 scope a potential. That's a potential, but I can say

20 this, just based on my personal conversations, many of

21 these governors, we have not had that conversation, so

22 that is not our current scoping.

23

Frankly, our current scoping is on what

24 meaningful modifications look like, comparing and

25 contrasting conditions at the local level, recognizing

THE SULLIVAN GROUP OF COURT REPORTERS
33

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1185 Page 61 of 232

1 the regional variance, even within our states.

2

Tomorrow, again, we'll be laying out more

3 detail on our roadmap in our specific Indicator Number

4 5 and what the phased-in approach will look like.

5 You'll see conversations that we've had with other

6 governors, where we have taken some of their counsel

7 and advice and incorporated into the presentation we'll

8 be providing you tomorrow. It's just a proof point of

9 the collaboration and the sharing of best practices

10 back and forth.

11

But, look, if we're at a different phase in

12 this, and there's other concerns, I imagine that's a

13 scoping potential of -- of the purpose of the Western

14 States Compact is some consideration and some

15 collaboration, some heads up, some coordination on

16 something along the lines that you suggest, but not at

17 the moment.

18

FEMALE SPEAKER: Final question, Jim Roope,

19 Westwood One News.

20

MR. ROOPE: Thank you very much. Good

21 afternoon. Governor, I like you, and most people do

22 right now, but I have a question for Dr. Ghaly, if

23 that's okay.

24

GOVERNOR NEWSOM: My gosh, you've broken my

25 heart, or not. You've elevated me, so, Dr. Ghaly?

THE SULLIVAN GROUP OF COURT REPORTERS 34

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1186 Page 62 of 232

1

MR. ROOPE: Sorry. Thank you very much.

2

Doctor, we've been seeing a lot of

3 documentation, hearing a lot of information about how

4 the virus lives on surfaces, so on and so forth, but we

5 understand -- at least what I've understand -- -stood

6 now, through all of these briefings, is that the virus

7 is a protein, and in a droplet, it'll survive for a

8 little bit. Once that droplet drys up, while the virus

9 could be still detected, its DNA would still be there,

10 it's not necessarily infectious.

11

So we have information on how long that

12 virus can live on somewhere, how long it can be

13 detected, but do we have information about how long the

14 virus is actually infectious on these surfaces, or do I

15 have all of that wrong?

16

DR. GHALY: No, you -- thank you for the

17 question. I think it's an important one. Many people

18 are asking. We talk about how it's transmitted from

19 person to person. We're talking about six feet apart,

20 and what about the surfaces that that person that you

21 don't normally interact with was just standing at, and

22 we are learning more and more about how the

23 transmission of COVID-19 takes place.

24

I think we're learning, based on what other

25 countries are publishing in the literature, what we're

THE SULLIVAN GROUP OF COURT REPORTERS
35

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1187 Page 63 of 232

1 learning in some of those major epicenters in in the

2 states of where they've had many, many cases, and I

3 would say that because we are not a hundred percent

4 certain how -- how it lives on surfaces, whether it

5 transmits off of those surfaces, that we continue to

6 push out those very basic guidelines, wash your hands

7 frequently. Don't touch your face, if you can avoid

8 it, mainly, your eyes, mouth, and nose. Make sure you

9 cover your cough. Keep physical distancing as much as

10 possible. Stay at home, when you're able to, and if

11 you must leave your house to go to a necessary

12 essential visit, to the store or the pharmacy, to use a

13 face covering, and to keep as far apart as possible.

14

I think as we learn more and more whether

15 it's an hour on a surface, six hours on a surface,

16 whether that transmits and is actually infective,

17 transmissible, and can cause someone to contract

18 COVID-19, we want to be abundantly cautious with all of

19 our citizens around California in giving that

20 consistent, strong guidance of what to do now.

21

As we learn more and more about the science,

22 we will share that with you, try to be clear about what

23 it means and how it might change our requirements or

24 recommendations around how we behave, but, for the time

25 being, we continue to stick to the initial message

THE SULLIVAN GROUP OF COURT REPORTERS
36

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1188 Page 64 of 232

1 around physical distancing and doing the basic

2 common-sense things around covering your cough, washing

3 your hands, and taking normal measures to protect

4 yourself, your families, and your communities.

5

GOVERNOR NEWSOM: Thanks for asking the

6 person who went to medical school that question.

7

And let me just extend appreciation to

8 everybody, all the good work you've done to suppress
9 - the spread in the State of California, and good work

10 has provided us the opportunity tomorrow to give you an

11 update on our indicator.

12

Again, six indicators. We did the update

13 last Wednesday on testing, tracking, tracing, isolation

14 and quarantine. Tomorrow, we'll be talking about

15 opportunity to begin to modify, and potentially the

16 course of the next few weeks, not months, modifications

(!L = to the stay- at-home order that are - - go to the

18 question of businesses, and sectors, and regions in the

19 State of California, but that's because of your good

20 -- work. 21

If the data starts to show different things,

22 the spread is not suppressed, if we go back to our

23 behaviors, pre-COVID-19 behaviors, too quickly, then

24 these announcements, these guidances, our ability to

25 get back to modified normalcy will simply be delayed.

THE SULLIVAN GROUP OF COURT REPORTERS 37

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1189 Page 65 of 232

1

And so, again, it's in the spirit of

2 collaboration, spirit of expectation, and in the spirit

3 that has defined the last few weeks that I just, well,

4 implore you to continue to do the great work you've

5 done and continue to tell your friends and family,

6 particularly younger folks, that that work is not over.

7

The virus is as transmissible as it's ever

8 been, and, again, it doesn't take the weekend off. It

9 doesn't take any time off. It is ubiquitous. It is

10 invisible, and it remains deadly. Ask the 45 families

11 who lost a loved one in the last 48 hours.

12

Please, please continue physical distancing,

13 social distancing, continue to abide by your local and

14 the State guidances, and continue in that spirit of

15 contribution.

16

And, as always, I'll end, just reminding you

17 if you feel the urge to contribute your time, your

18 energy, your passion, your expertise,

19 Californiansforall.ca.gov.

20

Take care, everybody.

21

***

22

23

24

25

THE SULLIVAN GROUP OF COURT REPORTERS 38

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1190 Page 66 of 232

1

E. RWM...... LOPBZ. a Certified Sborthend

2 R911orter or the State or Ca1iroznia. do her~ certi:fyz

3

Tbat a record or the audio proce•di'D8'• vaa

5 thereafter trm1acribe4 under my directiGD1 tb.at the

6 foregoing tren•oript i• • trve reoord of the audio

7 trm1•cription.

8

E f-urtb.er certify tb.at E em neither

9 financia11y intere•te4 in the action :a.or a re1ative or

10 emp1oy-ee of any attorney or any party to thi• action.

11

Elf 'IDTIDBB 'llllBUOI'. E have tbi• date

12 •'Ub•cribad my nem..

13
14 Date4s lfay s. 2020

15

Renae B. Lopes

16

CSR llO. 12142

17

18

19

20

21

22

23

2•

25

TD 81JLLI:V.All IJllouP 01' CO'OJll" RBJ.IOJl'l"DS 39

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1191 Page 67 of 232

-
-stood 35:5
1
1,340 14:24
1.4 18:24
1.5 32:24
10,000 28:4 29:7
1031:7
11 26:17
12142 39:16
1300 17:1818:22
15th 14:9,10
2
2020 4:1 39:14
24 17:10 18:23 19:4
250,000 30:21,23
251 31:23 32:3
260,000 31:6
27 4:1
3
3.1 12:19

4
4.3 14:11
4.4 14:8,9
40 4:9 18:14
43.7 12:14
45 17:10 38:10
48 38:11
5
5 27:5 34:4 39:14
50 32:2
55 32:2
553,000 17:21
6
600 15:3
8
80 18:2 32:16
8:00 14:16,17
9
90,000 30:20,22 31 :4
90-yard 19:8
95 12:14

A
a.m. 14:16
Abbott 32:25
abide 14:3 38:13
abided 6:4
abiding 13:1419:25
ability 7:18,19 37:24
absolutely 12:3 24:8
abundantly 36:18
abusing 22:10
accessibility 26:10
acknowledge 6:12,1316:11
acknowledged 14:22
action 39:9,10
actions 24:13
adapt 7:19
added 15:3
addition 9:13
additional 12:1915:2,3 32:19
address 6:17
adequately 25:18
adjustments 20:1

adopted 6:4
advance 7:13 13:119:23
advanced 5:22,23
advancing 15:2
advice 34:7
advising 10:13
advisory 10:10 11 :2
afforded 11:12
afternoon 4:6 34:21
agencies 8:1 21 :4
agenda 10:4
aggressive 6:23 21:5
aggressively 8:2 26:13
ahead 28:13 30:6
AIDS 29:19
all-hands 22:17
allowed 6:7
allowing 28:19
amendments 20:2
amount 14:10 26:11
ample 32:11,24
anecdotal 13:18

THE SULLIVAN GROUP OF COURT REPORTERS
Index: -stood-anecdotal

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1192 Page 68 of 232

Angela 23:1926:9
announce 28:12 29:2 30:5
announced 10:10 14:23 24:9 28:8 32:16,20
announcement 29:9
announcements 32:23 37:24
answering 15:21
anticipated 29:8
anxiety 7:6
app 27:25
appreciation 37:7
approach 22:1 34:4
appropriately 5:22 6:8 9:3
APRIL 4:1
apt 12:12
area 21:6
areas 23:1424:18,19
arrangement 25:12
arrests 21:24
assistance 26:21
Association 22:20
assured 30:23
assuredly

26:16
attorney 39:10
audio 39:3,6
augment 5:16 30:3
augmentations 6:16
automate 27:24
avail 6:22
avoid 36:7
Ayestas 20:24 21:1
B
back 7:11,14,15 8:20 9:15 10:9 13:8 22:12 26:22 27:18 29:25 30:20 33:16 34:10 37:22,25
backgrounds 28:5
Baer 27:20,22
Baker 30:14,16
bars 11:6,9
based 20:5 27:9 29:9,24 33:20 35:24
basic 36:6 37:1
basically 19:2
beach 5:20 6:12 22:5
beaches 4:18 5:25 6:113:19,21 19:7 23:3 27:17

bearing 16:6
beautiful 5:7
began 19:6
begin 4:8 9:17 16:2119:20 23:14 25:22 37:15
behave 36:24
behavior 5:3,4,17 7:15 8:22 19:18 27:19
behaviors 20:5 37:23
beings 17:11
benchmarks 17:2318:1
beneficiary 25:8
bent 4:10
billing 25:12
billion 14:8,9
billions 5:13
bit 21:14 22:14 30:20 35:8
blanks 24:13
Bloomberg 30:14
Board 6:14
body 10:10,11
borders 33:14,15
bottlenecks 30:25 31:1

bottom-up 28:22
boy 13:18
brand 28:14
break 8:1311:419:14
breaking 10:17
briefings 35:6
briefly 10:5 12:22 14:5
brightest 10:11
bringing 11:1,2,18
broad 11:420:9
broaden 23:13
broader 7:910:411:6
broken 11:16 34:24
brought 29:20
Brown 9:25 10:2
build 19:19 28:3
building 24:24 28:10,23,25 29:22
business 8:1426:1927:1,6
businesses 10:25 11:1,15 26:23,25 37:18
Buzzfeed 27:20

THE SULLIVAN GROUP OF COURT REPORTERS Index: Angela-Buzzfeed

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1193 Page 69 of 232

c
cabin 22:4
California 4:11 5:20 6:2,20 7:1 9:5 10:1212:15 13:18 16:2317:7,22 18:9 21 :25 24:10 25:25 28:14,16 29:17 36:19 37:9, 19 39:2
California's 24:4
Californian 25:17
Californians 4:9 5:1818:4,14
Californiansforall.ca. gov
20:15
Californiansforall.ca. gov.
38:19
call 14:15,1915:1,12,19,23 26:19
calls 15:18
capacity 8:3,21 15:6 28:10,23,25 32:18
care 38:20
cases 36:2
caution 17:16
cautious 36:18
center 14:1615:1,19
centers 15:13
Certified 39:1

certify 39:2,8
chain 32:21
challenges 24:1
change 5:3 16:20 26:1 36:23
changed 19:16,17
charity 26:21
chatbot 15:8
chatbots 15:25
checks 14:11
chiefs 9:20 22:19
childcare 8:15
choices 30:10
citation 22:6
citations 21:7,24
cities 9:2
citizens 36:19
city 6:13 18:9
claim 14:25
claims 14:8,1217:2
clarification 25:11
clarity 7:10
clear 8:24 36:22

cleared 26:8
clinic 25:10
clinics 25:21
close 19:8 30:13
closely 9:17 22:22
closures 6:6 21 :1623:11,12
coalition 9:13
coastline 5:22
coasts 5:8
collaboration 34:9, 15 38:2
collaborative 23:7
collaboratively 9:18
collective 27:19
color 23:24
Colorado 9:12,14 33:8
combined 11:9
commented 14:15,18
commercial 25:3,15
commitments 18:1 33:3
committed 16:24 32:25
committee 11:3
common-sense 37:2

communities 23:24 24:21 37:4
community 25:24
Compact 34:14
companies 13:5 27:24
comparing 9:21 33:24
complain 16:10
complicated 24:5
concern 31:17,18
concerned 21:17
concerns 6:17 21:14 23:4 34:12
conditions 6:6, 17 33:25
conduct 6:7
conducted 9:3 29:25 32:13
confidence 7:11
confident 9:7 24:14 32:22 33:2
confront 4:156:11
consideration 34:14
considerations 23:10
consistent 29:13 36:20
construction 11:13
contact 12:25 27:23,25 28:3 29:15
contacts

THE SULLIVAN GROUP OF COURT REPORTERS
Index: cabin-contacts

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1194 Page 70 of 232

21:21
contemplating 33:13
continue 6:7 8:2 12:23 13:1,24 14:12 19:2320:11,18 24:17 26:12 27:13 31:12,25 36:5,25 38:4, 5,12,13,14
continues 7:21 32:6
continuing 27:10
contract 36:17
contrasting 9:21 33:25
contribute 20:15 38:17
contributing 20:20
contribution 20:22 38:15
conversation 15:2 33:21
conversations 9:9,1110:1611:3,17 12:2 33:20 34:5
coordination 34:15
correct 31:19
cough 36:9 37:2
Council 6:13
counsel 34:6
counties 21:1528:9,18 29:21
countries 35:25
country 5:13

county 4:17 6:2,14 7:713:19 22:20,21 26:7 28:24
cover 36:9
coverage 24:5
covering 36:13 37:2
coverings 12:24
COVID-19 17:19 24:22 25:4 35:23 36:18
create 6:6
credit 23:3
crisis 29:14 30:1
critical 32:12
criticism 23:5
crossing 33:15
CSAC 22:20
CSR 39:16
curbside 11 :11
curious 33:12
current 33:22,23
curve 4:11 8:4
customers 11:2 33:10
cut 14:11

D
daily 14:6
dash 19:8
dashboard 13:4
data 5:3,5 7:21 8:18 9:22 13:3,7,20,21,23 17:5 20:2,3 24:20 27:9,12 37:21
date 12:15 27:9 39:11
Dated 39:14
David 30:14
day 5:8,1016:21,2517:3 20:10 24:25 30:7
days 12:1114:1715:4,7,8 17:13,16,18 23:18 28:8
deadly 38:10
deaths 17:6
decades 29:16
decided 19:14
decision 7:3 13:24
decline 17:9
decrease 18:2519:1
deep 9:25
deeply 7:2,3,9
defined 38:3

delayed 37:25
deliberative 6:16
demanding 18:15
demands 16:22
demonstrating 25:23
Department 16:18 25:6
depending 33:16
deserve 24:23
detail 8:7 27:4 34:3
details 8:8
detected 35:9,13
determinative 12:4
diagnostic 32:18
Diego 6:1
digital 10:2411:1912:8
dining 11:7
directed 25:6
direction 39:5
directly 32:8
discussed 23:22
disparities 24:21
disrupt 8:20

THE SULLIVAN GROUP OF COURT REPORTERS Index: contemplating-disrupt

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1195 Page 71 of 232

distancing 5:24 6:24 7:16,1712:23 13:13 19:25 21:1027:1, 1136:937:1 38:12,13
distribute 5:12
distributed 12:14,16,2114:8,11 26:15 31:4
DNA 35:9
Doctor 35:2
documentation 35:3
dog 22:3
dogged 26:6
dollars 14:8,9
drilling 10:19
drive 13:24
driven 5:2,3
droplet 35:7,8
drys 35:8
dynamic 12:1
E
eager 8:5,6
Earlier 21:3
Early 25:1
East 18:8
economic 8:1110:10 25:9

economy 7:19 8:22 10:21 22:13
education 21:9,12
effect 5:11
effort 10:2216:1
efforts 6:5 10:13 15:24 23:15 28:16 29:13 30:3
elected 7:4
elevated 34:25
Elex 26:17 27:16
emphasize 5:2
employee 39:10
employees 26:2027:1
employing 10:6
encourage 19:22
encouraged 6:11
encouraging 17:12
end 38:16
end-to-end 32:17
energy 38:18
enforcement 6:23 8:2 21:4,5,10 23:9
engagement 6:16
enriched 29:21
ensure

25:7
environment 8:15
epicenters 36:1
equipment 26:12
essential 36:12
Eureka 6:3
everybody's 22:25
exceptions 6:9
excuse 12:17 33:10
existing 28:11,19,23 29:10
exists 29:23
expand 20:18
expanding 29:23
expect 6:25 25:20
expectation 8:1621:1538:2
expectations 16:22
experience 11:24 25:8
experiences 11:8
expertise 20:16 28:23 29:23 38:18
experts 11:2
explicit 21:13
express 20:10

expressed 14:20
extend 4:22 8:6 9:24 37:7
extending 4:8
extends 23:9
extent 24:4
extraction 31:20
extraordinarily 29:10
eyes 36:8
F
face 12:2436:7,13
facilities 8:15 23:12
families 37:4 38:10
family 38:5
farther 19:11
federal 30:17 32:8
feel 38:17
feels 24:14
feet 19:24 35:19
FEMALE 20:24 23:19 26:17 27:20 30:14 33:4 34:18
fever 22:4
fifteen 15:17,18,19
Fifty

THE SULLIVAN GROUP OF COURT RInEdPOeRxT: ERdSistancing-Fifty

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1196 Page 72 of 232

32:4
fill 24:12 28:19
Final 34:18
financially 39:9
flat 19:3
floor 11:15
focus 21:12
focusing 18:3,8
folks 6:19 38:6
force 10:17
foregoing 39:6
forgive 32:14
formal 23:14
formed 9:15
forms 28:20
forward 5:10 7:25 9:8 18:19,21 25:23
foundation 19:20
Fox 26:17
framework 8:11 33:12
Frankly 33:23
freezes 12:22
frequently 15:8 36:7

Friday 21:14
friends 38:5
fruit 16:6
frustration 14:21,22
fully 32:17 33:3
future 10:15 11 :23
G
Ghaly 24:6,12,16 34:22,25 35:16
give 27:1 37:10
giving 36:19
globe 5:14
gloves 26:15
goal 21 :9 28:3 29:7
goals 24:4 29:5
gonorrhea 29:18
good 4:6 27:3 34:20 37:8,9, 19
Google 18:8
gosh 22:2 34:24
government 8:1 16:13 26:20 30:17
Governor 4:6 21:1,11 23:21 24:6, 16 25:126:9,1827:3,22 28:7 30:16 31:3 33:5,9, 18 34:21,24 37:5

governors 9:20 10:2 33:13,16,21 34:6
gowns 26:14
granular 12:2
grateful 26:20,21
gratitude 4:9 9:25 20:11
great 20:10,1121:1838:4
green 18:18 20:2
grow 20:18
growth 14:13
guidance 11:21 36:20
guidances 14:4 37:24 38:14
guide 8:1911:3 28:16
guidelines 6:3,24 8:23 9:4 12:5 21:10 26:2 36:6
H
hands 36:6 37:3
happen 22:7,8 31:8
happened 23:4
happy 20:23
hard 6:614:7,1921:1623:11 26:6
harm 25:9
Hart 23:19,21

head 16:12 31:19
headlines 17:4
heads 34:15
health 5:4 13:23 23:19 24:5 25:3 26:7
Healthcare 25:6
heard 21:6
hearing 23:25 35:3
heart 34:25
helped 6:5
herd 5:10
Hey 33:5
highlighted 6:18
highlighting 27:5
Highway 6:20
hired 28:4
hit 17:2329:7
HIV 29:19
hold 27:13
home 5:7 36:10
honored 9:10
hope 7:12 8:16 20:4
hoped

THE SULLIVAN GROUP OF COURT REPORTERS Index: fill-hoped

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1197 Page 73 of 232

14:2
hospitality 11:4,6
hospitalization 17:6
hospitalizations 18:24
hospitalized 19:2
hosting 10:25
hour 36:15
hours 17:10 18:23 19:4 36:15 38:11
house 36:11
human 14:20 15:20 17:11
Humboldt 18:3
hundred 17:17 30:19 36:3
hundreds 5:12
I
ICU 19:2,4
images 4:16, 17,19 5:19,25 7:23
imagination 15:17 31:10 32:10
imagine 34:12
imagined 14:2
immediacy 11:20
immunity 5:11
impact 5:4

impacting 22:11
impediment 24:8, 15 25:19 26:3,8
implore 38:4
importance 10:17 27:10,16
important 16:4 20:21 25:2 26:4 29:14 35:17
impress 5:17 7:13
improve 9:7
improvement 17:20
inadequate 23:25
inappropriately 13:16
include 23:12 33:14
includes 20:14
including 14:2516:18 23:1 30:8 31:13,24 32:11
inconsistent 8:22
incorporated 34:7
increase 13:10,12,15 14:12 18:24,2519:1 31:12
increasing 17:2518:11 23:23
incredible 8:25
incredibly 20:21
indication 20:3
indications 25:2

indicator 8:14 17:16 27:5,6 34:3 37:11
indicators 8:9,1918:19 27:5,13 37:12
individual 19:325:5,8,14,21 27:18 31:13
individuals 17:18
infamous 16:19
infectious 35:10,14
infective 36:16
information 9:22 15:2 35:3,11,13
infrastructure 29:10
initial 36:25
inquiries 16:4
lnslee 9:2510:2
institution 28:15 29:1
insurance 14:7,2517:2 25:15
integrating 15:12
interact 35:21
interested 39:9
Interestingly 16:14
internal 29:5
intimately 7:8
invisible 38:10

inviting 10:2312:8
isolation 8:11 37:13
issue 24:12 26:10 32:4
issues 8:9,1211:9,10 25:13
J
Jeremy 33:4
Jim 34:18
job 22:3
joined 9:13 33:7
Jonathan 20:24
justice 8:11 9:4 16:21
K
Kaiser 23:19
KCRA 20:24
keeping 33:17
kids 22:4
kind 8:413:25
kits 31:21 32:5
L
L.A. 6:1 18:8
labs 31:24,25
lack 24:5

THE SULLIVAN GROUP OF COURT REPORTERS Index: hospitality-lack

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1198 Page 74 of 232

lagging 17:16
laid 8:817:24
language 11:20
large 9:211:1
large-scale 16:15
largest 31:23 32:3
Las 33:11
late 16:5
laurels 19:13
law 21:4
lay 27:7
laying 8:7 27:4 34:2
leaders 10:25
leadership 10:3
leads 27:12
leaned 14:23
learn 36:14,21
learning 35:22,24 36:1
leave 36:11
level 6:20 12:2 16:24 21 :19 28:24,25 29:20 32:13 33:25
licenses 11:10

lies 31:15
lights 18:19 20:2
likelihood 5:8
limit 33:15
lines 17:4 34:16
listened 23:4
literally 28:8
literature 35:25
live 35:12
lives 17:9,1022:10,11 35:4 36:4
loaded 32:17 33:3
local 6:5 7:3,8 8:1 16:24 21:19 23:2 29:13,22 33:25 38:13
localism 7:2
locally 9:5
lock 30:12
locked 32:17
long 16:14 35:11,12,13
long-term 10:14
longwinded 32:15
loosen 16:3
Lopez 39:1,15

lost 17:10 22:2 38:11
lot 16:1718:17 21:12 22:18 23:17,23,25 26:19 29:18 35:2,3
loved 38:11
M
machine 39:4
machines 33:2
made 4:13,2112:10 13:6,25 16:1818:125:1,1329:8 32:10,19 39:4
major 36:1
majorit30:25
majority 5:22 13:13
make 4:20 5:12 8:4,5,18,24 13:1,24 16:4 18:12 19:2020:124:2225:11, 1626:7,1330:1131:6 36:8
making 4:25 7:3 13:24 15:13 16:1619:9 24:24 27:14 32:12
mall 11:14
manage 5:15,16
manifested 21:17
March 14:9
masks 12:13,15,16, 17, 19,20 26:13,14
Mateo

6:2
mayor 7:7 9:2510:1
meaning 5:23
meaningful 4:21,25 8:18 9:2410:7 11:2118:20 27:14 33:24
means 36:23
measles 29:17
measurable 4:25
measures 37:3
Medi-cal 25:7,8,15
media 21:13 31:22 32:5
medical 28:15 37:6
medium 10:1411:1
meet 18:15,16 20:12
meeting 22:1829:4
meetings 22:18
mention 14:6 22:16
mentioned 15:1121:322:1531:22 33:8
message 25:25 36:25
Michaelson 26:17,18
million 4:912:14,16,17,19,20 14:1115:18,19,20 18:14 32:25

THE SULLIVAN GROUP OF COURT REPORTERS Index: lagging-million

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1199 Page 75 of 232

millions 5:13
mind 4:16
minds 10:11
minimum 19:24
minutes 15:20
mitigate 23:15
mitigated 19:18 21:20
mobility 13:10
modest 13:1214:13 17:8 18:25 19:1
modifications 8:5,1810:811:2118:20 19:2127:1533:24 37:16
modified 7:11 37:25
modify 7:19 37:15
modifying 26:5
moment 20:13 22:15 32:23 34:17
momentum 22:24
Monday 31:5
money 14:10
months 4:25 5:10 7:20 13:6 27:15 29:25 30:1 37:16
morning 13:3
Motor 16:18

mouth 36:8
move 20:4
movement 13:4, 10, 15, 17,20
moves 25:2
moving 13:1518:19
multiple 11:1414:23 30:10
multiples 31:9
multitude 21 :2324:9,11
N
N95 12:13
naive 5:21
nature 11:7
necessarily 11:12 35:10
needing 14:16
neighborhoods 24:20
neighbors 20:20
Nevada 9:11,14 33:7,9
Newport 5:20 6:12
news 20:25 23:20 27:3,21 30:15 34:19
NEWSOM 4:6 21 :11 24:6 26:9 27:3 28:7 31:3 33:18 34:24 37:5
night 16:21

nonetheless 17:12
noon 14:17
normal 37:3
normalcy 7:12 37:25
north 6:2
Northern 6:1
nose 22:10 36:8
note 17:25
noted 33:9
nother 29:20
Noth in g ' s 19:16
number 4:10,14,22 5:9 8:14,17 12:1113:517:5,6,9,13, 1718:7,22,2319:1,2 23:18 29:19,25 31 :11, 12 32:4 34:3
numbers 14:617:1118:11 20:17 29:12
0
occasions 14:23
officials 7:4 23:2
online 30:4
open 23:2
opened 14:16
opening 26:5

openings 21:16
opportunity 19:19 37:10,15
opposed 18:15 21 :16
optimistic 5:2
Optumserve 18:232:14,15
Orange 4:17 6:14
order 5:1 6:23 7:20 10:8 11:2213:1418:20 37:17
orders 5:23 13:2 26:5 33:17
Oregon 9:16
outbreaks 29:19
outcomes 24:22
outstanding 10:3
overnight 16:20
overwhelming 5:21
owners 26:19 27:1
p
pact 33:7
paid 21:13
park 6:6,21
parking 23:11,12,13,14
parks 6:21 9:1 21:18,19

THE SULLIVAN GROUP OF COURT REPORTERS Index: millions-parks

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1200 Page 76 of 232

part 20:1, 19 25:5 26:4 31 :15
participate 12:9
participating 20:19
partner 28:13
partners 6:5,229:2,14 16:24 21:19 22:2125:1026:7 31:25 32:8
partnership 9:15,2318:6
partnerships 28:25
parts 18:9
party 39:10
passion 16:15 20:16 38:18
patrol 6:20,21 21 :19
paying 28:6
payment 25:4,12,24
PCR 31:14
peak 17:9,13
people 4:20 5:13 6:7 7:14,16 12:8,2514:15,18,24 15:318:12,1519:1,2,23 20:19 22:9 26:19 28:4, 1929:6,15 33:15 34:21 35:17
percent 18:24 32:3,4 36:3
performance 16:23
performed 17:21

person 35:19,20 37:6
personal 26:11 33:20
perspective 13:2228:22
pharmacy 36:12
phase 10:7 34:11
phased-in 34:4
phasing 27:8
phone 9:20 27:25
photographs 13:19
physical 5:24 7:1611:1312:23 19:25 27:11 36:9 37:1 38:12
pick 30:11
pickup 11 :11
place 14:215:7,1418:17 28:1029:1133:2,17 35:23
places 18:8
plan 25:5 26:7 27:23
plans 25:3
platform 30:9,13
pleased 12:10
point 5:2 8:716:14 17:16 34:8
Police 22:19

policing 33:14
Polis 10:1,2
political 7:5
Politico 33:4
population 24:2
populations 24:22
portal 30:4
position 8:17
positive 17:19
positives 17:618:22
possibly 21:4
potential 33:19 34:13
potentially 26:24 33:14 37:15
power 16:9
PPE 12:1326:10,15 32:11
practice 7:16 27:10
practices 9:21 34:9
practicing 19:24
pre-covid-19 37:23
precise 32:15
predominant 21:12
present 19:15

presentation 34:7
President 30:18
press 10:2311:18
pressures 7:6,8
prevalent 19:15
preview 12:7 27:9
primarily 23:11
principal 22:19
prioritization 26:1
private 31:24
problem 32:1,6
procedural 12:16,17
procedure 12:13,19
procedures 6:24
proceedings 39:3
process 12:1 14:25
procure 12:18 32:8
procured 12:14 33:1
procurement 16:15
program 25:7 30:4
progress 4:13,2112:1113:25 16:16,1718:17,1819:9 32:9,19

THE SULLIVAN GROUP OF COURT REPORTERS
Index: part-progress

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1201 Page 77 of 232

promised 30:18
promising 31:6
proof 34:8
proper 26:25
protect 37:3
protective 26:12
protein 35:7
protocols 15:14
provide 13:5
provided 13:4 19:19 37:10
providers 32:3
providing 34:8
proximate 12:25
PSAS 21:13
public 7:9 9:2 12:24 13:6 31:24,25
publishing 35:25
punitive 22:2
purpose 34:13
purposes 15:1
push 36:6
put 12:5 15:7
putting

12:2415:5,13 22:10
Q
quality 29:13
quantity 24:23
quarantine 8:12 37:14
question 15:6 21 :2 22: 16 25:23 30:8 31:16 33:6 34:18, 22 35:17 37:6,18
questions 15:9,21 20:23 25:20 27:23
quicker 19:11
quickly 22:13 26:15 37:23
R
ramp 23:22
ratcheted 30:20
rate 14:12
re7:19
reagents 31:2,20
real 4:13
realistic 5:9
reality 4:24
realtime 9:2218:4
rears 31:18
reasons 21 :2324:9,11

receive 24:23 26:16 31 :6
received 23:6 31:4
recognize 7:5,6 15:22 16:17
recognizing 33:25
recommendations 36:24
record 14:14 39:3,6
recovery 10:10,13
redeploy 28:21
redeployed 14:2428:22
reduce 15:23
reducing 15:9,10
regional 27:733:7,12 34:1
regionally 10:18
regions 27:7 37:18
regulation 16:3
reimagining 10:15
reimbursed 25:18
reinforced 13:21
reinventing 10:15
relates 10:7 17:5
relative 39:9
remains 38:10

remarkable 8:3
Remember 31:11 32:2
remind 12:1216:19 29:15 32:24
reminding 38:16
Renae 39:1,15
reopen 7:18 8:21 26:24
reopening 22:12
Reporter 39:2
required 29:3
requirements 36:23
requires 20:13
respect 7:2,3 9:9 19:17
response 25:1
rest 5:14 19:13 22:5
restaurants 11:7,9
restrictions 23:13
retail 11:5,11,23 26:25
rightful 16:22
rightly 14:15,18
risk 22:11
risks 5:16
RNA

THE SULLIVAN GROUP OF COURT REPORTERS Index: promised-RNA

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1202 Page 78 of 232

31:20
roadmap 34:3
robust 9:8, 10 28:9 29:10
rolling 33:16
Roope 34:18,20 35:1
roughly 12:16
roundtable 12:8
roundtables 10:2411:19
rules 14:3 16:2
run 19:7 25:7
runs 25:16
rural 18:3,9 23:23
s
San 6:1,2
Saturday 5:19 6:10 9:7 21:22
scattered 21:25
school 37:6
schools 8:15
science 5:4 13:23 36:21
scope 33:19
scoping 33:22,23 34:13
sector 10:18,19,20 11:1,5,6 14:6

sectors 27:7 37:18
seek 25:9
sense 7:12 27:2
sentiment 7:10
series 10:24
serology 31:14 32:25
Services 25:7
set 7:14,15 8:20 9:4,5 27:18 28:20 30:13
setback 22:24
setting 22:12
settings 25:21
shape 15:15 30:2
share 36:22
sharing 9:22 34:9
Sheriffs' 22:20
shields 26:14
shopping 11:14
short 11:22
short-term 10:13
shorthand 39:1,4
shortly 29:1
show

37:21
showed 13:7
shows 20:2
shut 31:17
side 8:2
sign 17:12
signed 20:14
simply 37:25
single 16:25
Sisolak 10:1,2
sit 16:10
sites 18:2 24:17 32:16,19 33:1
skill 28:20
slow 7:18 8:21
small 10:25
SMS 15:6,23
social 5:24 6:24 7:17 8:10 19:2421:1026:25 27:10 38:13
socialize 11:17
socially 13:13
soft 21:16 23:12
sooner 7:13 29:7

sort 19:12 27:1
source 10:12
space 19:24 29:18,22 32:6
SPEAKER 20:24 23:19 26:17 27:20 30:14 33:4 34:18
specific 10:20 11 :20 27:6 30:8 32:9 34:3
specifically 13:20 22:1724:7,12 28:17 31:20
spent 15:20
spirit 19:2320:13,14,22 38:1, 2,14
spread 19:18 37:9,22
stabilization 18:2519:5
stabilize 8:4
stabilized 4:11
stable 7:21
staff 9:20
stakes 6:21
stand 24:17
standing 35:21
start 8:2111:4,1719:12 27:14
started 15:1416:517:8 30:2
starting 11:1717:23

THE SULLIVAN GROUP OF COURT REPORTERS Index: roadmap-starting

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1203 Page 79 of 232

starts 37:21
state 4:11, 13 5:20 6:20,21,25 7:5 8:3 9:5,11,1610:12, 19 12:1513:17 16:23 17:7,2118:10 20:19 21:18,2524:10,18 27:2428:4,6,14, 16,24 29:16 30:18 37:9,19 38:14 39:2
State's 27:2328:3
states 9:12,13,1710:4 33:6, 11,15 34:1,14 36:2
statewide 8:23
statistic 17:12
statistical 13:22
status 24:10
Stay 36:10
stay-at-home 5:1,23 6:23 7:20 10:8 11:2213:1,1418:20 20:1 26:5 37:17
STDS 29:18
step 21:8
Stephanie 27:20
stick 36:25
stop 7:23
stopping 7:16
store 36:12
strategic 23:10

strategies 10:14
strategy 10:6 27:8
stress 15:9
stretch 15:16 31:10 32:10
strides 24:25
stripes 7:5
strokes 11:420:9
strong 6:3 36:20
stronger 20:8
subscribed 39:12
substantial 17:20 32:9
substantially 15:14 17:24 21:2229:2 32:19
Substantively 29:17
sudden 22:6
suggest 13:16 31:834:16
Sunday 6:10 21:23
sunny 5:8
supervisor 7:7
Supervisors 6:14
supplementing 28:24
supplies 32:9,11,23
supply

32:18,20
support 10:3 14:24 25:3
supported 6:5
supporting 15:1 20:20
suppress 37:8
suppressed 37:22
surface 36:15
surfaces 35:4, 14,20 36:4,5
surge 23:1529:24
survey 28:9, 18 31 :23 32:2
surveys 29:24 30:2
survive 35:7
swabs 30:19 31 :21 32:3
system 16:11,12,19
systems 16:10
T
tablecloths 11:8
takes 35:23
taking 21:2 26:18 33:5 37:3
talk 23:10 24:3,7 27:6,7 35:18
talked 18:7 23:22 27:16 30:17
talking 11:2319:6 35:19 37:14

target 24:20
targeting 24:18
task 10:1715:3
TB 29:17
team 25:6
tech 27:24 28:14 30:9
technology 28:1
tend 31:17
term 11:22
terms 10:6 12:4 16:317:24 20:18 24:13 26:23 32:12,18,20
territory 14:14
test 17:18 25:17
tested 25:14 26:1,2 31 :13
testing 8:10 17:20,2518:2,13 23:22,23,2524:1,4,18, 19,23 25:4,9,22 26:2,8, 10 30:19,24 32:3,5 37:13
tests 17:2118:12 25:24 31:11,13,14 32:13,17, 25
text 15:5,6,24
texting 15:24
thing 7:14,15,17,22 8:20 9:19 16:519:10,12,17 20:17 22:3 23:1 27:18

THE SULLIVAN GROUP OF COURT REPORTERS Index: starts-thing

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1204 Page 80 of 232

things 11:1615:2216:20 22:2523:16,17 27:8 31:2 37:2,21
thinking 19:13
thousand 30:19
thousands 21:21 29:6
thumbing 22:10
Thursday 21:14
time 14:19 20:16,21 36:24 38:9,17
times 31:12
today 18:4 30:6 33:7
told 6:15
tomorrow 8:7,1311:1812:7 27:4 34:2,837:10,14
top 4:15 8:24
topic 4:15 22:19
total 17:20 29:12 31 :11
touch 36:7
towns 23:24
tracing 8:10 27:23,25 28:3,9 29:15 37:13
tracking 8:10 37:13
traditional 31:14
Tragic 17:10

training 29:3 30:4
transcribed 39:5
transcript 39:6
transcription 39:7
transmissible 19:16 36:17 38:7
transmission 35:23
transmits 36:5,16
transmitted 35:18
transparency 10:23
transport 31:22 32:5
trend 17:4
true 39:6
Trump 30:18
tubes 32:5
Twenty-two 28:9
two-way 12:2
type 11:5
types 11:10,1126:2331:13
u
ubiquitous 38:9
ultimately 22:12
understand 7:7,9 18:12 35:5

understanding 23:7
unemployment 14:7,2517:2
uninsured 24:2 25:16,17
unique 10:20 11 :7 28:20
unnecessarily 30:12
unprecedented 14:10
update 10:517:1,337:11,12
updates 20:9
urge 38:17
v
vacation 19:14
vaccine 5:11
variance 34:1
vast 13:12
Vegas 33:11
Vehicles 16:18
vendors 31:23
Ventura 4:17
Verily 18:6,7 32:18
versus 21:10
video 12:22
virus 5:6,719:13,14 35:4,6,8,

12,14 38:7
virus-free 5:9
visit 33:11 36:12
visitors 23:15 33:10
volume 14:1915:10,23
volunteer 20:16
w
walk 22:3
wanted 12:6 17:121:423:2 33:6
wanting 21:8
warnings 21:24
wash 36:6
washing 37:2
Washington 9:16
watching 5:18
website 20:15
Wednesday 8:8 37:13
week 8:8 9:9,1213:1114:17, 1815:5,1816:5,717:9, 14 18:1,5 22:2328:2,17 29:930:17,19,21,22,24 31:1,5,17 32:16,20
weekend 4:16 6:18 7:24 9:1 12:1813:11,20 15:11, 15 16:617:8 27:17 38:8
weekends

THE SULLIVAN GROUP OF COURT REPORTERS Index: things-weekends

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1205 Page 81 of 232

5:6
weeks 4:10,14,22,23,24 7:20, 22 8:17 9:15 10:912:6 13:7,1214:1,1418:7 20:4,6 22:23 23:18 26:6 27:14 29:5 30:1 31 :21 37:16 38:3
well-known 28:13,15
Western 9:13 10:4 33:10 34:13
Westwood 34:19
WHEREOF 39:11
White 33:4,5
willingness 23:7
wonderful 9:19 20:17
woods 15:16
work 7:4 8:25 9:6,1715:12 21:4,18 22:22 23:7 26:13,21,22 29:18 37:8, 9,20 38:4,6
worked 25:10
workforce 28:3,11,19,21,24 29:3, 24
working 7:258:111:2013:5 14:7 16:2126:627:24 32:7,8
works 11:13
world 5:9
worst 19:12
wrong 35:15

y
year 11:2416:16
years 11:2529:16,19
yesterday 19:3
younger 38:6

THE SULLIVAN GROUP OF COURT REPORTERS Index: weeks-younger

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1206 Page 82 of 232
EXHIBIT

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1207 Page 83 of 232
TRANSCRIPTION OF GOVERNOR GAVIN NEWSOM 1 S COVID-19 PRESS CONFERENCE
APRIL 28, 2020
[CERTIFIED COPY]

Transcribed by: RENAE E. LOPEZ CSR 12142 No. 20-90688B

rc?GTHE SULLIVAN GROUP ~ OF COURT REPORTERS
SULLIVAN C 0 URTR EP0 RTE RS . C 0 M
PHONE 855.525.3860 I 323.938.8750

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1208 Page 84 of 232

1

TRANSCRIPTION OF

2

GOVERNOR GAVIN NEWSOM'S COVID-19 PRESS CONFERENCE

3

APRIL 28, 2020

4

5 (CERTIFIED COPY)
6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23 Transcribed by:
24 RENAE E. LOPEZ CSR 12142
25 No. 20-90688B

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1209 Page 85 of 232

1 APPEARANCES:

2

Gavin Newsom, Governor of the State of California

3

Sonia Angell, M.D., Director, California Department

of Health

4

Mark Ghaly, M.D., Secretary, California Health and

5

Human Services Agency

6

Members of the Press:

7

Mariana Dale, KPCC

8

Doug Sovern, KCBS Radio

Sophia Bollag, Sacramento Bee

9

Carla Marinucci, Politico

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

THE SULLIVAN GROUP OF COURT REPORTERS
2

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1210 Page 86 of 232

1

I NDEX

2 SPEAKER

3 Governor Gavin Newsom

4 Sonia Angell, M.D.

5 Mariana Dale

6 Doug Sovern

7 Mark Ghaly, M.D.

8 Sophia Bollag

9 Carla Marinucci

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

PAGE 4
20 42 44 47 50 51

THE SULLIVAN GROUP OF COURT REPORTERS 3

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1211 Page 87 of 232

1

APRIL 28, 2020

2

***

3

4

5

6

GOVERNOR NEWSOM: Two weeks ago today, we

7 laid out a roadmap, a roadmap for reopening the

8 California economy, in a phased and thoughtful

9 approach. We specifically put forth six indicators

10 that will drive our decision making.

11

Politics will not drive our decision making.

12 Protests won't drive our decision making. Political

13 pressure will not drive our decision making. The

14 science, the data, public health will drive our

15 decision making.

16

We set forth, a week ago, a deep dive on one

17 particular indicator, around testing and tracing,

18 tracking, issues of isolation and quarantine. Today, I

19 want to update you on another indicator, and that's

20 specific to businesses, schools, and childcare

21 facilities, but first I want to remind all of you what

22 those six indicators are.

23

Mentioned testing as one of the principal

24 indicators. We've made real progress in that space,

25 not nearly where we want to go and need to be, but real

THE SULLIVAN GROUP OF COURT REPORTERS 4

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1212 Page 88 of 232

1 progress, we are now seeing in this space. Some

2 578,000 tests have been conducted in the State of

3 California. We are averaging over 20,000 tests a day,

4 and we are well on our way to meeting our 25,000

5 testing goal and getting to 60- to 80,000 very shortly

6 thereafter.

7

I mentioned, just yesterday, OptumServe that

8 was doing these end-to-end tests, being deployed at 80

9 additional locations, primarily focused on rural

10 California. I can announce today that we are putting

11 those tests, end-to-end tests, in Sutter County and

12 Shasta County, as specific proof points of the movement

13 in that space. All of those testing sites will be up

14 and operational by Monday.

15

Verily, also focusing on expanding their

16 testing on a socioeconomic -- with a socioeconomic lens

17 to diverse communities, not just in rural California,

18 but inner city California, so real progress in that

19 place.

20

Yesterday, we updated you as well on some of

21 our efforts to train workforce, starting Phase 1,

22 10,000 tracers throughout the State of California,

23 partnerships that we're forming in that space and

24 capacity building that is also well underway.

25

We talked broadly about other indicators,

THE SULLIVAN GROUP OF COURT REPORTERS 5

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1213 Page 89 of 232

1 one of the most important being how we protect the most

2 vulnerable Californians, how we protect people in

3 congregate care facilities, at our skilled nursing

4 facilities, assisted living facilities, other adult and

5 senior licensed facilities throughout the State of

6 California. We have well in excess of 8500 of these

7 facilities in the State. The SNFs, the skilled nursing

8 facilities represent 1,224, but thousands more in home

9 settings, as many as two, three people, some six or

10 seven in size, all throughout the State of California.

11

We've updated you, on a consistent basis,

12 about our efforts in that place and the sincere

13 concerns we have, demonstrable concerns we have about

14 protecting our seniors in those facilities. We

15 continue to focus on that, above and beyond anything

16 else, as it relates to the data that comes in every

17 morning, because of the vulnerability of those

18 populations, but real strategies, real plans in that

19 place give us some more confidence that we're moving in

20 the right direction.

21

Accordingly, we're doing the same for our

22 homeless population, another sensitive-needs population

23 that we have, as you know, advanced a series of

24 announcements, particularly Project Roomkey,

25 partnership with FEMA, to provide 15,000 hotel rooms.

THE SULLIVAN GROUP OF COURT REPORTERS
6

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1214 Page 90 of 232

1 We already have acquired 12,500 hotel rooms in that

2 portfolio, thousands of individuals off the streets,

3 out of congregate shelters, into these isolated units,

4 support on site, particularly, three meals a day being

5 provided.

6

This is among many, many different homeless

7 strategies throughout the State of California. It's

8 just one we have consistently highlighted in that

9 space.

10

We are doing more as well on another

11 indicator, and that's obviously securing the search

12 capacity within the hospital system and outside of the

13 hospital system, these alternative care sites that we

14 have brought up.

15

We've talked about the FMS sites, close to

16 2,000 rooms we were able to draw down, with support of

17 the federal government, the work that we have been

18 doing collectively and collaboratively with cities and

19 counties all up and down the State, to provide assets

20 as -- as points of surge, if necessary to address any

21 increase in hospitalization, increase in need for

22 isolation of vulnerable populations.

23

And we feel we have done justice in that

24 effort, and because of your good work on physical

25 distancing, social distancing, because you have

THE SULLIVAN GROUP OF COURT REPORTERS 7

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1215 Page 91 of 232

1 overwhelmingly abided by the stay-at-home order, you

2 bought us time to put together those assets, not only

3 those physical assets, but begin the process of

4 procuring a workforce through that health core

5 adaptation in the workforce that we have now identified

6 for a potential surge. Those individuals that have

7 come back from retirement or willing to come back from

8 retirement, or people that have particular job skills

9 that they believe can be transferred to meet the needs,

10 we've got a matching system, and we've got that

11 capacity now in place. So physical sites, human

12 resource sites.

13

And now some more good news on PPE.

14 Yesterday, we announced the 3.1 million masks that

15 arrived on Saturday night. We have distributed 2.87

16 million of those 3.1 million masks to our regional

17 sites throughout the State of California. Another

18 plane is literally taking off today, will be landing

19 tomorrow, and we will get a subsequent shipment. So

20 PPE is beginning to loosen up. Not even close to where

21 it needs to be, and I recognize that, and I can just

22 assure you the reason we put 2.7 -- 2.87 million masks

23 out yesterday is that was backorders just in the

24 healthcare space.

25

We want to broaden that beyond just the

THE SULLIVAN GROUP OF COURT REPORTERS 8

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1216 Page 92 of 232

1 healthcare space, provide those masks and protective

2 gear for people that are doing testing, and make sure

3 they're adequately supplied, make sure people that are

4 on the front lines, grocery workers, are adequately

5 supplied. Clearly, our skilled nursing homes, in-home

6 supportive services, and across the panoply of our

7 sectors that we'll talk about in a moment, to make sure

8 that they have adequate supplies, but progress in that

9 indicator is also being made.

10

We talked about another indicator,

11 therapeutics, and I just want to remind folks that

12 California, like Massachusetts, New Jersey, like a few

13 states, is well-endowed, well-resourced in the

14 therapeutics space. I'll remind people, in California

15 and outside California, that the State of California is

16 the birthplace of biotech. Our life science capacity

17 is second to none, biotherapeutics, bioinnovation,

18 medical devices, San Diego, the Bay Area, we are very

19 blessed. The number of National Institute of Health

20 funded facilities in this state is a point of envy for

21 many other parts of the globe, not just across this

22 country.

23

As a consequence, we are in advanced trials

24 with our partners in the private sector, working with

25 our UC medical centers and other medical centers, and

THE SULLIVAN GROUP OF COURT REPORTERS g

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1217 Page 93 of 232

1 there's real progress, in terms of at least

2 understanding, the capacity of understanding in this

3 space.

4

I'm not going to promote any particular drug

5 or particular trial, but just as an example, Remdesivir

6 and their advanced trials happening in this state, in

7 partnership with Gilead, who's a State-based

8 headquartered company. Genentech and others in this

9 space, we are making progress, at least in

10 understanding what's real, what's not in the

11 therapeutic space, with, again, points of

12 consideration, always caution in that space. But

13 that's one of our other indicators that's important.

14

Today, again, we'll highlight the issues

15 around business and schools and childcare centers, but

16 before I get to that, briefly, I want to just mention

17 that other indicator, that sixth indicator, and that is

18 if we pull back, and we modify our stay-at-home order

19 too early, and we start to see an increase in surge in

20 cases, hospitalizations and spread, then we have to

21 have the ability to toggle back. We have to have the

22 ability to adjust. We have to have the ability to fix

23 it. And so that's a foundational indicator, number

24 six, in terms of our capacity to deliver on the

25 promise, what we're promoting today in this roadmap for

THE SULLIVAN GROUP OF COURT REPORTERS
10

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1218 Page 94 of 232

1 reopening.

2

So forgive me for being longwinded in that

3 space, but I wanted, again, contextualize the

4 framework. Six indicators. When those turn green,

5 when they move from red to yellow, it guides our

6 decision making. It allows us to make determinations.

7 Dates don't, but data does.

8

And so let me, as now I introduce this fifth

9 indicator -- again, none are prioritized, but it

10 happens to be the fifth indicator around businesses and

11 around issues of our schools and childcare centers. I

12 want to make this clear. We believe we are weeks, not

13 months away from making meaningful modifications to

14 that indicator and in this space. Weeks, not months.

15

You'll ask me, well, is weeks one week or

16 three weeks? Weeks, not months. Again, based upon the

17 data, based upon the indicators. We'll talk

18 specifically about hospitalizations and ICUs and

19 community spread.

20

Dr. Angell will come up in a moment, and

21 she'll show you our model, the graph of actuals, so you

22 can see the stability in that space, but we're still,

23 by no stretch of the imagination, out of the woods

24 there. It's just stable. We're not seeing substantial

25 declines, but, again, California and Californians know

THE SULLIVAN GROUP OF COURT REPORTERS
11

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1219 Page 95 of 232

1 we never experienced the big surge that other parts of

2 the globe, and, certainly, other parts of our country

3 had. But the stabilization is a point of some cautious

4 optimism, and that indicator allows us to make the

5 presentation that we're making today.

6

So let's talk specifically about what we're

7 talking about over the course of the next few weeks, to

8 think about and to consider, and, more importantly, to

9 plan for in realtime. Those are areas of our

10 economy -- let's talk with business, around

11 manufacturing of non-essential materials, logistics for

12 non-essential movement, areas around retail, IE,

13 curbside, retail for non-essential items, the issues

14 that have been broadly defined around the need to

15 address our kids in schools.

16

We clearly have shut down -- people well

17 aware of this, the schools are shut down for the

18 remainder of the school year. Learning continues at

19 home, distance learning and the like, but we recognize

20 there's been a learning loss, because of this

21 disruption. We're concerned about that learning loss,

22 even into the summer, and so we are considering the

23 prospect of an even earlier school year into the fall,

24 as early as late July, early August. So we are

25 beginning to socialize that.

THE SULLIVAN GROUP OF COURT REPORTERS 12

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1220 Page 96 of 232

1

We have made no decisions, definitively, in

2 that space, but I just want folks to know the concern

3 around learning loss and the concern about waiting

4 until late -- later in the year into the fall for the

5 new school year. As a parent myself, and having talked

6 to many other parents and educators, even the kids, I

7 think we might want to consider getting that school

8 year moved up a little bit.

9

And so that's one of the things that we want

10 to begin to socialize in this indicator. We need to

11 prepare for that. We need to start preparing for the

12 physical changes in the schools and the environmental

13 changes in the schools that are necessary, in order to

14 advance that conversation and make it more meaningful,

15 accordingly, in the childcare space itself.

16

We are able to make these, again,

17 announcements and begin to have a more public

18 conversation with you about opening up, with adaptation

19 and with modification, meaningful changes to our

20 stay-at-home order, again, because people have taken

21 seriously, overwhelmingly, the stay-at-home orders and

22 physical distancing.

23

But I want to caution everybody if we pull

24 back too quickly, and we walk away from our incredible

25 commitment, to not only bend this curve, but to stop

THE SULLIVAN GROUP OF COURT REPORTERS
13

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1221 Page 97 of 232

1 the spread and suppress the spread of this virus, it

2 could start a second wave that could be even more

3 damaging than the first and undo all of the good work

4 and progress that you've made, and that can happen like

5 this.

6

Virus has not gone away. Its virulence is

7 still as acute. Its ability to be transmitted still is

8 dominant, and so we, by no stretch, are out of the

9 woods. There's durability to this virus, and there may

10 be, we'll see, seasonality, and so we could be lulled

11 into this quiet sense of confidence, change our

12 behavior, put ourselves at risk, and put this broader

13 agenda of reopening with modification at risk.

14

So, again, I caution everybody, as I will be

15 doing, I assure you, on a daily basis, of the

16 importance of our individual behavior, not just

17 governmental behavior, individual behavior, and, to the

18 extent business is making decisions and modifications,

19 of our business leaders, men and women on the front

20 lines, entrepreneurs, not just organized business

21 advocates of the importance and power of their

22 individual decision making in -- in this space as well.

23

We need to protect not just the business

24 community, but customers of those businesses. One

25 thing to open a business, but if there's no demand,

THE SULLIVAN GROUP OF COURT REPORTERS
14

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1222 Page 98 of 232

1 it's a false promise. And as someone who's had the

2 privilege of starting many, many businesses, I -- I

3 recognize that I'm not a job creator. It's our

4 consumers, it's the people spending the money that

5 create the opportunity for growth and job creation, and

6 so I deeply want to emphasize the importance of

7 protecting customers. And, of course, one of the

8 business's foundational resources, most fundamental,

9 and that's workers, at the same time we're protecting

10 businesses, as entities, in the abstract.

11

But, again, I'm deeply sensitive to the

12 needs for the business comm.unity to at least get some

13 clarity, and we're trying to provide that over the next

14 few weeks, so they can start to plan and look at their

15 own supply chains, look at their own ability to change

16 the physical, environmental conditions in their

17 businesses, and look at the guidelines that we'll be

18 advancing, very specifically and prescriptively, sector

19 by sector, for guidance on what we can do and what we

20 can't do at this stage.

21

We are not going back to the way things were

22 until we get the kind of ilDlllunity that all of us look

23 forward to, or vaccine that we look forward to. So one

24 has to be cautious in this space, but also patient in

25 this space as well. But in patience, we recognize in

THE SULLIVAN GROUP OF COURT REPORTERS
15

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1223 Page 99 of 232

1 the imperative to meet that impatience in a pragmatic

2 and thoughtful way is why Dr. Angell will be up in a

3 moment to talk more specifically about phase these

4 new phases that we'll be rolling out with this

5 indicator.

6

Let me briefly introduce those phases, as I

7 introduce Dr. Angell. We have looked at this

8 indicator, and we looked at it through the prism of

9 four phases. Phase 1, we're currently in, which is

10 planning, workflow, focusing, again, on supply chains,

11 physical and environmental considerations, the planning

12 to do what we need to do on PPE, the planning we need

13 to do to make sure the conditions are set, so that we

14 can move forward with modifications of the stay-at-home

15 for businesses, as one example.

16

As we move into Phase 2, where businesses

17 can begin to reopen, we need to make sure that that

18 guidance is abided by and it is organized in a very

19 deliberative way. That's the job of Dr. Angell. She

20 runs Department of Public Health in the State of

21 California. It's her statewide guidelines that will

22 drive the decision making.

23

Same time, though, we want to drive

24 localism. I've often said, forgive me for repeating

25 myself again on this, and that is localism is

THE SULLIVAN GROUP OF COURT REPORTERS 16

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1224 Page 100 of 232

1 determinative. In this respect, I recognize the

2 regionality in this State, the variance in different

3 parts of the State, but I also recognize, in that

4 respect, local health departments have points of view

5 that must be considered as well.

6

And so, for example, the Bay Area announced

7 today extending their stay-at-home order through the

8 end of the month. I am not here, as Governor, to make

9 an announcement preempting their right, at the local

10 level, to be even more stringent. I'm going to respect

11 that, and I want folks to know, not just in those six

12 Bay Area counties, a few extra cities, that's the case,

13 but all across the State of California.

14

Accordingly, we have a regional variance

15 that we also want to recognize for people that want to

16 go even sooner, based upon regional conditions, and I

17 am well aware, having received many letters, most of

18 them very publicly provided to me in tweets and public

19 pronouncements, even before I had the privilege of

20 reading them.

21

Personally, I recognize a lot of those

22 regions are -- are moving forward, making their

23 recommendations. Dr. Angell will talk about what the

24 expectations we have of making any regional

25 augmentations. They're going to be stringent. We're

THE SULLIVAN GROUP OF COURT REPORTERS
17

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1225 Page 101 of 232

1 not -- just because people think they're ready to

2 reopen, even loose -- more loosely than the State

3 guidelines, we're not going to just blithely do that,

4 without, for example, comm.unity surveillance

5 obligations that are attached to those regional

6 efforts.

7

Dr. Angell could talk more about the seven

8 that are currently underway, the five that we will be

9 doing very soon in 12 different counties in total, but

10 community surveillance becomes foundational if we're

11 going to loosen, on a regional basis, any of these new

12 guidelines that we'll be rolling out over the next few

13 weeks.

14

So that's Phase 1 and Phase 2. Again,

15 retail, logistics, manufacturing, non-essentials,

16 schools that we begin in the summer and preparation in

17 the early fall, childcare facilities and centers with

18 strict physical distancing and environmental

19 considerations at hand, workforce protections,

20 customer, consumer protections.

21

There's a third and fourth phase. Just four

22 phases. The third phase is personal care. It's the

23 areas around, you know, well, a lot of discussion

24 around gyms and spas and nail salons, and people

25 wanting to get haircuts, all of us. Those would fall

THE SULLIVAN GROUP OF COURT REPORTERS 18

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1226 Page 102 of 232

1 into the third phase category. Dr. Angell, again, will

2 lay out some details on that.

3

And then, of course, ultimately, the fourth

4 phase, which are these highest risk activities, not the

5 higher risk activities in Stage 3, the highest risk

6 activities. That's the larger public venues, the

7 conventions, the concerts, the larger entertainment

8 venues with crowds that would be in that category.

9

Don't want to get ahead of myself. She'll

10 walk you through those four phases. Phase 2 is really

11 the phase that is upon us, we believe, in the next few

12 weeks, and perhaps most important, in terms of at least

13 getting everybody's attention and focus, so that we can

14 prepare for it, and realtime.

15

I'll just close, before I put Dr. Angell up,

16 and just say this: When I say prepare in realtime,

17 what we're doing, I mentioned yesterday, I'll be doing

18 it right after this press conference and this

19 presentation, we'll be meeting, sector by sector, with

20 our recovery -- economic recovery team. We'll be

21 meeting today on the retail sector with some of the

22 biggest retailers, some of the well-known brands, like

23 the Gap CEO will join us, but with small businesses,

24 small retail sector, to help them help us work on the

25 guidelines for this second phase that, again, we're

THE SULLIVAN GROUP OF COURT REPORTERS
19

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1227 Page 103 of 232

1 hoping to advance in the next few weeks.

2

So that's just an example of the work we're

3 going to have to do, sector by sector, every day over

4 the next days and weeks, in order to prepare for this

5 augmentation, this modification to the stay-at-home

6 order.

7

So I've spoken long enough. Forgive me, a

8 lot of what I said will be said much more definitively

9 and and succinctly, and most likely eloquently by

10 Dr. Angell, who I'm proud is here to make her

11 presentation. We'll follow up, of course, with

12 questions, and I'll do my daily update as briefly as I

13 possibly can.

14

With that, Dr. Angell.

15

DR. ANGELL: Thank you, Governor. It's a

16 pleasure to join you today with a message of what I

17 would described (sic) as cautious optimism, as we've

18 just heard, optimism that's based upon us looking at

19 the data and understanding where we are today, and

20 giving you some insight into the way that we're

21 thinking about where we might be, within potentially

22 weeks and the months to come, as -- as our governor has

23 just mentioned.

24

Again, we're guided by the data, and so I'm

25 pleased to share with you a little more insight as to

THE SULLIVAN GROUP OF COURT REPORTERS
20

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1228 Page 104 of 232

1 thinking about how we're moving forward, anchored in

2 that.

3

So I'd like to start, first, with a reminder

4 of what we shared with you two weeks ago when we came

5 and shared with you our original roadmap, and that was

6 to discuss with you that everything that we do will be

7 a reflection upon six indicators. These indicators

8 reflect sort of domains of work that we know are

9 inherently important, as we think about moving forward

10 in ways to modify our stay-at-home order, in a way that

11 minimizes risk.

12

Now, remember, this is not about a process

13 that is going to remove the risk from all of us, but it

14 will be a process in which we can think about, until

15 that time when we are all protected from COVID

16 COVID-19, at that time where we either have broad-scale

17 immunity, or vaccinations, or other mechanisms through

18 which we know we can be safe, there is going to be a

19 time where we have to be very, very thoughtful about

20 the way we move, and these six indicators which I have

21 here are the ones that we've just been reminded about.

22

Again, I'm going to mention them to you, so

23 as we go through here, we can understand, really, how

24 these this has informed our work today. So the six

25 indicators that we shared with you included the

THE SULLIVAN GROUP OF COURT REPORTERS
21

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1229 Page 105 of 232

1 following: First is the ability to test, contact, and

2 trace, isolate and support those people who might have

3 been exposed. A very, very important tool that we

4 have, in particular, as we're thinking about moving

5 from the first to the second, as we were just

6 described -- as was just described to us, stage, and

7 I'll give you more information on this, but, really, a

8 very important tool for all of our coDllllunities to be

9 able to keep ourselves safe, as we move around further.

10

The second is the ability to protect those

11 that are at high risk for COVID-19. Those are our

12 individuals who are in congregate care settings, or

13 those who are 65 or older, or those with comorbidities

14 that we know for whom if they're exposed, their risk is

15 much greater. And around everything that we've done,

16 we've made sure that that's been a very central part of

17 our dialogue and our activities.

18

It's also critical that we maintain surge

19 capacity for hospital and healthcare systems. As I

20 mentioned, as we move to this next stage, it's not

21 about removing the risk entirely, it's about minimizing

22 risk. Even as people move in an environment with

23 minimal risk, there is the possibility of in- --

24 increased cases, and we must make sure that our care

25 delivery system is there to support them in need.

THE SULLIVAN GROUP OF COURT REPORTERS 22

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1230 Page 106 of 232

1

Therapeutic development to meet the demand

2 is an area that we're working on as well, to make sure

3 that we help move the work forward. And then finally,

4 we're going to talk today about the -- the -- the

5 indicator that focuses on businesses and schools and

6 care -- childcare facilities, making sure that we

7 support and make sure those environments are safe for

8 them, and that's what this next period is all about.

9

And, most importantly, and as I move on to

10 this next slide, is our ability to determine when we

11 may have -- that we're moving in a way that's safe and

12 best for Californians, also recognizing that there is

13 some risk involved.

14

So Dr. Ghaly presented to you this slide

15 that helps share with you a little bit about what, at

16 this moment, has given us the sense that it is the

17 right moment to start talking about preparedness for a

18 potential modification, and that is a recognition of

19 the way in which -- and this is a surrogate marker for

20 the amount of COVID-19, and how COVID-19 might be

21 moving in our comm.unities.

22

We are doing that at this time because of

23 the absence of broad-scale surveillance. We are doing

24 that at this time with something that is an excellent

25 indicator for us at this moment, which is an

THE SULLIVAN GROUP OF COURT REPORTERS 23

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1231 Page 107 of 232

1 understanding of trends and hospitalizations over time.

2 And this slide has shown us, from the very beginning,

3 first of all when we introduced our stay-at-home

4 orders, and over this period of time, it appears and

5 we're watching this cautiously -- but appears that

6 we've reached, really, a period of stabilization over

7 the past couple of weeks or so, in that the total

8 number of hospitalizations from COVID-19 and the total

9 number of admissions into ICUs from COVID-19 have

10 remained stable.

11

Again, as the governor mentioned, we're

12 watching this carefully, and should that change, that

13 will certainly change the way that we talk about our

14 opportunities to move forward, but at this point, this

15 is the right moment for us to have this conversation

16 with you.

17

So let me move on to what the different

18 what the progress will look like. But a couple of

19 quick reminders. First of all, that COVID-19 is not

20 going away soon. This is going to be a while, but

21 there are things -- as long as COVID-19 is here, there

22 are ways that we can modify the way we move around in

23 the environment that will make it more possible, and

24 that's what we're moving towards.

25

So we're talking about modifications in the

THE SULLIVAN GROUP OF COURT REPORTERS
24

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1232 Page 108 of 232

1 stay-at-home order, but they will be guided by health

2 risk and our commitment to equity, as we think about

3 the kinds of interventions that are appropriate at this

4 time.

5

The final thing that's really important for

6 all of us to remember, though, is that ultimately, we

7 all have some responsibility in this. Take -- the

8 responsibility exists at all levels, from the

9 individual, from the may -- way you make decisions

10 about the way you move in the environment, from

11 businesses, from the ways in which they change in the

12 environment to lower the risk, and ultimately also to

13 government, in the ways that we help support and lift

14 up appropriate policies.

15

So the four stages that we discussed, the

16 first stage is the stage that we're in. This is the

17 stage where we are all either at home or engaged in the

18 essential workforce. We know that there's work that

19 still needs to be done here before we move on to Stage

20 2, and that is about making the essential workforce

21 environment as safe as possible for all of those who

22 are workers and for any of those who may be staying at

23 home, but may be interacting with the essential

24 workforce, with essential businesses, as part of doing

25 those activities of daily living that we must do, like

THE SULLIVAN GROUP OF COURT REPORTERS
25

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1233 Page 109 of 232

1 going to the grocery store.

2

That's where we are focused right now, and

3 we will continue the work that we are doing across all

4 of those indicators, to make sure that we are safe and

5 secure as can be in the current stage, but we are also

6 planning forward to Stage 2.

7

So Stage 2 will be a focus on those that can

8 be created those lower risk workplaces. So the goal

9 here will be creating opportunities for lower risk

10 sectors to adopt and reopen, and when I talk about

11 lower risk sectors, which I'll go into a little more

12 detail later, we•re talking about things like

13 manufacturing that may not have been a part of the

14 essential sectors that are currently opening.

15

We also, at this first -- in Stage 2 will be

16 talking about modifying our school programs and

17 including childcare reopening. The third stage is when

18 we get into those areas that may be higher risk, those

19 sectors that we think will take a lot more

20 modification, to adapt in a way that can make them

21 places where people can move with lower risk.

22

So those kinds of environments, we'll be

23 talking a little bit more as well, but we really want

24 to create an opportunity for those, but we know it will

25 be longer in coming, and so that is why those fall into

THE SULLIVAN GROUP OF COURT REPORTERS 26

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1234 Page 110 of 232

1 Stage 3. Again, those are things like getting your

2 hair cut, getting your nails done, doing anything that

3 has very close inherent relationships with other

4 people, where the proximity is very close, and it will

5 be -- we need a very thoughtful process, to ensure that

6 people don't put themselves at great risk in doing

7 those activities.

8

And then finally, Stage 4 is the point at

9 which we know that we can begin to modify our

10 stay-at-home order and -- and have people moving much

11 more freely, because the risk is much lower, and that

12 will require therapeutics to be in place.

13

Okay. So safety and preparedness. Stage 1,

14 this is where we are right now. The things that we're

15 going to be actively doing is continuing to build out

16 our testing, contact tracing. We're going to be

17 building up our stores of PPE, to make sure they're

18 secured, not only for our current needs, but also in

19 anticipation of -- of what will be needed for Stage 2,

20 when we do begin to open other sectors that may also

21 rely upon PPE.

22

And we'll also be really focusing on

23 maintaining our hospital surge capacity for the time

24 being, but also anticipating that we may need more, as

25 we move forward.

THE SULLIVAN GROUP OF COURT REPORTERS
27

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1235 Page 111 of 232

1

We'll be continuing to make essential

2 workplaces as safe as possible, as I mentioned. That

3 includes really thinking about the physical work

4 environment that we're in, changing workflows, to make

5 sure that people are safe.

6

We're going to make sure that we enhance our

7 essential -- our safety net for our essential workers,

8 continue to move forward, making PPE more available,

9 and then also continuing to remind all of you, in your

10 daily behaviors, that there is something for all of us

11 to do. Maintaining our physical distance and doing all

12 of those things that we've reminded you can help to

13 keep you safer and at lower risk.

14

In Stage 2, we're going to really start

15 focusing on lower risk workplaces . That means

16 gradually opening some of those workplaces with

(!1= adaptations. These include things like retail,

18 allowing for curbside pickup, manufacturing, which can

19 include things like toys, clothing, other things,

20 furniture, that had -- was not a part of the essential

21 sector.

22

Talking about offices, this can include

23 things like PR firms and consulting and other places

24 where telework is not possible, but by modifying the

25 environment itself, they can make it lower risk for

THE SULLIVAN GROUP OF COURT REPORTERS 28

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1236 Page 112 of 232

~ individuals.

2

And then ultimately talking about opening

3 more public spaces, things like parks and trails that

4 may have historically been limited, because of our

5 concerns, trying to think about how we can modify that,

6 to make them safer for individuals to enjoy the outdoor

7 spaces, because we know physical activity is so

8 important to our health, and this is also about health,

9 clearly.

10

And then finally, another area that we need

11 to think about, besides the physical environment, is

12 really the environment, the safety net itself. So what

13 are we providing for workers, so that if they get sick,

14 that they can be supported to stay at home, if they

15 need to, rather than feel like there is a need for them

16 to go to work?

17

Then there's the whole environment and -- of

18 childcare and schools. And so for adults, maybe we

19 talk about, you know, work for adults, and for -- for

20 our -- our -- our younger adults, our children, school

21 is their place that's so important and critical for

22 them, and their learning, and we really, really feel

23 strongly that when it's safer for them, when we can

24 create environments that allow them to go back, we do

25 want them to go back.

THE SULLIVAN GROUP OF COURT REPORTERS 29

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1237 Page 113 of 232

1

We realize, however, this is going to take

2 more planning, and that's why we are now -- we are

3 discussing this now, because we need to roll up our

4 sleeves now and be really thinking critically about how

5 to do this.

6

As has already started, we need to continue

7 that discussion and continue it more in earnest. So

8 we're talking about summer programs and the next school

9 year potentially starting sooner, perhaps in July or

10 August.

11

We're talking about childcare facilities and

12 trying to find ways to help them provide more care, to

13 create more childcare availability to our workforce in

14 particular. We think it's fundamental that we focus on

15 this, because we have to address learning gaps, which

16 have occurred as a result of this. We've been

17 protecting all of us by limiting the amount of access

18 in this environment, but we have to make up for those

19 gaps that may have -- have occurred over this time.

20

We're -- we'd be focused importantly on

21 making sure that the environment is safe for kids, but

22 also safe for teachers, safe for others that are in the

23 school, safe for those who are providing essential

24 services and supporting those environments where our

25 kids will be.

THE SULLIVAN GROUP OF COURT REPORTERS 30

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1238 Page 114 of 232

1

And ultimately, as we open up schools, as we

2 make sure that -- that childcare is more broadly

3 available, it also makes it more possible for parents

4 to go back to work.

5

So school will look very different, but we

6 really are focusing on enhancing that -- those

7 opportunities.

8

So what will we be doing? What do we need

9 to do to get from Stage 1 to Stage 2, from the

10 essential sector environment that we're in, from the

11 stay-at-home with -- with quite limited engagement, to

12 one that will create more opportunities to -- for lower

13 risk workplaces?

14

So the things that need to happen and that

15 we'll be focusing now together will be, first of all,

16 focusing on government action. So what are the kinds

17 of policies that we need to have in place that will

18 allow people to stay home when they're sick?

19

We need to provide guidance, and we'll

20 continue to do that and make it available for how

21 people can reduce risk, to continue to provide people

22 with the best scientific information that we have about

23 this virus, to help people prepare themselves, to move

24 into environment that is not parti- -- not -- not fully

25 safe, but certainly lower risk, so we can all make

THE SULLIVAN GROUP OF COURT REPORTERS
31

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1239 Page 115 of 232

1 decisions ourselves in a very informed way.

2

Businesses will need to think more about

3 wage replacement, so that workers can stay home when

4 sick. They'll need to be implementing adaptations to

5 lower risk workplaces now, so that when we are ready in

6 a few weeks, those changes will be in place and -- and

7 when the data tells us the moment is right, those

8 environments can start to open.

9

And then we, again, just sort of emphasize

10 that in those places where workers can continue to work

11 from home, we'll continue to encourage businesses to --

12 to support those opportunities, because, really,

13 staying apart at this time still is the safest place

14 for all of us.

15

And then what about as individuals? Well,

16 we all need to continue to practice safety precautions,

17 which is the physical distancing, using face coverings

18 when appropriate. We need to avoid all non-essential

19 travel. That will continue on. That's an important

20 thing. That decreases our exposure, our potential

21 exposure to others.

22

And we also need to, as individuals,

23 continue to support and care for those people that we

24 know are at higher risk, continue to make those phone

25 calls to people that you know are in their home and

THE SULLIVAN GROUP OF COURT REPORTERS
32

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1240 Page 116 of 232

1 socially distancing themselves, continuing, make sure

2 that their needs are met, and thinking about how you

3 might be part of the solution for them.

4

So when are we going to be ready for Stage

5 2? So again, we will refer back to those six

6 indicators. As mentioned, all of those six indicators

7 are not exactly the same. There are some that may be

8 more important to this first stage than to stages that

9 come in the future, but I want to share with you some

10 of our thinking now about which elements of the

11 indicators that we've discussed earlier will be key.

12

So, first of all, we'll be watching those

13 hospital and ICU trends carefully and thoughtfully, and

14 they need to remain stable for us to remain confident

15 that we are in a position where the stay-at-home orders

16 could be modified in a way that would continue to

17 maintain lower risk.

18

We need to maintain hospital surge capacity,

19 so that as we move through the -- to the next stage, we

20 can be confident that if there are any increased

21 infections from increased movement, that we do have the

22 facility to be able to respond and to support and care

23 for those patients.

24

We need to make sure that there is PPB

25 available to support the demands that will come, not

THE SULLIVAN GROUP OF COURT REPORTERS 33

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1241 Page 117 of 232

1 only from the existing environment, the existing

2 conditions that we're in, but also anticipating what

3 the needs will be for the future, and being sure that

4 we're confident we can secure those.

5

We need to make sure that there's sufficient

6 testing capacity to meet the -- the demand. That's

7 been a key focus of much of our work, and you've heard

8 a lot about our plans. We'll continue to work

9 diligently on that.

10

And, finally, we'll be looking at contact

11 tracing capacity statewide. We'll be working with

12 local health authorities and governments, to make sure

13 that the capacity is there.

14

So I want to talk a little bit about the

15 opportunity for regional variations, which I know also

16 has been a -- a hot topic of discussion, as the

17 governor had mentioned and, as the State Public Health

18 Officer, I'm in constant communication with local

19 health authorities in understanding, really, where

20 where they -- they where they are and -- and where

21 their needs and desires are.

22

During Stage 2, counties can choose to relax

23 stricter local orders at their own pace. That's very

24 much about what we've been talking about in the Bay

25 Area. The State order is -- stay-at-home order is the

THE SULLIVAN GROUP OF COURT REPORTERS 34

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1242 Page 118 of 232

1 basis for everyone, but there are some counties in

2 which the local disease epidemiology was such that the

3 local health officers felt that it was important to be

4 stricter, and we appreciate, respect, and we think

5 that's exactly the right thing, when local health

6 officers understand the needs of the community, that

7 they act appropriately, following the science.

8

Similarly here, as we lift some of the

9 and make some modifications in our stay-at-home order,

10 there may be counties that aren't ready to go as fast,

11 and that will be supported, and that is a regional

12 variation, which is absolutely fine.

13

Following Stage 2, once we have a statewide

14 COVID-19 surveillance system in place, it will make it

15 possible for us to understand what other types of

16 regional variation might be possible. That -- and

17 and the reason that's so important is that we know that

18 this virus doesn't respect boundaries of counties

19 necessarily, and we know that as there are

20 modifications in orders, people move differently across

21 there.

22

We need to understand not only what's

23 happening in specific counties, what's -- but what's

24 also happening in surrounding counties, to really

25 understand if the disease transmission has occurred,

THE SULLIVAN GROUP OF COURT REPORTERS 35

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1243 Page 119 of 232

1 and if we can modify in a way that's safe. We'll be

2 working very closely with our local health authorities

3 and governments in consulting for that.

4

The final two stages that we discussed are

5 Stage 3 and Stage 4. Stage 3 is the -- the space that

6 we get into when we're talking about higher risk

7 work -- workplaces, and that's one of the later phases,

8 because we know that will take much more modification.

9 We need to know much more about the movement of disease

10 to be able to make data-informed decisions about what's

11 safe for folks. So these include places like personal

12 hair care places, entertainment venues where people are

13 sitting close -- closer together, and sporting events

14 without live audiences.

15

Other things that fall into this space are

16 in-person religious services, like churches and

17 weddings, and we'll need to think carefully about what

18 kinds of provisions can be put in place so that people

19 can join, but in a way that doesn't expose them to

20 increased risk for COVID-19.

21

And then ultimately, the space that we all

22 look forward to, some day, as we move forward and work

23 diligently together, is Stage 4, which would be the end

24 of the stay-at-home order, and that's when we'd be

25 opening all of our highest risk workplaces, without

THE SULLIVAN GROUP OF COURT REPORTERS 36

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1244 Page 120 of 232

modification necessary at that time, because at that

2 time, we will know that we have identified a way that

3 we can keep people safe from COVID-19, either from

4 population immunity, from the -- or from vaccinations.

5

So with that, I just want to remind you that

6 this is the time and not of -- of staying in one place.

7 We are in Stage 1, but it•s actually an important time

8 of work, and that•s why we wanted to give you this

9 opportunity to understand our planning at this time.

10

The first thing I want to tell you is that

11 if you want to be a part of the solution, you need to

12 stay home, if you•re staying at home, and if you•re

13 part of the essential workforce, we want you to stay

14 home when you•re not working. That is the best way to

15 protect yourself, but if you do need to go out to go to

16 the grocery store, make sure that you continue to

17 practice physical distancing and all the other things

18 that we tell you. That•s the first thing you can do to

19 be part of the solution.

20

The second thing is that we•re enlisting all

21 Californians to help inform the development of the

22 guidance for sectors across our economy. If you•re

23 somebody who has particular insight, if you -- if

24 you•re a business person yourself, you•re going to be

25 invited to provide information, and we 1 ll put the

THE SULLIVAN GROUP OF COURT REPORTERS 37

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1245 Page 121 of 232

1 website up in -- shortly for you, but we want to hear

2 from you, because ideas that you have about how you can

3 create work -- safe workplaces are ideas that we want

4 to know about.

5

We're going to be providing this guidance in

6 a framework, ultimately, to help companies, businesses

7 and -- and our schools reopen in the way that reduces

8 risk, but it really will continue to rely upon all of

9 us to keep us moving forward.

10

Thank you.

11

GOVERNOR NEWSOM: Thank you, Dr. Angell.

12

And, of course, Dr. Angell will available,

13 as will I, for questions.

14

But the foundational point of emphasis we

15 want to advance today is Phase 2, as was presented by

16 Dr. Angell, is in weeks, not months. Phase 3 and 4,

months, not weeks.

18

And I think that's what's important, so

19 people have a sense of where we are and where we

20 believe, based, again, on the data, we are going. What

21 I just said can substantially change, if the data

22 changes, if the health prevalence and the spread of the

23 disease changes, if our behavior erratically changes,

24 and we put ourselves at higher risk, but risk is the

25 frame that we•re advancing.

THE SULLIVAN GROUP OF COURT REPORTERS 38

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1246 Page 122 of 232

1

Lower risk, we will focus broadly across

2 sectors to begin reopening. Higher risk, we'll be more

3 cautious, not weeks, but months, and highest risk,

4 along the lines of that Stage 4, where we are back at

5 concerts and convention halls, and with tens of

6 thousands of fans in large stadiums, will take some

7 time.

8

But nonetheless, we believe we do have a

9 framework that we can achieve, and we can achieve

10 together, with the kind of earnestness of effort that

11 Dr. Angell advanced, in terms of being able to break

12 these things down in very, very prescriptive terms and

13 begin a framework of, again, not just protecting those

14 sectors of our economy, but protecting the workforce

15 within those sectors and consumers that attach

16 themselves to those sectors as well.

17

Let me, as I do daily, attach you to the

18 latest data and numbers to reinforce and strengthen

19 what you saw on the screen a moment ago, as it relates

20 to the stabilization, but also caution you, as today's

21 numbers should, about where we are, as it relates to

22 the suppression of this disease.

23

Yesterday, we had 45 individuals that lost

24 their lives. Today, we have 54 individuals that lost

25 their lives. I mentioned that's roughly half of what

THE SULLIVAN GROUP OF COURT REPORTERS 39

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1247 Page 123 of 232

1 we saw last week, where we really saw a peak in the

2 terms of another (sic) of deaths. It's still too many,

3 too many lives torn apart. And, again, not stats, not

4 data. Real people, real families, real loved ones, and

5 so our hearts go out to each and every one of them.

6

We also mentioned yesterday that we're 1300

7 new positives in the State of California. Today, on --

8 I announce there were 1,576. 1300, now over 1576

9 individuals that have tested positive. Yesterday, I

10 mentioned that there were a increase -- there was an

11 increase in hospitalization rate of 1.4 percent.

12 Today, actually went up to 2.5 percent.

13

The only good news in that data is ICU

14 numbers today went down slightly and were stable

15 yesterday. Just gives you a sense. Again, we're not

16 out of the woods stable, though those numbers are

17 relative to so many other parts of the country. We

18 still need to see that downward movement, and we're

19 going to monitor that data on a daily, hourly basis

20 over the next few weeks, before we move forward with

21 these modifications.

22

If the data changes, we start to see some

23 spikes, some increase in our c01D111unity surveillance, we

24 start seeing numbers that raise alarm bells, that's an

25 indicator that's no longer green or even a caution

THE SULLIVAN GROUP OF COURT REPORTERS 40

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1248 Page 124 of 232

1 light, turns red, and as a consequence, we adjust in

2 real time.

3

So just want to remind folks of the dynamic

4 nature of this effort, and the very sober framework to

5 which we make decisions, again, on the basis of fact

6 and data, not ideology, not what we want, not what we

7 hope, but what actually is, and what we confidently can

8 predict in a short and median time.

9

So lot of work for a lot of sectors of our

10 economy to to do in the next few weeks. We look

11 forward to doing that with them, and certainly for the

12 schools, I just want to -- once again, as a father of

13 four, that learning loss is very real. And, from a

14 socioeconomic frame, from a racial justice frame, this

15 is even more compounding and more challenging, and so

16 it is incumbent upon us, I think, to -- to think anew,

17 in respect to the school year.

18

And, again, I am looking forward to those

19 robust conversations about the prospects of an earlier

20 school year that I do think is warranted, considering

21 the consequences of neglecting our next generation,

22 because of the inconvenience and the realities of this

23 virus and its spread.

24

That's, broad strokes, where we where we

25 are today. I'll just end, as I always do, as a

THE SULLIVAN GROUP OF COURT REPORTERS
41

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1249 Page 125 of 232

1 reminder, before we open up to questions, that you too

2 can participate, not only in -- in a sector-by-sector

3 conversation. We have our digital roundtable in that

4 respect, again, for retail today, but, moreover, to

5 volunteer your time, your passion, your attention, your

6 focus, your particular expertise to

7 Californiansforall.ca.gov website.

8 Californiansforall.ca.gov website.

9

Happy now to answer any questions.

10

FEMALE SPEAKER: Mariana Dale, KPCC.

11

MS. DALE: Hi. Thank you. So today, you

12 talked about expanding childcare facilities and

13 availability in the coming weeks.

14

I've talked to a lot of providers who say

15 they still can't purchase supplies, and that the 50

16 million dollars that had been promised on April 10th

17 has still not been distributed to childcare centers and

18 agencies. What's the status of that funding, and when

19 can childcare providers expect more support?

20

GOVERNOR NEWSOM: Yeah, as I said, 2.87

21 million masks were distributed in the last 24 hours.

22 As soon as we get the supplies in, we get those

23 supplies out. We're going to start seeing a cadence of

24 substantial increase in PPE, not just procedures --

25 procedural masks, but, soon, N95 masks, gowns, shields,

THE SULLIVAN GROUP OF COURT REPORTERS 42

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1250 Page 126 of 232

1 gloves, other personal protective gear. As it comes

2 in, it comes right out.

3

And it's not just for childcare workers, but

4 across the panoply of support, in-home supportive

5 service workers, grocery workers, logistics workers,

6 manufacturers, farm workers. We have a lot of

7 migrant -- seasonal migrant farm workers now coming

8 into the State of California, working on protocols and

9 procedures for PPE in that sector as well.

10

So across the panoply, but you're absolutely

11 right. As it relates to childcare, I had a wonderful

12 meeting yesterday, a virtual meeting with the Women's

13 Caucus. The entire subject matter was on childcare.

14 The number of pop-up childcare facilities, over 300.

15 Now we've opened recently the hundred million dollars

16 that we've put into the sector and emergency aid.

17 You're correct, 50 million of it was for PPE. Getting

18 those out on the sites, to the sites is critical and

19 can't come soon enough, and so that was highlighted.

20

Kim Johnson, to answer your question, at the

21 Department of Social Services, on the line, she's

22 working to monitor the distribution of those funds and

23 make sure that the advocacy of those funds takes shape.

24

It's not just for PPE, it's for deep

25 sanitization and for physical modifications, just

THE SULLIVAN GROUP OF COURT REPORTERS 43

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1251 Page 127 of 232

1 temporary, to accommodate for new size cohorts, based

2 upon our guidance for childcare workers and for their

3 children.

4

This is a point of passion for me. Last

5 year in January, I announced a substantial enhancement

6 in childcare funding to the State of California, and

7 just as late as January of this year, announced our

8 next phase of investment.

9

With the budget deficits looming, I caution

10 that that progress in that space may be impeded by the

11 new reality of our obligation to balance a budget. No

12 printing press here in the State of California.

13

And so I can assure you this is an area of

14 deep concern and concentrated effort, because childcare

15 is economic development. Childcare is foundational to

16 getting people back to work. If they cannot get the

17 kind of quality -- quality childcare that they deserve,

18 they are less likely to get back to work and jump-start

19 this economy. And so I deeply recognize there's a

20 reason it was incorporated into the business sector,

21 the childcare component, the inner relationship between

22 the two.

23

FEMALE SPEAKER: Doug Sovern, KCBS Radio.

24

MR. SOVERN: I have a question I want to ask

25 you about the State's model, but as the father of two

THE SULLIVAN GROUP OF COURT REPORTERS
44

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1252 Page 128 of 232

1 kids in kindergarten, I -- I would be remiss if I

2 didn't ask you to elaborate a little bit on reopening

3 the schools early, specifically, you know, why, what

4 the thinking is there. Is it a matter of getting more

5 in-person education before next flu season? Or I'll

6 let you explain why, and also when. Parents will want

7 to know when that announcement or decision might be

8 made.

9

But then also, I'm curious. California's

10 model has seemed to be an outlier, certainly overly

11 pessimistic at best, compared to the other models that

12 are out there, projecting a much later peak, a much

13 later surge. And I'm wondering if now, have you guys

14 tweaked the State model? Do you believe we are past

15 the peak? Is the worst behind us? Was there something

16 wrong with the way the data was being fed into that

17 model? And what -- what have you learned that might

18 let you adjust that or -- or approach it differently

19 next time, God forbid there is a next time?

20

GOVERNOR NEWSOM: Well, I'll let Dr. Ghaly

21 put that model together, and has been updated on a

22 weekly basis, that model, preemptively answering that

23 question in realtime, going back a few months. By the

24 way, every state in our nation doing the same,

25 including some of the well-known chronicled modelers

THE SULLIVAN GROUP OF COURT REPORTERS 45

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1253 Page 129 of 232

1 that, even yesterday, came out with an adjustment to

2 their previous adjustment out of the State of

3 Washington, only highlighting and reinforcing frame of

4 your question.

5

But as it relates to the data, in terms of

6 our decision making, the reason we're making the

7 announcement today is, regardless of our model, the

8 facts that are coming in, the facts that are presenting

9 themselves in ICUs, on hospitalizations and spread give

10 us confidence in the next few weeks we're able to make

11 these Stage 2 adjustments.

12

Let me be specific, Doug. We want to get

13 you back to work, or at least allow you more time to

14 work, sooner than later. Our kids have lost a lot with

15 this disruption. I am not naive. We announced a week

16 or so ago, my wife and the Superintendent of Public

17 Education, some good work that's being done on new WiFi

18 hotspots, on distance learning, the application,

19 support of thousands, over 70,000 tablets and

20 Chromebooks, and other capacity to provide distance

21 learning. Still inadequate, to the magnitude of six

22 million children, all throughout the State of

23 California in rural districts and -- and some urban

24 districts that just simply don't have the high quality

25 download speed and capacity or anything to download

THE SULLIVAN GROUP OF COURT REPORTERS
46

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1254 Page 130 of 232

1 into.

2

And so there's been a learning loss, and you

3 can either just roll -- you know, roll over and just

4 accept that, or you can do something about it. So

5 that's our thinking, if we can maybe start up the

6 school year a little earlier, that would help mind that

7 gap a little bit, close that gap a little bit.

8

It's a -- it's a -- it's a deep

9 conversation. The reason I'm having it with you is I

10 was having it privately over the last few days. I want

11 to socialize those private conversations as quickly as

12 I can with you. I mentioned over the next few weeks,

13 this is in the Stage 2 of our framework of decision

14 making.

15

So the next few weeks, we'll get some more

16 clarity to answer your question on -- on the

17 possibility of that, what the costs are, what that

18 actually looks like. It's a conversation above and

19 beyond just summer school.

20

With that, I'll ask that Dr. Ghaly can come

21 up.

22

DR. GHALY: Thank you, Governor, and thank

23 you for the question.

24

We continue to look at our model. We have

25 been here for the last few weeks, talking about, not

THE SULLIVAN GROUP OF COURT REPORTERS 47

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1255 Page 131 of 232

1 just the model, but the actual cases that we're

2 tracking, both in the hospital and our ICUs. We have

3 conveyed a message of cautious optimism.

4

We knew, when we put together the models

5 many, many months ago now, weeks ago when we shared

6 them first with all Californians and started to talk to

7 colleagues around the nation about what their models

8 were and how they were using them, we knew that these

9 models were not going to be precise, that they would

10 point us in the right direction, and I think they have.

11

We continue to update them and look at them

12 closely, to make sure that we aren't being misguide --

13 guided in how we use them, and we believe in today's

14 announcement and the announcements over the last couple

15 of weeks that our models and the actuals are preparing

16 us for this area of stabilization with our data, with

17 our hospitalizations and ICU visits.

18

As we increase our testing capacity, that

19 bears out in what we're seeing as a percentage positive

20 among those increasing number of tests across the

21 across the State, that we are preparing in weeks, not

22 months, to begin to modify those.

23

And that we're going to continue looking at

24 that model, making the adjustments, so that we can use

25 it as a planning tool, but that our actuals mean more,

THE SULLIVAN GROUP OF COURT REPORTERS 48

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1256 Page 132 of 232

1 and that we will continue to look at that to -- to

2 guide decisions that come from the State, to inform our

3 local partners with their individual county-level data,

4 so they too can make those plans, as they consider how

5 their local orders guide the decisions at that level.

6

We know that many folks are looking at the

7 models and deciding whether we were too pessimistic or

8 too optimistic, whether those led us to be too

9 conservative or too liberal with some of our decisions,

10 and we stand firm in our decision to do the things

11 we've done over the last many weeks, and as we move

12 forward, to use that same information to guide

13 decisions.

14

So we are always looking at these models.

15 We're always interested in updating them, so they're

16 more usable, but we continue to look at those actual

17 data points to guide the decisions, as we move forward.

18

GOVERNOR NEWSOM: Decisions, not conditions,

19 again, determine our fate in future, and that's why I

20 just want to remind everybody of their own individual

21 decisions, importance of physical distancing, continue

22 to advance the stay-at-home order. If we make bad

23 decisions, conditions can radically change, models can

24 change overnight.

25

Actuals, reality is radically impacted,

THE SULLIVAN GROUP OF COURT REPORTERS 49

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1257 Page 133 of 232

1 again, by those individual decisions. Hundreds and

2 hundreds a day, millions, millions of people marching,

3 we hope, in the right and same direction. We'll get

4 out of this sooner if we maintain that directive sense

5 of focus and continue to advance our commitment and

6 resolve.

7

FEMALE SPEAKER: Final question, Sophia

8 Bollag, Sac Bee.

9

MS. BOLLAG: Governor, I'm wondering if you

10 can give us a more specific update about the testing

11 status in nursing homes and elder care facilities.

12

How much testing are we doing in those

13 facilities, and is it enough? And if not, how much

14 more testing do we need to be doing in those facilities

15 to reach a point where you're going to feel satisfied?

16

GOVERNOR NEWSOM: Oh, a lot more. It's not

17 enough. That's -- that's the honest truth. I've been

18 very clear with the testing task force, one of their

19 top priorities was focusing on all of our licensed

20 facilities, not just skilled nursing facilities.

21

As you know, we've made three or four

22 announcements in the skilled nursing facility and

23 licensed facility space, including increasing the

24 testing, as a priority in that space, increasing the

25 supply of PPP -- PPE in that space, and, as you know,

THE SULLIVAN GROUP OF COURT REPORTERS
50

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1258 Page 134 of 232

1 redirecting national guard to help support medical

2 guardsmen and women in that space, including folks from

3 the USNS Mercy. We retrained over 600 nurses, we're

4 doing those daily check-in calls. We have organized

5 ourselves in a much more thorough and deliberative way.

6

We're currently just -- Sophia, to -- just

7 to update you, we're monitoring 192 skilled nursing

8 facility sites that have a test of positive, either a

9 staff member or a patient. Currently, 2,302

10 individuals that we're currently monitoring, just in

11 the SNF space. Again, that's a universe of 1224

12 skilled nursing facilities, about 119,000 total

13 capacity. It doesn't include the total number of

14 staff.

15

Forgive me for throwing those numbers out,

16 except I think they're important, but the answer to

17 your question is we need to do more, and this is part

18 of moving from Phase 1 to Phase 2. It's one of the

19 principal indicators on testing that will allow us

20 to -- to continue to make some real progress.

21

FEMALE SPEAKER: Final question,

22 Carla Marinucci, Politico.

23

MS. MARINUCCI: On the call, you mentioned

24 reopening, and I think one of the questions is the

25 reopening of the legislature. Several members of the

THE SULLIVAN GROUP OF COURT REPORTERS 51

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1259 Page 135 of 232

1 California Assembly have expressed concern about the

2 need for remote voting. The Speaker has said that

3 there's a constitutional necessity for physical

4 presence.

5

But what do you think on this one? I mean,

6 does the pandemic require a new assessment of this, of

7 legislative business and how to get it done in -- in

8 California?

9

And if I could, quickly, several people on

10 Twitter have asked me to ask you this today, including

11 Hank Plante, why is the California EDD website so

12 woefully unprepared and frozen on this big day when

13 freelancers and contractors are supposed to apply for

14 PUA unemployment?

15

We got that question on Twitter from many

16 people.

17

GOVERNOR NEWSOM: Yeah, so let me -- as it

18 relates to independent branch of government,

19 legislature, they'll make their decisions, based upon

20 their best assessment and analysis. I know that I'm

21 aware of those decisions, fact, had a brief

22 conversation with the speaker today. I haven't been

23 tracking it as closely as I've been tracking all of

24 these other decisions, but I -- I respect whatever

25 determination they make, and have the confidence in

THE SULLIVAN GROUP OF COURT REPORTERS 52

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1260 Page 136 of 232

1 their leadership to make the right decision for their

2 members and those that they're trying to represent in

3 the State of California.

4

As it relates to the UI issues and the PUA

5 issues, we've been very aggressive on a daily basis, as

6 you know, to try to tackle the -- and as quickly as we

7 can to address the magnitude of the number of calls

8 that have come in.

9

Yesterday, I made some announcements, about

10 600 additional personnel, on top of the 1340 that we

11 had hired for the call centers, and we talked about the

12 new texting technology. We talked about the new

13 chatbots that we put into place. We talked about the

14 total number of connections that we actually have made

15 went from 417,000 minutes of individual talk time last

16 week to one million just yesterday from the previous

17 weeks.

18

So substantial increase in connection and

19 volume. 5.33 billion dollars, that's the new number.

20 5.33 billion dollars has been distributed through that

21 system, just since March 15th. 926 million, just on

22 Sunday alone. I'll repeat that. 926 million dollars

23 was distributed just on Sunday. So you're correct, we

24 have the PUAs up today, and, not surprising, the first

25 few hours, we've got to figure this out, but we said

THE SULLIVAN GROUP OF COURT REPORTERS
53

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1261 Page 137 of 232

1 we'd get it up today, and they're putting it together,

2 they're architecting it today. Julie and her team at

3 EDD doing everything in their power to continue to get

4 these Uis out and start to get the PUAs up.

5

But here's the good news on the PUAs. A lot

6 of states have put up PUA sites. It's just an

7 application, takes weeks and weeks to get the checks.

8 Our expectation is not only when this site is more

9 stable today and tomorrow, next few days, they'll be

10 24- to 48-hour turnaround, in terms of those checks

11 being distributed.

12

So you're just dealing with unprecedented

13 amount of call volume. And folks over at EDD, an

14 unprecedented amount of responsibility and work to

15 improve, to do better, to do more. You deserve that,

16 Hank deserves that, the American people, 40 million

17 strong in the State of California, particularly the 3.5

18 million that have applied for unemployment insurance

19 since March 12th, and those that will be applying under

20 the PUA deserve it.

21

And so we'll continue to -- to do all we

22 can, everything in our power to improve upon that

23 experience in these historic and unprecedented times,

24 and, no, good enough never is.

25

And, yes, every day, this is one of our top

THE SULLIVAN GROUP OF COURT REPORTERS
54

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1262 Page 138 of 232

1 points of conversation, concern, and effort, and -- and

2 I can assure you that I -- I'm not only being held to

3 account, but some of the brightest people that I know

4 are as well in this space.

5

Look, as it relates to being held to

6 account, let us not be judged not to have been held in

7 account of supporting others in need at this time of

8 need for millions of Californians, not just applying

9 for unemployment insurance or pandemic unemployment

10 assistance, PUA, but also those that need your

11 contribution of blood, maybe your willingness just to

12 call and check in, check in on a neighbor, a senior,

13 maybe deliver a meal in a safe way or provide some care

14 and support.

15

Please, if you're willing, you're able, go

16 to Californiansforall.ca.gov, Californiansforall.ca.gov

17 website, and share your passion, with real action.

18

Take care, everybody. Stay safe. Look

19 forward to seeing you tomorrow at noon.

20

***

21

22

23

24

25

THE SULLIVAN GROUP OF COURT REPORTERS 55

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1263 Page 139 of 232

l

I, • • • • •· LO>llZ, a C::ert.1:1!194 l!lhor~d.

a a.porter o:I! tha stat• o:I! ca11:1!oza£a, do h~ cert!:l!y:

3

That a zwaorcl of th• aullio proae••h•ga -•

5 thazwaftar trimaaribad. unc!ar 111' lliraattoa1 that th.a
s :l!o:ir:-sro!q tr11Dacr!pt 1• a t!:1&e record o:I! tit.a a'U&o
7 tZ11Daar!ptton.

9 :l!iDllDc!ally tntaraatad. ta the action nor a z:elat!.,,. or

10 911Ployee o:I! ._,, attorney or ._,, party to th!• aat1on,

11

Ill 11I1'11B88 nnmp, J: ha'911 thta date

13

14 Data41 Kay 5, 202D

1!1

...... •. LOp••

IS

ca 110. 12142

17

11

19

20

21

22
a:s

24

25

~ 811LLIV.lll l1R01IP 01' C'OllJl.T Ul'OkiiJUI !IS

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1264 Page 140 of 232

1
1 27:13 31:937:7 51 :18
1,576 40:8
1.4 40:11
10th 42:16
119,000 51:12
12142 56:16
1224 51:11
12th 54:19
1300 40:6,8
1340 53:10
1576 40:8
15th 53:21
192 51:7
2
2 27:19 28:14 31 :9 33:5 34:22 35:13 38:15 46:1147:1351:18
2,302 51:9
2.5 40:12
2.87 42:20
2020 56:14
24 42:21

2454:10
3
3 27:1 36:5 38:16
3.5 54:17
300 43:14
4
4 27:8 36:5,23 38:16 39:4
40 54:16
417,000 53:15
45 39:23
48-hour 54:10
5
5 56:14
5.33 53:19,20
50 42:15 43:17
54 39:24
6
600 51:3 53:10
7
70,000 46:19

9
926 53:21,22
A
absolutely 35:12 43:10
accept 47:4
access 30:17
accommodate 44:1
account 55:3,6,7
achieve 39:9
act 35:7
action 31:16 55:17 56:9,10
actively 27:15
activities 27:7
activity 29:7
actual 48:1 49:16
actuals 48:15,25 49:25
adaptations 28:17 32:4
additional 53:10
address 30:15 53:7
adjust 41:1 45:18
adjustment 46:1,2
adjustments 46:11 48:24

adults 29:18,19,20
advance 38:15 49:22 50:5
advanced 39:11
advancing 38:25
advocacy 43:23
agencies 42:18
aggressive 53:5
aid 43:16
alarm 40:24
allowing 28:18
American 54:16
amount 30:17 54:13,14
analysis 52:20
anew 41:16
Angell 38:11,12,16 39:11
announce 40:8
announced 44:5,7 46:15
announcement 45:7 46:7 48:14
announcements 48:14 50:22 53:9
answering 45:22
anticipating 27:24 34:2
anticipation 27:19

THE SULLIVAN GROUP OF COURT REPORTERS Index: 1-anticipation

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1265 Page 141 of 232

application 46:18 54:7
applied 54:18
apply 52:13
applying 54:19 55:8
approach 45:18
appropriately 35:7
April 42:16
architecting 54:2
area 29:10 34:25 44:13 48:16
Assembly 52:1
assessment 52:6,20
assistance 55:10
assure 44:13 55:2
attach 39:15,17
attention 42:5
attorney 56:10
audiences 36:14
audio 56:3,6
August 30:10
authorities 34:12,19 36:2
availability 30:13 42:13
avoid

32:18
aware 52:21
B
back 29:24,25 31 :4 33:5 39:4 44:16,18 45:23 46:13
bad 49:22
balance 44:11
based 38:20 44:1 52:19
basis 35:140:1941:5 45:22 53:5
Bay 34:24
bears 48:19
Bee 50:8
begin 27:9,20 39:2, 13 48:22
behavior 38:23
behaviors 28:10
bells 40:24
big 52:12
billion 53:19,20
bit 34:14 45:2 47:7
blood 55:11
Bollag 50:8,9
boundaries 35:18
branch

52:18
break 39:11
brightest 55:3
broad 41:24
broadly 31:2 39:1
budget 44:9, 11
build 27:15
building 27:17
business 37:24 44:20 52:7
businesses 32:2, 11 38:6
c
cadence 42:23
California 40:7 43:8 44:6,12 46:23 52:1,8,1153:354:17 56:2
California's 45:9
Californians 37:21 48:6 55:8
Californiansforall.ca. gov
42:7,8 55:16
call 51:23 53:11 54:13 55:12
calls 32:25 51 :4 53:7
capacity 27:23 33:18 34:6,11,13 46:20,25 48:18 51:13
care 30:12 32:23 33:22 36:12 50:11 55:13,18

carefully 33:13 36:17
Carla 51:22
cases 48:1
Caucus 43:13
caution 39:20 40:25 44:9
cautious 39:348:3
centers 42:17 53:11
Certified 56:1
certify 56:2,8
challenging 41:15
change 38:21 49:23,24
changing 28:4
chatbots 53:13
check 55:12
check-in 51:4
checks 54:7,10
childcare 29:18 30:11,13 31:2 42:12,17,19 43:3,11,13, 14 44:2,6,14,15,17,21
children 29:20 44:3 46:22
choose 34:22
Chromebooks 46:20
chronicled 45:25

THE SULLIVAN GROUP OF COURT REPORTERS Index: application-chronicled

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1266 Page 142 of 232

churches 36:16
clarity 47:16
clear 50:18
close 27:3,4 36:13 47:7
closely 36:2 48: 12 52:23
closer 36:13
clothing 28:19
cohorts 44:1
colleagues 48:7
commitment 50:5
communication 34:18
community 35:640:23
companies 38:6
compared 45:11
component 44:21
compounding 41:15
concentrated 44:14
concern 44:14 52:1 55:1
concerns 29:5
concerts 39:5
conditions 34:2 49:18,23
confidence 46:10 52:25

confident 33:14,20 34:4
confidently 41:7
connection 53:18
connections 53:14
consequence 41:1
consequences 41:21
conservative 49:9
constant 34:18
constitutional 52:3
consulting 28:23 36:3
consumers 39:15
contact 27:16 34:10
continue 28:8 30:6, 7 31 :20,21 32:10,11,16, 19,23,24 33:16 34:8 37:16 38:8 47:24 48:11,2349:1,16, 21 50:5 51 :20 54:3,21
continuing 27:15 28:1,9 33:1
contractors 52:13
contribution 55:11
convention 39:5
conversation 42:347:9,18 52:22 55:1
conversations 41:1947:11
conveyed 48:3

correct 43:17 53:23
costs 47:17
counties 34:2235:1,10, 18,23,24
country 40:17
county-level 49:3
couple 48:14
coverings 32:17
COVID-19 35:14 36:20 37:3
create 29:24 30:13 31:12 38:3
critical 29:21 43:18
critically 30:4
CSR 56:16
curbside 28:18
curious 45:9
current 27:18
cut 27:2
D
daily 28:10 39:17 40:19 51:4 53:5
Dale 42:10,11
data 32:7 38:20,21 39:18 40:4, 13, 19,22 41 :6 45:16 46:5 48:16 49:3, 17

data-informed 36:10
date 56:11
Dated 56:14
day 36:22 50:2 52:12 54:25
days 47:10 54:9
dealing 54:12
deaths 40:2
deciding 49:7
decision 45:7 46:6 47:13 49:10 53:1
decisions 32:136:1041:5 49:2,5, 9,13,17,18,21,23 50:1 52:19,21,24
decreases 32:20
deep 43:24 44:14 47:8
deeply 44:19
deficits 44:9
deliberative 51:5
deliver 55:13
demand 34:6
demands 33:25
Department 43:21
deserve 44:17 54:15,20
deserves 54:16

THE SULLIVAN GROUP OF COURT REPORTERS
Index: churches-deserves

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1267 Page 143 of 232

desires 34:21
determination 52:25
determine 49:19
development 37:21 44:15
differently 35:2045:18
digital 42:3
diligently 34:9 36:23
direction 48:10 50:3 56:5
directive 50:4
discussed 33:11 36:4
discussing 30:3
discussion 30:7 34:16
disease 35:2,25 36:9 38:23 39:22
disruption 46:15
distance 28:11 46:18,20
distancing 32:17 33:137:1749:21
distributed 42:17,21 53:20,23 54:11
distribution 43:22
districts 46:23,24
dollars 42:16 43:15 53:19,20, 22
Doug 44:2346:12

download 46:25
downward 40:18
dynamic 41:3
E
earlier 33:1141:1947:6
early 45:3
earnest 30:7
earnestness 39:10
economic 44:15
economy 37:22 39:14 41:10 44:19
EDD 52:11 54:3, 13
education 45:5 46:17
effort 39:10 41 :4 44:14 55:1
elaborate 45:2
elder 50:11
elements 33:10
emergency 43:16
emphasis 38:14
emphasize 32:9
employee 56:10
encourage 32:11
end

36:2341:25
engagement 31:11
enhance 28:6
enhancement 44:5
enhancing 31:6
enjoy 29:6
enlisting 37:20
ensure 27:5
entertainment 36:12
entire 43:13
environment 28:4,2529:11,12, 17 30:18,21 31 :10,24 34:1
environments 29:24 30:24 32:8
epidemiology 35:2
erratically 38:23
essential 28:1,7,20 30:23 31:10 37:13
events 36:13
existing 34:1
expanding 42:12
expect 42:19
expectation 54:8
experience 54:23
expertise

42:6
explain 45:6
expose 36:19
exposure 32:20,21
expressed 52:1
F
face 32:17
facilities 30:11 42:12 43:14 50:11,13,14,20 51:12
facility 33:22 50:22,23 51 :8
fact 41:5 52:21
facts 46:8
fall 36:15
families 40:4
fans 39:6
farm 43:6,7
fast 35:10
fate 49:19
father 41:12 44:25
fed 45:16
feel 29:15,22 50:15
felt 35:3
FEMALE 42:10 44:23 50:7 51 :21

THE SULLIVAN GROUP OF COURT REPORTERS Index: desires-FEMALE

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1268 Page 144 of 232

figure 53:25
final 36:4 50:7 51 :21
finally 27:8 29:10 34:10
financially 56:9
find 30:12
fine 35:12
firm 49:10
firms 28:23
flu 45:5
focus 30:14 34:7 39:1 42:6 50:5
focused 30:20
focusing 27:22 28:15 31:6,15, 16 50:19
folks 36:1141:349:651:2 54:13
forbid 45:19
force 50:18
foregoing 56:6
Forgive 51:15
forward 27:25 28:8 36:22 38:9 40:20 41:11,18 49:12, 17 55:19
foundational 38:14 44:15
frame 38:25 41:14 46:3

framework 38:639:9,13 41:447:13
freelancers 52:13
freely 27:11
frozen 52:12
fully 31:24
fundamental 30:14
funding 42:1844:6
funds 43:22,23
furniture 28:20
future 33:9 34:3 49:19
G
gap 47:7
gaps 30:15,19
gear 43:1
generation 41:21
Ghaly 45:20 47:20,22
give 37:8 46:9 50:10
gloves 43:1
God 45:19
good 40:13 46:17 54:5,24
government 31:16 52:18
governments 34:12 36:3

governor 34:17 38:11 42:20 45:20 47:22 49:18 50:9, 16 52:17
gowns 42:25
gradually 28:16
great 27:6
green 40:25
grocery 37:1643:5
guard 51:1
guardsmen 51:2
guidance 31:19 37:22 38:5 44:2
guide 49:2,5, 12, 17
guided 48:13
guys 45:13
H
hair 27:2 36:12
half 39:25
halls 39:5
Hank 52:11 54:16
happen 31:14
happening 35:23,24
Happy 42:9
health 29:834:12,17, 19 35:3,5 36:2 38:22

hear 38:1
heard 34:7
hearts 40:5
held 55:2,5,6
high 46:24
higher 32:24 36:6 38:24 39:2
highest 36:25 39:3
highlighted 43:19
highlighting 46:3
hired 53:11
historic 54:23
historically 29:4
home 29:14 31:18 32:3,11,25 37:12,14
homes 50:11
honest 50:17
hope 41:7 50:3
hospital 27:23 33:13,18 48:2
hospitalization 40:11
hospitalizations 46:948:17
hot 34:16
hotspots 46:18
hourly

THE SULLIVAN GROUP OF COURT REPORTERS Index: figure-hourly

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1269 Page 145 of 232

40:19
hours 42:21 53:25
hundred 43:15
hundreds 50:1,2
I
ICU 33:13 40:13 48:17
ICUS 46:948:2
ideas 38:2,3
identified 37:2
ideology 41:6
immunity 37:4
impacted 49:25
impeded 44:10
implementing 32:4
importance 49:21
important 29:8,21 32:19 33:8 35:3,17 37:7 38:18 51:16
importantly 30:20
improve 54:15,22
in-home 43:4
in-person 36:1645:5
inadequate 46:21
include

28:17,19,22 36:11 51:13
includes 28:3
including 45:25 50:23 51 :2 52:10
inconvenience 41:22
incorporated 44:20
increase 40:10,11,23 42:24 48:18 53:18
increased 33:20,21 36:20
increasing 48:20 50:23,24
incumbent 41:16
independent 52:18
indicator 40:25
indicators 33:6, 11 51 :19
individual 49:3,20 50:1 53:15
individuals 29:1,6 32:15,22 39:23, 24 40:9 51 :10
infections 33:21
inform 37:21 49:2
information 31:22 37:25 49:12
informed 32:1
inherent 27:3
insight 37:23
insurance 54:18 55:9

interested 49:15 56:9
investment 44:8
invited 37:25
issues 53:4,5
J
January 44:5,7
Johnson 43:20
join 36:19
judged 55:6
Julie 54:2
July 30:9
jump-start 44:18
justice 41:14
K
KCBS 44:23
key 33:11 34:7
kids 30:21,25 45:1 46:14
Kim 43:20
kind 39:10 44:17
kindergarten 45:1
kinds 31:16 36:18
knew 48:4,8

KPCC 42:10
L
large 39:6
late 44:7
latest 39:18
leadership 53:1
learned 45:17
learning 29:22 30:15 41:13 46:18,21 47:2
led 49:8
legislative 52:7
legislature 51:25 52:19
level 49:5
liberal 49:9
licensed 50:19,23
lift 35:8
light 41:1
limited 29:4 31 :11
limiting 30:17
lines 39:4
live 36:14
lives 39:24,25 40:3
local

THE SULLIVAN GROUP OF COURT REPORTERS
Index: hours-local

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1270 Page 146 of 232

34:12,18,23 35:2,3,5 36:249:3,5
logistics 43:5
longer 40:25
looming 44:9
Lopez 56:1,15
loss 41:13 47:2
lost 39:23,24 46:14
lot 34:8 41:9 42:14 43:6 46:14 50:16 54:5
loved 40:4
lower 27:11 28:13,15,25 31:12,25 32:5 33:17 39:1
M
machine 56:4
made 45:8 50:21 53:9, 14 56:4
magnitude 46:21 53:7
maintain 33:17,18 50:4
maintaining 27:23 28:11
make 27:17 28:1,4,6,25 29:6 30:18 31 :2,20,25 32:24 33:1,24 34:5,12 35:9,14 36:10 37:16 41:543:23 46:10 48:12 49:4,22 51:20 52:19,25 53:1
makes 31:3
making 28:8 30:21 46:6 47:14

48:24
manufacturers 43:6
manufacturing 28:18
March 53:21 54:19
marching 50:2
Mariana 42:10
Marinucci 51:22,23
masks 42:21,25
matter 43:1345:4
meal 55:13
means 28:15
median 41:8
medical 51:1
meet 34:6
meeting 43:12
member 51:9
members 51:25 53:2
mentioned 28:2 33:6 34:17 39:25 40:6, 10 47:12 51 :23
Mercy 51:3
message 48:3
met 33:2
migrant 43:7

million 42:16,21 43:15,17 46:22 53:16,21,22 54:16,18
millions 50:2 55:8
mind 47:6
minutes 53:15
misguide 48:12
model 44:25 45:10, 14,17,21, 22 46:7 47:24 48:1,24
modelers 45:25
models 45:1148:4,7,9,1549:7, 14,23
modification 36:8 37:1
modifications 35:9,20 40:21 43:25
modified 33:16
modify 27:9 29:5 36:1 48:22
modifying 28:24
moment 32:7 39:19
monitor 40:1943:22
monitoring 51:7,10
months 38:16,17 39:3 45:23 48:5,22
move 27:25 28:8 31:23 33:19 35:20 36:22 40:20 49:11,17
movement 33:21 36:9 40:18

moving 27:10 38:9 51:18
N
N95 42:25
nails 27:2
naive 46:15
nation 45:2448:7
national 51:1
nature 41:4
necessarily 35:19
necessity 52:3
needed 27:19
neglecting 41:21
neighbor 55:12
net 28:7 29:12
news 40:13 54:5
NEWSOM 38:11 42:20 45:20 49:18 50:16 52:17
non-essential 32:18
nonetheless 39:8
noon 55:19
number 43:14 48:20 51 :13 53:7, 14,19
numbers 39:18,21 40:14,16,24 51:15

THE SULLIVAN GROUP OF COURT REPORTERS Index: logistics-numbers

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1271 Page 147 of 232

nurses 51:3
nursing 50:11,20,22 51:7,12
0
obligation 44:11
occurred 30:16,19 35:25
Officer 34:18
officers 35:3,6
offices 28:22
open 27:20 31 :1 32:8 42:1
opened 43:15
opening 28:16 29:2 36:25
opportunities 31:7,12 32:12
opportunity 34:15 37:9
optimism 48:3
optimistic 49:8
order 27:10 34:25 35:9 36:24 49:22
orders 33:15 34:23 35:20 49:5
organized 51:4
outdoor 29:6
outlier 45:10
overly 45:10
overnight

49:24
p
pace 34:23
pandemic 52:6 55:9
panoply 43:4,10
parents 31:345:6
parks 29:3
part 28:20 33:337:11,13,19 51:17
parti31:24
participate 42:2
partners 49:3
parts 40:17
party 56:10
passion 42:5 44:4 55:17
past 45:14
patient 51:9
patients 33:23
peak 40:1 45:12, 15
people 27:4,6,10 28:5 31:18, 21,23 32:23,25 35:20 36:12,18 37:3 38:19 40:444:1650:2 52:9,16 54:16 55:3
percent 40:11,12

percentage 48:19
person 37:24
personal 36:11 43:1
personnel 53:10
pessimistic 45:11 49:7
phase 38:15,16 44:8 51:18
phases 36:7
phone 32:24
physical 28:3,1129:7,11 32:17 37:17 43:25 49:21 52:3
pickup 28:18
place 27:12 29:21 31 :17 32:6, 13 35:14 36:18 37:6 53:13
places 28:23 32:1036:11,12
planning 30:2 37:9 48:25
plans 34:849:4
Plante 52:11
point 27:8 38:14 44:4 48:10 50:15
points 49:17 55:1
policies 31:17
Politico 51:22
pop-i!p 43:14

population 37:4
position 33:15
positive 40:9 48:19 51:8
positives 40:7
possibility 47:17
potential 32:20
potentially 30:9
power 54:3,22
PPE 27:17,21 28:8 33:24 42:2443:9,17,24 50:25
PPP 50:25
PR 28:23
practice 32:16 37:17
precautions 32:16
precise 48:9
predict 41:8
preemptively 45:22
prepare 31:23
preparedness 27:13
preparing 48:15,21
prescriptive 39:12
presence 52:4
presented

THE SULLIVAN GROUP OF COURT REPORTERS
Index: nurses-presented

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1272 Page 148 of 232

38:15
presenting 46:8
press 44:12
prevalence 38:22
previous 46:2 53:16
principal 51:19
printing 44:12
priorities 50:19
priority 50:24
private 47:11
privately 47:10
procedural 42:25
procedures 42:2443:9
proceedings 56:3
process 27:5
programs 30:8
progress 44:10 51:20
projecting 45:12
promised 42:16
prospects 41:19
protect 37:15
protecting 30:17 39:13,14

protective 43:1
protocols 43:8
provide 30:12 31:19,21 37:25 46:20 55:13
providers 42:14,19
providing 29:13 30:23 38:5
provisions 36:18
proximity 27:4
PUA 52:14 53:4 54:6,20 55:10
PUAS 53:24 54:4,5
public 29:3 34:17 46:16
purchase 42:15
put 27:6 36:18 37:25 38:24 43:16 45:2148:453:13 54:6
putting 54:1
Q
quality 44:17 46:24
question 43:20 44:24 45:23 46:4 47:16,23 50:7 51:17,21 52:15
questions 38:13 42:1,9 51 :24
quickly 47:11 52:9 53:6

R
racial 41:14
radically 49:23,25
Radio 44:23
raise 40:24
rate 40:11
reach 50:15
ready 32:5 33:4 35: 10
real 40:4 41:1351:20 55:17
realities 41:22
reality 44:11 49:25
realize 30:1
realtime 41:245:23
reason 35:17 44:20 46:6 47:9
recently 43:15
recognize 44:19
record 56:3,6
red 41:1
redirecting 51:1
reduce 31:21
reduces 38:7
refer 33:5

regional 34:15 35:11,16
reinforce 39:18
reinforcing 46:3
relates 39:19,21 43:11 46:5 52:18 53:4 55:5
relationship 44:21
relationships 27:3
relative 40:17 56:9
relax 34:22
religious 36:16
rely 27:21 38:8
remain 33:14
remind 28:9 37:5 41 :3 49:20
reminded 28:12
reminder 42:1
remiss 45:1
remote 52:2
Renae 56:1,15
reopen 38:7
reopening 39:2 45:2 51 :24,25
repeat 53:22
replacement 32:3
Reporter

THE SULLIVAN GROUP OF COURT REPORTERS
Index: presenting-Reporter

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1273 Page 149 of 232

56:2
represent 53:2
require 27:12 52:6
resolve 50:6
respect 35:4,18 41 :17 42:4 52:24
respond 33:22
responsibility 54:14
result 30:16
retail 28:17 42:4
retrained 51:3
risk 27:6,11 28:13,15,25 31:13,21,25 32:5,24 33:17 36:6,20,25 38:8, 24 39:1,2,3
robust 41:19
roll 30:347:3
roughly 39:25
roundtable 42:3
rural 46:23
s
Sac 50:8
safe 28:2,5 30:21,22,23 31 :25 36:1, 11 37:3 38:3 55:13,18
safer 28:13 29:6,23

safest 32:13
safety 27:13 28:7 29:12 32:16
sanitization 43:25
satisfied 50:15
school 29:20 30:8,23 31 :5 41:17,20 47:6,19
schools 29:18 31:138:741:12 45:3
science 35:7
scientific 31:22
screen 39:19
season 45:5
seasonal 43:7
sector 28:2131:1043:9,16 44:20
sector-by-sector 42:2
sectors 27:20 37:22 39:2,14,15, 1641:9
secure 34:4
secured 27:18
senior 55:12
sense 38:19 40:15 50:4
service 43:5
services 30:24 36:16 43:21

shape 43:23
share 33:9 55:17
shared 48:5
shields 42:25
short 41:8
shorthand 56:1,4
shortly 38:1
sic 40:2
sick 29:13 31 :18 32:4
Similarly 35:8
simply 46:24
site 54:8
sites 43:18 51:854:6
sitting 36:13
size 44:1
skilled 50:20,22 51:7,12
sleeves 30:4
slightly 40:14
SNF 51:11
sober 41:4
Social 43:21
socialize 47:11

socially 33:1
socioeconomic 41:14
solution 33:337:11,19
sooner 30:9 46:14 50:4
Sophia 50:7 51:6
sort 32:9
Sovern 44:23,24
space 36:5,15,2144:1050:23, 24,25 51:2,11 55:4
spaces 29:3,7
speaker 42:10 44:23 50:7 51 :21 52:2,22
specific 35:23 46:12 50:10
specifically 45:3
speed 46:25
spikes 40:23
sporting 36:13
spread 38:22 41 :23 46:9
stabilization 39:2048:16
stable 33:1440:14,16 54:9
stadiums 39:6
staff 51:9,14
stage 27:1,8,13,19 28:14 31:9 33:4,8, 19 34:22 35: 13

THE SULLIVAN GROUP OF COURT REPORTERS
Index: represent-stage

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1274 Page 150 of 232

36:5,23 37:7 39:4 46:11 47:13
stages 33:8 36:4
stand 49:10
start 28:14 32:8 40:22,24 42:23 47:5 54:4
started 30:648:6
starting 30:9
state 34:17,25 40:7 43:8 44:6, 12 45:14,24 46:2, 22 48:21 49:2 53:3 54:17 56:2
State's 44:25
states 54:6
statewide 34:11 35:13
stats 40:3
status 42:18 50:11
stay 29:14 31:18 32:3 37:12, 13 55:18
stay-et-home 27:10 31:11 33:15 34:25 35:9 36:24 49:22
staying 32:1337:6,12
store 37:16
stores 27:17
strengthen 39:18
stricter 34:23 35:4
strokes

41:24
strong 54:17
strongly 29:23
subject 43:13
subscribed 56:12
substantial 42:24 44:5 53:18
substantially 38:21
sufficient 34:5
summer 30:8 47:19
Sunday 53:22,23
Superintendent 46:16
supplies 42:15,22,23
supply 50:25
support 32:12,23 33:22,25 42:19 43:4 46:19 51 :1 55:14
supported 29:14 35:11
supporting 30:24 55:7
supportive 43:4
supposed 52:13
suppression 39:22
surge 27:23 33:18 45:13
surprising 53:24
surrounding

35:24
surveillance 35:1440:23
system 35:14 53:21
T
tablets 46:19
tackle 53:6
takes 43:23 54:7
talk 29:19 34:14 48:6 53:15
talked 42:12,14 53:11,12,13
talking 28:22 29:2 30:8, 11 34:24 36:6 47:25
task 50:18
teachers 30:22
team 54:2
technology 53:12
telework 28:24
tells 32:7
temporary 44:1
tens 39:5
terms 39:11,12 40:2 46:5 54:10
test 51:8
tested 40:9
testing

27:16 34:6 48:18 50:10, 12,14,18,24 51:19
tests 48:20
texting 53:12
therapeutics 27:12
thing 32:20 35:5 37:10, 18,20
things 27:1,14 28:12,17,19,23 29:3 31:14 36:15 37:17 39:12 49:10
thinking 28:3 30:4 33:2,10 45:4 47:5
thoughtful 27:5
thoughtfully 33:13
thousands 39:6 46:19
throwing 51:15
time 27:23 30:19 32:13 37:1, 2,6,7,9 39:7 41:8 42:5 45:19 46:13 53:15 55:7
times 54:23
today 38:15 39:2440:7,12,14 41 :2542:4,11 46:7 52:10,22 53:24 54:1,2,9
today's 39:2048:13
tomorrow 54:9 55:19
tool 48:25
top 50:19 53:10 54:25
topic 34:16

THE SULLIVAN GROUP OF COURT REPORTERS Index: stages-topic

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1275 Page 151 of 232

tom 40:3
total 51:12,13 53:14
toys 28:19
tracing 27:16 34:11
tracking 48:2 52:23
trails 29:3
transcribed 56:5
transcript 56:6
transcription 56:7
transmission 35:25
travel 32:19
trends 33:13
true 56:6
truth 50:17
turnaround 54:10
turns 41:1
tweaked 45:14
Twitter 52:10,15
types 35:15
u
UI
53:4
UIS
54:4

ultimately 29:2 31 :1 36:21 38:6
understand 35:6, 15,22,25 37:9
understanding 34:19
unemployment 52:14 54:18 55:9
universe 51:11
unprecedented 54:12,14,23
unprepared 52:12
update 48:1150:1051:7
updated 45:21
updating 49:15
urban 46:23
usable 49:16
USNS
51:3
v
vaccinations 37:4
variation 35:12,16
variations 34:15
venues 36:12
virtual 43:12
virus 31:23 35:18 41:23
visits 48:17
volume 53:19 54:13

volunteer 42:5
voting 52:2
w
wage 32:3
wanted 37:8
warranted 41:20
Washington 46:3
watching 33:12
ways 30:12
website 38:142:7,852:11 55:17
weddings 36:17
week 40:146:1553:16
weekly 45:22
weeks 32:6 38:16,17 39:3 40:2041:1042:13 46:1047:12,15,25 48:5, 15,21 49:1153:1754:7
well-known 45:25
WHEREOF 56:11
wife 46:16
Wifi 46:17
willingness 55:11
woefully 52:12
women 51:2

Women's 43:12
wonderful 43:11
wondering 45:13 50:9
woods 40:16
work 28:3 29:16,19 31:4 32:10 34:7,8 36:7,22 37:8 38:3 41:9 44:16,18 46:13,14,17 54:14
workers 28:7 29:13 32:3,10 43:3,5,6, 7 44:2
workflows 28:4
workforce 30:13 37:13 39:14
working 34:11 36:2 37:14 43:8, 22
workplaces 28:2,15,16 31:13 32:5 36:7,25 38:3
worst 45:15
wrong 45:16
y
year 30:9 41:17,20 44:5,7 47:6
yesterday 39:23 40:6,9,15 43:12 46:1 53:9, 16
younger 29:20

THE SULLIVAN GROUP OF COURT REPORTERS
Index: torn-younger

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1276 Page 152 of 232
EXHIBIT

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1332 Page 208 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 2 of 20 PagelD# 216
legally sufficient justification for treating Plaintiffdifferently from non-retail businesses or other permitted assemblies that may be comparable. The Commonwealth has not yet responded to Plaintiff's allegations that it permits non-retail businesses, such as law or accounting offices, to gather in numbers greater than ten so long as they use social distancing. Likewise, the Commonwealth has not yet responded to Plaintiff's allegations that various comparable secular gatherings are permitted. Based on the materials before the Court, Plaintiff has demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause ofthe U.S. Constitution that the Commonwealth's executive orders have prohibited religious gatherings at places ofworship, even with social distancing and personal hygiene protocols, while allowing comparable secular gatherings to proceed with social distancing. It thus becomes the Commonwealth's burden to demonstrate that it has compelling reasons to treat Plaintiff differently than similar non-religious businesses, and that it has pursued its objectives through the least restrictive means. Because the Commonwealth has not yet filed any response, it has not satisfied its burden.
On May 2, 2020, the United States Court ofAppeals for the Sixth Circuit granted an Injunction Pending Appeal in a case raising issues similar to those in this case, Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, slip op. (6th Cir. May 2, 2020) (per curiam). The Sixth Circuit there concluded: "[t]he Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same." Id. at 8.
Similarly, here, the Commonwealth has not explained why it differentiates and "refus[es] to trust" this small congregation's worship activities that, as alleged, follow social distancing and personal hygiene protocols, while allowing and trusting non-retail businesses to gather more than
2

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1333 Page 209 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 3 of 20 PagelD# 217
ten people in such a fashion. As Plaintiff has made an initial showing that the Commonwealth's executive orders treat religious organizations less favorably than similar secular organizations, and the Commonwealth has not yet carried its strict-scrutiny burden ofjustifying its differential treatment ofreligion, the Court should grant Plaintiff's motion and grant an injunction pending appeal.
INTEREST OF THE UNITED STATES The United States of America respectfully files this Statement of Interest pursuant to 28 U.S.C. § 517, which authorizes the Attorney General ''to attend to the interests ofthe United States in a suit pending in a court ofthe United States." The United States also enforces 34 U.S.C. § 12601, which allows the United States to bring suit when law enforcement officers engage in a pattern or practice that deprives individuals oftheir federal constitutional or statutory rights. The United States has a substantial interest in the preservation ofits citizens' fundamental right to the free exercise ofreligion, expressly protected by the First Amendment. To that end, the United States regularly files statements of interest and amicus briefs on important issues of religious liberty in courts at every level, from trial courts to the Supreme Court ofthe United States. In addition, the Attorney General has issued comprehensive guidance interpreting religious-liberty protections available under the United States Constitution and federal law. Federal Law Protections for Religious Liberty, 82 Fed. Reg. 49668 (Oct. 26, 2017) ("Attorney General Guidelines"). As relevant here, the Attorney General Guidelines explain that "[a]lthough government generally may subject religious persons and organizations to neutral, generally applicable laws," government cannot "apply such laws in a discriminatory way" or otherwise ''target persons or individuals because of their religion." Id. at 49669.
3

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1334 Page 210 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 4 of 20 PagelD# 218

The United States also has a strong interest, especially in the midst of the COVID-19

pandemic, in ensuring the development and maintenance ofthe best possible public health

strategies to combat the virus and protect the people ofthe United States from harm. But that

interest must be balanced with constitutional liberties. This case raises issues of national public

importance regarding the interplay between the government's compelling interest in protecting

public health and safety from COVID-19 and citizens' fundamental right to the free exercise of

religion.

BACKGROUND2

This suit was brought by the Lighthouse Fellowship Church in Chincoteague Island,

Virginia against Governor Ralph Northam (the "governor" or the "Commonwealth") alleging

that the governor has ordered restrictions on gatherings in response to the COVID-19 virus that

improperly restrict religious gatherings at places of worship while allowing comparable secular

gatherings, including the continued operation of any "business operations offering professional
rather than retail services." ECF 1-3, ii 8.

Lighthouse "is a small congregation without the resources or equipment to ... conduct
parking lot or drive-in services." ECF 1, ii 9. This church has a specialized ministry catering to

the socioeconomically disadvantaged. "[M]any ofthe members it serves are recovering drug

addicts, former prostitutes" and others "trying to put their lives together, who do not have the

resources to watch worship services over the Internet." Id. For "those members, Lighthouse is

their only family and assembling with their church family is everything." Id

2 The United States assumes the truth ofthe facts alleged in the complaint and reflected in the accompanying exhibits for purposes of this brief.
4

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1335 Page 211 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 5 of 20 PagelD# 219
According to the complaint, the Town of Chincoteague Police Department has understood the governor's orders to prohibit Lighthouse from hosting religious services with more than ten people and has enforced these orders against the church. Specifically, the Town of Chincoteague Police Department "imposed criminal sanctions against [its] religious gatherings that included 16 people ... even though these 16 people were separated by more than six feet in
the 225-seat sanctuary." ECF 1, if 2 (emphasis omitted). Indeed, on April 5, 2020, Lighthouse's
pastor, Kevin Wilson, was issued a criminal citation and summons because ofthis sixteen-person
worship service. ECF 1, if 8; ECF 1-7. During that service, Lighthouse maintained "social
distancing and personal hygiene protocols, including extensive and enhanced sanitizing of common surfaces in Lighthouse's building prior to the service," and ''requir[ed] attendees to remain at least six feet apart and use hand sanitizer prior to entering and during movement inside
Lighthouse's building." ECF 1, if 54.
Over the last two months, the governor has issued a series of Executive Orders prohibiting religious gatherings of more than ten people, while permitting secular gatherings of more than ten people to occur under an array of circumstances (collectively, the "Orders"). Governor Northam's Executive Order Amended Number Fifty-Three issued on April 15, 2020,
bans "all public and private in person gatherings of more than 10 individuals." ECF 1-3, if I.
Executive Order Number Fifty-Five, which Governor Northam issued on March 30, 2020, further specified that prohibited activities "include[] parties, celebrations, religious, or other
social events." ECF 1-4, if 2 (emphasis added). Violations ofthe Orders are charged criminally
and-according to the Virginia State Police---"can result in an individual[ ] or business being charged with a class one misdemeanor, which carries up to a year in jail and $2,500 fine." ECF 1-5, at I.
5

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1336 Page 212 of Case 2:20-cv-00204-AWA-RJK Document 21932 Filed 05/03/20 Page 6 of 20 PagelD# 220
The Orders, however, permit various secular activities resulting in gatherings ofmore than ten people, so long as ''to the extent possible, [they] adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities while in operation." ECF 1-3, ~ 6. First, the Orders permit any and all "business operations offering professional rather than retail services [to] remain open," with only an advisory that ''they should utilize teleworking as much
as possible." ECF 1-3, ~ 8; see also ECF 1-4, ~ 2.a (excluding from the ten-person gathering
limit any business ''not required to close to the public under Executive Order 53"). The Commonwealth publicly confirmed that "[n]othing in the Executive Order impacts business sectors that are not explicitly listed" such that the prohibitions "only cover[] (1) recreation and entertainment businesses, (2) brick and mortar non-essential retail businesses, and (3) restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries, tasting rooms, and farmers markets."3 Accordingly, the Orders do not limit the ability of employees ofany non-retail business, including but not limited to professional services businesses, to gather. The Orders impose no limit, for example, on the ability ofthe workforce to assemble in conference rooms or anywhere else at those worksites. See id.
Second, the Orders contain various exceptions authorizing gatherings ofmore than ten individuals across an array of''retail businesses," including "[b]eer, wine, and liquor stores," "[h]ome improvement, hardware, building material, and building supply retailers," "[l]aundromats and dry cleaners," and any "department store" that includes a food or pharmacy section. ECF 1-3, ~ 5. Third, all other "brick and mortar retail business[es]" not specifically
3 See Virginia's Statewide Stay at Home Order: Frequently Asked Questions, "I am not a business sector explicitly listed in the Executive Order, but I believe that I am an essential business. What should I do?," htt,ps://www.virginia.gov/coronavirus/faq/.
6

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1337 Page 213 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 7 of 20 PagelD# 221
exempted from the ten-person limit "may continue to operate" if they "limit all in-person
shopping to no more than 10 patrons per establishment" with social distancing. Id. if 6. The
Orders do not impose any numerical caps on the number of staff members who can be present in such retail businesses to service those ten patrons. See id.
Lighthouse has submitted photographs reflecting application ofthese exceptions in practice. For example, some photographs show that various big-box retail stores remain open and are drawing large crowds inside the stores, as evidenced by full parking lots ofvehicles. See
ECF 1, iril 59-60 (declaration averring that "there were 268 cars in the Wa!Mart parking lot,"
"156 cars in the Target parking lot," and "162 cars in the parking lot" of Lowe's). A photograph of one of the governor's press conferences shows the use of social distancing in an enclosed
space where more than ten people have gathered. See ECF 1, if 58.
Lighthouse filed this suit on April 24, 2020, raising claims under, inter alia, the Free Exercise Clause of the First Amendment to the United States Constitution. This Court denied Lighthouse's Emergency Motion for a Temporary Restraining Order and Preliminary Injunction on May 1, 2020. ECF 16.
For the reasons set forth below, the United States believes that the church has set forth a strong case that the Orders, by exempting other activities permitting similar opportunities for in-person gatherings of more than ten individuals, while at the same time prohibiting churches from gathering in groups of more than ten-even with social distancing measures and other precautions-has impermissibly interfered with the church's free exercise of religion. Unless the Commonwealth can prove that its disparate treatment of religious gatherings is justified by a compelling reason and is pursued through the least restrictive means, this disparate treatment violates the Free Exercise Clause, and the Orders may not be enforced against the church. This
7

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1338 Page 214 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 8 of 20 PagelD# 222
proof simply has not occurred because the Commonwealth has not yet submitted any argument or evidence in this case.
This is not to say that the Commonwealth must necessarily permit live, indoor church gatherings. As discussed below, there are good reasons to discourage gatherings of more than ten people and to encourage people to stay home whenever possible. But the Free Exercise Clause generally mandates that restrictions on gatherings be applied equally. Thus, an order purportedly aimed at promoting social distancing cannot impose a greater restriction on religious gatherings than similar secular gatherings absent the most compelling, narrowly tailored reasons. It will be difficult for the Commonwealth to justify having one set ofrules that allows for secular gatherings----such as in-person operations for any non-retail business and various other exemptions permitting large-scale retail gatherings-while denying to Lighthouse the ability to worship in modest numbers with appropriate social distancing and sanitizing precautions.
ARGUMENT I. Constitutional Rights Are Preserved During a Public Health Crisis
The federal government, the District of Columbia, and all fifty States have declared states of emergency, and have taken unprecedented and essential steps to contain the spread of the novel coronavirus and the consequences ofthe life-threatening COVID-19 pandemic.4 The President issued "Coronavirus Guidelines for America," which, among other measures, urge the public to "follow the directions of [their] state and local authorities," to "avoid social gatherings in groups of more than I0 people" and to "use drive-thru, pickup, or
4 See, e.g., Presidential Proclamation, Proclamation on Declaring a National Emergency
Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), httos://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconceming-novel-coronavirus-disease-covid-19-outbreak/.
8

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1339 Page 215 of Case 2:20-cv-00204-AWA-RJK Document 21392 Filed 05/03/20 Page 9 of 20 PagelD# 223
delivery options" instead of "eating or drinking at bars, restaurants, and food courts."5 The Centers for Disease Control and Prevention recommended that individuals "[s]tay at home as much as possible" and when in public keep "about 6 feet" away from others. 6 States and localities, in turn, imposed a variety of measures, including mandatory limitations on gatherings. And more recently, President Trump also "unveiled Guidelines for Opening Up America Again, a three-phased approach based on the advice of public health experts" to "help state and local officials when reopening their economies, getting people back to work, and continuing to protect American lives."7 Following these guidelines is the best path to swiftly ending COVID-19' s profound disruptions to our national life and resuming the normal economic life of our country. Citizens who seek to do otherwise are not merely assuming risk with respect to themselves, but are exposing others to the same danger. Accordingly, state and local governments, seeking to protect the public health, are restricting in-person assemblies, including religious assemblies.
Moreover, the Constitution does not hobble government from taking necessary, temporary measures to meet a genuine emergency. According to the Supreme Court, "in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand." Jacobson v. Commonwealth ofMassachusetts, 197 U.S.
5 The President's Coronavirus Guidelines for America (Mar. 16, 2020), https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20 coronavirusguidance 8.5xll 315PM.pd£ 6 Centers for Disease Control and Prevention, How to Protect Yourself and Others (Apr. 18, 2020), https://www.cdc.gov/coronavirus/2019-ncov/mevent-getting-sick/prevention-H.pd£ 7 Guidelines: Opening Up America Again (April 16, 2020), https://www.whitehouse.gov/openingamerica/.
9

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1340 Page 216 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 10 of 20 PagelD# 224
11, 29 (1905). In Jacobson, for example, the Court explained that "[a]n American citizen arriving at an American port" who had traveled to a region with yellow fever "may yet, in some circumstances, be held in quarantine against his will." Id. The "settled rule [from Jacobson]," a court of appeals recently noted, "allows the state to restrict, for example, one's right to peaceably assemble, to publicly worship, to travel, and even to leave one's home." In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020). And, critically, "[t]he right to practice religion freely does not include the liberty to expose the community ... to communicable disease." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Emergency public health measures such as gathering limitations and social distancing requirements in response to COVID-19 are evaluated under the Supreme Court's decision in Jacobson. Courts owe substantial deference to government actions, particularly when exercised by states and localities under their police powers during a bona fide emergency.
But there is no pandemic exception to the Constitution and its Bill of Rights. Indeed, "individual rights secured by the Constitution do not disappear during a public health crisis." In re Abbott, 954 F.3d at 784. These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always operative and restrain government action. Accordingly, the Supreme Court has instructed courts to intervene "if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion ofrights secured by the fundamental law." Jacobson, 197 U.S. at 31 (emphasis added). Thus, if the record establishes a "plain, palpable" violation of constitutional rights, then a court must grant relief. See In re Abbott, 954 F.3d at 784. Courts reviewing measures designed to address the "society-threatening epidemic" ofCOVID-19 should
10

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1341 Page 217 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 11of20 PagelD# 225
be vigilant to protect against clear invasions of constitutional rights while ensuring they do "not second-guess the wisdom or efficacy ofthe measures" properly enacted by the democratic branches of government, on the advice ofpublic health experts. Id at 784-85. II. The Free Exercise Clause Prohibits Unequal Treatment of Religious Individuals and
Organizations A. The Free Exercise Clause guarantees to all Americans the "right to believe and profess whatever religious doctrine [they] desire[]." Emp 't Div. v. Smith, 494 U.S. 872, 877 (1990). It also protects their right to act on these beliefs, through gathering for public worship as in this case, or through other acts of religious exercise in their daily lives. While the protections for actions based on one's religion are not absolute, id. at 878-79, among the most basic requirements ofthe Free Exercise Clause are that government may not restrict "acts or abstentions only when they are engaged in for religious reasons, or only because of the religious beliefthat they display," id. at 877, nor "target the religious for special disabilities based on their religious status," Trinity Lutheran Church ofColumbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (citation and internal quotation marks omitted); see also Attorney General Guidelines, 82 Fed. Reg. at 49672. To determine whether a law impermissibly targets religious believers or their practices, the Supreme Court has directed courts to "survey meticulously" the text and operation of a challenged law to ensure that it is neutral and of general applicability. Church of the Lukumi Babalu Aye v. City ofHialeah, 508 U.S. 520, 534 (1993). The Court explained: "The principle that government, in pursuit oflegitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause." Id. at 543; see also Attorney General Guidelines, 82 Fed. Reg. at 49672.
11

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1342 Page 218 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 12 of 20 PagelD# 226
Under the Free Exercise Clause, a law or rule, or the application of a law or rule, that is not both neutral and generally applicable is subject to heightened scrutiny. Church ofthe Lukumi BabaluAye, 508 U.S. at 531.
A law or rule is not neutral if it singles out particular religious conduct for adverse treatment; treats the same conduct as lawful when undertaken for secular reasons but unlawful when undertaken for religious reasons; ''visits gratuitous restrictions on religious conduct"; or "accomplishes ... a religious gerrymander, an impermissible attempt to target [certain individuals] and their religious practices." Id. at 533-35, 538 (citations and internal quotation marks omitted); see also Attorney General Guidelines, 82 Fed. Reg. at 49672.
A law is not generally applicable if"in a selective manner [it] impose[s] burdens only on conduct motivated by religious belief," including by "fail[ing] to prohibit nonreligious conduct that endangers [its] interests in a similar or greater degree than does" the prohibited conduct. Church ofthe Lukumi Babalu Aye, 508 U.S. at 534; see also Attorney General Guidelines, 82 Fed. Reg. at 49672. In Church ofthe Lukumi BabaluAye, the Court found that the challenged ordinances were "underinclusive with regard to the [government's] interest in public health" because they outlawed the religious conduct at issue but failed to prohibit various nonreligious conduct that had an equal or greater impact on public health. 508 U.S. at 543-45. The ordinances were thus not generally applicable. Id.
"A law is underinclusive, and thus not generally applicable, when it fails to prohibit secular activity that endangers the same interests to a similar or greater degree than the prohibited religious conduct." First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *6 (D. Kan. Apr. 18, 2020); accord Central Rabbinical Congress ofU.S. & Canada v. N~ YorkDep't ofHealth, 763 F.3d 183, 197 (2d Cir. 2014) (A law is not generally applicable
12

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1343 Page 219 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 13 of 20 PagelD# 227
if it "is substantially underinclusive such that it regulates religious conduct while failing to regulate secular conduct that is at least as harmful to the legitimate government interests purportedly justifying it."); Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012) ("If the law appears to be neutral and generally applicable on its face, but in practice is riddled with exemptions ... the law satisfies the First Amendment only ifit 'advance[s] interests of the highest order and [is] narrowly tailored in pursuit of those interests."' (citation omitted)); see also Church ofthe Lukumi BabaluAye, 508 U.S. at 534 & 538; Attorney General Guidelines, 82 Fed. Reg. at 49672.
A "prohibition that society is prepared to impose upon [religious] worshippers but not upon itself," the Supreme Court held, is not generally applicable and is subject to strict scrutiny. Church ofthe Lukumi Babalu Aye, 508 U.S. at 545 (citation omitted); see also American Life League, Inc. v. Reno, 47 F.3d 642, 654 (4th Cir. 1995) (recognizing that a law would not be generally applicable ifthe same conduct is not "outlawed for all," or if a violation under a law depended on "whether a violator acts on the basis of religious conviction or temporal views").
Accordingly, the Supreme Court's Free Exercise Clause decisions instruct this Court to "survey meticulously," Church ofthe Lukumi Babalu Aye, 508 U.S. at 534, the risks and character of the various activities the state chooses to permit. "All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect ofburdening religious practice. The Free Exercise Clause protect[s] religious observers against unequal treatment." See id. at 542 (internal citation omitted).
Here, the Court must determine whether the Commonwealth's distinctions between religious and secular gatherings are truly neutral and generally applicable. In other words, the
13

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1344 Page 220 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 14 of 20 PagelD# 228
Court must ensure that like things are treated as like, and that religious gatherings are not singled out for unequal treatment.
Ifthe Court determines that the Orders fail to prohibit secular activities comparable to Lighthouse's gathering of more than ten individuals, then the Court must review the Commonwealth's purported justifications and determine ifthey meet strict scrutiny, i.e., whether the Commonwealth has demonstrated a compelling governmental interest, pursued through the least restrictive means. See id at 546 ("The compelling interest standard that we apply ... is not 'water[ed] ... down' but 'really means what it says."' (internal citation omitted)); see also Jesus Christ Is The Answer Ministries, Inc. v. Baltimore County, Md., 915 F.3d 256 (4th Cir. 2019) ("A government decision fails strict scrutiny if it is not narrowly tailored to advance a compelling state interest.'').
The Court must be appropriately deferential to the expertise of public health officials in evaluating potential distinctions between secular gatherings listed in the Orders and religious gatherings. See Jacobson, 197 U.S. at 31; In re Abbott, 954 F.3d at 784-85. But such deference will not justify action that is "beyond all question, a plain, palpable" violation of free exercise principles. Jacobson, 197 U.S. at 31; see also In re Abbott, 954 F.3d at 784-85. Thus, ifthe Court determines that the Orders plainly are not neutral and generally applicable, then the Court may sustain their disparate treatment ofreligious gatherings only if it meets the demands of strict scrutiny.
B. In prohibiting church services or other religious gatherings that exceed ten people, despite permitting various other gatherings that may result from secular activities, the Commonwealth's Orders appear, at least, not to be generally applicable.
14

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1345 Page 221 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 15 of 20 PagelD# 229
The Orders' exemption ofall non-retail businesses, including professional services, from the mass-gathering limit, is not generally applicable. Under this exemption, a large law firm, real estate firm, or any other non-retail business, such as a production facility, is free to operate using its entire workforce, without any limits on the size of meetings or any prohibitions on gathering in conference rooms or any other part ofthese offices. As the Supreme Court made clear in Church ofthe Lukumi Babalu Aye, a ''prohibition that society is prepared to impose upon [religious worshippers] but not upon itself," is not generally applicable. 508 U.S. at 545 (citation omitted). Or as then-Judge Alito explained, "[a] law fails the general applicability requirement if it burdens a category ofreligiously motivated conduct but exempts or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously motivated." Blackhawkv. Pennsylvania, 381F.3d202, 209 (3d Cir. 2004). And this is what the Sixth Circuit held recently in Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, slip op. (6th Cir. May 2, 2020) (per curiam). The Sixth Circuit determined that because "[t]he Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same," id. at 8, a rule was not generally applicable under Church ofthe Lukumi Babalu Aye and strict scrutiny applied. Id. at 6, 8.
The inconsistent treatment in the Orders of conduct that appears to endanger the Commonwealth's interest to a similar degree to permitted activities shows, on this record, that the Commonwealth has not acted in a generally applicable manner. 8 It is thus incumbent on the
8 Because the Orders are not generally applicable, strict scrutiny applies, and the Court need not reach the issue ofwhether the Orders are neutral toward religion. The United States notes, however, that "[n]eutrality and general applicability are interrelated, and ... failure to satisfy one
15

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1346 Page 222 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 16 of 20 PagelD# 230
Commonwealth to show how it is in fact not treating Lighthouse in a disparate manner. It is not possible for the Commonwealth to do so on this record because it has not yet responded to the motion for a TRO or preliminary injunction. Likewise, Lighthouse has made at least an initial showing of irreparable injury. See Stuart Circle Parish v. Board ofZoning Appeals ofCity of Richmond, 946 F. Supp. 1225, 1235 (E.D. Va. 1996) (recognizing that ''plaintiffs will suffer irreparable injury [where] they will be prevented from practicing the free exercise oftheir religion"). And the Commonwealth has not come forward with any reasons why the equities and public interest would weigh against Plaintiff's proposed gatherings, which, as alleged, serve an essential function for its congregants while complying with all social distancing and sanitation guidelines. Thus, on this record, a preliminary injunction should have issued and an injunction pending appeal is warranted.
C. The United States does not take a position in this Statement on the advisability of in-person gatherings in Virginia or in any of its localities at this time, as the proper response to the COVID-19 pandemic will vary over time depending on facts on the ground. But the Commonwealth cannot treat religious gatherings less favorably than other similar, secular gatherings. To be clear, this principle does not prevent a government from seeking to establish ''that mass gatherings at churches [of the sort Lighthouse proposes] pose unique health risks that
requirement is a likely indication that the other has not been satisfied." Church ofthe Lukumi Babalu Aye, 508 U.S. at 531. The value judgment inherent in providing exemptions for secular activities that impact the Commonwealth's interests while not providing exemptions for Plaintiff's religious activities tends to indicate that the Commonwealth's actions may not be religion-neutral. See Fraternal Order ofPolice v. Newark, 170 F.3d 359, 365 (1999) (Alito, J.) ("[l]n Smith and Lukumi, it is clear ... the Court's concern was the prospect of the government's deciding that secular motivations are more important than religious motivations''); id. at 366 (heightened scrutiny attaches when government "makes a value judgement in favor of secular motivations, but not religious motivations").
16

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1347 Page 223 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 17 of 20 PagelD# 231
do not arise" in the context ofthe activities that the Orders permit. First Baptist Church, 2020 WL 1910021 at *7; see irifra Part ill. As discussed in Part III, however, the Commonwealth has not yet asserted any such carefully tailored approach, and Lighthouse would be entitled to relief unless the Commonwealth can carry its burden on strict scrutiny. See, e.g., id. at *3 & 7 (holding that "secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment," including "airports, childcare locations, hotels, food pantries and shelters, detoxification centers," "shopping malls," and "office spaces," demonstrated religious targeting that failed strict scrutiny and called for a temporary restraining order against the Kansas Governor's COVID-19 Order).
ill. The Compelling Interest I Least Restrictive Means Test Is a Searching Inquiry A law burdening religious practice that is not neutral or not of general application must
undergo the most rigorous of scrutiny. To satisfy the commands ofthe First Amendment, a law restrictive ofreligious practice must advance "'interests ofthe highest order"' and must be narrowly tailored in pursuit ofthose interests. Church ofthe Lukumi Babalu Aye, 508 U.S. at 546. "The compelling interest standard that we apply ... is not 'water[ed] ... down' but 'really means what it says."' Id; see also Axson-Flynn, 356 F.3d at 1294 (Where a law or rule is not neutral and generally applicable, defendants "face the daunting task of establishing that the requirement was narrowly tailored to advance a compelling governmental interest."). This is a difficult standard for the Commonwealth to meet.
As a general matter, prohibiting large gatherings to slow the spread of COVID-19 undeniably advances a compelling government interest. The Fifth Circuit has recently recognized ''the escalating spread ofCOVID-19, and the state's critical interest in protecting the public health." In re Abbott, 954 F.3d at 778. Moreover, the Supreme Court has noted that
17

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1348 Page 224 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 18 of 20 PagelD# 232
"'context matters' in applying the compelling interest test, and has emphasized that strict scrutiny's fundamental purpose is to take 'relevant differences' into account." Gonzales v. 0 Centro Espirito Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). For example, in Cutter v. Wilkinson, the Supreme Court applied the compelling interest standard in a manner that directed that prison administrators be afforded deference on what constitutes safety and good order. 544 U.S. 709, 723 (2005). Similarly, here, a court must apply this standard in the context ofthe pandemic.
However, that is not the end ofthe inquiry. In 0 Centro, the Supreme Court considered under the federal RFRA whether banning a religious group from using a particular controlled substance in its worship service was supported by the compelling interest of enforcing the drug laws. See 0 Centro, 546 U.S. at 428-39. The Court recognized that while enforcing the drug laws undoubtedly constitutes a compelling interest as a general matter, the government had to show more: a compelling interest in applying those laws to the small religious group that sought to use a drug in religious ceremonies that was not a sought-after recreational drug and thus not prone to diversion. Drawing on its Free Exercise Clause precedents, the Supreme Court held that courts must look "beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[ ] the asserted harm of granting specific exemptions to particular religious claimants." Id. at 431. And given that "a law cannot be regarded as protecting an interest ofthe highest order ... when it leaves appreciable damage to that supposedly vital interest unprohibited," the existence of other exemptions for similar conduct will be relevant in determining whether denying the desired religious exemption survives strict scrutiny. Id. at 433.
18

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1349 Page 225 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 19 of 20 PagelD# 233
Because a compelling interest must be evaluated in context rather than by reference to a broad general principle such as health or safety, and because the "least-restrictive-means standard is exceptionally demanding," Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728 (2014), a court must engage in a searching inquiry.
The ultimate question for this Court, then, is whether the Commonwealth's prohibition on in-person religious worship exceeding ten people to Lighthouse's sixteen-person gathering-while exempting all non-retail businesses and others from the ten-person limit-furthers a compelling interest, and whether there is no less restrictive measure the Commonwealth could use to achieve that interest while allowing the church to hold its services. If, in this fact-intensive and context-laden analysis, the Court determines that there are no "relevant differences," 0 Centro, 546 U.S. at 431-32, with regard to efficacy in slowing the spread of COVID-19, between allowing the church to meet as proposed and allowing these various preferred gatherings, then the Commonwealth's Orders must yield to the church's sincerely held religious exercise. At this stage ofthe case, where the Commonwealth has yet to respond, it is not possible to reach that conclusion.
CONCLUSION The United States respectfully requests that the Court consider these arguments in deciding the Plaintiff's Motion for an Injunction Pending Appeal. The facts on this record show that the Commonwealth has imposed limits on religious activity it has not imposed on comparable secular activities. Ifproven, the facts alleged in Lighthouse's complaint would thus establish a Free Exercise violation unless the Commonwealth demonstrates that its actions satisfy the demanding strict scrutiny standard. The Commonwealth has not yet filed its response and has introduced no evidence. It therefore has not satisfied its burden. Accordingly, based on this
19

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1350 Page 226 of Case 2:20-cv-00204-AWA-RJK Document 12932Filed 05/03/20 Page 20 of 20 PagelD# 234
Court's decision to deny the motion for a preliminary injunction at this stage, the United States respectfully requests that the Court either grant the Injunction Pending Appeal, or in the alternative, hold a hearing on Plaintiff's motion to ensure that Defendant's responses can be evaluated.

Dated: May 3, 2020

Respectfully submitted,
ERIC S. DREIBAND Assistant Attorney General
G. ZACHARY TERWILLIGER United States Attorney
ALEXANDER V. MAUGERI Deputy Assistant Attorney General
ELLIOTT M. DAVIS ERIC W. TREENE Special Counsels
Isl Jennifer E. Flurry Jennifer E. Flurry, VSB No. 80149 Office of the United States Attorney 101 West Main Street, Suite 8000 Norfolk, Virginia 23510 Telephone: (757) 441-3160 Facsimile: (757) 441-6689 Email: jennifer.flurry@usdoj.gov
Counselfor the United States ofAmerica

20

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1351 Page 227 of 232
EXHIBIT

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 232
E An ollicialwebme oftheUnitsd Stalal gavm:nment
Hpm•n bqwypu Jmmy v

PageID.1352

Page 228 of

~

.

~. . . '

Department of Judce
otrice of Publc.Nrllita

FOR IMMEDIAlE RELEASE

TUeeday, Apll 14, 2020

Allorney General Wllllam P. BarT l•u• statamant on Rallgloua Practice and Soclal Distancing; Department of Juatlca FllN statement ofInterest In Mlul•lppl Church
Cue
Attomev Ganel'lll Wlllam P. Berr leaullld 1116 t'Cllowfng atal1111u1111t
'In llghtoftheC0\110.19 pandll!lmlc, the Prealdent hat. llaued guldellnea cellll\g on allAmlllrlcen& to do their part to slow the apreed of a dangerous and highly C011lll.;oua virua. Those meaaurae ara important becauae Iha 11ilua is tl'Msmitled so easly from peraon lo person, and beceuse II all too o!hlln has ltlMflreatenlng conaeq- tor ltr. lllclfms, II has Iha
potentilll to ~lllm hllllllllh a n syabllma ...tlen ii aurgas.
To oonblln th& lllrus and protectIha moet llUnel'llble among us, Americana h - been asked, for a llmllllld period ctll tme, to piacllca rigorous sodlll dllltanclng. Tha Praeldant hall also aakedAme~cens lo llstlllln to and follow dll'lllcllolls
Issued by tmte and loall authortt1at.11191rclng social dllltandng. Soc:lal dlltanclng, while dllllc:IJll Mid unfamllar fol' a
nation that haa long prided llselt' on Iha strength of !tr. voklntary a!ltOd•Kons, has Iha poterllfal to - hundreds of tllousandr. ctllAmarlcan Ill/el ft'oM an lmmlnant th1111at. Scrupulously obsal'llfng lheaa guldellnas Is tha best path to
swtl'lly anding CO\ll0-19's prafbund dllNptlana to our nallonlll lll'a and IMUM~ Iha normal econoMlc llt'a ct/I our country. Cllwswho - k to do otherwllla are not merely aeauMlng ~Ilk with reaped to themaelllas, but ara exposln:g olluin to danger. In aldgllllll drcumlltancas, whan the community as a whola racas an mpandlng harM orthla magnitude, and wtu111'8 Iha measurea are tailored to meellng the lmmlnllllll danger, the oonstllullon don allow soma temporary l'lllM!fclfon on our lbllrtles thatwould not b6 tolenlllilld In normIll ctcumatancea.
But awn in timas of-ge11ey, when reasonabla and lempoflllYIMtticliona ate paced on lighta, Iha FirstAmandm~ and federal Mallltory law pnlhllll dllclfmlnatlon agahllt 1111Uglous lnstllullons and rallglour. ballewlrs. Thus. govemment may not i,.,.,_ spacial raeb idioo1a on religious activity that do not allo apply to smil111t nonreligioua actMty. For
u:ampla. I a govemment allows mOl/la theaters, raslaurants, concert hall&, and othercompal'llille placat. of auembly
to remain open and unraatrictad, ii mar not Ol'dar houses of wotallip to close, limit their congragetion tize, or othwwisa
Impede 1111Uglous gathalfngr.. Relgloua ln11tlllltlons must not be tlnglled out t'l:lr apadlll burdans.
Today. the Department ~led a f!etemlnl pf lnlalMt In suppolt ofa church In Mllsllslppl that allegedly ao119ht to hold paricing lot worehlp sal'llfcas, In which congragants lllllenllld ID their paator pniac:h over their ear radios, whlla all!~ In their ceni In the churdl parte~ lot with lhalrwfndCIW'a rolilld up. The City or Graanvla ftnad COl\flr&ganla $500 per person for atlenclng th- pa!ldn91ot seMcet. -whlla pannlllll\g clll!ens to a!lend nearby drt\IM\ reea.uranta. avan with their windows open.[1Jcl? The City appaara to hava thereby •"'91ed churches out aa tha ont.t -ntlal sel\llca (at.
dalllgn8tad by the state of MlllalllllppO that rNfY not operate dasplla l'Cllowfng all coo and tla!e llllCOMrnendallons
ragardln:g llOClal dlllancln:g.
Alt.- axplain in the StaleMant of lnteraat, where a stata has not acted e118nhMdadly, ii must NMll a compelling - n
to mpoae l'llllllfctfons on pla.cat. ctll•rshlp and must ensura that those raetrlcllons - nanwt; lllllOftld to adllanca Its
compelling interest. While - beliew that during thill period t'*8 is a sufficiem besia for the social distancing rulea lhal

112

5/512020Case A3t:to2r0ne-ycGve-n0e0ra8l W65illi-aBmAP.SB-aArr HIssGues SDtaotecmuenmt oennRte1lig2io-u4s PraFctiilceedan0d5S/o1ci1al/D2is0tancPinga;gDeepIDart.m1e3n5t o3f JusPticaegFeiles2S2ta9teomfent of I... have been put in place, the scope and justification of restri2ct3io2ns beyond that will have to be assessed based on the
circumstances as they evolve.
Religion and religious worship continue to be central to the lives of millions of Americans. This is true more so than ever during this difficult time. The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.
The United States Department of Justice will continue to ensure that religious freedom remains protected if any state or local government, in their response to COVID-19, singles out, targets, or discriminates against any house of worship for special restrictions."
[1]!§1 The City has since stated it will drop the fines, but will continue to enforce the order.

Attachment(&): Download Statement of Interest
Topic(s): Coronavirus
Component(s): Office of the AttorneY. General
Press Release Number: 20-380

Updated April 21, 2020

https://www.justice.gov/opa/pr/attomey-general-william-p-barr-issues-statement-religious-practice-and-sociaktistancing-O

212

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1354 Page 230 of 232
EXHIBIT

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1355 Page 231 of 232
®ffke of tqe l\tt(ttttt{! Qf}tuernl
Jla:it4ingtnnf 111. Qt. 20,5.Sll
April 27, 2020

MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL FOR CIVIL RIGHTS AND

ALL UNITED STATES ATTORNEYS

FROM:

THEATTORNEYGENERArW~

SUBJECT:

Balancing Public Safety with the Preservation of Civil Rights

The current national crisis related to COVID-19 has required the imposition of extraordinary restrictions on all of our daily lives. Millions of Americans across the nation have been ordered to stay in their homes, leaving only for essential and necessary reasons, while countless businesses and other gathering places have been ordered to close their doors indefinitely. These kinds of restrictions have been necessary in order to stop the spread of a deadly diseasebut there is no denying that they have imposed tremendous burdens on the daily lives of all Americans.
In prior Memoranda, I directed our prosecutors to prioritize cases against those seeking to illicitly profit from the pandemic, either by hoarding scarce medical resources to sell them for extortionate prices, or by defrauding people who are already in dire circumstances due to the severe problems the pandemic has caused. We have pursued those efforts vigorously and will continue to do so. Now, I am directing each of our United States Attorneys to also be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.
As the Department of Justice explained recently in guidance to states and localities taking steps to battle the pandemic, even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. The legal restrictions on state and local authority are not limited to discrimination against religious institutions and religious believers. For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy. If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.
I am therefore directing the Assistant Attorney General for Civil Rights, Eric Dreiband, and Matthew Schneider; the U.S. Attorney for the Eastern District of Michigan, to oversee and coordinate our efforts to monitor state and local policies and, if necessary, take action to correct them. They should work not only with all Department ofJustice offices and other federal agencies, but with state and local officials as well.

Case 3:20-cv-00865-BAS-AHG Document 12-4 Filed 05/11/20 PageID.1356 Page 232 of

232 Memorandum from the Attorney General

Page 2

Subject: Balancing Public Safety with the Preservation of Civil Rights

Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public. But the Constitution is not suspended in times of crisis. We must therefore be vigilant to ensure its protections are preserved, at the same time that the public is protected.
I thank you for your attention to this important initiative and for your service to our country.

Case 3:20-cv-00865-BAS-AHG Document 12-5 Filed 05/11/20 PageID.1357 Page 1 of 2

1

2

3

4

UNITED STATES DISTRICT COURT

5 SOUTHERN DISTRICT OF CALIFORNIA
6

7 SOUTH BAY UNITED PENTECOSTAL CHURCH, a California
8 non-profit corporation; and BISHOP 9 ARTHUR HODGES III, an individual,

10

Plaintiffs,

11

v.

12 GAVIN NEWSOM, in his official capacity 13 as the Governor of California, et al.,

14

Defendants.

Case No. 3:20-cv-00865-AJB-MDD
[Proposed] ORDER ON PLAINTIFFS’ APPLICATION FOR A TEMPORARY RESTRAINING ORDER, AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION

15

16

17

18

Having reviewed Plaintiffs South Bay United Pentecostal Church and Bishop

19 Arthur Hodges III’s Application for a Temporary Restraining Order, and Order to

20 Show Cause re: Preliminary Injunction, and good cause appearing, the application is

21 hereby GRANTED.

22

1. Defendants, their agents, employees, and successors in office, are

23 restrained and enjoined from enforcing, trying to enforce, threatening to enforce, or

24 otherwise requiring compliance with any prohibition on Plaintiffs’ engagement in

25 religious services, practices, or activities at which the County of San Diego’s Social

26 Distancing and Sanitation Protocol and Safe Reopening Plan is being followed.

27

2. Defendants shall show cause, on _____________, 2020, at _______

28 why a preliminary injunction should not issue requiring Defendants to act as described

[Proposed] Order on App. for a TRO and OSC re Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 12-5 Filed 05/11/20 PageID.1358 Page 2 of 2

1 in above; the temporary restraining order shall remain effective until such time as the

2 Court has ruled on whether a preliminary injunction should issue. Such relief is

3 necessary to prevent Defendants from further violating Plaintiffs’ constitutional rights,

4 pending trial on the merits of Plaintiffs’ claims.

5

6

IT IS SO ORDERED.

7

8 DATED: _________________ 9 10

__________________________ Hon. Anthony J. Battaglia United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

[Proposed] Order on App. for a TRO and OSC re Prel. Inj.

 
 Case 3:20-cv-00865-BAS-AHG Document 15 Filed 05/11/20 PageID.1381 Page 1 of 5

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

Case No.: 3:20-cv-00865-AJB-MDD
Ex Parte Application to Modify the Briefing Schedule on Plaintiffs’ Application for a Temporary Restraining Order

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

Judge: Anthony J. Battaglia Courtroom: 4A

27

28

Ex Parte App. to Modify the Briefing Schedule on Plt.’s App. for a TRO

Case 3:20-cv-00865-BAS-AHG Document 15 Filed 05/11/20 PageID.1382 Page 2 of 5

1 TO: THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

2

RECORD:

3

PLEASE TAKE NOTICE that Plaintiffs South Bay United Pentecostal

4 Church and Bishop Arthur Hodges III, by and through counsel, will and hereby do

5 apply to this Court to set a modified briefing schedule on their Application for

6 Temporary Restraining Order, and Order to Show Cause re: Preliminary Injunction.

7

This Application is made on the grounds that the underlying application for a

8 temporary restraining order is quite complex, and as such, the proposed briefing

9 schedule would likely assist the Court.

10

Good cause exists to issue the requested Order because Plaintiffs only need

11 relief by the weekend of May 16–17, 2020, and so there is time to set a briefing

12 schedule. This Application is supported by the accompanying Memorandum of

13 Points and Authorities, by the declaration of Jeffrey M. Trissell, Esq., and all exhibits

14 attached thereto, and by such further argument and evidence that may be adduced at

15 any hearing on this matter.

16

Counsel for all parties participated in a conference call on May 11, 2020, in

17 which the relief sought by this ex parte application was discussed. The parties mostly

18 agreed, but had minor disagreements as to the briefing schedule. This Application

19 followed. All papers relating to this Application will be delivered by email to the

20 Defendants’ counsel immediately after they are filed.

21

22

LiMANDRI & JONNA LLP

23 24 Dated: May 11, 2020 25 26 27

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

28
1
Ex Parte App. to Modify the Briefing Schedule on Plt.’s App. for a TRO

Case 3:20-cv-00865-BAS-AHG Document 15 Filed 05/11/20 PageID.1383 Page 3 of 5

1

MEMORANDUM OF POINTS & AUTHORITIES

2

This Court’s Chambers’ Rules provide that “[a]fter receipt, moving and

3 opposing ex parte papers will be reviewed and a decision will be made without a

4 hearing. If the Court requires a hearing, the parties will be contacted to set a date and

5 time.” Hon. Anthony J. Battaglia, U.S. District Judge, Civ. Case Proc., § III.2. (Oct.

6 1, 2017). “After service of the ex parte motion, opposing counsel will ordinarily be

7 given until 5:00 p.m. on the next business day to respond. If more time is needed,

8 opposing counsel must call the law clerk to modify the schedule.” Id.

9

“Parties requesting a . . . briefing schedule, or any other procedural change,

10 must meet and confer prior to contacting the Court.” Id. at § II.C. “If the parties are

11 unable to reach an agreement, the requesting party must file an ex parte motion

12 satisfying the applicable legal standard, with a particular focus on the diligence of the

13 party seeking delay and any prejudice that may result therefrom. In addition, the ex

14 parte motion must state: (1) the original date; (2) the number of previous

15 continuances and requests that have been made; (3) whether previous requests were

16 granted or denied; and (4) opposing counsel’s position with regard to their

17 opposition.” Id.

18

Here, on Monday, May 11, 2020, Plaintiffs filed an ex parte application for a

19 temporary restraining order, seeking relief by the weekend of May 16–17, 2020. Dkt.

20 12. On that same day, at 1:00 p.m., all counsel participated in a conference call to

21 discuss the relief sought by that ex parte application, and also to discuss the potential

22 of requesting a modified briefing schedule from the Court. The parties then also

23 exchanged several rounds of emails regarding that briefing schedule. (See Trissell

24 Decl., Exs. 1-3.)

25

On the call, all parties were in agreement that a deadline beyond Tuesday, May

26 12, 2020 at 5:00 p.m. would be preferable for the Defendants’ opposition briefs. On

27 the call, Plaintiffs proposed Wednesday, May 13, 2020 at 5:00 p.m., and counsel for

28 both the County and the State appeared to agree. As a result, that deadline was
2
Ex Parte App. to Modify the Briefing Schedule on Plt.’s App. for a TRO

Case 3:20-cv-00865-BAS-AHG Document 15 Filed 05/11/20 PageID.1384 Page 4 of 5

1 included in the draft Joint Motion that Plaintiffs circulated. (See Trissell Decl.,

2 Ex. 1.) Following further meet and confer, counsel for the State confirmed in writing

3 that they agreed to a Wednesday deadline. Although, counsel for the County did not

4 confirm this in writing, Plaintiffs understand they are agreeable to a Wednesday

5 deadline based on the telephone call. No Defendant agreed to request leave for

6 Plaintiffs to file a reply, or to request oral argument. (Trissell Decl., Ex. 3.)

7

In any event, there is good cause to grant the present ex parte application. All

8 parties agree that the complexity of the legal issues in the underlying ex parte

9 application mean that the Court would benefit from the fuller and clearer briefing

10 that would result from permitting Defendants more time to prepare their opposition

11 briefs. As for a reply and a hearing, Plaintiffs respectfully propose that a short five-

12 page reply brief could help crystallize the issues in dispute in this complex

13 constitutional case. Plaintiffs would also request brief oral argument if the Court

14 thinks it would be helpful.

15

Pursuant to this Court’s Chambers’ Rules at Section II.C, Plaintiffs

16 specifically note that (1) the original date for Defendants’ opposition briefs is May 12,

17 2020, at 5:00 p.m., and there is no original date for a reply brief or hearing; (2) there

18 have been no prior briefing schedule modifications, or requests for same; (3) as a

19 result, none have been granted or denied; and (4) opposing counsel’s position is that

20 their briefs should be due on May 13, and that no reply brief or hearing should

21 forthcoming.

22 o Monday, May 11, 2020: Plaintiffs Filed their Ex Parte Application, seeking to

23

resume worship services on the weekend of May 16–17, 2020.

24 o Wednesday, May 13, 2020 by 5:00 p.m.: Defendants’ opposition to ex parte

25

application is due.

26 o Thursday, May 14, 2020, by 3:00 p.m.: Plaintiffs’ reply papers in support of ex

27

parte application are due (five pages or less).

28 o Friday, May 15, 2020: Telephonic hearing per the Court’s calendar.
3
Ex Parte App. to Modify the Briefing Schedule on Plt.’s App. for a TRO

Case 3:20-cv-00865-BAS-AHG Document 15 Filed 05/11/20 PageID.1385 Page 5 of 5

1

For the foregoing reasons, Plaintiffs respectfully request that this Court set a

2 modified briefing schedule on Plaintiffs’ application for a temporary restraining

3 order, including—if helpful to the Court—a deadline for a reply brief and a time for a

4 telephonic hearing.

5

6

LiMANDRI & JONNA LLP

7

8 Dated: May 11, 2020 9 10 11

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
4
Ex Parte App. to Modify the Briefing Schedule on Plt.’s App. for a TRO

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1386 Page 1 of 20

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

Telephone: (858) 759-9930 5 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19

20

SOUTH BAY UNITED PENTECOSTAL CHURCH, a California non-profit

Case No. 3:20-cv-00865-AJB-MDD

21 corporation; and BISHOP ARTHUR

Declaration of Jeffrey M.

22 HODGES III, an individual,

Trissell, Esq. in Support of Ex Parte Application to Modify the

23

Plaintiffs,

v.

24

Briefing Schedule on Plaintiffs’ Application for a Temporary Restraining Order

25 GAVIN NEWSOM, in his official capacity as the Governor of California, et al.,
26

27

Defendants.

Judge: Anthony J. Battaglia Courtroom: 4A

28

JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1387 Page 2 of 20

1

I, Jeffrey M. Trissell, Esq., declare and state as follows:

2

1. I am an attorney at law duly licensed to practice in the State of California

3 and in the Southern District of California, and am counsel for Plaintiffs South Bay 4 United Pentecostal Church and Bishop Arthur Hodges III. As such, I have personal

5 knowledge of the matters set forth below and could and would testify thereto if called

6 upon to do so.

7

2. On Friday, May 8, 2020, Plaintiffs filed their complaint seeking

8 declaratory and injunctive relief for violations of their constitutional rights. (Dkt. 1.)

9 On the same day, Plaintiffs filed an ex parte application for a temporary restraining

10 order permitting them to hold worship services on the weekend of May 16–17, 2020.

11

3. On Monday, May 11, 2020, Plaintiffs decided to file a First Amended

12 Complaint omitting Mayor Faulconer and Police Chief Nisleit, and including the

13 County of San Diego’s May 10, 2020, health order. (Dkt. 11.) As a result, the only 14 remaining Defendants are those affiliated with the County of San Diego and the State

15 of California—not the City of San Diego. That same day, Plaintiffs filed an amended

16 ex parte application for a temporary restraining order permitting them to hold worship

17 services on the weekend of May 16–17, 2020. (Dkt. 12.)

18

4. On Monday, May 11, 2020, at 1:00 p.m., counsel for Plaintiffs held a

19 meet and confer conference call with counsel for the County-affiliated Defendants

20 (Timothy White) and counsel for the State-affiliated Defendants (Lisa Plank and 21 Todd Grabarsky). On the call, the parties discussed the possibility of a stipulated

22 briefing schedule for the TRO application. Those discussions continued in several

23 rounds of emails. Those emails are attached hereto as Exhibits 1, 2, and 3.

24

5. On the call, all parties were in agreement that a deadline beyond

25 Tuesday, May 12, 2020 at 5:00 p.m. would be preferable for the Defendants’

26 opposition briefs. On the call, Plaintiffs proposed Wednesday, May 13, 2020 at 5:00

27 p.m., and counsel for both the County and the State appeared to agree. As a result,

28 that deadline was included in the draft Joint Motion that Plaintiffs circulated. (Ex. 1.)

1 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1388 Page 3 of 20

1 Following further meet and confer, counsel for the State confirmed in writing that

2 they agreed to a Wednesday deadline. Although, counsel for the County did not

3 confirm this in writing, Plaintiffs understand they are agreeable to a Wednesday 4 deadline based on the telephone call. No Defendant agreed to request leave for

5 Plaintiffs to file a reply, or to request oral argument. (Ex. 3.)

6

6. In any event, there is good cause to grant the present ex parte

7 application. All parties agree that the complexity of the legal issues in the underlying 8 ex parte application mean that the Court would benefit from the fuller and clearer

9 briefing that would result from permitting Defendants more time to prepare their

10 opposition briefs. As for a reply and a hearing, Plaintiffs respectfully propose that a 11 short five-page reply brief could help crystallize the issues in dispute in this complex

12 constitutional case. Plaintiffs would also request brief oral argument if the Court

13 thinks it would be helpful.

14

7. Pursuant to this Court’s Chambers’ Rules at Section II.C, Plaintiffs

15 specifically note that (1) the original date for Defendants’ opposition briefs is May 12,

16 2020, at 5:00 p.m., and there is no original date for a reply brief or hearing; (2) there

17 have been no prior briefing schedule modifications, or requests for same; (3) as a 18 result, none have been granted or denied; and (4) opposing counsel’s position is that

19 their briefs should be due on May 13, and that no reply brief or hearing should

20 forthcoming.

21

8. Plaintiffs respectfully propose the following schedule:

22

Monday, May 11, 2020: Plaintiffs Filed their Ex Parte Application,

23

seeking to resume worship services on the weekend of May 16–

24

17, 2020.

25

Wednesday, May 13, 2020 by 5:00 p.m.: Defendants’ opposition

26

to ex parte application is due.

27

Thursday, May 14, 2020, by 3:00 p.m.: Plaintiffs’ reply papers in

28

support of ex parte application are due (five pages or less).

2 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1389 Page 4 of 20

1

Friday, May 15, 2020: Telephonic hearing per the Court’s

2

calendar.

3

I declare until penalty of perjury under the laws of the United States and the

4 State of California that the foregoing is true and correct. Executed on May 11, 2020.

5

6

7

Jeffrey M. Trissell, Esq.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 JEFFREY TRISSELL, ESQ., DECL.

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1390 Page 5 of 20
EXHIBIT 1

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1391 Page 6 of 20

From: To: Cc:
Subject: Date: Attachments:

Jeff Trissell
"White, Timothy"; "Todd Grabarsky"; "Lisa Plank"
cslimandri@limandri.com; "Paul Jonna"; "Kathy Denworth"; "Milan Brandon"; "Daniel Piedra"; "Thomas Brejcha"; "Peter Breen"; "Harmeet K. Dhillon (DhillonLaw)"; "Mark Meuser (Dhillon Law)"; "Gregory Michael (DhillonLaw)"
RE: South Bay United Pentecostal Church v. Newsom
Monday, May 11, 2020 3:16:47 PM
Stipulated Briefing Schedule.002.pdf Stipulated Briefing Schedule Order.002.pdf Stipulated Briefing Schedule.002.doc Stipulated Briefing Schedule Order.002.doc

Tim, Lisa, and Todd,

Attached is a draft Joint Motion to Set a Briefing Schedule. If this is acceptable, please sign and return. If not, please make any changes in track changes.

Thank you,
Jeff ************************** Jeffrey M. Trissell | Associate LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 | Fax: (858) 759-9938 jtrissell@limandri.com | www.limandri.com

This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. If you receive this communication, and it contains serious allegations against you or a person(s) you represent which you do not repudiate, the failure to repudiate will constitute an admission of the allegations. See Evid. Code §§ 1221, 1222. Thank you.
From: Jeff Trissell <jtrissell@limandri.com> Sent: Monday, May 11, 2020 11:11 AM To: 'White, Timothy' <Timothy.White@sdcounty.ca.gov>; 'Todd Grabarsky' <Todd.Grabarsky@doj.ca.gov>; 'Phelps, M. Travis' <MPhelps@sandiego.gov>; 'SDAT City Attorney' <CityAttorney@sandiego.gov>; 'Lisa Plank' <Lisa.Plank@doj.ca.gov> Cc: cslimandri@limandri.com; 'Paul Jonna' <pjonna@limandri.com>; 'Kathy Denworth' <kdenworth@limandri.com>; 'Milan Brandon' <mbrandon@limandri.com>; 'Daniel Piedra' <dpiedra@fcdflegal.org>; 'Thomas Brejcha' <tbrejcha@thomasmoresociety.org>; 'Peter Breen' <pbreen@thomasmoresociety.org>; 'Harmeet K. Dhillon (DhillonLaw)' <harmeet@dhillonlaw.com>;

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1392 Page 7 of 20

'Mark Meuser (Dhillon Law)' <mmeuser@dhillonlaw.com>; 'Gregory Michael (DhillonLaw)' <GMichael@dhillonlaw.com> Subject: RE: South Bay United Pentecostal Church v. Newsom

Thank you all for responding. Here is the dial-in information for our call today at 1:00pm.

Call In: Code:

(800) 617-7801 5589670

Sincerely,
Jeff
************************** Jeffrey M. Trissell | Associate LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 | Fax: (858) 759-9938 jtrissell@limandri.com | www.limandri.com

This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. If you receive this communication, and it contains serious allegations against you or a person(s) you represent which you do not repudiate, the failure to repudiate will constitute an admission of the allegations. See Evid. Code §§ 1221, 1222. Thank you.
From: White, Timothy <Timothy.White@sdcounty.ca.gov> Sent: Monday, May 11, 2020 10:22 AM To: Todd Grabarsky <Todd.Grabarsky@doj.ca.gov>; Phelps, M. Travis <MPhelps@sandiego.gov>; Jeff Trissell <jtrissell@limandri.com>; SDAT City Attorney <CityAttorney@sandiego.gov>; Lisa Plank <Lisa.Plank@doj.ca.gov> Cc: cslimandri@limandri.com; 'Paul Jonna' <pjonna@limandri.com>; 'Kathy Denworth' <kdenworth@limandri.com>; 'Milan Brandon' <mbrandon@limandri.com>; 'Daniel Piedra' <dpiedra@fcdflegal.org>; 'Thomas Brejcha' <tbrejcha@thomasmoresociety.org>; 'Peter Breen' <pbreen@thomasmoresociety.org>; 'Harmeet K. Dhillon (DhillonLaw)' <harmeet@dhillonlaw.com>; 'Mark Meuser (Dhillon Law)' <mmeuser@dhillonlaw.com>; 'Gregory Michael (DhillonLaw)' <GMichael@dhillonlaw.com> Subject: RE: South Bay United Pentecostal Church v. Newsom

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1393 Page 8 of 20
1pm works for me as well, if you can please circulate a conference call dial in number/instructions. Thanks. Tim
P.S. Just as an fyi, I have been working from home since mid-March due to pandemic, and unfortunately my work number does not forward to my cell #. So the fastest way to reach me or set up a call is by email. Thanks a lot.
Timothy M. White, Esq. Senior Deputy County Counsel Office of County Counsel County of San Diego 1600 Pacific Highway, Room 355 San Diego, CA 92101
Ph: 619-531-4865 Timothy.White@sdcounty.ca.gov
CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain information protected by the attorney-client privilege, the attorney work product doctrine or other applicable privileges or confidentiality laws or regulations. If you are not an intended recipient, you may not review, use, copy, disclose or distribute this message or any of the information contained in this message to anyone. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of this message and any attachments. Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.
From: Todd Grabarsky <Todd.Grabarsky@doj.ca.gov> Sent: Monday, May 11, 2020 10:14 AM To: Phelps, M. Travis <MPhelps@sandiego.gov>; Jeff Trissell <jtrissell@limandri.com>; White, Timothy <Timothy.White@sdcounty.ca.gov>; SDAT City Attorney <CityAttorney@sandiego.gov>; Lisa Plank <Lisa.Plank@doj.ca.gov> Cc: cslimandri@limandri.com; 'Paul Jonna' <pjonna@limandri.com>; 'Kathy Denworth' <kdenworth@limandri.com>; 'Milan Brandon' <mbrandon@limandri.com>; 'Daniel Piedra' <dpiedra@fcdflegal.org>; 'Thomas Brejcha' <tbrejcha@thomasmoresociety.org>; 'Peter Breen' <pbreen@thomasmoresociety.org>; 'Harmeet K. Dhillon (DhillonLaw)' <harmeet@dhillonlaw.com>; 'Mark Meuser (Dhillon Law)' <mmeuser@dhillonlaw.com>; 'Gregory Michael (DhillonLaw)' <GMichael@dhillonlaw.com> Subject: Re: South Bay United Pentecostal Church v. Newsom
1 p.m. works for the AG's Office.
Todd Grabarsky Deputy Attorney General

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1394 Page 9 of 20
California Department of Justice Office of the Attorney General 300 S. Spring St., Ste. 1700 Los Angeles, CA 90013 (213) 269-6044
From: Phelps, M. Travis <MPhelps@sandiego.gov> Sent: Monday, May 11, 2020 10:08:47 AM To: Jeff Trissell; Todd Grabarsky; Timothy.White@sdcounty.Ca.Gov; SDAT City Attorney Cc: cslimandri@limandri.com; 'Paul Jonna'; 'Kathy Denworth'; 'Milan Brandon'; 'Daniel Piedra'; 'Thomas Brejcha'; 'Peter Breen'; 'Harmeet K. Dhillon (DhillonLaw)'; 'Mark Meuser (Dhillon Law)'; 'Gregory Michael (DhillonLaw)' Subject: RE: South Bay United Pentecostal Church v. Newsom
Jeff:
I can be available for a call at 1pm today.
M. Travis Phelps Chief Deputy City Attorney Office of the San Diego City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101
Phone (619) 533-6370 Fax (619) 533-5856 mphelps@sandiego.gov
PLEASE NOTE: This email is for the sole use of the intended recipient(s) and may contain information protected by the ATTORNEY-CLIENT PRIVILEGE and/or by the ATTORNEY WORK PRODUCT DOCTRINE. The contents of this email may include confidential and/or inside information and may be legally privileged or protected and should not be communicated to or relied upon by any person without express consent of the sender. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited and may be unlawful. If you have received this email in error, please immediately notify the sender by reply email, delete the original communication, and destroy all copies.
From: Jeff Trissell [mailto:jtrissell@limandri.com] Sent: Monday, May 11, 2020 9:25 AM To: Todd.Grabarsky@doj.ca.gov; Timothy.White@sdcounty.Ca.Gov; SDAT City Attorney <CityAttorney@sandiego.gov>; Phelps, M. Travis <MPhelps@sandiego.gov> Cc: cslimandri@limandri.com; 'Paul Jonna' <pjonna@limandri.com>; 'Kathy Denworth' <kdenworth@limandri.com>; 'Milan Brandon' <mbrandon@limandri.com>; 'Daniel Piedra' <dpiedra@fcdflegal.org>; 'Thomas Brejcha' <tbrejcha@thomasmoresociety.org>; 'Peter Breen' <pbreen@thomasmoresociety.org>; 'Harmeet K. Dhillon (DhillonLaw)' <harmeet@dhillonlaw.com>; 'Mark Meuser (Dhillon Law)' <mmeuser@dhillonlaw.com>; 'Gregory Michael (DhillonLaw)' <GMichael@dhillonlaw.com> Subject: RE: South Bay United Pentecostal Church v. Newsom

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1395 Page 10 of 20
**This email came from an external source. Be cautious about clicking on any links in this email or opening attachments.**
Counsel,
Pursuant to Judge Battaglia’s Chambers Rules, we are seeking to hold a meet and confer call with all counsel this afternoon at 12:00 or 1:00 p.m. concerning the relief sought by our ex parte application for a temporary restraining order, which you received. In light of the County’s and State’s positions in previous cases, we believed such efforts would be fruitless. However, this morning we called Mr. Grabarsky for the State, and he requested a meet and confer call with all counsel. We also called Mr. White for the County, who has already filed a document in this case, and left a voicemail. For the City, as indicated below, we sent the documents via email to the general mailbox, and to Chief Deputy City Attorney Travis Phelps. Hopefully someone from the City will be able to join the call.
Sincerely, Jeff
************************** Jeffrey M. Trissell | Associate LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 | Fax: (858) 759-9938 jtrissell@limandri.com | www.limandri.com
This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. If you receive this communication, and it contains serious allegations against you or a person(s) you represent which you do not repudiate, the failure to repudiate will constitute an admission of the allegations. See Evid. Code §§ 1221, 1222. Thank you.
From: Jeff Trissell <jtrissell@limandri.com> Sent: Friday, May 8, 2020 3:24 PM To: Todd.Grabarsky@doj.ca.gov; Timothy.White@sdcounty.Ca.Gov; cityattorney@sandiego.gov; 'M. Travis' <MPhelps@sandiego.gov> Cc: cslimandri@limandri.com; 'Paul Jonna' <pjonna@limandri.com>; 'Kathy Denworth' <kdenworth@limandri.com>; 'Milan Brandon' <mbrandon@limandri.com>; 'Daniel Piedra' <dpiedra@fcdflegal.org>; 'Thomas Brejcha' <tbrejcha@thomasmoresociety.org>; 'Peter Breen' <pbreen@thomasmoresociety.org>; 'Harmeet K. Dhillon (DhillonLaw)' <harmeet@dhillonlaw.com>; 'Mark Meuser (Dhillon Law)' <mmeuser@dhillonlaw.com>; 'Gregory Michael (DhillonLaw)'

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1396 Page 11 of 20
<GMichael@dhillonlaw.com> Subject: RE: South Bay United Pentecostal Church v. Newsom
Counsel,
Our temporary restraining order papers are available at the below hyperlink: https://drive.google.com/open?id=1arNiA2MoiJgnwmCDjAKSgOQq0yabuIfx
Sincerely, Jeff ************************** Jeffrey M. Trissell | Associate LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 | Fax: (858) 759-9938 jtrissell@limandri.com | www.limandri.com
This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. If you receive this communication, and it contains serious allegations against you or a person(s) you represent which you do not repudiate, the failure to repudiate will constitute an admission of the allegations. See Evid. Code §§ 1221, 1222. Thank you.
From: Jeff Trissell <jtrissell@limandri.com> Sent: Friday, May 8, 2020 12:40 PM To: Todd.Grabarsky@doj.ca.gov; Timothy.White@sdcounty.Ca.Gov; cityattorney@sandiego.gov; 'M. Travis' <MPhelps@sandiego.gov> Cc: cslimandri@limandri.com; 'Paul Jonna' <pjonna@limandri.com>; 'Kathy Denworth' <kdenworth@limandri.com>; 'Milan Brandon' <mbrandon@limandri.com>; 'Daniel Piedra' <dpiedra@fcdflegal.org>; 'Thomas Brejcha' <tbrejcha@thomasmoresociety.org>; 'Peter Breen' <pbreen@thomasmoresociety.org>; 'Harmeet K. Dhillon (DhillonLaw)' <harmeet@dhillonlaw.com>; 'Mark Meuser (Dhillon Law)' <mmeuser@dhillonlaw.com>; 'Gregory Michael (DhillonLaw)' <GMichael@dhillonlaw.com> Subject: South Bay United Pentecostal Church v. Newsom
Counsel,
Please be advised that today my office has filed in the Southern District of California a complaint and

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1397 Page 12 of 20
a request for a temporary restraining order. The complaint alleges that the State of California’s, the County of San Diego, and the City of San Diego’s COVID-19 related executive orders and restrictions infringe on my clients’ constitutional rights.
We are seeking a temporary restraining order permitting my clients to resume their worship services during the weekend of May 16-17, 2020, so long as they adhere to the County of San Diego’s Social Distancing and Sanitation Protocol.
For Defendants Newsom, Becerra, and Angell, I am sending this email to Deputy A.G. Todd Grabarsky because I understand that he is handling the Gish and Cross Culture cases.
For Defendants Wooten and Robbins-Meyer, I am sending this email to County Counsel Timothy White because I understand that he is handling the Abiding Place case.
For Defendants Gore, Faulconer, and Nisleit, I am sending this email to the address listed online (cityattorney@sandiego.gov), as well as Chief Deputy City Attorney Travis Phelps,
The ex parte papers will follow today in another email. Sincerely, Jeff ************************** Jeffrey M. Trissell | Associate LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 | Fax: (858) 759-9938 jtrissell@limandri.com | www.limandri.com
This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. If you receive this communication, and it contains serious allegations against you or a person(s) you represent which you do not repudiate, the failure to repudiate will constitute an admission of the allegations. See Evid. Code §§ 1221, 1222. Thank you.
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1398 Page 13 of 20 recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1399 Page 14 of 20
EXHIBIT 2

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1400 Page 15 of 20

From: To: Cc: Subject: Date: Attachments:

Paul Jonna
White, Timothy; Lisa Plank; Charles Limandri
Jeffrey Trissell
RE: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings
Monday, May 11, 2020 3:58:35 PM
Stipulated Briefing Schedule Order.002.pdf Stipulated Briefing Schedule.002.doc Stipulated Briefing Schedule Order.002.doc

Tim and Lisa – did you receive the proposed joint motion Jeff sent earlier (attached)?

Paul M. Jonna | Partner LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 |Direct: (858) 759-9133 |Fax: (858) 759-9938 pjonna@limandri.com | www.limandri.com
This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. Thank you.

From: White, Timothy <Timothy.White@sdcounty.ca.gov> Sent: Monday, May 11, 2020 3:55 PM To: Lisa Plank <Lisa.Plank@doj.ca.gov>; Charles Limandri <climandri@limandri.com> Cc: Paul Jonna <pjonna@limandri.com>; Jeffrey Trissell <jtrissell@limandri.com> Subject: RE: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings
Lisa – I would be agreeable to that briefing schedule. All, I would note that Judge Battaglia’s procedures for civil cases does not appear to contemplate or permit reply briefs for ex parte motions.

Timothy M. White, Esq. Senior Deputy County Counsel Office of County Counsel County of San Diego 1600 Pacific Highway, Room 355 San Diego, CA 92101
Ph: 619-531-4865 Timothy.White@sdcounty.ca.gov
CONFIDENTIALITY NOTICE: This email message, including any attachments, is for the sole use of the intended recipient(s) and may contain information protected by the attorney-client privilege, the attorney work product doctrine or other applicable privileges or confidentiality laws or regulations. If you are not an intended recipient, you may not review, use, copy, disclose or distribute this message or any of the information contained in this message to anyone. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of this message and any attachments. Unintended

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1401 Page 16 of 20
transmission shall not constitute waiver of the attorney-client or any other privilege.
From: Lisa Plank <Lisa.Plank@doj.ca.gov> Sent: Monday, May 11, 2020 3:52 PM To: cslimandri@limandri.com Cc: pjonna@limandri.com; jtrissell@limandri.com; White, Timothy <Timothy.White@sdcounty.ca.gov> Subject: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings
Good afternoon,
I’m writing to follow up on our call this afternoon in which a potential agreement to a TRO briefing schedule was proposed. While we know Plaintiffs are in the process of preparing amended papers for filing in this matter, it would be very helpful if the parties could nail down at this time an agreed briefing schedule (providing a reasonable amount of time for Defendants’ briefing) that we could suggest to the Court, while knowing the briefing schedule is in the court’s discretion. Based on your representation that your amended papers will be filed late today or early tomorrow, we would propose a Thursday 5/14 deadline for our Opposition papers. Please let us know if you would be amenable to us suggesting such a proposed schedule to the court. Your professional courtesy in this matter would be appreciated.
Thank you,
Lisa
Lisa J. Plank Deputy Attorney General Government Law Section California Department of Justice 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102 Tel: 415-510-4445
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1402 Page 17 of 20
EXHIBIT 3

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1403 Page 18 of 20

From: To: Cc: Subject: Date:

Lisa Plank Jeff Trissell; "Paul Jonna" "Charles Limandri"; "White, Timothy" RE: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs" amended filings Monday, May 11, 2020 8:35:47 PM

Thanks Jeff. That’s fine with me if it works for Tim.

Thank you,

Lisa

From: Jeff Trissell <jtrissell@limandri.com> Sent: Monday, May 11, 2020 6:45 PM To: Lisa Plank <Lisa.Plank@doj.ca.gov>; 'Paul Jonna' <pjonna@limandri.com> Cc: 'Charles Limandri' <climandri@limandri.com>; 'White, Timothy' <Timothy.White@sdcounty.ca.gov> Subject: RE: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs' amended filings
Lisa and Tim,
I have prepared an ex parte application. I think the best course would be to simply include the below email, letting the Court know that an extension from Tuesday to Wednesday is agreed upon by all, and that a reply and a hearing is solely requested by Plaintiffs. Tim, do you agree to a Wednesday deadline?
Jeff

From: Lisa Plank <Lisa.Plank@doj.ca.gov> Sent: Monday, May 11, 2020 6:25 PM To: Paul Jonna <pjonna@limandri.com> Cc: Charles Limandri <climandri@limandri.com>; Jeffrey Trissell <jtrissell@limandri.com>; White, Timothy <Timothy.White@sdcounty.ca.gov> Subject: RE: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings
Thank you Paul. Please know that my intention was not to be contrary. We’ll agree to your proposed due date of Wed. at 5:00 p.m. for Defendants’ Opposition. We think the Court will want to make the call on the other subjects. Please let me know how Plaintiffs will proceed. Thank you, Lisa
Lisa J. Plank Deputy Attorney General Government Law Section California Department of Justice 455 Golden Gate Ave., Ste. 11000

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1404 Page 19 of 20
San Francisco, CA 94102 Tel: 415-510-4445
From: Paul Jonna <pjonna@limandri.com> Sent: Monday, May 11, 2020 4:45 PM To: Lisa Plank <Lisa.Plank@doj.ca.gov> Cc: Charles Limandri <climandri@limandri.com>; Jeffrey Trissell <jtrissell@limandri.com>; White, Timothy <Timothy.White@sdcounty.ca.gov> Subject: RE: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings
Thanks Lisa. My understanding from our call was that you would not agree to the joint motion. Thus, we’re preparing a separate application to the Court with our proposed briefing schedule. However, it would be great to agree on the briefing schedule. Our proposal gives you an extra day for the opposition, and I think the Court would appreciate a short reply brief given the complexity of the issues, as well as brief oral argument.
Paul M. Jonna | Partner LIMANDRI & JONNA LLP | P.O. Box 9120 | Rancho Santa Fe, CA 92067 Tel: (858) 759-9930 |Direct: (858) 759-9133 |Fax: (858) 759-9938 pjonna@limandri.com | www.limandri.com
This communication (including any attachments) contains confidential information protected by the attorney-client privilege and/or attorney work-product privilege intended only for a specific person(s) or entity(ies) named as the recipient(s). If you are not the intended recipient(s), you should delete this communication and/or shred the materials and any attachments and are hereby notified that any disclosure, copying, use or distribution of this communication, or the taking of any action based in it, is strictly prohibited by law. If you receive this transmission by error, please notify us by telephone immediately. Thank you.
From: Lisa Plank <Lisa.Plank@doj.ca.gov> Sent: Monday, May 11, 2020 4:40 PM To: Paul Jonna <pjonna@limandri.com> Cc: Charles Limandri <climandri@limandri.com>; Jeffrey Trissell <jtrissell@limandri.com>; White, Timothy <Timothy.White@sdcounty.ca.gov> Subject: FW: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings
Hi Paul, Thank you for your call responding to my email. To follow up, I’ll discuss Plaintiffs’ proposal with my colleagues and get back to you. Thanks, Lisa
From: Lisa Plank Sent: Monday, May 11, 2020 3:52 PM To: 'cslimandri@limandri.com' <cslimandri@limandri.com> Cc: 'pjonna@limandri.com' <pjonna@limandri.com>; 'jtrissell@limandri.com' <jtrissell@limandri.com>; 'White, Timothy' <Timothy.White@sdcounty.ca.gov> Subject: South Bay Pentecostal Church v. Newsom, et al.; Plaintiffs’ amended filings

Case 3:20-cv-00865-BAS-AHG Document 15-1 Filed 05/11/20 PageID.1405 Page 20 of 20
Good afternoon,
I’m writing to follow up on our call this afternoon in which a potential agreement to a TRO briefing schedule was proposed. While we know Plaintiffs are in the process of preparing amended papers for filing in this matter, it would be very helpful if the parties could nail down at this time an agreed briefing schedule (providing a reasonable amount of time for Defendants’ briefing) that we could suggest to the Court, while knowing the briefing schedule is in the court’s discretion. Based on your representation that your amended papers will be filed late today or early tomorrow, we would propose a Thursday 5/14 deadline for our Opposition papers. Please let us know if you would be amenable to us suggesting such a proposed schedule to the court. Your professional courtesy in this matter would be appreciated.
Thank you,
Lisa
Lisa J. Plank Deputy Attorney General Government Law Section California Department of Justice 455 Golden Gate Ave., Ste. 11000 San Francisco, CA 94102 Tel: 415-510-4445
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.
CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication. CONFIDENTIALITY NOTICE: This communication with its contents may contain confidential and/or legally privileged information. It is solely for the use of the intended recipient(s). Unauthorized interception, review, use or disclosure is prohibited and may violate applicable laws including the Electronic Communications Privacy Act. If you are not the intended recipient, please contact the sender and destroy all copies of the communication.

Case 3:20-cv-00865-BAS-AHG Document 15-2 Filed 05/11/20 PageID.1406 Page 1 of 2

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

Case No.: 3:20-cv-00865-AJB-MDD
[Proposed] Order Regarding Briefing Schedule

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

28

[Proposed] Order

Case 3:20-cv-00865-BAS-AHG Document 15-2 Filed 05/11/20 PageID.1407 Page 2 of 2

1

Having reviewed Plaintiffs South Bay United Pentecostal Church and Bishop

2 Arthur Hodges III’s Ex Parte Application to Modify the Briefing Schedule on

3 Plaintiffs’ Application for a Temporary Restraining Order, and good cause appearing,

4 the application is hereby GRANTED.

5

Below is the briefing schedule on said Application:

6

o Monday, May 11, 2020: Plaintiffs Filed their Ex Parte Application, seeking to

7

resume worship services on the weekend of May 16–17, 2020.

8

o Wednesday, May 13, 2020 by 5:00 p.m.: Defendants’ opposition to ex parte

9

application is due.

10

o Thursday, May 14, 2020, by 3:00 p.m.: Plaintiffs’ reply papers in support of

11

ex parte application are due (five pages or less).

12

o Friday, May 15, 2020: The Court will hold a telephonic hearing on Friday,

13

May 15, 2020, at ________.

14

15 IT IS SO ORDERED.

16 Dated:__________________ 17 18

______________________ Hon. Anthony J. Battaglia United States District Judge

19

20

21

22

23

24

25

26

27

28
1 [Proposed] Order

 
 Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1452 Page 1 of 23

1 THOMAS E. MONTGOMERY, County Counsel (SBN 109654) County of San Diego
2 By TIMOTHYM. WHITE, Senior Deputy (SBN 220847) 1600 Pacific Highway, Room 355
3 San Diego, California 92101-2469 Telephone: (619) 531-4865; Fax: (619) 531-6005
4 E-mail: timothy.white@sdcounty.ca.gov

5 Attorneys for Defendants, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego; HELEN ROBBINS-MEYER, in her official capacity as
6 Director of Emergency Services; and WILLIAM D. GORE, in his official capacity as Sheriff of the County of San Diego,
7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10

11 SOUTH BAY UNITED PENTECOSTAL ) No. 20-cv-865-BAS-AHG

CHURCH, a California nonprofit

)

12 corporation, BISHOP ARTHUR HODGES)

III, an individual, RABBI MENDEL

) OPPOSITION TO PLAINTIFFS’ EX

13 POLICHENCO, an individual,

) PARTE APPLICATION FOR A

) TEMPORARY RESTRAINING ORDER

14

Plaintiffs,

) [ECF 12] BY DEFENDANTS:

)

15 v.

) 1. WILMA J. WOOTEN, in her

)

official capacity as Public Health

16 GAVIN NEWSOM, in his official capacity)

Officer for the County of San Diego;

as the Governor of California; XAVIER ) 2. HELEN ROBBINS-MEYER, in her

17 BECERRA, in his official capacity as the )

official capacity as Director of

Attorney General of California, SONIA )

Emergency Services; and

18 ANGELL, in her official capacity as

) 3. WILLIAM D. GORE, in his official

California Public Health Officer, WILMA )

capacity as Sheriff of the County of

19 J. WOOTEN, in her official capacity as )

San Diego

Public Health Officer, County of San )

20 Diego, HELEN ROBBINS-MEYER, in )

her official capacity as Director of

) Judge:

Hon. Cynthia Bashant

21 Emergency Services, WILLIAM D.

) Magistrate Judge: Hon. Allison H. Goddard

GORE, in his official capacity as Sheriff of)

22 the County of San Diego, KEVIN

) Action Filed: May 8, 2020

FAULCONER, in his official capacity as ) Trial Date:

None Set

23 Mayor of the City of San Diego, and

)

DAVID NISLEIT, in his official capacity )

24 as the Chief of police of the City of San )

Diego,

)

25

)

Defendants.

)

26

)

)

27

28

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1453 Page 2 of 23

1

TABLE OF CONTENTS

2 Table of Authorities ........................................................................................................ii

3 I. Introduction ..................................................................................................... 1

4 II. Summary of Arguments .................................................................................. 1

5 III. Relevant Background ......................................................................................4

6

A. The COVID-19 Global Pandemic and Public Health Emergency........4

7

B. Relevant State and County Public Health Orders and Regulations ...... 5

8

1. Governor Newsom’s Stay-at-Home Order Prohibits Plaintiffs’

9

Desired In-Person Church Services. The Governor Has

10

Asserted Sole Authority to Decide When In-Person Religious

Services and Similar Secular Gatherings Can Resume. ............. 5

11

2. County’s Public Health Order .................................................... 8

12

C. Plaintiffs’ Request for Immediate Large-Scale, In-Person Services .... 8 13

14

IV. Plaintiff is Not Entitled to a TRO....................................................................9

15

A. Standard for Issuing a TRO .................................................................. 9

16

B. Likelihood of Success on the Merits...................................................10

17

1. A TRO Against the County Defendants is Not Justified, as it

Would Not Provide Plaintiffs’ Any Effective Relief. The

18

Governor Has Asserted Sole Authority to Relax or Lift His

19

Stay-at-Home Order..................................................................10

20

2. Exercise of Executive Powers During State of Emergency...11

21

3. Traditional Constitutional Analysis ....................................... 14

22

a. Free Exercise Clause....................................................14

23

C. Other TRO Factors .............................................................................. 17

24 V. Conclusion ..................................................................................................... 19

25

26

27

28 i 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1454 Page 3 of 23

1

Table of Authorities

2 Cases

Page(s)

3

Am. Trucking Ass’ns v. City of L.A., 559 F.3d 1046 (9th Cir. 2009) ..................................................................................... 10

4 Calvary Chapel v. Mills,

5 No. 1:20-cv-00156-NT, 2020 U.S. Dist. LEXIS 81962 (D. Me. May 9, 2020) ..... 9, 18

6

Cantwell v. Conn., 310 U.S. 296 (1940) .................................................................................................... 14

7 Cassell v. Snyders, No. 20 C 50153, 2020 U.S. Dist. LEXIS 77512 (N.D. Ill. May 3, 2020) ..................... 9
8 Church of Lukumi Babalu Aye v. City of Hialeah,
9 508 U.S. 520 (1993) ........................................................................................ 14, 15, 16

10

Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020) ....... 9, 12

11 Doe v. McAleenan, 12 415 F. Supp. 3d 971 (S.D. Cal. 2019) ........................................................................... 9

13

Emp’t Div. v. Smith, 494 U.S. 872 (1990) ................................................................................................ 4, 14

14 FCC v. Beach Commc’ns, 15 508 U.S. 307 (1993) .................................................................................................... 17
Garcia v. Google, Inc., 16 786 F.3d 733 (9th Cir. 2015) ................................................................................. 10, 17

17 Gish v. Newsom, No. EDCV 20-755 JGB KKX, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020) ... passim
18 Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers , 19 415 U.S. 423 (1974) ...................................................................................................... 9

20

Heller v. Doe, 509 U.S. 312 (1993) .................................................................................................... 17

21 In re Abbott,

22 2020 WL 1685929 (5th Cir. Apr. 7, 2020) ................................................................. 12

23

Jacobson v. Commonwealth of Mass., 197 U.S. 11 (1905) ...................................................................................................... 12

24 Jacobson v. Massachusetts, 197 U.S. 11 (1905) ...................................................................................... 3, 10, 12, 13
25 Legacy Church, Inc. v. Kunkel,
26 No. CIV 20-0327 JB/SCY, 2020 U.S. Dist. LEXIS 68415 (D.N.M. Apr. 17, 2020) ... 9

27

Lighthouse Fellowship Church v. Northam, No. 2:20CV204, 2020 WL 2110416 (E.D. Va. May 1, 2020) .............................. 4, 5, 9

28

ii 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1455 Page 4 of 23

1

Lockheed Missile & Space Co. v. Hughes Aircraft Co. , 887 F. Supp. 1320 (N.D. Cal. 1995) ............................................................................. 9

2 Parents for Privacy v. Barr, 949 F.3d 1210 (9th Cir. 2020) ............................................................................... 15, 16
3 Prince v. Massachusetts,
4 321 U.S. 158 (1944) .................................................................................................... 13

5

Roberts v. Neace, No. 20-5465, 2020 U.S. App. LEXIS 14933 (6th Cir. May 9, 2020) ........................... 9

6 Stormans, Inc. v. Selecky, 7 586 F.3d 1109 (9th Cir. 2009) ............................................................................... 14, 16

8

Stormans, Inc. v. Wiesman, 794 F.3d 1064 (9th Cir. 2015) ..................................................................................... 15

9 Victoria v. City of San Diego, 10 326 F. Supp. 3d 1003 (S.D. Cal. 2018) ......................................................................... 1
Winter v. NRDC, Inc., 11 555 U.S. 7 (2008) ........................................................................................................ 10

12 Other

13 Fed. R. Civ. P. 65(b) ........................................................................................................ 10

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 iii 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1456 Page 5 of 23

1 I. Introduction

2

The ex parte application for a temporary restraining order (TRO) [ECF 12] brought

3 by plaintiffs South Bay United Pentecostal Church (the “Church”) and Bishop Arthur 4 Hodges III (“Bishop Hodges”) (collectively, “Plaintiffs”)1 should be denied. Plaintiffs

5 ask this Court to override the considered judgment of this State’s public health officials,

6 to allow Plaintiff to have at least three to five services this Sunday (and each Sunday

7 thereafter) with hundreds of people gathered in a single room during each service. The

8 County defendants (County Public Health Officer, Dr. Wilma J. Wooten; San Diego

9 County Sheriff William D. Gore; and County Emergency Services Director Helen 10 Robbins-Meyer, sued in their official capacity2), while sympathetic to the sacrifice the

11 Church and its members have made over the last two months while the public health

12 departments in this State have worked to contain a global pandemic, urge the Court not to

13 enjoin the emergency public health measures that have helped California and the County

14 of San Diego “flatten the curve” to avoid the region’s hospitals and healthcare system

15 from being overwhelmed. Plaintiffs have not carried their heavy burden to justify the

16 extraordinary remedy of a TRO or preliminary injunction.

17 II. Summary of Arguments

18

On March 19, 2020, Governor Newsom ordered “all individuals living in the State

19 of California to stay home” in order to flatten the curve of the COVID-19 infection 20 growth rate.3 His order has temporarily closed businesses and prohibits in-person

21 gatherings, except for specified categories of work and activities deemed essential to the

22 critical infrastructure of this State, and to the health and safety of the millions of

23

1 On May 11, 2020, Plaintiffs filed a request for voluntary dismissal of plaintiff

24 Rabbi Mendel Polichenco and his claims. [ECF 10]

25

2 The three County defendants are sued in their official capacities only. Accordingly, these defendants are at times referred to collectively as the “County.” [See

26

Victoria v. City of San Diego, 326 F. Supp. 3d 1003, 1014 (S.D. Cal. 2018) (“An officialcapacity suit is, in all respects other than name, to be treated as a suit against the

27 entity.”).]

28

3 Executive Order N-33-20, attached as Exhibit 1 to the Request for Judicial Notice (“RJN”) filed herewith.

1

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1457 Page 6 of 23

1 Californians staying at home (e.g., grocery stores, pharmacies, banks). While “faith-based

2 services” are included in the list of exemptions to the Governor’s stay-at-home order,

3 they are permitted only to the extent they can be provided through online streaming or

4 other technological means (such as a drive-in style service where the message is

5 broadcast to car radios).

6

In-person religious services will be allowed in Stage 3 of the Governor’s four-stage

7 Resiliency Roadmap, and the Governor has indicated that California may move into

8 Stage 3 within a month. In the meantime, the Governor has made clear that local

9 governments have no authority to relax or lift the State’s stay-at-home order (e.g., by

10 allowing a business to reopen before the State gives its approval). In fact, the Governor’s

11 office recently warned several counties that they may lose disaster funding by allowing

12 businesses and activities to resume before the Governor authorizes the resumption of

13 such activities.4 Because the State insists that counties have no discretion to move to

14 Stage 3 before the Governor permits them to do so, any restraining order directed at the

15 County would be meaningless; Plaintiffs’ request for relief must be directed to the State

16 defendants. Thus, a TRO against the County defendants should be denied.

17

Separately, and as to all defendants, the TRO should be denied because the factors

18 for issuing preliminary injunctive relief tip sharply against Plaintiffs. Bishop Hodges and

19 his Church ask this Court, on just a few days’ notice, to invalidate or rewrite key

20 provisions of the State’s emergency public health orders and guidelines in the middle of

21 defendants’ response to a once-in-a-lifetime public health crisis. As noted,

22 notwithstanding the Governor’s generally-applicable stay-at-home order, Plaintiffs want

23 to resume immediately in-person religious services, which historically have involved

24 three to five separate services each Sunday, with 200-300 individuals congregating in a

25

4 See, Taryn Luna, Newsom warns defiant counties they could lose coronavirus

26

cash for reopening early. L.A. Times, May 8, 2020, https://www.latimes.com/california/story/2020-05-08/newsom-disaster-funds-yuba-

27

sutter-modoc-counties-california-reopening (last visited May 11, 2020); see also, May 7, 2020 letter from Governor’s Office of Emergency Services to the Chief Administrative

28 Officer for Sutter County, attached as Exhibit 2 to the RJN.

2 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1458 Page 7 of 23

1 single indoor location for the duration of each service. [TRO application, ECF 12-1, at p.

2 9:18-215; Hodges Decl., ECF 12-2, at ¶¶ 12-13, 24.]

3

Just last Friday, Governor Newsom indicated that the State may reach Stage 3 of

4 his phased reopening plan (the “Resilience Roadmap”) in less than a month, indicating

5 that the State may be only three to four weeks away from allowing in-person religious

6 services, and multiple other types of gatherings, subject to satisfying specific, detailed

7 checklists of sanitation and health mitigation measures. Governor Newsom stated:

8 “[P]hase III is not a year away, it’s not six months away, it’s not even three months

9 away. It may not even be more than a month away.” [May 8, 2020 press conference by

10 Governor Newsom, with video linked to at the official Twitter account of the “Office

11 of the Governor of California,” @CAgovernor,6 at the 45:35 to 45:45 time mark.] With

12 relief potentially just a short time away, there is simply no need for the extraordinary

13 remedy of a TRO.

14

Additionally, the threat posed to the community by COVID-19 remains substantial.

15 Just this last Sunday, on Mother’s Day, May 10, 2020, California recorded its second-

16 highest weekly number of COVID-19-related deaths since the pandemic began.7 State

17 and local public health officials must retain the power and flexibility to respond quickly

18 to flare ups and other emergencies as they arise. Whether this Court reviews defendants’

19 emergency public health measures under Jacobson v. Commonwealth of Massachusetts,

20 197 U.S. 11, 27 (1905), or under ordinary constitutional principles such as the Free

21

22

5 Page numbers for cited ECF documents refer to the page numbers stamped atop each page.

23

6 https://twitter.com/CAgovernor/status/1258833189750988801 (last visited

24 5/9/20).

25

7 “For the seven-day period that ended Sunday, 503 people in California died from the virus — the second-highest weekly death toll in the course of the pandemic and a

26

1.6% increase from the previous week.” [Rong-Gong Lin II & Iris Lee, California coronavirus deaths hit stubborn plateau; experts fearful about future. The San Diego

27

Union-Tribune, May 12, 2020, https://www.sandiegouniontribune.com/news/california/story/2020-05-12/california-

28 coronavirus-deaths-have-reached-stubborn-plateau.]

3 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1459 Page 8 of 23

1 Exercise principles of Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S.

2 872, 879 (1990) (Smith) Plaintiffs’ application for a TRO should be denied.

3 III. Relevant Background

4

A. The COVID-19 Global Pandemic and Public Health Emergency

5

“On December 31, 2019, China reported incidents of a pneumonia of unknown

6 cause to the World Health Organization. Since then, that infectious disease, which came

7 to be known as coronavirus disease 2019 (COVID-19), has swept the globe, infecting

8 millions and killing [now over] two hundred thousand people.” [Gish v. Newsom, No.

9 EDCV 20-755 JGB KKX, 2020 WL 1979970, at *2 (C.D. Cal. Apr. 23, 2020)8.] “There

10 is currently no vaccine for the novel coronavirus, and it remains unlikely that one will be

11 developed in the coming months.” [Lighthouse Fellowship Church v. Northam, No.

12 2:20CV204, 2020 WL 2110416, at *1 (E.D. Va. May 1, 2020)9.]

13

“The CDC has announced that the novel coronavirus (‘COVID-19’) is spread

14 primarily through in-person interactions, either ‘[b]etween people who are in close

15 contact with one another’ or ‘[t]hrough respiratory droplets produced when an infected

16 person coughs, sneezes or talks.’” [Id., at *2.]10 “It can be spread by people who are not

17 showing symptoms and do not know they are infected with the virus.” [Id.] And the

18 “virus can travel up to thirteen feet through the air, and can live on surfaces, including

19 shoes, for long periods of time.” [Id.11] “Consistent with this information, the CDC

20

21

8 Citing World Health Organization, Coronavirus Disease 2019 Situation Report, April 23, 2020 https://www.who.int/docs/default-source/coronaviruse/situation-

22 reports/20200423-sitrep-94-covid-19.pdf?sfvrsn=b8304bf0_4.

23

9 Citing Knvul Sheikh & Katie Thomas, More Coronavirus Vaccines and Treatments Move Towards Human Trials, N.Y. TIMES (Apr. 8, 2020),

24 https://www.nytimes.com/2020/04/08/health/coronavirus-vaccines.html.

25

10 Citing CDC, How COVID-19 Spreads (last updated Apr. 13, 2020), https://www.cdc.gov/corona-virus/2019-ncov/prevent-getting-sick/how-covid-

26 spreads.html.

27

11 Citing Zhen-Dong Guo, et al., Aerosol and Surface Distribution of Severe Acute

Respiratory Syndrome Coronavirus 2 in Hospital Wards, Wuhan, China, 2020, 26

28 Emerging Infectious Diseases 7 (2020), https://doi.org/10.3201/eid2607.200885.

4

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1460 Page 9 of 23

1 currently recommends that everyone practice social distancing.” [Id.12] “Social distancing

2 requires staying at least six feet away from other people and ‘avoid[ing] large and small

3 gatherings.’” [Id.13]

4

Although the numerous and bold emergency public health measures taken by the

5 Governor and local public health officials in this State have undoubtedly helped to

6 “flatten the curve” and avoid our hospitals and emergency medical care system from

7 being overwhelmed, the threat to the public from COVID-19 remains substantial. For

8 example, on Monday, May 11, 2020, the State reported a one-day increase of 77 new

9 COVID-19 deaths, bringing the total number of deaths in this State attributable to the

10 disease to 2,847. [See COVID-19 Statewide Update for May 12, 2020, at

11 update.covid19.ca.gov (accessed on May 12, 2020); see also, May 12, 2020 news story

12 cited in fn. 7, supra (“For the seven-day period that ended Sunday [May 10, 2020], 503

13 people in California died from the virus – the second highest weekly death toll in the

14 course of the pandemic.”).]

15

B. Relevant State and County Public Health Orders and Regulations

16

The State and County public health orders and regulations relevant to this action

17 are as follows:

18

1.

19

20

Governor Newsom’s Stay-at-Home Order Prohibits Plaintiffs’ Desired In-Person Church Services. The Governor Has Asserted Sole Authority to Decide When In-Person Religious Services and Similar Secular Gatherings Can Resume.

21

In response to the COVID-19 pandemic, Governor Newsom issued Executive

22 Order N-33-20 on March 19, 2020. [3/19/20 Executive Order N-33-20, at RJN, Exh. 1.]

23

24

25

12 Citing CDC, How COVID-19 Spreads (last updated Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-

26 spreads.html.

27

13 Citing CDC, What is Social Distancing? (last updated Apr. 4, 2020),

28 https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.

5 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1461 Page 10 of 23

1 That order, which incorporated the State’s March 19, 2020 Public Health Order, required

2 “all residents” of the State of California “to immediately heed the current State public

3 health directives,” including the State’s March 19, 2020 Public Health Order that was

4 incorporated into Executive Order N-33-20. [Id.] And in an effort to slow the spread of

5 the deadly virus (including by asymptomatic infected persons), and to ensure that

6 California’s hospitals and emergency medical care system were not overwhelmed by

7 demand, the Governor ordered “all individuals living in the State of California to stay at

8 home or at their place of residence, except as needed to maintain continuity of operations

9 of the federal critical infrastructure sectors.” [Id.]

10

The express exemption from the Governor’s stay-at-home order for “federal

11 critical infrastructure sectors” applied to those workers, businesses, and activities deemed

12 essential to meet the immediate health and safety needs of the populace while they are

13 temporarily sheltering in place at home to help “flatten the curve” of COVID-19 growth

14 rate. Specifically, the State published a list of the categories of businesses, workers, and

15 activities (“critical infrastructure sectors”) that are exempt from the stay-at-home order.

16 The current list, published on April 28, 2020, permits grocery stores, pharmacies,

17 doctor’s offices (for emergency medical care), and the like to remain open, in order to

18 ensure that California’s residents can safely remain in their homes. [Calif. List of

19 Essential Critical Infrastructure Workers (rev. 4/28/20), at RJN, Exh. 3.]

20

Of relevance to this case, the list designates the following category of faith-based

21 workers and activities as exempt from the Governor’s stay-at-home order: “Clergy for

22 essential support and faith-based services that are provided through streaming or other

23 technologies that support physical distancing and state public health guidelines.” [RJN,

24 Exh. 3, at § 8, ¶ 16.] The Governor has clarified that this exemption from his stay-at-

25 home order not only applies to the online streaming of religious services, but also permits

26 drive-in style services “as long as the individuals engaged in such services abide by

27 physical distancing guidelines and refrain from direct and indirect physical touching of

28 others.” [See Governor Newsom’s 4/17/20 opposition to TRO application, filed in Gish v. 6 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1462 Page 11 of 23

1 Newsom (C.D. Cal. Case No. 5:20-cv-00755), at ECF 13-1, pp. 7-8, 18.]

2

Lastly, the Governor foresees relaxing or lifting the restrictions on in-person

3 religious services and other secular gatherings (such as movie theaters) in Stage 3 of his

4 four-stage “Resilience Roadmap” for gradual easing or rescinding of his stay-at-home

5 order. (See, covid19.ca.gov/roadmap.) In his May 8, 2020 press conference, the Governor

6 stated that California may move into Stage 3 in a month’s time (i.e., possibly by early

7 June). “[P]hase III is not a year away, it’s not six months away, it’s not even three

8 months away. It may not even be more than a month away.” [May 8, 2020 press

9 conference by Governor Newsom, with video linked to at the official Twitter account

10 of the “Office of the Governor of California,” @CAgovernor,14 at the 45:35 to 45:45

11 time mark.]

12

But the Governor has made one thing abundantly clear: he asserts sole authority to

13 decide when the State will move to Stage 3, and thus when his stay-at-home order will be

14 modified to permit in-person religious services and similar secular gatherings. The

15 Governor has repeatedly emphasized his view that local governments and officials have

16 no power to ease or lift his stay-at-home order, as they apply to Stage 3 activities,

17 including in-person religious assemblies, until the Governor first modifies or lifts the

18 State order.15 In fact, the Governor’s Office of Emergency Services recently warned

19 several counties that they may lose critical federal disaster funding by attempting to ease

20 restrictions on businesses, or permit them to re-open, beyond what the Governor’s orders

21 allow.16

22

23

14 https://twitter.com/CAgovernor/status/1258833189750988801 (last visited

24 5/9/20)

25

15 See, Taryn Luna, Newsom warns defiant counties they could lose coronavirus cash for reopening early. L.A. Times, May 8, 2020,

26

https://www.latimes.com/california/story/2020-05-08/newsom-disaster-funds-yubasutter-modoc-counties-california-reopening (last visited May 11, 2020).

27

16 Id.; see also, RJN, Exh. 2 (May 7, 2020 letter from Governor’s Office of

28 Emergency Services to the Chief Administrative Officer for Sutter County).

7 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1463 Page 12 of 23

1

2. County’s Public Health Order

2

While the County’s Public Health Officer (Dr. Wooten) has issued several orders

3 in response to the COVID-19 public-health crisis, the current version of the County’s

4 Public Health Order became effective May 10, 2020. [See 5/9/20 “Order of the Health

5 Officer and Emergency Regulations,” effective 5/10/20, at RJN, Exh. 4.] While the

6 County’s order broadly prohibits “public or private ‘gatherings,’” as defined in section

7 18b of the order, the County has incorporated by reference all of the Governor’s

8 exemptions from his stay-at-home order (i.e., those sectors and activities included on the

9 State’s April 28, 2020 list of “essential critical infrastructure workers”). [RJN, Exh. 4, at

10 ¶¶ 2, 18; see also, RJN, Exh. 3.]

11

Thus, as relevant to this case, the County’s stay-at-home order does not prohibit

12 “clergy for essential support and faith-based services that are provided through streaming

13 or other technologies that support physical distancing and state public health guidelines.”

14 [RJN, Exh. 4, at ¶¶ 2, 18; see also, RJN, Exh. 3, at § 8, ¶ 16.] Plaintiffs are thus

15 permitted, under both the State and (by extension) the County’s stay-at-home orders, to

16 engage in those activities necessary to broadcast their services via streaming or other

17 technology, or to have drive-in style services to the extent the physical distancing can be

18 maintained. The Governor has indicated that the restrictions on in-person gatherings,

19 including religious services, will be relaxed or removed as the public health data

20 improve.

21

C. Plaintiffs’ Request for Immediate Large-Scale, In-Person Services

22

Plaintiffs seek a TRO allowing the Church to resume large-scale, in-person

23 services immediately (i.e., starting this Sunday, May 17, 2020). [ECF 12-1, at p. 9:18-

24 21.] According to Pastor Hodges’ declaration, the Church holds between three and five

25 services each Sunday, with an average of 200 to 300 congregants attending each service

26 (in a room or sanctuary that Bishop Hodges estimates can seat 600). [Hodges Decl., ECF

27 12-2, at ¶ 12.] Bishop Hodges stresses that a key part of the Church’s services is to invite

28 those “with special needs or sickness” to come forward, “where hands are laid upon 8 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1464 Page 13 of 23

1 them” in accordance with Acts 19:6. [Id., at ¶¶ 13-14 (describing the importance of the

2 physical laying on of hands to their faith).] It appears from Bishop Hodges’ declaration

3 that physical contact between Church staff and congregants would occur if the Court

4 grants the TRO; and it seems likely that there would be hundreds of people attending

5 each of the multiple Sunday services. [Id., at ¶¶ 12-14, 24, 26-27.]

6 IV. Plaintiff is Not Entitled to a TRO

7

To date, three federal courts in California have ruled on churches’ requests for

8 TROs against the stay-at-home orders in this State. The courts in each case issued well-

9 reasoned decisions denying the churches’ TRO applications. [See, Gish, supra, at 2020

10 WL 1979970; Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832-JAM-CKD,

11 2020 WL 2121111 (E.D. Cal. May 5, 2020); Abiding Place Ministries v. Wooten, et al.,

12 No. 20-cv-683-BAS-AHG (S.D. Cal. April 10, 2020) (ruling denying TRO as reflected

13 by transcript of 4/10/20 hearing, at RJN, Exh. 5).]17 Plaintiffs’ similar request should

14 fare no better here.

15

A. Standard for Issuing a TRO

16

“The purpose of a TRO is to preserve the status quo before a preliminary

17 injunction hearing may be held; its provisional remedial nature is designed merely to

18 prevent irreparable loss of rights prior to judgment.” [Doe v. McAleenan, 415 F. Supp. 3d

19 971, 976 (S.D. Cal. 2019), citing Granny Goose Foods, Inc. v. Brotherhood of Teamsters

20 & Auto Truck Drivers, 415 U.S. 423, 439 (1974).] “The standard for issuing a temporary

21 restraining order is identical to the standard for issuing a preliminary injunction.

22 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323

23 (N.D. Cal. 1995).” [Id.] “An application for a temporary restraining order involves the

24

17 Outside of California, most federal courts that have considered churches’

25

requests for TROs against similar COVID-19 stay-at-home orders, have likewise denied the requests. See, e.g., Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB/SCY, 2020

26

U.S. Dist. LEXIS 68415 (D.N.M. Apr. 17, 2020) (Legacy Church); Lighthouse Fellowship Church v. Northam, No. 2:20CV204, 2020 WL 2110416 (E.D. Va. May 1,

27

2020); Cassell v. Snyders, No. 20 C 50153, 2020 U.S. Dist. LEXIS 77512 (N.D. Ill. May 3, 2020); Calvary Chapel of Bangor v. Mills, No. 1:20-cv-00156-NT, 2020 U.S. Dist.

28

LEXIS 81962 (D. Me. May 9, 2020); but see, Roberts v. Neace, 2020 U.S. App. LEXIS 14933 (6th Cir. May 9, 2020).

9

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1465 Page 14 of 23

1 invocation of a drastic remedy which a court of equity ordinarily does not grant, unless a

2 very strong showing is made of a necessity and desirability of such action.” [Postmates

3 Inc. v. 10,356 Individuals, No. hell (emphasis added; internal citation omitted).] To meet

4 that showing, a plaintiff “must establish that [it] is likely to succeed on the merits, that [it]

5 is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

6 equities tips in [its] favor, and that an injunction is in the public interest.” [Am. Trucking

7 Ass'ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009), quoting Winter v.

8 NRDC, Inc., 555 U.S. 7, 20 (2008); see also, Fed. R. Civ. P. 65(b).]

9

B. Likelihood of Success on the Merits

10

“The first factor under Winter is the most important – likely success on the merits.”

11 [Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).] A TRO is an “extraordinary

12 remedy that may only be awarded upon a clear showing that the plaintiff is entitled to

13 such relief.” [Winter, supra, 555 U.S. at 22 (italics added).] Plaintiffs cannot meet this

14 heavy burden with respect to the County defendants, for three reasons. First, the

15 restrictions Plaintiffs ask this Court to lift are imposed by the State’s stay-at-home order,

16 which Governor Newsom has made clear that counties have no power to relax or lift

17 (upon threat of loss of federal disaster funds). Second, the TRO request fails under

18 Jacobson’s “minimal scrutiny” for public health orders issued in response to a public

19 health emergency. [Gish v. Newsom, supra, 2020 WL 1979970, at *11, citing Jacobson,

20 supra, 197 U.S. at 27; see also, Abiding Place Ministries v. Wooten, et al., No. 20-cv-

21 683-BAS-AHG (S.D. Cal. April 10, 2020).] And third, “even absent consideration of

22 greater leeway afforded to executive acts during a state of emergency, the Orders do not

23 violate Plaintiffs’ rights under traditional constitutional analysis.” [Ibid.]

24

1. A TRO Against the County Defendants is Not Justified, as it

Would Not Provide Plaintiffs’ Any Effective Relief. The Governor

25

Has Asserted Sole Authority to Relax or Lift His Stay-at-Home

26

Order.

27

Even if Plaintiffs’ constitutional claims had merit (which they do not), a

28 TRO against the County defendants would not be justified. As discussed above, the 10 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1466 Page 15 of 23

1 County’s stay-at-home order incorporates all of the exemptions from the Governor’s

2 stay-at-home order. [RJN, Exh. 4, at ¶¶ 18a and 18b.] Thus, the County’s order does not

3 prohibit the activities of “[c]lergy for essential support and faith-based services that are

4 provided through streaming or other technologies that support physical distancing and

5 state public health guidelines.” [RJN, Exh. 3, at § 8, ¶ 16.] At present, the Governor has

6 interpreted this exemption to permit the production of religious services via streaming

7 technology, as well as drive-in style worship services. [See Governor Newsom’s 4/17/20

8 opposition to TRO application, filed in Gish v. Newsom, No. EDCV 20-755 JGB (KKx)

9 (C.D. Cal.), at ECF 13-1, pp. 7-8, 18.]

10

Plaintiffs want to resume large, in-person church services. But under the

11 Governor’s stay-at-home order, in-person religious services (along with multiple other

12 types of gatherings) cannot resume until California reaches Stage 3 of the Governor’s

13 Resilience Roadmap. (See, covid19.ca.gov/roadmap) And the Governor has asserted the

14 sole authority to move the State to relax or lift the temporary restrictions under his

15 Executive Orders. Indeed, the Governor’s Office of Emergency Services has warned

16 counties in writing that they may lose access to disaster funding by attempting to re-open

17 businesses or ease restrictions beyond what the State orders allow.

18

Accordingly, a TRO against the County defendants is not justified (even if

19 Plaintiffs had a likelihood of success on the merits of their claims), as the Governor has

20 made clear that local governments and officials cannot allow what the Governor’s stay-

21 at-home order currently prohibits.

22

2. Exercise of Executive Powers During State of Emergency

23

When a State or local government enacts emergency measures to combat a

24 serious public health emergency, such temporary executive action “are entitled to

25 substantial judicial deference and [are] not subject to traditional constitutional scrutiny.”

26 [Gish, supra, 2020 WL 1979970 at *11.] “Defendants have a right to protect California

27 residents from the spread of COVID-19—even if those protections temporarily burden

28 constitutional rights to a greater degree than normally permissible.” [Id., at *11-12.] 11 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1467 Page 16 of 23

1

“The Supreme Court held over a century ago that ‘a community has the right to

2 protect itself against an epidemic of disease which threatens the safety of its members.’”

3 [Gish, supra, at *12, quoting Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11,

4 27 (1905).] To do so, a State may “exercise . . . its general police powers to promote

5 public safety during a public health crisis.” [Cross Culture Christian Ctr., supra, 2020

6 WL 2121111, at *3, citing Jacobson, supra, at 25.] And states’ police powers – which

7 they may invest in “counties and cities within their province” – “entails the authority ‘to

8 enact quarantine laws and health laws of every description.’” [Id.]

9

“Recognizing that the need to protect the public may trump individual rights

10 during a crisis, the Supreme Court has held that states and municipalities have greater

11 leeway to burden constitutionally protected rights during public emergencies:

12 In every well-ordered society charged with the duty of conserving the safety

13

of its members the rights of the individual in respect of his liberty may at

14

times, under the pressure of great dangers, be subjected to such restraint, to

be enforced by reasonable regulations, as the safety of the general public

15

may demand.

16 [Gish, supra, 2020 WL 1979970 at *4-5, quoting Jacobson, 197 U.S. at 29.]

17

“When responding to the COVID-19 pandemic, therefore, Defendants ‘may

18 implement emergency measures that curtail constitutional rights so long as the measures

19 have at least some “real or substantial relation” to the public health crisis and are not

20 “beyond all question, a plain, palpable invasion of rights secured by the fundamental

21 law.”’” [Gish, at *5, quoting In re Abbott, 2020 WL 1685929, at *7 (5th Cir. Apr. 7,

22 2020) (quoting Jacobson, 197 U.S. at 31).] “In other words, during an emergency,

23 traditional constitutional scrutiny does not apply. Instead, any measures that limit or

24 suspend constitutional rights (1) must have a ‘real or substantial relation’ to the crisis and

25 (2) must not represent ‘plain, palpable’ invasions of clearly protected rights.” [Gish,

26 supra, at *5, quoting Jacobson, 197 U.S. at 31.]

27

The challenged, temporary restrictions on Plaintiffs’ ability to hold in-person

28 services, with hundreds of congregants at each service, easily meet the Jacobson test. 12 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1468 Page 17 of 23

1 First, they have a “real or substantial relation” to the crisis, as the science shows that

2 COVID-19 is easily passed between individuals, especially indoors, and individuals who

3 have no symptoms of the disease can nevertheless be infected and infect others with the

4 virus.18 In fact, on May 12, 2020, the CDC published a report detailing how a church

5 choir practice in the State of Washington on March 10, 2020, became a “superspreader

6 event.” Specifically, a single individual choir member infected up to 53 other choir

7 members at the practice, even though the choir members had no physical contact during

8 practice, with the transmission likely facilitated by droplets being expelled into the air

9 during singing, as well as the choir members sitting near each other and then

10 congregating after practice while they ate cookies and stacked the chairs. [See, Centers

11 for Disease Control and Prevention, Morbidity and Mortality Weekly Report (Vol. 69,

12 May 12, 2020), at RJN, Exh. 6; see also, Carla K. Johnson (The Associated Press), Mount

13 Vernon choir outbreak was “superspreader event,” says CDC report on how easily virus

14 spreads. The Seattle Times, May 12, 2020, https://www.seattletimes.com/seattle-

15 news/health/mount-vernon-choir-outbreak-was-superspreader-event-says-cdc-report-on-

16 how-easily-virus-spreads/ (last visited 5/12/20).]

17

Second, the temporary restrictions on in-person gatherings does not “represent

18 ‘plain, palpable’ invasions of clearly protected rights.” [Gish, supra, at *5, quoting

19 Jacobson, 197 U.S. at 31.] While Plaintiffs temporarily cannot hold their traditional, in-

20 person services, they can broadcast their services through streaming technology or other

21 means, and they can hold drive-in style services. While this is not a perfect substitute for

22 the in-person assembly of the faithful, it is a temporary emergency measure in the face of

23 a once-in-a-lifetime global pandemic. “The right to practice religion freely does not

24 include liberty to expose the community . . . to communicable disease.” [Prince v.

25 Massachusetts, 321 U.S. 158, 166-167 (1944).] The Governor is already discussing the

26 time frame for moving the State into Stage 3 of his Resiliency Roadmap, when in-person

27

18 Citing CDC, How COVID-19 Spreads (last updated Apr. 13, 2020),

28

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html

13

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1469 Page 18 of 23

1 religious services may resume. The challenged emergency public health measures should

2 be upheld under Jacobson, and the TRO denied.

3

3. Traditional Constitutional Analysis

4

Plaintiffs’ TRO application should be denied under Jacobson. Likewise,

5 Plaintiffs’ request lacks merit under traditional constitutional analysis.

6

a. Free Exercise Clause

7

The gravamen of Plaintiffs’ TRO application is their Free Exercise claim.

8 [See, Memo. of P&A, ECF 12-1, at pp. 13-21.] Because the challenged emergency public

9 health order is a valid and neutral law of general applicability that does not target

10 Plaintiff’s exercise of religion, Plaintiffs are not likely to succeed on their Free Exercise

11 claim, and the TRO should be denied.

12

“The Free Exercise Clause, applicable to the states through the Fourteenth

13 Amendment, provides that ‘Congress shall make no law . . . prohibiting the free exercise

14 [of religion],’ U.S. Const., amend. I.” [Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127

15 (9th Cir. 2009) (Selecky) (internal citation omitted).] “The right to freely exercise one's

16 religion, however, ‘does not relieve an individual of the obligation to comply with a valid

17 and neutral law of general applicability on the ground that the law proscribes (or

18 prescribes) conduct that his religion prescribes (or proscribes).” [Id., quoting Smith,

19 supra, 494 U.S. at 879 (internal quotation omitted).]

20

“Underlying the Supreme Court's jurisprudence is the principle that the Free

21 Exercise Clause ‘embraces two concepts – freedom to believe and freedom to act. The

22 first is absolute but, in the nature of things, the second cannot be. Conduct remains

23 subject to regulation for the protection of society.’” [Selecky, at 1128, quoting Cantwell v.

24 State of Conn., 310 U.S. 296, 303-304 (1940) (underscore added).] “Under the governing

25 standard, ‘a law that is neutral and of general applicability need not be justified by a

26 compelling governmental interest even if the law has the incidental effect of burdening a

27 particular religious practice.’” [Id. at 1127-1128, quoting Church of the Lukumi Babalu

28 Aye, Inc. v. City of Hialeah, 508 U.S. 520, 53 (1993) (Lukumi).] 14

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1470 Page 19 of 23

1

“In assessing neutrality and general applicability, courts evaluate both ‘the text of

2 the challenged law as well as the effect . . . in its real operation.’” [Parents for Privacy v.

3 Barr, 949 F.3d 1210, 1234 (9th Cir. 2020) (Parents for Privacy), quoting Selecky, supra,

4 794 F.3d at 1076 (ellipsis in original).] “[T]he two tests for whether a law is neutral and

5 generally applicable focus on whether a law specifically targets or singles out religion.”

6 [Id. at 1234-1235.] As this Court recently held, the County’s public health order is

7 neutral and generally applicable, and thus passes both tests. [See, Abiding Place

8 Ministries v. Wooten, et al., No. 20-cv-683-BAS-AHG (S.D. Cal. April 10, 2020) (ruling

9 denying TRO as reflected by transcript of 4/10/20 hearing, at RJN, Exh. 5).]

10

The first test asks whether the law is “neutral” with respect to religion. “If the

11 object of a law is to infringe upon or restrict practices because of their religious

12 motivation, the law is not neutral.” [Parents for Privacy, supra, 949 F.3d at 1235 (internal

13 citation omitted).] Here, Plaintiff presents no evidence that the County issued its

14 emergency public health orders, or incorporated the State’s exemptions for “essential

15 critical infrastructure workers,” out of any desire or intent to target Plaintiff’s gatherings

16 (or religious gatherings in general) because of the gatherings’ religious nature or

17 motivation. The County’s stay-at-home order applies generally countywide, and has

18 required the temporary closure of myriad businesses, events, and areas where people

19 gather, without respect to the secular or religious nature of any such establishment or

20 gathering.

21

The second test asks whether the challenged law has “general applicability” – that

22 is, “whether a law treats religious observers unequally.” [Parents for Privacy, supra, 949

23 F.3d at 1235, citing Lukumi, supra, 508 at 542.] As the Supreme Court has noted,

24 “inequality results when a legislature decides that the governmental interests it seeks to

25 advance are worthy of being pursued only against conduct with a religious motivation.”

26 [Lukumi, supra, at 542-543 (italics added).] “Thus, a law is not generally applicable if its

27 prohibitions substantially underinclude non-religiously motivated conduct that might

28 endanger the same governmental interest that the law is designed to protect.” [Parents for 15 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1471 Page 20 of 23

1 Privacy, supra, 949 F.3d at 1235 (internal citations omitted).]

2

“In other words, if a law pursues the government's interest ‘only against conduct

3 motivated by religious belief,’ but fails to include in its prohibitions substantial,

4 comparable secular conduct that would similarly threaten the government's interest, then

5 the law is not generally applicable.” [Parents for Privacy, supra, 949 F.3d at 1235,

6 quoting Lukumi, 508 U.S. at 545.] “For example, in Lukumi, the Court concluded that the

7 challenged ordinances were not generally applicable because they ‘pursue[d] the city's

8 governmental interests only against conduct motivated by religious belief’ and ‘fail[ed] to

9 prohibit nonreligious conduct that endanger[ed] these interests in a similar or greater

10 degree than [the plaintiff’s religious practice] does.’” [Id., quoting Lukumi, 508 U.S. at

11 543, 545.]

12

Here, as this Court already held in its Abiding Place Ministries decision, the

13 challenged public health order in no way places “demands exclusively (or even

14 principally) on religious persons or conduct.” [Parents for Privacy, supra, 949 F.3d at

15 1235.] The County’s stay-at-home orders applies generally to all individuals, businesses,

16 and other gatherings of people in the State and County, except for a limited number of

17 businesses in “critical infrastructure sectors” designated by the federal and State

18 governments as necessary to protect the health and safety of the community while people

19 hunker down and engage in the extreme social distancing needed to flatten the curve by

20 stemming and slowing the transmission of the virus.

21

Because the challenged public health orders “qualif[y] as neutral and generally

22 applicable, [they are] not subject to strict scrutiny.” [Parents for Privacy, supra, 949 F.3d

23 at 1236, citing Selecky, 586 F.3d at 1129 (“[A] neutral law of general applicability will

24 not be subject to strict scrutiny review.”).] Instead, the County’s order is reviewed “for a

25 rational basis, which means that the [order] must be upheld if it is rationally related to a

26 legitimate governmental purpose.” [Id. at 1238; see also Selecky, 586 F.3d at 1127-

27 1128 (“Under the governing standard, ‘a law that is neutral and of general applicability

28 need not be justified by a compelling governmental interest even if the law has the 16 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1472 Page 21 of 23

1 incidental effect of burdening a particular religious practice.’”).]

2

Under rational basis review, Plaintiff has the burden to negate “every conceivable

3 basis which might support” the County’s order. [F.C.C. v. Beach Communs., Inc., 508

4 U.S. 307, 315 (1993) (underscore added).] And Plaintiff’s duty to negate every rational

5 basis supporting the order exists “whether or not the basis has a foundation in the

6 record.” [Heller v. Doe by Doe, 509 U.S. 312, 320-321 (1993).] In its application,

7 Plaintiff made no attempt to negate every conceivable basis that might support the

8 challenged stay-at-home orders. Plaintiffs’ Free Exercise challenge is not likely to

9 succeed, and thus the TRO should be denied.

10

C. Other TRO Factors

11

As the first factor under Winter – the likelihood of success on the merits – is

12 the most important, and as Plaintiffs are not likely to succeed on their claims (either

13 under Jacobson or traditional constitutional analysis), the application should be denied.

14 [Garcia, supra, 786 F.3d at 740.] Likewise, the other factors do not support issuance of a

15 TRO.

16

While Plaintiffs claim they will be irreparably harmed if the TRO is not issued,

17 they have not made a “clear showing” that this is so. Plaintiffs are permitted to offer

18 streaming services to the Church’s members, or to hold drive-in style services, during this

19 temporary interruption to normal services while the government works to protect the

20 community from a once-in-a-lifetime pandemic. Further, Plaintiffs represent that for the

21 last two months, they “chose to abide by” the stay-at-home orders (as applied to in-

22 person religious services), “in doing their part to curb the pandemic.” [ECF 12-1, at p.

23 9:2-3.] Having willingly complied with the public health orders for the last two months to

24 “do[] their part to curb the pandemic,” Plaintiffs have not shown – much less clearly

25 shown – why continuing to do so this coming weekend would irreparably harm them.

26

With respect to the final two TRO factors, the balance of the equities and the

27 public interest support denial of the TRO. Public health officials in this State and County,

28 like much of the country, continue to make hard decisions in order to protect society from 17 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1473 Page 22 of 23

1 the COVID-19 pandemic. Schools and colleges are remaining closed19, SAT

2 examinations have been canceled or postponed, graduation ceremonies have been

3 canceled or must be conducted virtually, concerts and professional sports events attended

4 by fans may not take place for quite some time, and many businesses (such as barbers,

5 nail salons, and the like) remain closed. California and San Diego County residents have

6 impressively risen to the moment, and have shared in the sacrifice by staying at home in

7 an effort to stem the spread of the virus.

8

The hardship to the Plaintiffs of continuing to conduct their Sunday services

9 through streaming, or as drive-in style services, until the public health experts decide

10 based on science and all available data that such gatherings are safe to resume, must be

11 balanced against the profound hardship to the State and the County if the temporary

12 restraining order is entered. “If the prevalence of COVID-19 pulses up within a

13 community, it puts lives, and particularly the lives of our most vulnerable citizens and the

14 health care workers trying to save them, at risk. It also threatens the precarious steps we

15 are making toward reopening.” [Calvary Chapel of Bangor v. Janet Mills, No. 1:20-cv-

16 00156-NT, 2020 U.S. Dist. LEXIS 81962, at *25 (D. Me. May 9, 2020).]

17

Finally, with respect to the effects of this Court’s ruling on the public interest, the

18 “State [and County are] managing an extraordinary array of issues, and [have] responded

19 to the challenges raised by COVID-19 by establishing uniform standards and restrictions

20 that are based on evolving scientific evidence.” [Id., at *25-26.] Restrictions are being

21 reevaluated, and often eased, based on current scientific data and the analysis of that data

22 by public health professionals. “Upsetting the careful balance being drawn . . . at this

23 time would have an adverse effect on the public interest.” [Id., at *26.]

24 / / /

25 / / /

26 / / /

27

19 See, Shawn Hubler, Fearing a Second Wave, Cal State Will Keep Classes Online

28

in the Fall. N.Y. Times (May 12, 2020), www.nytimes.com/2020/05/12/us/cal-stateonline-classes.html (last visited May 13, 2020).

18

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22 Filed 05/14/20 PageID.1474 Page 23 of 23

1 IV. Conclusion

2

For the above reasons, the County defendants respectfully request that the Court

3 deny Plaintiffs’ application for a TRO.

4

5 DATED: May 14, 2020

THOMAS E. MONTGOMERY, County Counsel

6

7

By s/Timothy M. White

8

TIMOTHY M. WHITE, Senior Deputy Attorneys for WILMA J. WOOTEN, in her official

9

capacity as Public Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official

10

capacity as Director of Emergency Services, WILLIAM D. GORE, in his official capacity as

11

Sheriff of the County of San Diego E-mail: timothy.white@sdcounty.ca.gov

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 19 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1475 Page 1 of 72

1 THOMAS E. MONTGOMERY, County Counsel (SBN 109654) County of San Diego
2 By TIMOTHYM. WHITE, Senior Deputy (SBN 220847) 1600 Pacific Highway, Room 355
3 San Diego, California 92101-2469 Telephone: (619) 531-4865; Fax: (619) 531-6005
4 E-mail: timothy.white@sdcounty.ca.gov

5 Attorneys for Defendants, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego; HELEN ROBBINS-MEYER, in her official capacity as
6 Director of Emergency Services; and WILLIAM D. GORE, in his official capacity as Sheriff of the County of San Diego
7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10

11 SOUTH BAY UNITED PENTECOSTAL ) No. 20-cv-865-BAS-AHG

CHURCH, a California nonprofit

)

12 corporation, BISHOP ARTHUR HODGES)

III, an individual, RABBI MENDEL

) REQUEST FOR JUDICIAL NOTICE IN

13 POLICHENCO, an individual,

) SUPPORT OF OPPOSITION TO

) PLAINTIFFS’ EX PARTE

14

Plaintiffs,

) APPLICATION FOR A TEMPORARY

) RESTRAINING ORDER [ECF 12] BY

15 v.

) DEFENDANTS:

)

16 GAVIN NEWSOM, in his official capacity) 1. WILMA J. WOOTEN, in her

as the Governor of California; XAVIER )

official capacity as Public Health

17 BECERRA, in his official capacity as the )

Officer for the County of San Diego;

Attorney General of California, SONIA ) 2. HELEN ROBBINS-MEYER, in her

18 ANGELL, in her official capacity as

)

official capacity as Director of

California Public Health Officer, WILMA )

Emergency Services; and

19 J. WOOTEN, in her official capacity as ) 3. WILLIAM D. GORE, in his official

Public Health Officer, County of San )

capacity as Sheriff of the County of

20 Diego, HELEN ROBBINS-MEYER, in )

San Diego

her official capacity as Director of

)

21 Emergency Services, WILLIAM D.

)

GORE, in his official capacity as Sheriff of) Judge:

Hon. Cynthia Bashant

22 the County of San Diego, KEVIN

) Magistrate Judge: Hon. Allison H. Goddard

FAULCONER, in his official capacity as )

23 Mayor of the City of San Diego, and

) Action Filed: May 8, 2020

DAVID NISLEIT, in his official capacity ) Trial Date:

None Set

24 as the Chief of police of the City of San )

Diego,

)

25

)

Defendants.

)

26

)

)

27

28

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1476 Page 2 of 72

1

Defendants, WILMA J. WOOTEN, in her official capacity as Public Health

2 Officer, County of San Diego; HELEN ROBBINS-MEYER, in her official capacity as

3 Director of Emergency Services; and WILLIAM D. GORE, in his official capacity as

4 Sheriff of the County of San Diego (collectively, “County Defendants”), in support of

5 their opposition to Plaintiffs’ application for a temporary restraining order [ECF 12],

6 respectfully request that the Court take judicial notice, under Federal Rules of Evidence,

7 rule 201, of the following:

8

Exhibit 1: A true and correct copy of Governor Newsom’s Executive Order N-

9

33-20, issued March 19, 2020.

10

Exhibit 2: A true and correct copy of a May 7, 2020 letter from the California

11

Governor’s Office of Emergency Services to the Chief Administrative

12

Officer for Sutter County.

13

Exhibit 3: A true and correct copy of California’s List of “Essential Critical

14

Infrastructure Workers” categories and sectors (rev. 4.28.20).

15

Exhibit 4: A true and correct copy of County of San Diego “Order of the Health

16

Officer and Emergency Regulations,” signed by County Public Health

17

Officer, Dr. Wilma J. Wooten, on May 9, 2020, effective May 10,

18

2020.

19

Exhibit 5: A true and correct copy of the official transcript of the April 10, 2020

20

hearing on Plaintiff’s application for a temporary restraining order, in

21

Abiding Place Ministries v. v. Wooten, et al., No. 20-cv-683-BAS-

22

AHG (S.D. Cal. April 10, 2020). 1

23 / / /

24 / / /

25 / / /

26

27

1 A court “may take notice of the proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters

28

at issue.” [United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).]

1

20cv865

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1477 Page 3 of 72

1

Exhibit 6: A true and correct copy of Centers for Disease Control and

2

Prevention, Morbidity and Mortality Weekly Report (Vol. 69, May 12,

3

2020).

4 DATED: May 14, 2020 5

THOMAS E. MONTGOMERY, County Counsel

6

By s/Timothy M. White

7

TIMOTHY M. WHITE, Senior Deputy

Attorneys for WILMA J. WOOTEN, in her official

8

capacity as Public Health Officer, County of San

Diego, HELEN ROBBINS-MEYER, in her official

9

capacity as Director of Emergency Services,

WILLIAM D. GORE, in his official capacity as

10

Sheriff of the County of San Diego

E-mail: timothy.white@sdcounty.ca.gov

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2 20cv865

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1478 Page 4 of 72
EXHIBIT 1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1479 Page 5 of 72
EXECUTIVE DEPA RTMENT STATE OF CALIFORNIA
EXECUTIVE ORDER N-33-20
WHEREAS on March 4, 2020, I proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19; and
WHEREAS in a short period of time, COVID-19 has rapidly spread throughout California, necessitating updated and more stringent guidance from federal, state, and local public health officials; and
WHEREAS for the preservation of public health and safety throughout the entire State of California, I find it necessary for all Californians to heed the State public health directives from the Department of Public Health.
NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes of the State of California, and in particular, Government Code sections 8567, 8627, and 8665 do hereby issue the following Order to become effective immediately:
IT IS HEREBY ORDERED THAT:
1) To preserve the public health and safety, and to ensure the healthcare delivery system is capable of serving all, and prioritizing those at the highest risk and vulnerability, all residents are directed to immediately heed the current State public health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19. Those directives are consistent with the March 19, 2020, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, found at: https://covid19.ca.gov/. Those directives follow:
ORDER OF THE STATE PUBLIC HEALTH OFFICER March 19, 2020
To protect public health, I as State Public Health Officer and Director of the California Department of Public Health order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19. In addition, and in consultation with the Director of the Governor's Office of Emergency Services, I may designate additional sectors as critical in order to protect the health and well-being of all Californians.
Pursuant to the authority under the Health and Safety Code 120125, 120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this order is to go into effect immediately and shall stay in effect until further notice.
The federal government has identified 16 critical infrastructure sectors whose assets, systems, and networks, whether physical or virtual, are considered so vital to the United States that their incapacitation or
Ex 1-1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1480 Page 6 of 72
destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof. I order that Californians working in these 16 critical infrastructure sectors may continue their work because of the importance of these sectors to Californians' health and well-being.
This Order is being issued to protect the public health of Californians. The California Department of Public Health looks to establish consistency across the state in order to ensure that we mitigate the impact of COVID-19. Our goal is simple, we want to bend the curve, and disrupt the spread of the virus.
The supply chain must continue, and Californians must have access to such necessities as food, prescriptions, and health care. When people need to leave their homes or places of residence, whether to obtain or perform the functions above, or to otherwise facilitate authorized necessary activities, they should at all times practice social distancing.
2) The healthcare delivery system shall prioritize services to serving those who are the sickest and shall prioritize resources, including personal protective equipment, for the providers providing direct care to them.
3) The Office of Emergency Services is directed to take necessary steps to ensure compliance with this Order.
4) This Order shall be enforceable pursuant to California law, including, but not limited to, Government Code section 8665.
IT IS FURTHER ORDERED that as soon as hereafter possible, this Order be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Order.
This Order is not intended to, and does not, create any rights or benefits, substantive or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.
IN WITNESS WHEREOF I have hereunto set my hand and caused the Gre t Seal of the tote of
d his 19th day

ATTEST:
ALEX PADILLA Secretary of State

Ex 1-2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1481 Page 7 of 72
EXHIBIT 2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1482 Page 8 of 72

GAVIN NEWSOM GOVERNOR

MARK S. GHILARDUCCI DIRECTOR

May 7, 2020

Steve Smith County Administrative Officer Sutter County 1160 Civic Center Blvd., Suite A Yuba City, CA 95993 smsmith@co.sutter.ca.us

Dear Mr. Smith,
On March 4, 2020, Governor Newsom proclaimed a State of Emergency to exist statewide due to the threat of COVID-19. Since that time, COVID-19 has spread throughout California, requiring further action to protect the public health and safety. On March 19, 2020, Governor Newsom issued Executive Order N-33-20, which incorporated the State Public Health Officer’s Stay-at-Home Order. This Order continues to apply statewide and remains necessary for the preservation of public health and safety. On May 4, 2020, the Governor issued Executive Order N-60-20. The Order allows local jurisdictions to take measured and meaningful steps to modify public health directives where public health data supports such a decision.
It is my understanding Sutter County has taken steps that are inconsistent with the Governor’s Executive Orders and the State Public Health Officer’s directives. These problematic and concerning actions jeopardize public health and safety, not only within the county, but beyond, through community contact and spread.
The county’s actions could threaten Sutter County’s eligibility for disaster funding. This funding is designed to assist jurisdictions facing extraordinary circumstances beyond the jurisdiction’s capability. If Sutter County believes there is no emergency, such that it can ignore the Governor’s Executive Orders or the State Public Health Officer’s directives, the county would not be able to demonstrate that it was extraordinarily and disproportionately impacted by COVID-19. This could jeopardize its disaster funding.

3650 SCHRIEVER AVENUE, MATHER, CA 95655 (916) 845-8506 TELEPHONE (916) 845-8511 FAX
www.CalOES.ca.gov

Ex 2-1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1483 Page 9 of 72
Further, disaster assistance programs prohibit a jurisdiction from receiving funding for a condition caused by its own negligence. Should Sutter County experience a surge in COVID-19 cases as a result of hasty and careless actions, the county may be ineligible for reimbursement.
We are seeking your cooperation and are offering to assist you in bringing Sutter County into compliance with state orders and directives by providing the framework established by the State Public Health Officer pursuant to Executive Order N-60-20, which allows local jurisdictions to move through Stage 2 of California’s Pandemic Resilience Roadmap more quickly than California as a whole, to the extent local conditions warrant. Please visit https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19County-Variance-Attestation-Memo.aspx to access the State Public Health Officer’s guidance, including the following:
 An overview of Stage 2 of California’s Pandemic Resilience Roadmap, including description potential variation within each stage;
 Metrics critical to assessing a county’s readiness to move through Stage 2 of California’s Pandemic Resilience Roadmap—including hospitalization and ICU trends, hospital surge capacity, quantities of Personal Protective Equipment, and capacity for testing and contact tracing; and
 Best practices for preparation of a county’s COVID-19 Containment Plan.
Please confirm your intention to bring your jurisdiction into compliance with this framework by contacting Jake Hanson (jake.hanson@cdph.ca.gov) at your earliest convenience. Mr. Hanson can also assist you in making arrangements for a phone consultation regarding your intent to seek a variance, and for the submission of your related written materials.
It is my hope that Sutter County will act in good faith, in the best interests of its residents, and for the safety of all Californians.
Sincerely,
MARK S. GHILARDUCCI Director
cc: Dr. Ngoc-Phuong Luu, Bi-County Health Officer, pluu@co.yuba.ca.us Mark Pazin, Chief, Law Enforcement, Cal OES, Mark.Pazin@caloes.ca.gov
Ex 2-2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1484 Page 10 of 72
EXHIBIT 3

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1485 Page 11 of 72 April 28, 2020
ESSENTIAL WORKFORCE
On March 19, 2020, Governor Newsom issued Executive Order N-33-20 directing all residents immediately to heed current State public health directives to stay home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer may designate as critical to protect health and well-being of all Californians. In accordance with this order, the State Public Health Officer has designated the following list of “Essential Critical Infrastructure Workers” to help state, local, tribal, and industry partners as they work to protect communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security.
Sector Index: 1. Health and Public Health Sector 2. Emergency Services Sector 3. Food and Agriculture Sector 4. Energy Sector 5. Water and Wastewater Sector 6. Transportation and Logistics Sector 7. Communications and Information Technology Sector 8. Government Operations and Other Community-Based Essential Functions 9. Critical Manufacturing Sector 10. Financial Services Sector 11. Chemical Sector 12. Defense Industrial Base Sector 13. Industrial, Commercial, Residential and Sheltering Facilities and Services
Relevant Guidance For All Sectors: • Face Coverings Guidance
• Orientación Sobre el Uso de Mascarillas de Tela • Self-Isolation for Older Adults and Those Who Have Elevated Risk
• Aislamiento para Adultos Mayores y Personas que Tienen un Riesgo Elevado • Employers, health care workers and workers in general industry
1
Ex 3-1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1486 Page 12 of 72
April 28, 2020
1. HEALTHCARE / PUBLIC HEALTH
Sector Profile
The Healthcare and Public Health (HPH) Sector is large, diverse, and open, spanning both the public and private sectors. It includes publicly accessible healthcare facilities, research centers, suppliers, manufacturers, and other physical assets and vast, complex public-private information technology systems required for care delivery and to support the rapid, secure transmission and storage of large amounts of HPH data.
Essential Workforce, if remote working is not practical:
1. Health care providers and caregivers (including physicians, dentists, psychologists, mid-level practitioners, nurses, assistants, and aids; infection control and quality assurance personnel; pharmacists; physical, respiratory, speech and occupational therapists and assistants; social workers and providers serving individuals with disabilities including developmental disabilities; optometrists; speech pathologists; chiropractors; diagnostic and therapeutic technicians; and radiology technologists).
2. Workers required for effective clinical, command, infrastructure, support service, administrative, security and intelligence operations across the direct patient care and full healthcare and public health spectrum, including accounting, administrative, admitting and discharge, engineering, accrediting, certification, licensing, credentialing, epidemiological, source plasma and blood donation, food service, environmental services, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians; emergency medical services workers; prehospital workers including but not limited to urgent care workers; inpatient and hospital workers; outpatient care workers; home care workers; workers at long-term care facilities, residential and community-based providers; workplace safety workers).
3. Workers needed to support transportation to and from healthcare facilities and provider appointments.
4. Workers needed to provide laundry services, food services, reprocessing of medical equipment, and waste management.
5. Vendors and suppliers (including imaging, pharmacy, oxygen services, durable medical equipment)
6. Workers who perform critical clinical research, development, and testing needed for COVID-19 response.
7. Workers in other medical and life science facilities (including Ambulatory Health and Surgical, Blood Banks, Clinics, Community Mental Health, Comprehensive Outpatient rehabilitation, End Stage Renal Disease, Health Departments, Home Health care, Hospices, Hospitals, Long Term Care, Organ Pharmacies, Procurement Organizations, Psychiatric, Residential, Rural Health Clinics and Federally Qualified Health Centers, and retail facilities specializing in medical goods and supplies, including cannabis).
8. Workers for health manufacturing (including life science companies, and companies that have shifted production to medical supplies), materials and parts suppliers, technicians, logistics and warehouse operators, printers, packagers, and distributors of medical equipment (including those who test and repair), personal protective equipment (PPE), isolation barriers, medical
2
Ex 3-2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1487 Page 13 of 72
April 28, 2020
gases, pharmaceuticals (including materials used in radioactive drugs, and cannabis products), dietary supplements, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, personal hygiene products, and tissue and paper towel products. 9. Public health / community health workers, including those who compile, model, analyze and communicate public health information. 10. Behavioral and mental health workers responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or behavioral services. 11. Donors of blood bone marrow, blood stem cell, or plasma and the workers of the organizations that operate and manage related activities. 12. Workers that manage health plans, billing, and health information. 13. Workers who conduct community-based public health functions, conducting epidemiologic surveillance, compiling, analyzing and communicating public health information. 14. Workers performing IT and cybersecurity functions at healthcare and public health facilities. 15. Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions. 16. Pharmacy employees, including workers necessary to maintain uninterrupted prescription filling. 17. Workers in retail facilities specializing in medical goods and supplies. 18. Public health and environmental health workers, including workers specializing in environmental health that focus on implementing environmental controls, sanitary and infection control interventions, healthcare facility safety and emergency preparedness planning, engineered work practices, and developing guidance and protocols for appropriate PPE to prevent COVID-19 disease transmission; Public health/ community health workers (including call center workers) who conduct community- based public health functions, conducting epidemiologic surveillance and compiling, analyzing, and communicating public health information. 19. Mortuary services providers, including workers performing mortuary, funeral, cremation burial, cemetery, and related services, including funeral homes, crematoriums, cemetery workers and coffin makers. 20. Workers who coordinate with other organizations to ensure the proper recovery, handling, identification, transportation, tracking, storage, and disposal of human remains and personal effects; certify cause of death; and facilitate access to behavioral and mental health services to the family members, responders, and survivors of an incident. 21. Workers supporting veterinary hospitals and clinics.
Relevant Sector Guidance:
• All Facility Letters for health care facilities, including long-term care facilities • Health care facilities, Skilled Nursing Facilities • Individuals with Access and Functional Needs • Medical Waste Management - Interim Guidelines • Outpatient Healthcare Facility Infection Control Recommendations for Suspect COVID-19 Patients • Prioritization of Patients for Laboratory Testing for COVID-19 • Veterinary Professionals and Premises • Regional Centers:
• Visits to Licensed Residential Facilities • Risk Mitigation Strategies for ARFPSHN, ICF/DD-CN • Adult and Senior Care Facilities
3
Ex 3-3

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1488 Page 14 of 72 April 28, 2020
• Cuidado a los Adultos Mayores • Community care facilities, including assisted living facilities and child care • Medi-Cal Managed Care Health Plans: COVID – 19 Screening and Testing • Coverage Options Fact Sheet
• Opciones De Cobertura • Department of Managed Health Care All Plan Letter • California Department of Insurance Bulletin
4
Ex 3-4

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1489 Page 15 of 72
April 28, 2020
2. EMERGENCY SERVICES SECTOR
Sector Profile
The Emergency Services Sector (ESS) is a community of highly-skilled, trained personnel, along with the physical and cyber resources, that provide a wide range of prevention, preparedness, response, and recovery services during both day-to-day operations and incident response. The ESS includes geographically distributed facilities and equipment in both paid and volunteer capacities organized primarily at the federal, state, local, tribal, and territorial levels of government, such as city police departments and fire stations, county sheriff’s offices, Department of Defense police and fire departments, and town public works departments. The ESS also includes private sector resources, such as industrial fire departments, private security organizations, and private emergency medical services providers.
Essential Workforce, if remote working is not practical:
1. Public, private, and voluntary personnel (front line and management) in emergency management, law enforcement, fire and rescue services, emergency medical services, corrections, rehabilitation and reentry, search and rescue, hazardous material response, and technicians supporting maritime and aviation emergency response.
2. Public Safety Answering Points and 911 call center employees; personnel involved in access to emergency services including the emergency alert system and wireless emergency alerts.
3. Fusion Center employees 4. Workers who support weather disaster / natural hazard monitoring, response, mitigation, and
prevention, including personnel conducting, supporting, or facilitating wildfire mitigation activities 5. Workers – including contracted vendors -- who maintain, manufacture, or supply equipment and services supporting law enforcement, fire, EMS, and and emergency service response operations (including safety equipment, electronic security, and uniforms) 6. Workers responding to abuse and neglect of children, elders and dependent adults. 7. Animal control officers and humane officers 8. Security staff to maintain building access control and physical security measures 9. Workers and contracted vendors who maintain and provide services and supplies to public safety facilities, including emergency communication center, public safety answering points, public safety communications centers, emergency operation centers, fire and emergency medical services stations, police and law enforcement stations and facilities.
Relevant Sector Guidance:
• Public Health Guidance about COVID-19 for California State Prisons • First responders, including paramedics and EMTs
5
Ex 3-5

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1490 Page 16 of 72
April 28, 2020
3. FOOD AND AGRICULTURE
Sector Profile
The Food and Agricultural (FA) Sector is composed of complex production, processing, and delivery systems and has the capacity to feed people and animals both within and beyond the boundaries of the United States. Beyond domestic food production, the FA Sector also imports many ingredients and finished products, leading to a complex web of growers, processors, suppliers, transporters, distributors, and consumers. This sector is critical to maintaining and securing our food supply.
Essential Workforce, if remote working is not practical:
1. Workers supporting groceries, pharmacies, convenience stores, and other retail that sells food or beverage products, and animal/pet food, retail customer support service, information technology support staff, for online orders, pickup/takeout or delivery.
2. Workers supporting restaurant carry-out and quick serve food operations, including food preparation, carry-out and delivery food employees.
3. Food manufacturer employees and their supplier employees to include those employed in food ingredient production and processing facilities; aquaculture and seafood harvesting facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging, including recycling operations and processing.
4. Farmers, farm and ranch workers, and agribusiness support services to include those employed in auction and sales; grain and oilseed handling, storage, processing and distribution; animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport.
5. Farmers, farm and ranch workers, support service workers and their supplier employees producing food supply domestically and for export to include those engaged in raising, cultivating, harvesting, packing, storing, or delivering to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity for human consumption; those engaged in producing and harvesting field crops; cannabis growers; agricultural and commodity inspection; fuel ethanol facilities; storage facilities; biodiesel and renewable diesel facilities; and other agricultural inputs
6. Employees and firms supporting food, feed, and beverage distribution and ingredients used in these products including warehouse workers, vendor-managed inventory controllers, and blockchain managers.
7. Workers supporting the sanitation of all food manufacturing processes and operations from wholesale to retail.
8. Workers supporting the growth and distribution of plants and associated products for home gardens.
9. Workers in cafeterias used to feed workers, particularly worker populations sheltered against COVID-19
10. Workers in animal diagnostic and food testing laboratories 11. Workers essential for assistance programs and government payments 12. Government, private, and non-governmental organizations’ workers essential for food
assistance programs (including school lunch programs) and government payments.
6
Ex 3-6

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1491 Page 17 of 72 April 28, 2020
13. Employees of companies engaged in the production, storage, transport, and distribution of chemicals; medicines, including cannabis; vaccines; and other substances used by the food and agriculture industry, including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids.
14. Animal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services); raising of animals for food; animal production operations; livestock markets; slaughter and packing plants, manufacturers, renderers, and associated regulatory and government workforce.
15. Transportation supporting animal agricultural industries, including movement of animal medical and reproductive supplies and material, animal vaccines, animal drugs, feed ingredients, feed, and bedding, live animals, animal medical materials; transportation of deceased animals for disposal; and associated regulatory and government workforce
16. Workers who support sawmills and the manufacture and distribution of fiber and forest products, including, but not limited to timber, paper, and other wood and fiber products
17. Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary to agricultural production and distribution
18. Workers at animal care facilities that provide food, shelter, veterinary and/or routine care and other necessities of life for animals.
Relevant Sector Guidance: • Food, Beverage, Other Services
• Alimentos, Bebidas y Otros Sitios de Servicios Relacionados • Food Industry and Food Supply Chain
7
Ex 3-7

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1492 Page 18 of 72
April 28, 2020
4. ENERGY
Sector Profile
The Energy Sector consists of widely diverse and geographically dispersed critical assets and systems that are often interdependent of one another. This critical infrastructure is divided into three interrelated segments or subsectors—electricity, oil, and natural gas—to include the production, refining, storage, and distribution of oil, gas, and electric power. The Energy Sector supplies fuels to the transportation industry, electricity to households and businesses, and other sources of energy that are integral to growth and production across the Nation. In turn, it depends on the Nation’s transportation, information technology, communications, finance, water, and government infrastructures.
Essential Workforce, if remote working is not possible:
1. Workers supporting the energy sector, regardless of the energy source, segment of the system, or infrastructure the worker is involved in, or who are needed to monitor, operate, engineer, and maintain the reliability, safety, environmental health, physical and cyber security of the energy system, including power generation, transmission and distribution.
2. Workers supporting the energy sector, regardless of the energy source, needed for construction, manufacturing, transportation and logistics, maintenance, and permitting.
3. IT and OT technology for essential energy sector operations including support workers, customer service operations, call centers, and emergency response and customer emergency operations; energy management systems, control systems, Supervisory Control and Data Acquisition SCADA systems, and energy sector entity data centers; cybersecurity engineers; and cybersecurity risk management.
4. Workers providing services related to energy sector fuels and supply chains, supporting the procurement, mining, drilling, processing, refining, manufacturing, refueling, construction, logistics, transportation (including marine transport, terminals, rail and vehicle transport), permitting operation and maintenance, security, waste disposal, storage, and monitoring of support for resources;
5. Workers supporting environmental remediation and monitoring. 6. Workers supporting manufacturing and distribution of equipment, supplies, and parts necessary
to maintain production, maintenance, restoration, and service at energy sector facilities across all energy sectors, and regardless of the energy source. 7. Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and technicians to manage the network or operate facilities. 8. Workers at Reliability Coordinator, Balancing Authorities, and primary and backup Control Centers, including but not limited to independent system operators, regional transmission organizations, and balancing authorities; and workers involved in energy commodity trading and scheduling. 9. Mutual assistance personnel, which may include workers from outside of the state or local jurisdiction 10. Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them.
8
Ex 3-8

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1493 Page 19 of 72 April 28, 2020
5. WATER AND WASTEWATER
Sector Profile The Water and Wastewater Sector is a complex sector composed of drinking water and wastewater infrastructure of varying sizes and ownership types. Multiple governing authorities pertaining to the Water and Wastewater Sector provide for public health, environmental protection, and security measures, among others. Essential Workforce, if remote working is not practical: Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including: 1. Operational staff at water authorities 2. Operational staff at community water systems 3. Operational staff at wastewater treatment facilities 4. Workers repairing water and wastewater conveyances and performing required sampling or
monitoring 5. Operational staff for water distribution and testing 6. Operational staff at wastewater collection facilities 7. Operational staff and technical support for SCADA Control systems 8. Chemical disinfectant suppliers for water and wastewater and personnel protection 9. Workers that maintain digital systems infrastructure supporting water and wastewater
operations
9
Ex 3-9

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1494 Page 20 of 72
April 28, 2020
6. TRANSPORTATION AND LOGISTICS
Sector Profile
The Transportation Systems Sector consists of seven key subsectors, or modes:
• Aviation includes aircraft, air traffic control systems, and airports, heliports, and landing strips. Commercial aviation services at civil and joint-use military airports, heliports, and sea plane bases. In addition, the aviation mode includes commercial and recreational aircraft (manned and unmanned) and a wide variety of support services, such as aircraft repair stations, fueling facilities, navigation aids, and flight schools.
• Highway and Motor Carrier encompasses roadway, bridges, and tunnels. Vehicles include trucks, including those carrying hazardous materials; other commercial vehicles, including bicycles, commercial motor coaches and school buses; vehicle and driver licensing systems; taxis, transportation services including Transportation Network Companies, and delivery services including Delivery Network Companies; traffic management systems; AND cyber systems used for operational management.
• Maritime Transportation System consists of coastline, ports, waterways, and intermodal landside connections that allow the various modes of transportation to move people and goods to, from, and on the water.
• Mass Transit and Passenger Rail includes terminals, operational systems, and supporting infrastructure for passenger services by transit buses, trolleybuses, monorail, heavy rail—also known as subways or metros—light rail, passenger rail, and vanpool/rideshare.
• Pipeline Systems consist of pipelines carrying natural gas hazardous liquids, as well as various chemicals. Above-ground assets, such as compressor stations and pumping stations, are also included.
• Freight Rail consists of major carriers, smaller railroads, active railroad, freight cars, and locomotives.
• Postal and Shipping includes large integrated carriers, regional and local courier services, mail services, mail management firms, and chartered and delivery services.
Essential Workforce, if remote working is not practical:
1. Employees supporting or enabling transportation functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, towing and recovery services, roadside assistance workers, intermodal transportation personnel, and workers that maintain and inspect infrastructure
2. Working supporting or providing services that enable logistics operations for essential sectors, wholesale and retail sale, including warehousing, cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
3. Workers supporting maintenance and operation of essential highway infrastructure, including roads, bridges, and tunnels.
10
Ex 3-10

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1495 Page 21 of 72
April 28, 2020
4. Workers of firms providing services, supplies, and equipment that enable warehouse and operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
5. Mass transit workers providing critical transit services and/or performing critical or routine maintenance to mass transit infrastructure or equipment.
6. Employees supporting personal and commercial transportation services, including taxis, bicycle services, Transportation Network Companies, and delivery services including Delivery Network Companies
7. Workers responsible for operating dispatching passenger, commuter and freight trains and maintaining rail infrastructure and equipment
8. Maritime transportation and inland waterway workers – to include maintenance and repair – including port authority and commercial facility personnel, dredgers, port workers, mariners, ship crewmembers, ship pilots and tugboat operators, ship supply, chandler, and equipment operators.
9. Workers who support the operation, inspection, and maintenance of essential dams, locks, and levees.
10. Workers who support the inspection and maintenance of aids to navigation and other government-provided services that ensure continued maritime commerce.
11. Workers supporting transportation of chemicals, hazardous, medical, waste and recyclable materials to support critical sectors and infrastructure.
12. Automotive repair, maintenance, and transportation equipment manufacturing and distribution facilities.
13. Transportation safety inspectors, including hazardous material inspectors and accident investigator inspectors
14. Manufacturers and distributors (to include service centers and related operations) of lighting and communication systems, specialized signage and structural systems, emergency response equipment and support materials, printers, printed materials, packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations
15. Postal, parcel, courier, last-mile delivery, and shipping workers, to include private companies who accept, process, transport, and deliver information and goods.
16. Workers who supply equipment and materials for maintenance of transportation equipment. 17. Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, bicycles,
and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers 18. Workers who support air transportation for cargo and passengers, including operation distribution, maintenance, and sanitation. This includes air traffic controllers, flight dispatchers, maintenance personnel, ramp workers, fueling agents, flight crews, airport safety inspectors and engineers, airport operations personnel, aviation and aerospace safety workers, security, commercial space personnel, operations personnel, accident investigators, flight instructors, and other on- and off-airport facilities workers. 19. Workers critical to the manufacturing, distribution, sales, rental, leasing, repair, and maintenance of vehicles and other transportation equipment (including electric vehicle charging stations) and the supply chains that enable these operations, subject to adhering public health guidance issued by CDPH. 20. Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, construction material
11
Ex 3-11

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1496 Page 22 of 72 April 28, 2020
suppliers, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues 21. Workers who support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications.
12
Ex 3-12

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1497 Page 23 of 72
April 28, 2020
7. COMMUNICATIONS AND INFORMATION TECHNOLOGY
Sector Profile
The Communications Sector provides products and services that support the efficient operation of today’s global information-based society. Communication networks enable people around the world to contact one another, access information instantly, and communicate from remote areas. This involves creating a link between a sender (including voice signals) and one or more recipients using technology (e.g., a telephone system or the Internet) to transmit information from one location to another. Technologies are changing at a rapid pace, increasing the number of products, services, service providers, and communication options. The national communications architecture is a complex collection of networks that are owned and operated by individual service providers. Many of this sector’s products and services are foundational or necessary for the operations and services provided by other critical infrastructure sectors. The nature of communication networks involves both physical infrastructure (buildings, switches, towers, antennas, etc.) and cyber infrastructure (routing and switching software, operational support systems, user applications, etc.), representing a holistic challenge to address the entire physical-cyber infrastructure.
The IT Sector provides products and services that support the efficient operation of today’s global information-based society and are integral to the operations and services provided by other critical infrastructure Sectors. The IT Sector is comprised of small and medium businesses, as well as large multinational companies. Unlike many critical infrastructure Sectors composed of finite and easily identifiable physical assets, the IT Sector is a functions-based Sector that comprises not only physical assets but also virtual systems and networks that enable key capabilities and services in both the public and private sectors.
Essential Workforce – Communications, if remote working is not practical:
1. Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, Internet Exchange Points, Network Access Points, back haul and front haul facilities, and manufacturers and distributors of communications equipment.
2. Workers performing functions related to undersea cable infrastructure and support facilities, including cable landing sites, beach manhole vaults and covers, submarine cable depots, and submarine cable ship facilities
3. Government and private sector employees supporting Department of Dense internet and communications facilities.
4. Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering, reporting, and publishing news.
5. Network Operations staff, engineers and/or technicians to include IT managers and staff, HVAC & electrical engineers, security personnel, software and hardware engineers, and database administrators that manage the network or operate facilities
6. Workers responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes construction of
13
Ex 3-13

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1498 Page 24 of 72
April 28, 2020
new facilities and deployment of new technology required to address congestion or customer usage on remote services. 7. Installation, maintenance and repair technicians that establish, support or repair service as needed. 8. Central office personnel to maintain and operate central office, data centers, and other network office facilities, and critical support personnel assisting front line employees 9. Customer service and support staff, including managed and professional services as well as remote providers of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, logistics and troubleshooting 10. Workers providing electronic security, fire, monitoring, and life safety services, and who ensure physical security, cleanliness, and the safety of facilities and personnel, including those who provide temporary licensing waivers for security personnel to work in other States or Municipalities. 11. Dispatchers involved with service repair and restoration 12. Retail customer service personnel at critical service center locations for onboarding customers, distributing and repairing equipment and other supply chain personnel, to support individuals’ remote emergency communications needs; 13. External Affairs personnel to assist in coordinating with local, state, and federal officials to address communications needs supporting COVID-19 response, public safety, and national security. 14. Workers responsible for ensuring that persons with disabilities have access to and the benefits of various communications platforms, including those involved in the provision of telecommunication relay services, closed captioning of broadcast television for the deaf, video relay services for deaf citizens who prefer communication via American Sign Language over text, and audio-description for television programming.
Essential Workforce - Information Technology, if remote working is not practical:
15. Workers who support command centers, including, but not limited to Network Operations Command Centers, Broadcast Operations Control Center and Security Operations Command Centers
16. Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers and purchasers, data transfer solutions engineers, software and hardware engineers, and database administrators
17. Workers who support client service centers, field engineers, and other workers supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, support services, research and development, information technology equipment (to include microelectronics and semiconductors), and HVAC and electrical equipment for critical infrastructure and test labs and certification agencies that qualify such equipment for critical infrastructure.
18. Workers needed to pre-empt and respond to cyber incidents involving critical infrastructure,, and entities supporting the functioning of critical infrastructure sectors
19. Suppliers, designers, transporters and other workers supporting the manufacture, distribution, and construction of essential global, national and local infrastructure for computing services (including cloud computing services and teleworking capabilities), business infrastructure, financial transactions, web-based services, and critical manufacturing
14
Ex 3-14

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1499 Page 25 of 72 April 28, 2020
20. Workers supporting communications systems, information technology, and work from home solutions
21. Employees required to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.
15
Ex 3-15

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1500 Page 26 of 72
April 28, 2020
8. GOVERNMENT OPERATIONS AND OTHER COMMUNITY-BASED ESSENTIAL FUNCTIONS
Essential Workforce, if remote working is not practical.
1. Critical government workers, as defined by the employer and consistent with Continuity of Operations Plans and Continuity of Government plans.
2. County workers responsible for determining eligibility for safety net benefits 3. The Courts, consistent with guidance released by the California Chief Justice 4. Workers who support administration and delivery of unemployment insurance programs,
income maintenance, employment service, disaster assistance, workers’ compensation insurance and benefits programs, and pandemic assistance 5. Workers to ensure continuity of building functions, including but not limited to security and environmental controls, the manufacturing and distribution of the products required for these functions, and the permits and inspection for construction. 6. Elections personnel 7. Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential Functions and communications networks 8. Trade Officials (FTA negotiators; international data flow administrators) 9. Weather forecasters 10. Workers that maintain digital systems infrastructure supporting other critical government operations 11. Workers who support necessary credentialing, vetting and licensing operations for critical sector workers and operations. 12. Workers who are critical to facilitating trade in support of the national, state, and local emergency response supply chain 13. Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors 14. Staff at government offices who perform title search, notary, and recoding services in support of mortgage and real estate services and transactions; 15. Workers and instructors supporting academies and training facilities and courses for the purpose of graduating students and cadets that comprise the essential workforce for all identified critical sectors 16. Clergy for essential support and faith-based services that are provided through streaming or other technologies that support physical distancing and state public health guidelines. 17. Human services providers, especially for at risk populations, including home delivered meal providers for older adults, people with disabilities, and others with chronic health conditions; home-maker services for frail, homebound, older adults; personal assistance services providers to support activities of daily living for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services; home health providers who deliver health care services for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services. 18. Government entities, and contractors that work in support of local, state, and federal public health and medical mission sets, including but not limited to supporting access to healthcare and associated payment functions, conducting public health functions, providing medical care,
16
Ex 3-16

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1501 Page 27 of 72 April 28, 2020
supporting emergency management, or other services necessary for supporting the COVID-19 response. Relevant Sector Guidance: • Schools and institutions of higher education
• Guidance for schools (PDF) • Directrices para las escuelas sobre el nuevo coronavirus o COVID-19 (PDF) • Guidance for colleges and universities • Directrices para las instituciones de educación superior sobre el nuevo coronavirus o
COVID-19 • Guidance for K-12 Schools: Distance Learning, School Meals, Child Care and Student Supervision • Guidance for Using Disinfectants at Schools and Child Cares
• Recordatorios para el uso de desinfectantes en las escuelas y guarderías • Community care facilities, including assisted living facilities and child care
17
Ex 3-17

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1502 Page 28 of 72 April 28, 2020
9. CRITICAL MANUFACTURING
Sector Profile The Critical Manufacturing Sector identifies several industries to serve as the core of the sector: Primary Metals Manufacturing, Machinery Manufacturing, Electrical Equipment, Appliance, and Component Manufacturing, Transportation Equipment Manufacturing Products made by these manufacturing industries are essential to many other critical infrastructure sectors. Essential Workforce, if remote working is not practical 1. Workers necessary for the manufacturing of metals, industrial minerals, semiconductors,
materials and products needed for supply chains of the critical infrastructure sectors. 2. Workers necessary for the manufacturing of materials and products needed to manufacture
medical equipment and personal protective equipment 3. Workers necessary for mining and production of critical minerals, materials and associated
essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for mining production and distribution. 4. Workers who produce or manufacture parts or equipment that supports continued operations for any essential services and increase in remote workforce, including computing and communication devices, semiconductors, and equipment such as security tools for Security Operations Centers (SOCs) or data centers. 5. Workers manufacturing or providing parts and equipment that enable the maintenance and continued operation of essential businesses and facilities.
18
Ex 3-18

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1503 Page 29 of 72 April 28, 2020
10. FINANCIAL SERVICES
Sector Profile The Financial Services Sector includes thousands of depository institutions, providers of investment products, insurance companies, other credit and financing organizations, and the providers of the critical financial utilities and services that support these functions. Financial institutions vary widely in size and presence, ranging from some of the world’s largest global companies with thousands of employees and many billions of dollars in assets, to community banks and credit unions with a small number of employees serving individual communities. Whether an individual savings account, financial derivatives, credit extended to a large organization, or investments made to a foreign country, these products allow customers to: Deposit funds and make payments to other parties; Provide credit and liquidity to customers; Invest funds for both long and short periods; Transfer financial risks between customers.
Essential Workforce, if remote working is not practical: 1. Workers who are needed to process and maintain systems for processing financial transactions
and services, including payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities 2. Workers who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services. 3. Workers who are needed to provide business, commercial, and consumer access to banking and non-bank financial and lending services, including ATMs, lending money transmission, and to move currency, checks, securities, and payments 4. Workers who support financial operations, such as those staffing call, data and security operations centers, managing physical security, or providing accounting services. 5. Workers supporting production and distribution of debit and credit cards. 6. Workers providing electronic point of sale support personnel for essential businesses and workers.
19
Ex 3-19

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1504 Page 30 of 72
April 28, 2020
11. CHEMICAL & HAZARDOUS MATERIALS
Sector Profile The Chemical Sector—composed of a complex, global supply chain—converts various raw materials into diverse products that are essential to modern life. Based on the product produced, the sector can be divided into five main segments, each of which has distinct characteristics, growth dynamics, markets, new developments, and issues: Basic chemicals; Specialty chemicals; Agricultural chemicals; Pharmaceuticals; Consumer products.
Essential Workforce, if remote working is not practical: 1. Workers supporting the chemical and industrial gas supply chains, including workers at chemical
manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, textiles, building materials, plumbing, electrical and paper products. 2. Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items 3. Workers supporting the production of protective cleaning and medical solutions, personal protective equipment, disinfectants, and packaging that prevents the contamination of food, water, medicine, among others essential products 4. Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections 5. Workers who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products, including glass container manufacturing 6. Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits 7. Workers who support hazardous materials response and cleanup 8. Workers who maintain digital systems infrastructure supporting hazardous materials management operations 9. Workers who support the removal, storage, and disposal of residential and commercial solid waste and hazardous waste, including landfill and recycling operations.
20
Ex 3-20

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1505 Page 31 of 72 April 28, 2020
12. DEFENSE INDUSTRIAL BASE
Sector Profile The Defense Industrial Base Sector is the worldwide industrial complex that enables research and development, as well as design, production, delivery, and maintenance of military weapons systems, subsystems, and components or parts, to meet U.S. military requirements. The Defense Industrial Base partnership consists of Department of Defense components, Defense Industrial Base companies and their subcontractors who perform under contract to the Department of Defense, companies providing incidental materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities. Defense Industrial Base companies include domestic and foreign entities, with production assets located in many countries. The sector provides products and services that are essential to mobilize, deploy, and sustain military operations.
Essential Workforce, if remote working is not practical: 1. Workers who support the essential services required to meet national security commitments to
the federal government and U.S. Military, including, but are not limited to, space and aerospace workers, nuclear matters workers, mechanical and software engineers (various disciplines), manufacturing and production workers, IT support, security staff, security personnel, intelligence support, aircraft and weapon system mechanics and maintainers, and sanitary workers who maintain the hygienic viability of necessary facilities. 2. Personnel working for companies, and their subcontractors, who perform under contract or subcontract to the Department of Defense (DoD) and the Department of Energy (DoE) (on nuclear matters), as well as personnel at government-owned/contractor operated facilities, and who provide materials and services to the DoD and DoE (on nuclear matters), including support for weapon systems, software systems and cybersecurity, defense and intelligence communications, surveillance, sale of U.S. defense articles and services for export to foreign allies and partners (as authorized by the U.S. government), and space systems and other activities in support of our military, intelligence, and space forces.
21
Ex 3-21

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1506 Page 32 of 72
April 28, 2020
13. INDUSTRIAL, COMMERCIAL, RESIDENTIAL, and SHELTERING FACILITIES AND SERVICES
Essential Workforce, if remote working is not practical:
1. Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing, commercial, and mixed-use construction); and workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions.
2. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, recycling and disposal of solid waste and hazardous waste)
3. Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses, and buildings such as hospitals and senior living facilities, including any facility supporting COVID-19 response.
4. Workers who support the supply chain of building materials from production through application and installation, including cabinetry, fixtures, doors, cement, hardware, plumbing (including parts and services), electrical, heating and cooling, refrigeration, appliances, paint and coatings, and workers who provide services that enable repair materials and equipment for essential functions.
5. Workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant retailers, wholesalers and distributors that support essential workforce functions where sales and operations cannot be conducted online
6. Warehouse operators, including vendors and support personnel critical for business continuity (including heating, ventilation, and air conditioning (HVAC) and electrical engineers, security personnel, and janitorial staff), e-commerce or online commerce, and customer service for essential functions.
7. Workers supporting the operations of commercial buildings that are critical to safety, security, and the continuance of essential activities, such as on-site property managers, building engineers, security staff, fire safety directors, janitorial personnel, and service technicians (e.g., mechanical, HVAC, plumbers, electricians, and elevator).
8. Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions, that accept, store, and process goods, and that facilitate their transportation and delivery
9. Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.
10. Workers managing or servicing hotels or other commercial and residential buildings that are used for COVID-19 mitigation and containment measures, treatment measures, provide accommodation for essential workers, or providing housing solutions, including measures to protect homeless populations.
22
Ex 3-22

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1507 Page 33 of 72
April 28, 2020
11. Workers responsible for the leasing of residential and commercial properties to provide individuals and families with ready access to available housing.
12. Residential and commercial real estate workers, limited to scheduled property viewings to a potential buying party. This does not extend to open-house viewings, nor viewings with more than one buying party at a time.
13. Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities and critical sector services
14. Workers responsible for handling property management, maintenance, and related service calls who can coordinate the response to emergency “at-home” situations requiring immediate attention, as well as facilitate the reception of deliveries, mail, and other necessary services.
15. Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around physical distancing.
16. Workers that provide or determine eligibility for food, shelter, in-home supportive services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members)
17. Workers performing services in support of the elderly and disabled populations who coordinate a variety of services, including health care appointments and activities of daily living.
18. Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers.
19. Workers providing dependent care services, particularly those whose services ensure essential workers can continue to work.
20. Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters.
21. Workers in laundromats, laundry services, and dry cleaners. 22. Workers providing disinfection services, for all essential facilities in essential sectors 23. Workers necessary for the installation, maintenance, distribution, and manufacturing of water
and space heating equipment and its components. 24. Support required for continuity of services, including commercial disinfectant services,
janitorial/cleaning personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line employees.
Relevant Sector Guidance:
• Cleaning & Waste Management for Residences 2/2020 • Essential/Emergency Personnel Providing Critical In-Home Services • Home cleaning with COVID-19 positive individuals • Recommended Strategic Approaches for COVID-19 Response for Individuals Experiencing
Homelessness • Flow Chart: COVID-19 Recommended Protocol for People Experiencing Homelessness • Homeless Assistance Providers • Immigrant Communities
• Las Comunidades de Inmigrantes • Pets & People
23
Ex 3-23

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1508 Page 34 of 72
EXHIBIT 4

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1509 Page 35 of 72

Oinuntu of �an �ttgo

NICK MACCHIONE, FACHE

HEALTH AND HUMAN SERVICES AGENCY PUBLIC HEALTH SERVICES
3851 ROSECRANS STREET, MAIL STOP P-578 SAN DIEGO, CA 92110-3134
(619) 531-5600 • FAX (619) 542-4186
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
(Effective May 10, 2020)

WILMA J. WOOTEN, M.D.
PUBLIC HEALTH OFFICER

Pursuant to California Health and Safety Code sections 101040, 120175, and 120175.5 (b) the Health Officer of the County of San Diego (Health Officer) ORDERS AS FOLLOWS:

Effective 12:00 a.m. on Sunday, May 10, 2020, and continuing until further notice, the following will be in effect for San Diego County (county):
1. All persons are to remain in their homes or at their place of residence, except for employees or customers travelling to and from essential businesses, reopened businesses, or essential activities as defined in section 18, below, or to participate in individual or family outdoor activity as allowed by this Order.

2. All public or private "gatherings," as defined in section 18 below, are prohibited.

3. All businesses not meeting the definition of essential business or reopened business in section 18 below are referred to in this Order as "non-essential businesses" and shall be and remain closed for the duration of this Order. All essential businesses and reopened businesses must comply with the requirements of this Order. Notwithstanding the foregoing, a non-essential business may remain open if its employees and owners can provide its services from home, including by telecommuting, without direct contact with the public.

4. All public or private schools, colleges, and universities shall not hold classes or other school activities where students gather on the school campus. Parents of minor children shall take steps to ensure said children are not participating in activities prohibited by this Order.

5. Child daycare and child care providers shall operate under the following conditions: i) child Ex 4-1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1510 Page 36 of 72
care should be carried out in stable groups of 12 or fewer ("stable" means that the same 12 or fewer children are in the same group each day); ii) children should not change from one group to another; iii) if more than one group of children is cared for at one facility, each group should be in a separate area; iv) groups should not mix with each other; and v) childcare providers should remain solely with one group of children, to the extent possible. Employees of such businesses, and the children being cared for, are not required to wear face coverings as described in section 9 while present at the daycare of child care facility. Child daycare and childcare providers shall establish health check and temperature screening requirements to ensure children and employees with a temperature of 100 degrees or above do not enter the facility. Restroom and other surfaces children regularly contact shall be sanitized with a disinfectant effective against coronavirus on a regular schedule and between groups occupying a particular area.
6. "Non-essential personnel," as defined in section 18 below, are prohibited from entry into any hospital or long-term care facility. All essential personnel who are COVID-19 positive or show any potential signs or symptoms of COVID-19 are strictly prohibited from entry into hospitals or long-term care facilities. Notwithstanding the foregoing, individuals requiring medical care for COVID-19 or related conditions may be admitted to hospitals or other medical facilities if the hospital or medical facility is appropriate for treating COVID-19 and has adequate precautions in place to protect its patients, medical personnel and staff.
7. Hospitals and healthcare providers, including dentists shall: a. Take measures to preserve and prioritize resources; and, b. May authorize and perform non-emergent or elective surgeries or procedures based on their determination of clinical need and supply capacity, and where consistent with State guidance. c. Nothing in this Order shall prevent physicians and other healthcare providers from conducting routine preventive care provided it conforms to any applicable State guidance. d. Nothing in this Order shall prevent dentists or dental hygienists from conducting routine preventive care provided it conforms to any applicable State guidance.
8. Hospitals, healthcare providers, and commercial testing laboratories shall report all COVID19 test results to the Public Health Officer immediately after such results are received.
9. All persons two year old or older who are present in the county shall have possession of a face Page 2 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1511 Page 37 of 72
covering described in California Department of Public Health Face Covering Guidance issued on April 1, 2020, (available at: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/FaceCoverings-Guidance.aspx ), when they leave their home or place of residence, shall wear the face covering whenever they are in a business or within six feet of another person who is not a member of their family or household. Persons with a medical or mental health condition, or developmental disability that prevents wearing a face covering shall be exempt from this requirement.
10. All essential businesses that allow members of the public to enter a facility must prepare and post a "Social Distancing and Sanitation Protocol" on the form available at: https://www.sandiegocounty .gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/SOCIAL DISTANCING AND SANITATION PROTOCOL 04022020 Vl .pdf ), or on a form required by another governmental entity requiring substantially similar information, for each oftheir facilities open to the public in the county. The Social Distancing and Sanitation Protocol must be posted at or near the entrance of the relevant facility, and shall be easily viewable by the public and employees. A copy of the Social Distancing and Sanitation Protocol must also be provided to each employee performing work at the facility. All essential businesses shall implement the Social Distancing and Sanitation Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand. The Social Distancing and Sanitation Protocol must ensure all required measures are implemented and must identify and require measures necessary to implement social distancing are implemented at each facility that will ensure social distancing and sanitation at that particular facility. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Social Distancing and Sanitation Protocols to ensure proper social distancing and sanitation. Any business that fails to successfully implement social distancing and sanitation may be required to close.
11. All reopened businesses must prepare and post a "Safe Reopening Plan" on the form available at:https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid 19/Community Sector Support/BusinessesandEmployers/SafeReopeningPlanTemplate.pdf for each of their facilities in the county. The Safe Reopening Plan must be posted at or near the entrance ofthe relevant facility, and shall be easily viewable by the public and employees. A copy ofthe Safe Reopening Plan must also be provided to each employee performing work at the facility. All reopened businesses shall implement the Safe Reopening Plan and provide evidence of its implementation to any authority enforcing this Order upon demand. The Safe Reopening Plan must ensure all required measures are implemented. Ifthe measures identified Page 3 of9 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-3

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1512 Page 38 of 72

and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Safe Reopening Plan to ensure proper social distancing and sanitation. Any business that fails to comply with its Safe Reopening Plan may be required to close.

12. Each essential business and reopened business shall: a. Require all employees to wear face coverings as described in section 9 above; and, b. Shall conduct temperature screening of all employees prohibiting employees with a temperature of 100 degrees or more from entering the workplace. Symptom screening (prohibiting employees from entering if they have a cough, shortness of breath or trouble breathing or at least two of the following: fever, chills, repeated shaking with chills, muscle pain, headache, sore throat or new loss of taste or smell) may be used only when a thermometer is not available.

13. Outdoor Recreation

a. Each public park and recreation area, shall operate in compliance with the Protocol

found

at

https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/c

ovidl 9/parks-beaches-social-distancing-protocol.pdf created and implemented by the

operator of the park. The public shall not congregate or participate in active sport

activities at a park with the exception of members of a single family or household if

authorized pursuant to the Protocol applicable to the park. Any park at which the

Protocol requirements cannot be effectively implemented may be required to close.

b. Campgrounds may be open provided a vacant campsite separates each occupied

campsite and each campsite is occupied only by members of the same household.

c. Recreational boating is allowed provided all occupants of a boat are from the same

household.

d. For Beaches Only - All parking lots at public beaches shall be closed. Beaches shall be

used solely for walking, running, hiking, equestrian or bicycle riding (where allowed).

The public shall not congregate or participate in active sport activities at said facilities.

Swimming, body surfing, boogie boarding, surfing, kite surfing, paddle boarding,

kayaking, snorkeling and scuba diving from the shore may be allowed in the ocean and

bays connected thereto. Beaches where social distancing requirements cannot be

effectively implemented shall close. All other restrictions applicable to beaches

pursuant to other sections of this Order shall remain in effect.

e. To enhance recreational opportunities in the county, private and public golf courses

Page 4 of9

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Ex 4-4

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1513 Page 39 of 72

and, other public or private outdoor recreational facilities (other than community pools per State order), including recreational equipment (such as bicycle, boat, kayak, equestrian and surfboard) rentals may be open for limited use.
1. The owner or operator of a golf course shall complete and fully implement a Golf Course Physical Distancing & Safety Plan for San Diego County and shall submit a copy of the completed form to the Public Health Officer at least two days prior to opening. Golf courses shall conduct temperature screening of all employees and customers and anyone with a temperature of 100 degrees or higher shall not be permitted to enter the facility.
11. The owner or operator of an outdoor recreational facility shall limit use of recreational equipment or areas to individuals able to practice social distancing before, during or after the activity, or members of the same household. The owner or operator shall prepare a Safe Reopening Plan pursuant to section 11 which shall include a requirement that all equipment be sanitized with a disinfectant effective against coronavirus immediately after every use.

14. All essential businesses and reopened businesses that remain in operation in accordance with the Order shall make every effort to use telecommuting for their workforces.

15. A strong recommendation is made that all persons who are 65 years old or older, have a chronic underlying condition, or have a compromised immune system self-quarantine themselves at home or other suitable location.

16. All persons arriving in the county from international locations identified on the Centers for Disease Control and Prevention (CDC) Warning Level 2 or 3 Travel Advisory (available at: https://wwwnc.cdc.gov/travel/notices) shall be subject to 14-day home or other suitable location quarantine and self-monitoring.

17. Persons who have been diagnosed with COVID-19, or who are likely to have COVID-19, shall

comply with the Order of the Health Officer titled: "Isolation of All Persons with or Likely to

have COVID-19", or as subsequently amended. Persons who have a close contact with a person

who either has COVID-19, or is likely to have COVID-19, shall comply with the Order of the

Health Officer titled: "Quarantine of Persons Exposed to COVID-19," or as subsequently

amended.

Both orders are available at: https://www.sandiegocounty.gov/

content/sdc/hhsa/programs/phs/community epidemiology/dc/2019-nCoV/health-order.html.

Ifa more specific isolation or quarantine order is issued to a person, that order shall be followed.

Page 5 of9

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-5

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1514 Page 40 of 72
18. For purposes of this Order: a. "Essential business" 1s any business or activity (or a business/activity that employs/utilizes workers) designated by the State Public Health Officer as "Essential Critical Infrastructure Workers" set forth in: https://covid19.ca.gov/img/Essential CriticallnfrastructureWorkers.pdt) as that list may be updated from time-to-time, and referenced in Executive Order N-33-20 issued by the Governor of the State of California. For the purposes of this Order, the following businesses in the Food and Agriculture Sector are considered "groceries" or "other retail that sells food and beverages": grocery stores, comer stores and convenience stores, liquor stores that sell food, farmer's markets, food banks, farm and produce stands, supermarkets, big box stores that sell groceries and essentials, or similar business that sell food so long as the store has a current permit related to the sale of food and/or beverages from the San Diego County Department of Environmental Health. b. "Gathering" is any event or convening that brings together more than one person in a single room or single indoor or outdoor space at the same time, including people in multiple vehicles in one location. A gathering does not include: 1. A gathering consisting only of members of a single family or household. 11. Operations at airports, public transportation or other spaces where persons in transit are able to practice social distancing. 111. Operations at essential businesses as defined in section 19a above and reopened businesses as defined in 18f below and where the other requirements set forth in this Order are followed. c. "Long term care facility" is a facility serving adults that require assistance with activities of daily living, including a skilled nursing facility, and that is licensed by the California Department ofCommunity Care and Licensing, or the California Department of Public Health. d. "Non-essential personnel" are employees, contractors, or members of the public who do not perform treatment, maintenance, support, or administrative tasks deemed essential to the healthcare mission of the long-term care facility or hospital. Nonessential personnel do not include first responders, nor State, federal, or local officials, investigators, or medical personnel carrying out lawful duties. Non-essential personnel do not include visitors to hospitals and long-term care facilities who are granted entry by the facility's director, or designee, because they are family or friends who are visiting a resident in an end of life or similar situation, are parents or guardians visiting a child who is a patient, or because of any other circumstances deemed appropriate by the Page 6 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-6

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1515 Page 41 of 72
facility director, or designee, and where appropriate precautions by the facility that follow federal, State, and local public health guidance regarding COVID-19 are followed. e. "Social distancing" is maintaining a six-foot separation from all persons except for household members, first responders and medical providers or employees conducting temperature screenings. f. "Reopened business" is a business that is not an essential business as stated in section 18a above, and has reopened in conformance with the State of California's Resilience Roadmap (available at: https://covid19.ca.gov/roadmap/), as may be subsequently amended
19. This Order is issued as a result ofthe World Health Organization's declaration of a worldwide pandemic of COVID-19 disease, also known as "novel coronavirus."
20. This Order is issued based on scientific evidence regarding the most effective approaches to slow the transmission ofcommunicable diseases generally and COVID-19 specifically, as well as best practices as currently known and available to protect vulnerable members ofthe public from avoidable risk of serious illness or death resulting from exposure to COVID-19. The age, condition, and health of a significant portion of the population of the county places it at risk for serious health complications, including death, from COVID-19. Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the publicsuch as older adults, and those with underlying health conditions-at significant risk.
21. The actions required by this Order are necessary to reduce the number of individuals who will be exposed to COVID-19, and will thereby slow the spread of COVID-19 in the county. By reducing the spread ofCOVID-19, this Order will help preserve critical and limited healthcare capacity in the county and will save lives.
22. This Order is issued in accordance with, and incorporates by reference: a) the Declaration of Local Health Emergency issued by the Health Officer on February 14, 2020; b) the Proclamation of Local Emergency issued by the County Director of Emergency Services on February 14, 2020; c) the action of the County Board of Supervisors to ratify and continue both the local health emergency and local emergency on February 19, 2020; d) the Proclamation of a State of Emergency issued by the Governor of the State of California on March 4, 2020; e) Executive Order N-25-20 issued by the Governor of the State of California on March 12, 2020 which orders that "All residents are to heed any orders and guidance of Page 7 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-7

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1516 Page 42 of 72
state and local health officials, including but not limited to the imposition of social distancing measures, to control COVID-19"; f) Proclamation 9984 regarding COVID-19 issued by the President of the United States on March 11, 2020; g) Executive Order N-33-20 issued by the Governor of the State of California on March 19, 2020; h) the "Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes" issued by the CDC; i) COVID-19 guidance issued by the California Department of Public Health on including, but not limited to the Face Coverings Guidance issued on April 1, 2020; andj) the State of California's "Resilience Roadmap."
23. This Order is issued to prevent circumstances often present in gatherings that may exacerbate the spread ofCOVID-19, such as: 1) the increased likelihood that gatherings will attract people from a broad geographic area; 2) the prolonged time period in which large numbers of people are in close proximity; 3) the difficulty in tracing exposure when large numbers of people attend a single event or are at a single location; and 4) the inability to ensure that such persons follow adequate hygienic practices.
24. This Order is issued to provide additional opportunities for recreational activities while also requiring additional protections from the spread of COVID-19 to the public who are taking advantage of these opportunities for recreational activities. And providing additional protections for employees of essential businesses or reopened business and their customers/clients by increasing facial covering requirements and health checks and temperature screening.
25. This Order comes after the release of substantial guidance from the Health Officer, the California Department of Public Health, the CDC, and other public health officials throughout the United States and around the world.
26. Pursuant to Health and Safety Code section 120175.5 (b) all governmental entities in the county shall take necessary measures within the governmental entity's control to ensure compliance with this Order and to disseminate this Order to venues or locations within the entity's jurisdiction where gatherings may occur.
27. Violation ofthis Order is subject to fine, imprisonment, or both. (California Health and Safety Code section 120295.)
28. To the extent necessary, this Order may be enforced by the Sheriff or chiefs ofpolice pursuant to Government Code sections 26602 and 41601 and Health and Safety Code section 101029. Page 8 of9
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-8

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1517 Page 43 of 72
29. Once this Order takes effect it shall supersede the Order of the Health Officer and Emergency Regulations dated May 8, 2020.

IT IS SO ORDERED: Date: May 9, 2020

Public Health Officer County of San Diego

EMERGENCY REGULATIONS
As Director of Emergency Services for the County of San Diego, I am authorized to promulgate regulations for the protection of life and property pursuant to Government Code Section 8634 and San Diego County Code section 31.103. The following shall be in effect for the duration of the Health Officer Order issued above which is incorporated in its entirety by reference:
The Health Officer Order shall be promulgated as a regulation for the protection of life and property.
Any person who violates or who refuses or willfully neglects to obey this regulation is subject to fine, imprisonment, or both. (Government Code section 8665.)
Date: May 9, 2020
Director of Emergency Services County of San Diego

Page 9 of9 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
Ex 4-9

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1518 Page 44 of 72
Ex 4-10

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1519 Page 45 of 72
EXHIBIT 5

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1520 Page 46 of 721

1

United States District Court

2

for the Southern District of California

3

4 ABIDING PLACE MINISTRIES,

5

Plaintiff,

6

v.

7 COUNTY OF SAN DIEGO, et al.,

8

Defendants.

9

) ) ) No. 20cv0683-BAS ) ) April 10, 2020 ) ) San Diego, California ) ) ) )

10

TRANSCRIPT OF MOTION HEARING

BEFORE THE HONORABLE CYNTHIA BASHANT

11

United States District Judge

12 APPEARANCES:

13 For the Plaintiff: 14

THE OFFICE OF COUNTY COUNSEL TIMOTHY M. WHITE ATTORNEY AT LAW

15 For the Defendants: 16

JEREMIAH D. GRAHAM ATTORNEY AT LAW

17

18

19

20 Court Reporter: 21 22

Dana Peabody, RDR, CRR District Court Clerk's Office 333 West Broadway, Suite 420 San Diego, California 92101 DanaPeabodyCSR@gmail.com

23

24

25

Ex 5-1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1521 Page 47 of 722

1

San Diego, California, April 10, 2020

2

***

3

THE CLERK: I'm going to call matter 20CV0683-BAS-AHG,

4 Abiding Place Ministries versus Wilma Wooten, et al., on

5 calendar for motion hearing.

6

THE COURT: Counsel, can you state your appearances

7 for the record.

8

MR. GRAHAM: Jeremiah Graham appearing on behalf of

9 the plaintiff.

10

MR. WHITE: And good morning, Your Honor.

11 Timothy White of the County Counsel's office for the defendants

12 Wilma Wooten in her capacity as the public health officer and

13 for the County of San Diego.

14

THE COURT: Okay. Thank you all, and thank you for

15 being available via telephone. I know that this is kind of

16 difficult, and if anyone has any difficulty hearing, feel free

17 to interrupt, and let me know, and we'll repeat it. That goes

18 for our court reporter as well. She knows to contact Stephanie

19 if she's having any difficulty hearing.

20

I wanted to give you my preliminary thoughts on the matter,

21 and then I'll hear from each of you as well.

22

I have reviewed the plaintiff's complaint, I've reviewed

23 the motion for the temporary restraining order with all the

24 attached exhibits, and I've reviewed the county's response and

25 the attached declarations as well.

Ex 5-2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1522 Page 48 of 723

1

I just want to say, I don't think there's any question that

2 our nation, our state, the county, the San Diego community,

3 they're all facing a public health emergency, and it's caused

4 by the exponential threat of the covid-19 virus.

5

I could go through the statistics, but frankly, the numbers

6 of those infected and dying is increasing at such a rapid rate

7 that by the time I announce the statistics, they'd probably be

8 out-of-date.

9

The virus is spreading across the United States at a rapid

10 rate. There are cases in all 50 states and the District of

11 Columbia and the various territories. I think every county in

12 California has the virus. Both the President of the

13 United States and the governor has declared states of

14 emergency, and the covid-19 virus has also increased burden on

15 the healthcare systems, critical shortages of doctors, nurses,

16 medical equipment.

17

I think all of that is beyond dispute, and I think

18 plaintiff would agree from my review of the papers that we're

19 in a state of emergency.

20

Furthermore, I just want to say that under the pressure of

21 great dangers, constitutional rights, including the freedom of

22 religion, may be reasonably restricted, and I am citing to

23 Jacobson versus Massachusetts, 197 US 11, which although it's a

24 1905 case, it's still frequently cited as good law.

25

The bottom line, as recently stated by the Fifth Circuit in

Ex 5-3

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1523 Page 49 of 724

1 In Re Abbott, 2020, Westlaw 1685929, just came out on April

2 7th, and citing Jacobson, is that, quote, when faced with a

3 society-threatening epidemic -- and the Fifth Circuit was

4 specifically referring to the covid-19 virus -- a state may

5 implement emergency measures that curtail constitutional rights

6 as long as the measures have at least some real or substantial

7 relation to the public health crisis.

8

Additionally, I think it's important that this Court not

9 usurp the state's authority to craft emergency health measures.

10 I mean, in other words, I shouldn't be second-guessing the

11 wisdom or the efficacy of these measures as long as they have

12 some basis in reality and they aren't pretextual.

13

And finally, as an aside, I don't really think -- I

14 understand plaintiff's making this argument, but I don't really

15 think there's any question that a state, first of all, may vest

16 local bodies, like the San Diego Public Health Officer, with

17 the authority to promulgate rules to appropriately safeguard

18 the public health and safety. And again, I would cite Jacobson

19 for that proposition.

20

And then I also find that California Health and Safety Code

21 Sections 101040 and 120175 grant the local health officer with

22 the authority to issue the order that she's issued.

23

So I don't think that's really the issue. I think the

24 San Diego Public Health Officer is completely within her powers

25 to promulgate the complained-of order that includes banning

Ex 5-4

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1524 Page 50 of 725

1 gatherings, including religious congregations, in order to

2 protect the health and safety of the residents of California

3 during the covid-19 crisis.

4

We have a clear public health emergency, and unfortunately,

5 banning gatherings appears to be one of the only ways we have

6 as a society to prevent the spread of the disease.

7

So the fact that the order bans gatherings, including those

8 for purpose of religious services, I think it's a reasonable

9 and necessary restriction. I think that to the extent that the

10 order bans in-person gatherings, I think that has a real and

11 reasonable relation to what is clearly a critical public health

12 concern.

13

So it seems to me that to the extent plaintiff is

14 requesting that it be allowed to -- their parishioners be

15 allowed to gather in person, even while imposing social

16 distancing, I'm inclined to deny the TRO making that request,

17 but I -- also, in considering plaintiff's request to be able to

18 gather by car, I understand plaintiff asserts it's a critical

19 part of its religion that parishioners gather together in one

20 place to worship. And to that end, and recognizing the

21 legitimate health emergency the county's facing, I understand

22 that plaintiff is proposing conducting worship by car, not

23 unlike a drive-in movie where every parishioner remains in his

24 or her car and listens to the worship service on his or her car

25 radio; however, I do think the county has shown that there is a

Ex 5-5

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1525 Page 51 of 726

1 reason for including car gatherings in the ban. Number one,

2 people aren't staying in their cars. And there just aren't

3 adequate resources to monitor all the car gatherings to make

4 sure that they do. In addition, the public health officer

5 points out that while on the road, participants are more likely

6 to stop for gas, to purchase food, or to use the restroom. The

7 point of the stay-at-home order is to minimize the people who

8 are out and about and who might be using these other essential

9 services. And I would add that the more people on the road,

10 the more likely that there will be car accidents or car

11 problems requiring emergency personnel to be out or it would

12 require law enforcement to be out monitoring these gatherings.

13

And I realize plaintiffs are saying, we're only a church of

14 100 people, but San Diego is a county with, I don't know, more

15 than 3 million people, I think, and many of these are religious

16 people who would attend religious services if they could do so.

17

It's very unfortunate that the peak of this virus happens

18 to correspond with so many sacred holidays in the Christian,

19 Jewish, and Muslim religion, and I know plaintiff's counsel

20 poses scenarios where someone could technically buy food at one

21 location, drive to another location for gas, stop at the bank

22 at a third location, all over the county, but the order is a

23 stay-at-home order. The idea is, not that many people will be

24 availing themselves of these essential services because they'll

25 all be staying home and not wandering around the county buying

Ex 5-6

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1526 Page 52 of 727

1 food and gas and going to the bank.

2

So those are kind of my initial thoughts, and I think I'd

3 like to begin with counsel for plaintiff in light of those

4 thoughts, if there's anything you would like to say.

5

MR. GRAHAM: Yes, Your Honor.

6

And first off, I'd like to thank you for expressing all of

7 that. It really helps narrow down the issues for argument.

8

And I really want to focus down in on the Free Exercise

9 Clause and really respond to what you're saying in regards to

10 the decisions relating to compulsory vaccination, and that's

11 what the 1905 Jacobson case was related to, and the recent

12 Abbott decision were both related to compulsory vaccination.

13 And this is a line of cases that includes other sorts of things

14 that are neutral laws of general applicability, and they have

15 very specific characteristics.

16

In the case you're referring to, when we're discussing

17 compulsory vaccinations, the supreme court has said where it's

18 something that's a public health concern, and it applies to

19 every person, then it's something that you can't get a

20 religious exemption from. And that's not just compulsory

21 vaccinations, that's 1978 -- sorry -- 1878 anti-polygamy law.

22 The Court said that even if your religious exercise required

23 you to engage in the act of polygamy, because it's a neutral

24 law of general applicability -- and they didn't use that

25 terminology there. They didn't have that language. That came

Ex 5-7

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1527 Page 53 of 728

1 from 1990 where the Court said when you're dealing with a

2 blanket ban on hallucinogenic drugs, and plaintiff said that

3 their religious practice required them to take hallucinogenic

4 drugs, and the supreme court said, again, that -- and that's

5 where they announced -- they adopted a prior concurrence test

6 from another scenario, which were child labor laws. And that

7 was in the 1940s where someone said that they had to employ

8 their child as part of their religion.

9

Now, in all of these cases, and what the supreme court made

10 very clear in their Employment Division versus Smith case in

11 1990, is that these were neutral laws of general applicability,

12 and the characteristic is that they were countywide laws that

13 imposed a restriction on every person without any exception.

14 And the "without exception" part of those laws is really what

15 made them a neutral law of general applicability, and then the

16 Court went further and said that even if it is a neutral law of

17 general applicability, when it implicates other constitutional

18 rights, then you go back not to the rational basis test, but to

19 strict scrutiny.

20

Now, this law has over 150 bullet point broad categories of

21 exemptions. Not just 150 activities that are exempted.

22 Categories of activities. And it refers by implication to 16

23 federal sectors, one of which includes public assembly as an

24 exception. So it's very vague what's excepted, but there's a

25 huge, broad amount of activity that people are allowed outside

Ex 5-8

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1528 Page 54 of 729

1 of their home to do.

2

And our argument is that when people are allowed outside of

3 their home to do certain different things that are not

4 constitutionally protected, then the Court should really look

5 with strict scrutiny to see is there a less restrictive means

6 to achieve the government's interest while -- we're not saying

7 that they can't burden the exercise of religion in any way, and

8 we're not saying that they -- that the church shouldn't be

9 subject to public health regulations that are for the good,

10 like vaccination or social distancing or other sorts of

11 restriction, but as soon as you begin to allow someone who's an

12 unelected official to tell the general public what is essential

13 and what's not on such a broad scale, I mean, if it was just a

14 couple activities being exempted, we might have a different

15 scenario, but when you're talking over 150 bullet pointed broad

16 categories of exemptions and then 16 very poorly defined

17 sectors, but one of which includes a subsector that includes

18 public assembly and other things, and not only are these

19 employment-based exemptions, their customers are exempted,

20 patrons are exempted under the order, and they're allowed to

21 have gatherings at these places under the order because when

22 you look at the definition of "gathering," it exempts gathering

23 as necessary to service the businesses that are considered

24 essential, which again, isn't a narrow class, it's a broad

25 class.

Ex 5-9

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1529 Page 55 of 7210

1

And so I really think that that is the most important thing

2 for the Court to consider. All the other issues are -- you're

3 right, they're extraneous to the concern of the temporary

4 restraining order.

5

And because this is a case that not only implicates the

6 right of people to freely exercise their religion, but also

7 their right to assemble, both of which are in the First

8 Amendment to the Constitution and considered to be the highest

9 order of constitutional protections, I think that a temporary

10 restraining order is justified to allow -- and again, they're

11 not asking for the ability to have an unrestricted service.

12 They're asking for the ability to have the same sorts of

13 exemptions -- or same sorts of restrictions that other exempt

14 businesses have. And there's a lot of different -- of the same

15 concerns that they have about going to church applying to a lot

16 of these broad activities that are exempted, like going to the

17 grocery store or to the pharmacy or to the gas station or to a

18 cannabis retailer or to all these other different types of

19 things that are exempted. And they're relying on people to

20 self-police and to follow the guidelines and restrictions.

21

This church is willing to promise to the county that

22 they'll impose whatever restriction will allow them to still

23 assemble in one place, including potentially meeting in HAZMAT

24 suits or in their vehicles, and not only will they impose those

25 restrictions, they'll self-police those restrictions as was

Ex 5-10

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1530 Page 56 of 7211

1 done this past Sunday.

2

I know that there are other points that are brought up, but

3 I think that's the heart of what the issue is here, and so I

4 would like to hear what the Court -- how the Court would

5 respond to that.

6

THE COURT: Okay. Let me hear from Mr. White first.

7

MR. WHITE: Sure. Thank you, Your Honor.

8

To be honest, you raised most of the points I was going to

9 raise myself, so I don't want to just repeat what you've

10 already said, but I think I would stress, first of all, if

11 we're focusing on the free exercise, this is not strict

12 scrutiny. Employment Division versus Smith clearly applies

13 here. This is a general law, a neutral law of general

14 applicability. It has affected and applied to businesses of

15 all sorts, and you can look around town when you're out at the

16 grocery stores how many businesses are closed down. It applies

17 to residents without respect to religious beliefs of any kind.

18 It's as broad and generally applicable of a regulation that I

19 can think of. So strict scrutiny does not apply, but cases

20 that I cited in my brief showing when you move from a generally

21 applicable law to a law that's targeting religion or motivated

22 against religion, this is not anywhere near those categories

23 and doesn't meet that test.

24

So with rational basis applying under Smith, plaintiff's

25 counsel has the burden of showing that there's no conceivable

Ex 5-11

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1531 Page 57 of 7212

1 rational basis for this order. The Court, of course, has

2 already mentioned several bases for the order for the reasons

3 that are more than rational, and Dr. Wooten in her declaration

4 has mentioned several as well.

5

We are at the critical moment these next few weeks. It is

6 absolutely tragic that they are following on so many holidays,

7 no doubt about that, but the evidence in the public health

8 official and expert's statements is that these next few weeks

9 are key in this county and California, in particular, to

10 flatten the curve. And we've had as of yesterday in the

11 county, I believe 40 deaths related to covid-19. And one only

12 has to look at what's happening in New York to see what could

13 be here if these efforts are not successful or not adopted by

14 the community at large. We certainly do not want to be there,

15 and these next few weeks I think are going to be the key time

16 period.

17

The county and the sheriff's department, who enforce the

18 laws in the unincorporated county, simply do not have the

19 resources to monitor the entire populace to determine whether

20 they're complying with the stay-at-home laws.

21

To the extent exceptions are requested and made, it's --

22 Dr. Wooten explains in her declaration why that just will not

23 work. One, it undercuts what we're trying to do with

24 flattening the curve. The more people that are -- exceptions

25 and are out and about, the more opportunities for hot spots to

Ex 5-12

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1532 Page 58 of 7213

1 arise and for the virus to spread. And granting exceptions

2 begets additional requests for exceptions. If exceptions are

3 made for one church, I have no doubt that many churches

4 would -- especially for Easter, would request more exceptions,

5 and the county would be in this untenable position of trying to

6 pick when it's a major among churches or between churches and

7 other religious organizations and nonreligious organizations.

8

The county's public health official should be trusted.

9 They need to be focusing on stemming the flow and spread of

10 this virus and flattening the curve.

11

I think the Court noted that stay-at-home order has pretty

12 much been adopted not just throughout the entire country, but

13 throughout many parts of the world is clearly what the public

14 health experts across the board have determined is an

15 absolutely necessary response in order to combat this

16 once-in-a-lifetime-hopefully pandemic and public health crisis

17 that we found ourselves in.

18

And so I think clearly it meets the rational basis test,

19 and plaintiff has not met the heavy burden required to obtain a

20 temporary restraining order against the public health officer's

21 order during the middle of a crisis. That's when the Court and

22 others should be most -- defer to that expertise.

23

THE COURT: Okay, Mr. Graham, did you have anything

24 further?

25

MR. GRAHAM: Yes, Your Honor. I just have a couple

Ex 5-13

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1533 Page 59 of 7214

1 points that I feel that I should make.

2

One, in response to what he's saying is, this isn't just a

3 situation where you're talking about, again, a generally

4 applicable law. And the rational basis test doesn't apply

5 under the clear -- a clear reading of Employment Division

6 versus Smith, which is the biggest pronouncement on -- I mean,

7 again, they were dealing with a broadly applied law that had no

8 exemptions. The fact that the County Health Officer's order

9 has so many exemptions is the salient point that I don't

10 believe defense counsel responded to, and I would like to hear

11 his thoughts on how that affects his analysis because there

12 exists, again, more than 150 broad bullet-pointed exemption

13 categories. As soon as you're beginning to pick and choose and

14 say, well, this activity is essential, and this activity is

15 essential, and this one over here, but that's not essential,

16 then that's where we get into a place that it's not really too

17 neutral, and it's clearly not generally applicable.

18

And then the churches singled out amongst those section

19 exemptions for restrictions that are in place on other

20 businesses that have, quite frankly, the same risk of spreading

21 the disease, if not more, especially when we're talking about

22 the church being willing to comply with a heightened set of

23 restrictions, and really, that's the heart of what the issue

24 is, is they're saying that all these businesses over here are

25 essential even though none of them are protected by the

Ex 5-14

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1534 Page 60 of 7215
1 Constitution, but the constitutionally protected activity, 2 that's not essential, and we're going to impose additional 3 limits on it that don't apply to all these other not 4 constitutionally protected activities. And that's -- you know, 5 it's a -- it's a broad-brush statement to say that there's so 6 many, but there are. There's so many different exemptions, and 7 it becomes -- and that's where it becomes arbitrary, and it 8 becomes oppressive because they're saying -- they're not 9 saying -- if they were saying, everybody stay at home, no 10 exception, that would fall under the rational basis review. 11 That would be the same sort of scenario as within Employment 12 Division versus Smith as was in Reynolds when we were dealing 13 with polygamy or in the child labor law cases or in the 14 Jacobson and Abbott scenario of vaccine laws. They're saying, 15 everybody stay at home, no exceptions. That would be one 16 thing, but when they're saying, everybody stay at home unless 17 you're doing X, Y, Z, and 150 other things that are very broad 18 categories and potentially these 16 other sectors, not really 19 clear, we're mentioning them, but we're not really adopting 20 them per se, we don't know, but they're saying you can do all 21 this stuff, you can go out of your home for all of these 22 reasons, but you can't go to church. And that's where the 23 First Amendment free exercise concern is. And that's why 24 rational basis doesn't apply to this case, because of the 25 existence of -- already of so many exemptions. We're not
Ex 5-15

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1535 Page 61 of 7216

1 talking about businesses that have asked to be excepted. We're

2 talking about businesses that have already been excepted from

3 the order and exempted from the order and with broad-brush

4 strokes, and that's where the constitutional right comes into

5 play, and we begin to ask -- we have to ask the question, if

6 none of these other activities that are being -- we're being

7 told are essential are constitutionally protected, then why

8 isn't the constitutionally protected activity in that list

9 that's also considered essential, and why is it protected by

10 the Constitution? And that's really what I don't think that

11 defense counsel responded to. I know that's the crux of what's

12 at the heart of plaintiff's argument, and it's the existence of

13 all these other exemptions that take it out of being a neutral

14 law of general applicability. And it's very clear. Again,

15 there's five examples of what our neutral laws of general

16 applicability, and those are all laws that are very broadly

17 applied with no, absolutely no, exception.

18

And what we're talking about is a law that has so many

19 different exceptions, lists of exceptions, quite frankly, for

20 businesses that we all could agree might not be so essential.

21 But still a broad list of exceptions. And for some reason,

22 while you can go outside of your house for a huge list of

23 reasons, you're not allowed to go to church. You stay home

24 unless you're going out for this huge list of reasons, but not

25 including church. And that is why it implicates the First

Ex 5-16

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1536 Page 62 of 7217

1 Amendment.

2

Again, if it was an order that said, stay at home, no

3 exceptions, that would be different than an order that says

4 stay at home unless you're going out for this huge list of

5 reasons, but not church. That's why it implicates the Free

6 Exercise Clause, because of all the exemptions that already

7 exist. And that's why it rises to the point of being subject

8 to strict scrutiny because of all the exemptions that already

9 exist.

10

THE COURT: Okay. Thank you.

11

First of all, in order to succeed on the TRO or a

12 preliminary injunction, for that matter, a plaintiff must

13 establish: One, that it is likely to succeed on the merits;

14 two, that it is likely to suffer irreparable harm in the

15 absence of preliminary relief; three, that the balance of

16 equities tip in its favor; and four, that the injunction is in

17 the public interest.

18

I'm prepared to assume that plaintiff will suffer

19 irreparable harm if the injunction or the restraining order is

20 not granted. Plaintiff alleges that assembling in person is a

21 critical part of this religion and that live streaming or audio

22 conferencing from home will violate their religion; however, I

23 just don't see that plaintiff has established any of the other

24 prongs.

25

First of all, as I said at the beginning, I do find that

Ex 5-17

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1537 Page 63 of 7218

1 the San Diego order by the San Diego Public Health Officer is

2 valid and within her authority.

3

So let me talk about the three areas, the three claims made

4 by the plaintiff in this case.

5

First of all, with respect to the free exercise of religion

6 claim, as I discussed earlier, the state may limit an

7 individual's right to freely exercise his religious beliefs

8 when faced with a serious health crisis such as the one we're

9 now facing with covid-19. Quote, the right to practice

10 religion freely does not include liberty to expose the

11 community to communicable disease, closed quote, or to ill

12 health or death, and that's Prince versus Massachusetts, 321

13 U.S. 158, 1944. Also Whitlow versus California, 203 F. Supp.

14 3d. 1079 at 1086, Southern District of California, 2016. And

15 Board of Medical Quality Assurance versus Andrews, 211

16 Cal. App. 3d, 1346, at 1353, 1989.

17

I do find that the order applies generally to all county

18 members, not specifically to religious services. To the extent

19 there are secular exemptions like grocery stores, gas stations,

20 banks, the need for these exemptions is clear. There's no way

21 these services could be provided remotely, and there is no

22 requirement that if the government provides a secular exemption

23 to a law or a regulation, it must also provide a religious

24 exemption, and I'm citing again to Whitlow versus California,

25 203 F. Supp. 3d. 1079. The order doesn't target religion or

Ex 5-18

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1538 Page 64 of 7219

1 restrict movement because of an individual's religious

2 motivation. All kinds of things are prohibited under the rule;

3 going to the beach, going to the park, going outside. So the

4 fact that there are exemptions I don't think brings it into the

5 strict scrutiny layer of review. I don't find strict scrutiny

6 applies, and I do find that the order is rationally based on

7 protecting safety and stopping the virus spread.

8

With respect to the freedom of assembly claim, the

9 government can impose regulations on the time, place, and

10 manner of an assembly to prevent threats to public order. I

11 find that the order not to assemble is content neutral and the

12 least restrictive means available to spread the virus. The

13 order does allow the pastor and his employees to gather to

14 operate the equipment necessary to support streaming of

15 services.

16

Furthermore, the county has expressed concerns about last

17 week's car services where the numbers were found out of their

18 cars gathering after the service. I do have some concern in

19 the belief that plaintiff puts forward in its papers. They

20 believe that assembly and prayer do more to prevent the spread

21 of disease, quote, than all the other precautionary methods

22 combined, closed quote, and that, quote, our assembly is the

23 best cure and preventive for the disease, closed quote.

24

Given the fact that after the last car service people were

25 seen gathering out of their cars and that the religion believes

Ex 5-19

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1539 Page 65 of 7220

1 that assembly is a better cure for the disease than staying

2 apart, I agree with the county that enforcement, even of

3 car-only services, would be difficult.

4

Therefore, I do find that the county's restrictions are

5 appropriate and the least restrictive means available to

6 prevent threats to public order.

7

With respect to plaintiff's due process claim, first, to

8 the extent plaintiff is raising a Fifth Amendment claim, that

9 is inapplicable since the federal government is not a defendant

10 in this case, and I'm citing Santa Ana Police Officers versus

11 City of Santa Ana, 723 Fed. Appx. 399, Ninth Circuit, 2018.

12

But to the extent plaintiff meant to bring a due process

13 claim under the 14th Amendment, I find that plaintiff's due

14 process has been met. Plaintiff was given notice and an

15 opportunity to be heard before Sunday's service.

16

Therefore, I do find that plaintiff has not established a

17 likelihood of success on the merits of any of its claims.

18

But finally, and maybe more importantly, I do find that the

19 equities don't tip in plaintiff's favor, particularly when you

20 consider the public's interest.

21

As I discussed earlier, this is a serious health risk to

22 everyone in the county. The only way currently known to curb

23 the disease is to limit personal exposure, and for all the

24 reasons I've stated at the outset of this hearing, plaintiff's

25 proposal for conducting in-person religious services, including

Ex 5-20

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1540 Page 66 of 7221

1 by car, are not sufficient to protect the public. The more

2 people traveling to religious services around the county, the

3 more likely they will be exposed to other people, and the more

4 likely they will expose other people to them.

5

Because this is a critical time during the virus, and

6 because of the critical and highly unusual need for protection

7 of the public, curtailing religious services is appropriate

8 along with all the other things that are being banned at this

9 point in time, and I find that's in the public's best interest.

10

Therefore, plaintiff's request for a TRO is denied.

11

Thank you all, and I really appreciate you making yourself

12 available.

13

MR. WHITE: Likewise, Your Honor. Thank you, on

14 behalf of the county.

15

THE COURT: Okay. Thank you.

16

---000---

17

C-E-R-T-I-F-I-C-A-T-I-O-N

18

19

I certify that the foregoing is a correct transcript from

20 the record of proceedings in the above-entitled matter.

21

22

Dated April 13, 2020, at San Diego, California.

23

24

/Dana Peabody/

Dana Peabody,

25

Registered Diplomate Reporter

Certified Realtime Reporter

Ex 5-21

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1541 Page 67 of 72
EXHIBIT 6

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1542 Page 68 of 72

Early Release / Vol. 69

Morbidity and Mortality Weekly Report May 12, 2020

High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice — Skagit County, Washington, March 2020
Lea Hamner, MPH1; Polly Dubbel, MPH1; Ian Capron1; Andy Ross, MPH1; Amber Jordan, MPH1; Jaxon Lee, MPH1; Joanne Lynn1; Amelia Ball1; Simranjit Narwal, MSc1; Sam Russell1; Dale Patrick1; Howard Leibrand, MD1

On March 17, 2020, a member of a Skagit County, Washington, choir informed Skagit County Public Health (SCPH) that several members of the 122-member choir had become ill. Three persons, two from Skagit County and one from another area, had test results positive for SARS-CoV-2, the virus that causes coronavirus disease 2019 (COVID-19). Another 25 persons had compatible symptoms. SCPH obtained the choir’s member list and began an investigation on March 18. Among 61 persons who attended a March 10 choir practice at which one person was known to be symptomatic, 53 cases were identified, including 33 confirmed and 20 probable cases (secondary attack rates of 53.3% among confirmed cases and 86.7% among all cases). Three of the 53 persons who became ill were hospitalized (5.7%), and two died (3.7%). The 2.5-hour singing practice provided several opportunities for droplet and fomite transmission, including members sitting close to one another, sharing snacks, and stacking chairs at the end of the practice. The act of singing, itself, might have contributed to transmission through emission of aerosols, which is affected by loudness of vocalization (1). Certain persons, known as superemitters, who release more aerosol particles during speech than do their peers, might have contributed to this and previously reported COVID-19 superspreading events (2–5). These data demonstrate the high transmissibility of SARS-CoV-2 and the possibility of superemitters contributing to broad transmission in certain unique activities and circumstances. It is recommended that persons avoid face-to-face contact with others, not gather in groups, avoid crowded places, maintain physical distancing of at least 6 feet to reduce transmission, and wear cloth face coverings in public settings where other social distancing measures are difficult to maintain.

Investigation and Findings
The choir, which included 122 members, met for a 2.5-hour practice every Tuesday evening through March 10. On March 15, the choir director e-mailed the group members to inform them that on March 11 or 12 at least six members had developed fever and that two members had been tested for SARS-CoV-2 and were awaiting results. On March 16, test results for three members were positive for SARS-CoV-2 and were reported to two respective local health jurisdictions, without indication of a common source of exposure. On March 17, the choir director sent a second e-mail stating that 24 members reported that they had developed influenza-like symptoms since March 11, and at least one had received test results positive for SARS-CoV-2. The email emphasized the importance of social distancing and awareness of symptoms suggestive of COVID-19. These two emails led many members to self-isolate or quarantine before a delegated member of the choir notified SCPH on March 17.
All 122 members were interviewed by telephone either during initial investigation of the cluster (March 18–20; 115 members) or a follow-up interview (April 7–10; 117); most persons participated in both interviews. Interviews focused on attendance at practices on March 3 and March 10, as well as attendance at any other events with members during March, other potential exposures, and symptoms of COVID-19. SCPH used Council of State and Territorial Epidemiologists case definitions to classify confirmed and probable cases of COVID-19 (6). Persons who did not have symptoms at the initial interview were instructed to quarantine for 14 days from the last practice they had attended. The odds of becoming ill after attending each practice were computed to ascertain the likelihood of a point-source exposure event.

U.S. Department of Health and Human Services Centers for Disease Control and Prevention

Ex 6-1

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1543 Page 69 of 72
Early Release

Summary
What is already known about this topic?
Superspreading events involving SARS-CoV-2, the virus that causes COVID-19, have been reported.
What is added by this report?
Following a 2.5-hour choir practice attended by 61 persons, including a symptomatic index patient, 32 confirmed and 20 probable secondary COVID-19 cases occurred (attack rate = 53.3% to 86.7%); three patients were hospitalized, and two died. Transmission was likely facilitated by close proximity (within 6 feet) during practice and augmented by the act of singing.
What are the implications for public health practice?
The potential for superspreader events underscores the importance of physical distancing, including avoiding gathering in large groups, to control spread of COVID-19. Enhancing community awareness can encourage symptomatic persons and contacts of ill persons to isolate or self-quarantine to prevent ongoing transmission.
No choir member reported having had symptoms at the March 3 practice. One person at the March 10 practice had cold-like symptoms beginning March 7. This person, who had also attended the March 3 practice, had a positive laboratory result for SARS-CoV-2 by reverse transcription–polymerase chain reaction (RT-PCR) testing.
In total, 78 members attended the March 3 practice, and 61 attended the March 10 practice (Table 1). Overall, 51 (65.4%) of the March 3 practice attendees became ill; all but one of these persons also attended the March 10 practice. Among 60 attendees at the March 10 practice (excluding the patient who became ill March 7, who also attended), 52 (86.7%) choir members subsequently became ill. Some members exclusively attended one practice; among 21 members who only attended March 3, one became ill and was not tested (4.8%), and among three members who only attended March 10, two became ill (66.7%), with one COVID-19 case being laboratory-confirmed.
Because illness onset for 49 (92.5%) patients began during March 11–15 (Figure), a point-source exposure event seemed likely. The median interval from the March 3 practice to symptom onset was 10 days (range = 4–19 days), and from the March 10 practice to symptom onset was 3 days (range = 1–12 days). The odds of becoming ill after the March 3 practice were 17.0 times higher for practice attendees than for those who did not attend (95% confidence interval [CI] = 5.5–52.8), and after the March 10 practice, the odds were 125.7 times greater (95% CI = 31.7–498.9). The clustering of symptom onsets, odds of becoming ill according to practice attendance, and known presence of a symptomatic

contagious case at the March 10 practice strongly suggest that date as the more likely point-source exposure event. Therefore, that practice was the focus of the rest of the investigation. Probable cases were defined as persons who attended the March 10 practice and developed clinically compatible COVID-19 symptoms, as defined by Council of State and Territorial Epidemiologists (6). The choir member who was ill beginning March 7 was considered the index patient.
The March 10 choir rehearsal lasted from 6:30 to 9:00 p.m. Several members arrived early to set up chairs in a large multipurpose room. Chairs were arranged in six rows of 20 chairs each, spaced 6–10 inches apart with a center aisle dividing left and right stages. Most choir members sat in their usual rehearsal seats. Sixty-one of the 122 members attended that evening, leaving some members sitting next to empty seats. Attendees practiced together for 40 minutes, then split into two smaller groups for an additional 50-minute practice, with one of the groups moving to a smaller room. At that time, members in the larger room moved to seats next to one another, and members in the smaller room sat next to one another on benches. Attendees then had a 15-minute break, during which cookies and oranges were available at the back of the large room, although many members reported not eating the snacks. The group then reconvened for a final 45-minute session in their original seats. At the end of practice, each member returned their own chair, and in the process congregated around the chair racks. Most attendees left the practice immediately after it concluded. No one reported physical contact between attendees. SCPH assembled a seating chart of the all-choir portion of the March 10 practice (not reported here because of concerns about patient privacy).
Among the 61 choir members who attended the March 10 practice, the median age was 69 years (range = 31–83 years); 84% were women. Median age of those who became ill was 69 years, and 85% of cases occurred in women. Excluding the laboratory-confirmed index patient, 52 (86.7%) of 60 attendees became ill; 32 (61.5%) of these cases were confirmed by RT-PCR testing and 20 (38.5%) persons were considered to have probable infections. These figures correspond to secondary attack rates of 53.3% and 86.7% among confirmed and all cases, respectively. Attendees developed symptoms 1 to 12 days after the practice (median = 3 days). The first SARS-CoV-2 test was performed on March 13. The last person was tested on March 26.
Three of the 53 patients were hospitalized (5.7%), including two who died (3.8%). The mean interval from illness onset to hospitalization was 12 days. The intervals from onset to death were 14 and 15 days for the two patients who died.
SCPH collected information about patient signs and symptoms from patient interviews and hospital records (Table 2).

2

MMWR  /  May 12, 2020  /  Vol. 69

Ex 6-2

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1544 Page 70 of 72
Early Release

TABLE 1. Number of choir members with and without COVID-19–compatible symptoms (N = 122)* and members’choir practice attendance† —
Skagit County, Washington, March 3 and 10, 2020

No. (row %)

March 3 practice

March 10 practice

Attendance

Total

Symptomatic Asymptomatic

Total

Symptomatic Asymptomatic

Attended Did not attend Attendance information missing Attended only one practice

78

51 (65.4)

27 (34.6)

61

53§ (86.9)

8 (13.1)

40

4 (10.0)

36 (90.0)

61

3 (4.9)

58 (95.1)

4

1 (25.0)

3 (75.0)

0

0 (—)

0 (—)

21

1 (4.8)

20 (95.2)

3

2 (66.7)

1 (33.3)

Abbreviation: COVID-19 = coronavirus disease 2019.
* No choir members were symptomatic at the March 3 practice. † Thirty-seven choir members attended neither practice; two developed symptoms, and 35 remained asymptomatic. § Includes index patient; if the index patient excluded, 52 secondary cases occurred among the other 60 attendees (attack rate = 86.7%).

FIGURE. Confirmed* and probable† cases of COVID-19 associated with two choir practices, by date of symptom onset (N = 53) — Skagit County, Washington, March 2020

20

18

Choir

16

practice

Choir practice

Probable Con rmed

14

No. of cases

12

Index

10

patient

8

6

4

2

0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30
Date of symptom onset

Abbreviation: COVID-19 = coronavirus disease 2019.
* Positive reverse transcription–polymerase chain reaction test result. † Attendance at the March 10 practice and clinically compatible symptoms as defined by the Council of State and Territorial Epidemiologists, Interim-20-ID-01:
Standardized surveillance case definition and national notification for 2019 novel coronavirus disease (COVID-19). https://cdn.ymaws.com/www.cste.org/resource/
resmgr/2020ps/interim-20-id-01_covid-19.pdf.

Among persons with confirmed infections, the most common signs and symptoms reported at illness onset and at any time during the course of illness were cough (54.5% and 90.9%, respectively), fever (45.5%, 75.8%), myalgia (27.3%, 75.0%), and headache (21.2%, 60.6%). Several patients later developed gastrointestinal symptoms, including diarrhea (18.8%), nausea (9.4%), and abdominal cramps or pain (6.3%). One person experienced only loss of smell and taste. The most severe complications reported were viral pneumonia (18.2%) and severe hypoxemic respiratory failure (9.1%).
Among the recognized risk factors for severe illness, the most common was age, with 75.5% of patients aged ≥65 years. Most patients (67.9%) did not report any underlying medical conditions, 9.4% had one underlying medical condition, and 22.6% had two or more underlying medical conditions. All three hospitalized patients had two or more underlying medical conditions.

Public Health Response
SCPH provided March 10 practice attendees with isolation and quarantine instructions by telephone, email, and postal mail. Contacts of patients were traced and notified of isolation and quarantine guidelines. At initial contact, 15 attendees were quarantined, five of whom developed symptoms during quarantine and notified SCPH.
Before detection of this cluster on March 17, Skagit County had reported seven confirmed COVID-19 cases (5.4 cases per 100,000 population). At the time, SCPH informed residents that likely more community transmission had occurred than indicated by the low case counts.* On March 21, SCPH issued a press release to describe the outbreak and raise awareness about community transmission.† The press release emphasized
* Skagit County, updated social distancing information. https://skagitcounty. net/departments/home/press/031620.htm.
† Skagit County, public health investigating cluster of related COVID-19 cases. https://skagitcounty.net/departments/home/press/032120.htm.

MMWR  /  May 12, 2020  /  Vol. 69

Ex 6-3

3

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1545 Page 71 of 72
Early Release

TABLE 2. Signs and symptoms reported at the onset of COVID-19 illness and during the course of illness among persons infected at a choir
practice (N = 53)* — Skagit County, Washington, March 2020

No. (%)

no./No. (%)

Reported at onset of illness

Reported during course of illness

Sign or symptom

All cases (N = 53)

Confirmed cases (N = 33)

All cases (N = 53)

Confirmed cases (N = 33)

Cough Fever Myalgia Headache Chills or rigors Congestion Pharyngitis Lethargy Fatigue Aguesia (loss of taste) Anosmia (loss of smell) Chest congestion or tightness Weakness Eye ache Dyspnea Diarrhea Pneumonia Nausea Acute hypoxemic respiratory failure Abdominal pain or cramps Malaise Anorexia Vomiting

27 (50.9) 28 (52.8) 13 (24.5) 10 (18.9)
7 (13.2) 4 (7.5) 2 (3.8) 4 (7.5) 3 (5.7) 1 (1.9) 1 (1.9) 1 (1.9) 1 (1.9) 1 (1.9) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—) 1 (1.9) 0 (—) 0 (—)

18 (54.5) 15 (45.5)
9 (27.3) 7 (21.2) 6 (18.2)
2 (6.1) 2 (6.1) 2 (6.1) 1 (3.0) 1 (3.0) 1 (3.0) 1 (3.0) 1 (3.0) 1 (3.0) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—) 0 (—)

47/53 (88.7) 36/53 (67.9) 34/52 (65.4) 32/53 (60.4) 23/51 (45.1) 25/52 (48.1) 12/52 (23.1)
5/52 (9.6) 24/52 (46.2) 11/48 (22.9) 10/48 (20.8)
5/52 (9.6) 3/52 (5.8) 1/52 (1.9) 8/51 (15.7) 8/52 (15.4) 6/53 (11.3) 3/52 (5.8) 3/53 (5.7) 2/52 (3.8) 1/52 (1.9) 1/52 (1.9) 0/52 (—)

30/33 (90.9) 25/33 (75.8) 24/32 (75.0) 20/33 (60.6) 16/31 (51.6) 15/32 (46.9)
8/32 (25.0) 3/32 (9.4)
15/32 (46.9) 5/28 (17.9) 5/28 (17.9) 4/32 (12.5) 2/32 (6.3) 1/32 (3.1) 8/31 (25.8) 6/32 (18.8) 6/33 (18.2) 3/32 (9.4) 3/33 (9.1) 2/32 (6.3) 0/32 (—) 0/32 (—) 0/32 (—)

Abbreviation: COVID-19 = coronavirus disease 19. * Including the index patient.

the highly contagious nature of COVID-19 and the importance of following social distancing guidelines to control the spread of the virus.
Discussion
Multiple reports have documented events involving superspreading of COVID-19 (2–5); however, few have documented a community-based point-source exposure (5). This cluster of 52 secondary cases of COVID-19 presents a unique opportunity for understanding SARS-CoV-2 transmission following a likely point-source exposure event. Persons infected with SARS-CoV-2 are most infectious from 2 days before through 7 days after symptom onset (7). The index patient developed symptoms on March 7, which could have placed the patient within this infectious period during the March 10 practice. Choir members who developed symptoms on March 11 (three) and March 12 (seven) attended both the March 3 and March 10 practices and thus could have been infected earlier and might have been infectious in the 2 days preceding symptom onset (i.e., as early as March 9). The attack rate in this group (53.3% and 86.7% among confirmed cases and all cases, respectively) was higher than that seen in other clusters, and the March 10 practice could be considered a superspreading event (3,4). The median incubation period of COVID-19 is estimated to be 5.1 days (8). The median interval from

exposure during the March 10 practice to onset of illness was 3 days, indicating a more rapid onset.
Choir practice attendees had multiple opportunities for droplet transmission from close contact or fomite transmission (9), and the act of singing itself might have contributed to SARS-CoV-2 transmission. Aerosol emission during speech has been correlated with loudness of vocalization, and certain persons, who release an order of magnitude more particles than their peers, have been referred to as superemitters and have been hypothesized to contribute to superspeading events (1). Members had an intense and prolonged exposure, singing while sitting 6–10 inches from one another, possibly emitting aerosols.
The findings in this report are subject to at least two limitations. First, the seating chart was not reported because of concerns about patient privacy. However, with attack rates of 53.3% and 86.7% among confirmed and all cases, respectively, and one hour of the practice occurring outside of the seating arrangement, the seating chart does not add substantive additional information. Second, the 19 choir members classified as having probable cases did not seek testing to confirm their illness. One person classified as having probable COVID-19 did seek testing 10 days after symptom onset and received a negative test result. It is possible that persons designated as having probable cases had another illness.

4

MMWR  /  May 12, 2020  /  Vol. 69

Ex 6-4

Case 3:20-cv-00865-BAS-AHG Document 22-1 Filed 05/14/20 PageID.1546 Page 72 of 72
Early Release

This outbreak of COVID-19 with a high secondary attack rate indicates that SARS-CoV-2 might be highly transmissible in certain settings, including group singing events. This underscores the importance of physical distancing, including maintaining at least 6 feet between persons, avoiding group gatherings and crowded places, and wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain during this pandemic. The choir mitigated further spread by quickly communicating to its members and notifying SCPH of a cluster of cases on March 18. When first contacted by SCPH during March 18–20, nearly all persons who attended the practice reported they were already self-isolating or quarantining. Current CDC recommendations, including maintaining physical distancing of at least 6 feet and wearing cloth face coverings if this is not feasible, washing hands often, covering coughs and sneezes, staying home when ill, and frequently cleaning and disinfecting high-touch surfaces, remain critical to reducing transmission. Additional information is available at https://www.cdc.gov/ coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
Acknowledgments
Patients described in this report; health care personnel who cared for them; Skagit County Public Health staff members and leaders, particularly the Communicable Disease investigators; Washington State Department of Health.
Corresponding author: Lea Hamner, leah@co.skagit.wa.us, 360-416-1500.
1Skagit County Public Health, Mount Vernon, Washington.

All authors have completed and submitted the International
Committee of Medical Journal Editors form for disclosure of
potential conflicts of interest. All authors report receipt of funding
through Public Health Emergency Preparedness grant from the
Washington State Department of Health during the conduct of the
study. No other potential conflicts of interest were disclosed.
References
1. Asadi S, Wexler AS, Cappa CD, Barreda S, Bouvier NM, Ristenpart WD. Aerosol emission and superemission during human speech increase with voice loudness. Sci Rep 2019;9:2348. https://doi.org/10.1038/ s41598-019-38808-z
2. Wang D, Hu B, Hu C, et al. Clinical characteristics of 138 hospitalized patients with 2019 novel coronavirus-infected pneumonia in Wuhan, China. JAMA 2020;323:1061–9. https://doi.org/10.1001/jama.2020.1585
3. McMichael TM, Currie DW, Clark S, et al. Epidemiology of COVID-19 in a long-term care facility in King County, Washington. N Engl J Med 2020;NEJMoa2005412. https://doi.org/10.1056/NEJMoa2005412
4. Ghinai I, Woods S, Ritger KA, et al. Community transmission of SARS-CoV-2 at two family gatherings—Chicago, Illinois, February– March 2020. MMWR Morb Mortal Wkly Rep 2020;69:446–50. https:// doi.org/10.15585/mmwr.mm6915e1
5. South Korean city on high alert as coronavirus cases soar at ‘cult’ church. The Guardian, US Edition. February 20, 2020. https://www.theguardian. com/world/2020/feb/20/south-korean-city-daegu-lockdown-coronavirusoutbreak-cases-soar-at-church-cult-cluster
6. Council of State and Territorial Epidemiologists. Interim-20-ID-01: standardized surveillance case definition and national notification for 2019 novel coronavirus disease (COVID-19). Atlanta, GA: Council of State and Territorial Epidemiologists; 2020. https://cdn.ymaws.com/www. cste.org/resource/resmgr/2020ps/interim-20-id-01_covid-19.pdf
7. He X, Lau EHY, Wu P, et al. Temporal dynamics in viral shedding and transmissibility of COVID-19. Nat Med 2020;26:672–5.
8. Lauer SA, Grantz KH, Bi Q, et al. The incubation period of coronavirus disease 2019 (COVID-19) from publicly reported confirmed cases: estimation and application. Ann Intern Med 2020;172:577. https://doi. org/10.7326/M20-0504
9. van Doremalen N, Bushmaker T, Morris DH, et al. Aerosol and surface stability of SARS-CoV-2 as compared with SARS-CoV-1. N Engl J Med 2020;382:1564–7. https://doi.org/10.1056/NEJMc2004973

Readers who have difficulty accessing this PDF file may access the HTML file at https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6. htm?s_cid=mm6919e6_w. Address all inquiries about the MMWR Series, including material to be considered for publication, to Editor, MMWR Series, Mailstop E-90, CDC, 1600 Clifton Rd., N.E., Atlanta, GA 30329-4027 or to mmwrq@cdc.gov.

MMWR  /  May 12, 2020  /  Vol. 69

Ex 6-5

5

Case 3:20-cv-00865-BAS-AHG Document 22-2 Filed 05/14/20 PageID.1547 Page 1 of 2
Declaration of Service I, the undersigned, declare: That I am over the age of eighteen years and not a party to the case; I am employed in, or am a resident of, the County of San Diego, California where the service occurred; and my business address is: 1600 Pacific Highway, Room 355, San Diego, California. On May 14, 2020, I served the following document: (1) OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER [ECF 12] BY DEFENDANTS: 1. WILMA J. WOOTEN, in her official capacity as Public Health Officer for the County of San Diego; 2. HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services; and 3. WILLIAM D. GORE, in his official capacity as Sheriff of the County of San Diego; (2) REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ EX PARTE APPLICATION FOR A TEMPORARY RESTRAINING ORDER [ECF 12] BY DEFENDANTS: 1. WILMA J. WOOTEN, in her official capacity as Public Health Officer for the County of San Diego; 2. HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services; and 3. WILLIAM D. GORE, in his official capacity as Sheriff of the County of San Diego; in the following manner: (BY CM/ECF) I caused to be transmitted a copy of the foregoing document(s) this date via the United States District Court’s ECF System, in accordance with the rules governing the electronic filing of documents in the United States District Court for the Southern District of California, which electronically notifies all counsel as follows:
SEE LIST BELOW
South Bay United Pentecostal Church, et al. v. Newsom et al.; USDC No.: 20-cv-00865-BAS-AHG

Case 3:20-cv-00865-BAS-AHG Document 22-2 Filed 05/14/20 PageID.1548 Page 2 of 2

Harmeet K. Dhillon Mark Meuser Gregory R. Michael DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Phone: (415) 433-1700 Fax: (415) 520- 6593 Email: harmeet@dhillonlaw.com Email: mmeuser@dhillonlaw.com Email: gmichael@dihhonlaw.com
Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell LIMANDRI & JONNA LLP P.O. Box 9120 Rancho Santa Fe, CA 92067 Phone: (858) 759-9930 Fax: (858) 759-9938 Email: cslimandri@limandri.com Email: pjonna@limandri.com Email: jtrissell@limandri.com

Attorneys for Plaintiffs

I declare under penalty of perjury that the foregoing is true and correct. Executed on May 14, 2020, at San Diego, California.
By: s/TIMOTHY M. WHITE E-mail: timothy.white@sdcounty.ca.gov

South Bay United Pentecostal Church, et al. v. Newsom et al.; USDC No.: 20-cv-00865-BAS-AHG

 
 Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1549 Page 1 of 34

1 XAVIER BECERRA Attorney General of California
2 PAUL STEIN Supervising Deputy Attorney General
3 TODD GRABARSKY Deputy Attorney General
4 LISA J. PLANK Deputy Attorney General
5 State Bar No. 153737 1300 I Street, Suite 125
6 P.O. Box 944255 Sacramento, CA 94244-2550
7 Telephone: (415) 510-4445 Fax: (415) 703-1234
8 E-mail: Lisa.Plank@doj.ca.gov Attorneys for Defendants Gavin Newsom,
9 California Governor; Xavier Becerra, California Attorney General; and Sonia
10 Angell, Director of the California Department of Public Health
11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

14

15

SOUTH BAY UNITED

3:20-cv-00865 BAS-AHG

16 PENTECOSTAL CHURCH, a

California non-profit corporation, STATE DEFENDANTS’

17 BISHOP ARTHUR HODGES III, an OPPOSITION TO PLAINTIFFS’

individual,

APPLICATION FOR

18

TEMPORARY RESTRAINING

ORDER

19

Plaintiffs,

20

Judge: Hon. Cynthia A. Bashant

v.

21

22 GAVIN NEWSOM, in his Official Capacity as Governor of the State of
23 California; XAVIER BECERRA, in his Official Capacity as Attorney
24 General of California; SONIA ANGELL, in her Official Capacity as
25 Director of the California Department of Public Health, et al.,
26

27

Defendants.

28

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1550 Page 2 of 34

1

TABLE OF CONTENTS

2 Page
3 Introduction................................................................................................................ 1

4 Background ................................................................................................................ 4

I. The COVID-19 Pandemic and California’s Swift Action to

5

Combat the Virus .................................................................................. 4

6

II. The Stay-at-Home Order and the Staged Reopening Plan ................... 5

III. The Present Lawsuit and Request for TRO .......................................... 8

7 Legal Standard ......................................................................................................... 10

8 Argument ................................................................................................................. 10

9

I. Plaintiffs Are Not Likely to Succeed on the Merits of Their Claims ................................................................................................. 11

10

A. The Stay-at-Home Order and Reopening Plan Are

Constitutional Exercises of the Governor’s Emergency

11

Powers to Combat the COVID-19 Pandemic ........................... 11

12

1. Under Jacobson v. Massachusetts, Governors Have Broad Emergency Powers to Combat Health Crises ..... 11

13

2. As Numerous Recent Decisions Recognize,

Jacobson Applies to Free Exercise Claims. ................... 13

14

3. Under Jacobson, Both the Stay-at-Home Order and

15

the Reopening Plan Are Constitutional Exercises of the Governor’s Broad Emergency Powers. .................... 16

16

B. Even Under Traditional Constitutional Analysis,

Plaintiffs’ Free Exercise Claim Fails........................................ 19

17

1. The Executive Order and Resilience Roadmap Are

18

Neutral Laws of General Application that Survive Rational Basis Review. .................................................. 19

19

2. The Executive Order and Resilience Roadmap

Survive Strict Scrutiny. .................................................. 23

20

II. The Remaining Factors Weigh Heavily Against Issuance of a

21

Temporary Restraining Order. ............................................................ 24

Conclusion ............................................................................................................... 25

22

23

24

25

26

27

28
i
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1551 Page 3 of 34

1

TABLE OF AUTHORITIES

2 3 CASES

Page

4 Abiding Place Ministries v. Wooten

5

No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020).............................. 2, 14

6 Alliance for the Wild Rockies v. Cottrell

7

632 F.3d 1127 (9th Cir. 2011) ............................................................................. 10

8 Benson v. Walker

9

274 F. 622 (4th Cir. 1921) ................................................................................... 11

10 Binford v. Sununu

No. 217-2020-CV-00152 (N.H. Sup. Ct. March 25, 2020) (New

11

Hampshire) .......................................................................................................... 14

12 Calvary Chapel of Bangor v. Mills

13

No. 1:20-CV-00156-NT, 2020 WL 2310913 (D. Me. May 9, 2020)

14

(Maine) ................................................................................................................ 13

15 Cassell v. Snyders

No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020)

16

(Illinois) ............................................................................................................... 13

17 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah

18

508 U.S. 520 (1993) (Lukumi)............................................................................. 21

19 Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of

20

State of La.

186 U.S. 380 (1902) ............................................................................................ 11

21

22

Cross Culture Christian Ctr. v. Newsom No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May

23

5, 2020) ...................................................................................................... 2, 14, 15

24 Crowl v. Inslee

25

No. 3:20-cv-5352, ECF No. 30 (W.D. Wash. May 8, 2020)

(Washington) ....................................................................................................... 13 26

27

28
ii
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1552 Page 4 of 34

1

TABLE OF AUTHORITIES

2 3 Davis v. Berke

(continued)

Page

4

No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020)

(Chattanooga, Tenn.) ........................................................................................... 13

5

6

Drakes Bay Oyster Co. v. Jewell 747 F.3d 1073 (9th Cir. 2014) ............................................................................. 24

7

First Baptist Church v. Kelly

8

-- F. Supp. 3d --, No. 20-1102-JWB, 2020 WL 1910021 (D. Kan.

9

Apr. 18, 2020)...................................................................................................... 16

10 Flynt Distrib. Co. v. Harvey

11

734 F.2d 1389 (9th Cir. 1984) ............................................................................. 17

12 Gish v. Newsom No. 5:20-cv-00755, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020) ........ 14, 20, 21
13

14

Gish v. Newsom No. 5:20-cv-00755 (C.D. Cal. Apr. 23, 2020) ...................................................... 2

15

Hickox v. Christie

16

205 F. Supp. 3d 579 (D.N.J. 2016)...................................................................... 11

17 Huey v. United Parcel Serv., Inc.

18

165 F.3d 1084 (7th Cir. 1999) ............................................................................. 19

19 In re Abbott

20

954 F.3d 772 (5th Cir. 2020) ......................................................................... 12, 13

21 Jacobson v. Massachusetts

22

197 U.S. 11 (1905) .......................................................................................passim

23 Kansas v. Hendricks 521 U.S. 346 (1997) ............................................................................................ 11
24

25

Legacy Church, Inc. v. Kunkel No. CIV 20-0327, 2020 WL 1905586 (D.N.M. Apr. 17, 2020) ....... 13, 21, 22, 24

26

Lighthouse Fellowship Church v. Northam

27

No. 2:20-cv-204, 2020 WL 2110416 (E.D. Va. May 1, 2020)

28

(Virginia) ............................................................................................................. 13

iii

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1553 Page 5 of 34

1

TABLE OF AUTHORITIES

2

(continued)

3 Maryville Baptist Church, Inc. v. Beshear

Page

4

No. 20-5427, 2020 WL 2111316 (6th Cir. May 2, 2020) ................................... 16

5 Nigen v. New York

6

No. 1:20-cv-01576-EK-PK, 2020 WL 1950775 (E.D.N.Y. Mar. 29, 2020) (New York) ............................................................................................... 14

7

On Fire Christian Ctr. v. Fischer

8

--5 F. Supp. 3d --, No. 3:20-CV-264-JRW, 2020 WL 1820249

9

(W.D. Ky. Apr. 11, 2020).................................................................................... 15

10 Phillips v. City of New York

11

775 F.3d 538 (2d Cir. 2015) ................................................................................ 13

12 Prince v. Massachusetts 321 U.S. 158 (1944) .....................................................................................passim
13

14

Smith v. Avino 91 F.3d 105 (11th Cir. 1996) ............................................................................... 13

15

Stormans v. Selecky

16

586 F.3d 1109 (9th Cir. 2009) ............................................................................. 20

17 Stormans, Inc. v. Wiesman

18

794 F.3d 1064 (9th Cir. 2015) ................................................................. 19, 20, 22

19 Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear

20

No. 3:20-CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8,

2020) .................................................................................................................... 16

21

22

Tolle v. Northam No. 1:20-cv-00363-LMB-MSN, 2020 WL 1955281 (E.D. Va. Apr.

23

8, 2020) (Virginia)............................................................................................... 14

24 United States v. Chalk

25

441 F.2d 1277 (4th Cir. 1971) ............................................................................. 12

26 Vaccaro v. Sparks

27

No. SACV 11-00164, 2011 WL 16318039 (C.D. Cal. Jan. 28, 2011) .................................................................................................................... 10

28

iv

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1554 Page 6 of 34

1

TABLE OF AUTHORITIES

2 3 Weigel v. Target Stores

(continued)

Page

4

122 F.3d 461 (7th Cir. 1997) ............................................................................... 19

5 Whitlow v. California

6

203 F. Supp. 3d 1079 (S.D. Cal. 2016) ............................................................... 13

7 Winter v. Nat. Res. Def. Council, Inc. 555 U.S. 7 (2008) .......................................................................................... 10, 24

8

9

Workman v. Mingo Cty. Bd. Of Ed. 419 Fec. Appx. 348 (4th Cir. 2011)...................................................................... 23

10

Zucht v. King

11

260 U.S. 174 (1922) ............................................................................................ 13

12 STATUTES 13
Executive Order and Resilience Roadmap Are Neutral Laws ................................. 19 14 15 CONSTITUTIONAL PROVISIONS
16 United States Constitution First Amendment ..........................................................................................passim
17 18 OTHER AUTHORITIES

19 Anita Chabria, Sean Greene, Rong-Gong Lin II, Pentecostal church in

Sacramento linked to dozens of coronavirus cases, Los Angeles

20

Times, April 2, 2020............................................................................................ 18

21 Bailey Loosmore & Mandy McLaren, Kentucky county ‘hit really,

22

really hard’ by church revival that spread deadly COVID-19,

23

Louisville Courier Journal, April 2, 2020 ........................................................... 18

24 Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/casesps-in-us.html (last accessed May 13, 2020) .................................... 4
25

26

COVID-119 by the Numbers https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immumizati

27

on/ncov2019.aspx (last accessed May 12, 2020) ................................................ 17

28
v
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1555 Page 7 of 34

1

TABLE OF AUTHORITIES

2

(continued)

Page

3 Executive Order N-33-20 ........................................................................................... 5

4 http://www.nydailynews.com/coronavirus/ny-coronavirus-new-york-

5

city-death-toll-20200512-yb7q35usazgt3gfcsesoh4fhby-story.html

6

(accessed May 13, 2020) ....................................................................................... 4

7 https://www.cdc.gov/coronavirus/2019-ncov/cass-updates/cases-inus.html (last accessed May 12, 2020).................................................................. 17
8 9 https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm;................................. 18

10 https://www.cisa.gov/identifying-critical-infrastructure-during-covid19 ........................................................................................................................... 5
11

12

https://www.gov.ca.gov/sp-content/uploads/2020/05/5.4.20-Updateon-Californias-Pandemic-Roadmap.pdf................................................................ 6

13

https://www.gov.ca.gov/wp-content/uploads/2020/04/Update-on-

14

California-Pandemic-Roadmap.pdf....................................................................... 7

15 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/

16

phs/Epidemiology/HealthOfficerOrderCOVID19.pdf .......................................... 5

17 Map?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n; Fatalities,

18

https://covid19tracker.health.ny.gov/views/NYS-COVID19-

Tracker/NYSDOHCOVID- 19Tracker-

19

Fatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n (last

20

accessed April 27, 2020) ..................................................................................... 23

21 Memorandum of Points and Authorities, p. 2 ............................................................ 9

22 Now dozens have COVID-19 and two are dead, Los Angeles Times,

23

March 29, 2020.................................................................................................... 18

24 NYSDOH COVID-19 Tracker, https://covid19tracker.health.ny.gov/

25

views/NYS-COVID19-Tracker/NYSDOHCOVID-19Tracker- ......................... 23

26 Situation Report,

https://www.bing.com/search?q=Coronavirus+disease+2020+(COV

27

ID-19)+Situation+Report&src=IE-SearchBox&FORM=IESR4A ....................... 4

28

vi

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1556 Page 8 of 34

1

TABLE OF AUTHORITIES

2 3 Washington State.

(continued)

Page

4

https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm (last

accessed on May 12, 2020) ................................................................................... 3

5

6

Youjin Shin, Bonnie Berkowitz, Min Joo-Kim, How a South Korean church helped fuel the spread of the coronarvirus, Washington

7

Post, March 25, 2020 ........................................................................................... 17

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
vii
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1557 Page 9 of 34

1

Defendants California Governor Gavin Newsom, California Attorney General

2 Xavier Becerra, and California Public Health Officer Sonia Angell1 (collectively,

3 the State Defendants) file this opposition to Plaintiffs’ Application for a Temporary

4 Restraining Order.

5

INTRODUCTION

6

Plaintiffs seek a temporary restraining order that would permit them to resume

7 their normal, in-person worship schedule—which includes three to five services

8 each Sunday, with 200-300 or more congregants at each service—this coming

9 weekend. Ordinarily, Plaintiffs would be entitled to worship together in their

10 sanctuary. But these are not ordinary times The State of California, like much of the

11 world, is combatting a public health emergency of a magnitude unseen for at least a

12 century. The virulently infectious and frequently deadly COVID-19 has infected

13 almost 1.4 million and killed over 83,000 people in the U.S. alone. Because there is

14 not yet any vaccine or even widely effective treatment for the virus, and it may be

15 transmitted unknowingly by individuals with no symptoms, many large in-person

16 gatherings—including, unfortunately, in-person worship services—have been

17 transformed into “super-spreader” events, significantly threatening public health.

18

In March, faced with these alarming facts about the COVID-19 virus and news

19 of devastatingly large numbers of victims in hard-hit areas around the world,

20 California leaders and public health officials took swift and decisive action to slow

21 the spread of the virus. Their plan used the only effective measure available against

22 the virus—physical distancing—temporarily shutting down nearly all activities

23 outside the home for residents throughout the state, and engaging the entire state's

24 population in a collective effort to slow the virus's spread. Due to the enormous

25 sacrifices of millions of individuals, significant progress has been made in

26 “flattening the curve” representing new coronavirus cases in California. But the

27

28

1 Ms. Angell holds dual positions as California's Public Health Officer and the Director of its Department of Public Health.

1

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1558 Page 10 of 34

1 threat is far from over. Resuming normal activities too quickly will lead to further

2 outbreaks and accelerated spread, effectively undoing all of the work done so far

3 and causing further death and economic dislocation.

4

To avoid such a calamity, the Governor and public health officials have

5 formulated guidelines for gradually reopening the State, which are based on the

6 judgment of public health experts with the goal of minimizing the risk to public

7 health. The guidelines are focused on risk and provide for 3 stages of reopening,

8 beginning with entities and individuals that, with restrictions to protect public

9 health, can reopen in the short term without inordinate risk to themselves or others.

10 Plaintiffs’ TRO application asks the Court to intercede in this process, effectively

11 rewrite the State’s reopening plan, and permit houses of worship to return to in-

12 person services immediately—without regard to the known risk this will pose both

13 to congregation members and the public in general.

14

Many states have imposed restrictions on in-person worship services, and

15 these restrictions have been challenged on constitutional grounds, including several

16 cases in California. In all three decisions that have been issued, federal courts in

17 California (including this Court) have denied TRO requests challenging the

18 Governor’s March 19 Executive Order. See, e.g., Abiding Place Ministries v.

19 Wooten, No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020); Cross Culture

20 Christian Ctr. v. Newsom, No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D.

21 Cal. May 5, 2020); Gish v. Newsom, No. 5:20-cv-00755 (C.D. Cal. Apr. 23, 2020).

22 The result should be the same here.

23

In seeking emergency equitable relief, plaintiffs always bear a heavy burden.

24 That burden is even heavier where, as here, the Court is being asked to enjoin

25 public health orders in the midst of a once-in-a-century pandemic. Plaintiff has not

26 satisfied this burden. While the free exercise of religion is a fundamental right

27 afforded constitutional protection, the Supreme Court has long recognized that

28 “[t]he right to practice religion freely does not include liberty to expose the
2
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1559 Page 11 of 34

1 community . . . to communicable disease.” Prince v. Massachusetts, 321 U.S. 158,

2 166-67 (1944). Moreover, as recent decisions reaffirm, in the face of a public health

3 emergency, States have broad emergency powers that may be exercised to restrict

4 activities that are normally constitutionally protected. Although Plaintiffs do not

5 dispute the need for such restrictions to slow the spread of COVID-19, at bottom

6 they disagree with distinctions the Governor and public health officials have drawn

7 in assessing the relative risk of allowing various activities to resume, even with

8 precautions. This sort of second-guessing does not begin to satisfy the heavy

9 burden needed to overcome the State’s exercise of its emergency powers to combat

10 a pandemic. Indeed, because the State’s current guidelines are based on an

11 assessment of risk, a neutral and generally applicable standard, Plaintiffs’ claims

12 would fail even under traditional constitutional analysis.

13

In addition to failing to show likelihood of success on the merits, Plaintiffs

14 cannot show that the balance of equities favors a temporary restraining order

15 because the public interest weighs heavily against the relief that Plaintiffs seek.

16 Although Plaintiffs assert that the in-person services that they seek to hold pose

17 little or no threat to public health and safety, they have not supported that

18 contention with competent evidence, and there are numerous documented cases in

19 which in-person services have acted as “super-spreader events,” causing dozens and

20 in some cases even thousands of infections.2 In the face of that risk, Plaintiffs’

21 interest in resuming in-person services earlier than permitted under the current

22 guidelines is far outweighed by the threat of accelerating the spread of COVID-19

23 and infecting and potentially killing many within and outside those congregations.

24 Indeed, it is hard to imagine a situation in which equitable relief could be more

25 inappropriate. Defendants California Governor Gavin Newsom, California Attorney

26 2 See CDC Article describing church choir superspreader incident in
27 Washington State. https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm (last 28 accessed on May 12, 2020)
3
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1560 Page 12 of 34

1 General Xavier Becerra, and California Public Health Officer Sonia Angell3

2 (collectively, the State Defendants) file this opposition to Plaintiffs’ Application for

3 a Temporary Restraining Order.

4

BACKGROUND

5 I. THE COVID-19 PANDEMIC AND CALIFORNIA’S SWIFT ACTION TO

6

COMBAT THE VIRUS

7

In mere months, the coronavirus disease 2019 (COVID-19) has infected well

8 over four million people and caused the deaths of nearly 300,000 people

9 worldwide.4 As of this writing approximately 83,000 individuals have died from the

10 virus in the United States, including at least 20,000 deaths in New York City alone.5

11 California fortunately recognized early that COVID-19 had the potential to spread

12 rapidly throughout the state, and since early December 2019, the California

13 Department of Public Health has been working with the national Centers for

14 Disease Control and Prevention, the United States Health and Human Services

15 Agency, and local health departments to monitor, plan for, and combat the spread

16 of COVID-19 based on an ongoing assessment of current circumstances and the

17 best available data. See Declaration of James Watt, M.D., M.P.H. in Support of

18 Opp. to TRO motion (Watt Decl.) ¶¶ 2-4, 8-18.

19

As a result of the measures adopted by the State and the enormous sacrifices

20 of California’s residents, the state made significant progress toward “flattening the

21 curve” representing new COVID patients in many areas of California. However, the

22 danger is far from past. Indeed, more than half of the deaths in California from the

23

3 Ms. Angell holds dual positions as California's Public Health Officer and

the Director of its Department of Public Health.

24

4 See Coronavirus disease 2020 (COVID-19) Situation Report,

25

https://www.bing.com/search?q=Coronavirus+disease+2020+(COVID19)+Situation+Report&src=IE-SearchBox&FORM=IESR4A (last accessed May

26

13, 2020.)_____ 5 See Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/cases-

updates/casesps-in-us.html (last accessed May 13, 2020);

27 http://www.nydailynews.com/coronavirus/ny-coronavirus-new-york-city-death-toll-

28 20200512-yb7q35usazgt3gfcsesoh4fhby-story.html (accessed May 13, 2020)____

4

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1561 Page 13 of 34

1 virus have occurred in the last two weeks, and last week saw the second highest

2 daily death toll this year. (See “California Coronavirus COVID-19 Statewide

3 Update,” [as of May 12, 2020].)

4 II. THE STAY-AT-HOME ORDER AND THE STAGED REOPENING PLAN

5

The Governor proclaimed a State of Emergency in California on March 4,

6 2020 (FAC, ¶ 29),6 thereby making available additional resources to help the State

7 prepare for the unfortunately anticipated broader spread of COVID-19. Id. Two

8 weeks later the Governor and Public Health Officer (PHO) Angell, respectively,

9 issued Executive Order N-33-20 and a corresponding Public Health Order directing

10 individuals living in California to stay home or at their place of residence except as

11 needed to maintain continuity of operations of the 16 federal critical infrastructure

12 sectors (outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-

13 covid-19). FAC, ¶ 30; Ex. 1-1; ¶ 32. PHO Angell thereafter designated a

14 supplemental list of “Essential Critical Infrastructure Workers” in California who

15 were exempted from the stay-at-home order;7 the list included “[f]aith based

16 services that are provided through streaming or other technology.” 8 FAC, ¶ 32;

17 Exs. 1-2. Beginning in March 2020, San Diego County Public Health Officer

18 Wilma Wooten also issued county-level “stay-at-home” orders that prohibited in-

19 person gatherings.9

20

21

22

6 President Trump shortly thereafter issued a national State of Emergency on March 13, 2020. FAC, ¶ 17.

23

7 Executive Order N-33-20 and the March 22 Public Health Officer designations will be collectively referenced as the “Executive Order” or the “Stay-

at-Home Order.”

24

8 This exemption permits houses of worship to conduct services over online

25

streaming or teleconferencing and via drive-ins (provided congregants do not leave their cars and refrain from direct or indirect physical contact).

26

9 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/ phs/Epidemiology/HealthOfficerOrderCOVID19.pdf. After the State announced in

27

April 2020 that drive-in worship was a form of worship service authorized by the State Order, San Diego County interpreted its Public Health Order to likewise

28 permit such services.

5

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1562 Page 14 of 34

1

As the stay-at-home orders have sufficiently slowed the spread of COVID-19,

2 state officials and experts have developed a four-stage reopening plan for the State.

3 This plan, which is based on the relative risks of resuming various activities, was

4 announced by the Governor and the Public Health Officer on April 28, 2020. FAC,

5 ¶ 36; Trissel Decl. ISO TRO Application, ¶¶ 9-27, Ex E-F. The Public Health

6 Officer then issued a “California Pandemic Roadmap” on May 4, in which she

7 described the four stages of the state’s reopening plan. See Public Health Order

8 dated May 4, 2020.10 The Pandemic Roadmap identifies the following four stages:

9 safety and preparation (Stage 1), reopening of lower-risk workplaces and other

10 spaces (Stage 2), reopening of higher-risk workplaces and other spaces (Stage 3),

11 and last an easing of final restrictions leading to the end of the Stay-at-Home order

12 (Stage 4). Id.

13

An Order issued by the Public Health Officer on May 7 further explained the

14 status of California’s efforts to combat the spread of COVID-19 and the reopening

15 plan:

16

Today, COVID-19 continues to present a significant risk to the health of individuals throughout California. There are confirmed cases of the

17

virus in 54 of the 58 counties across the State, and each day over the

18

past two weeks over one thousand new cases have been confirmed in

California and dozens of people have lost their lives due to the virus.

19

However, owing to Californians’ mitigation efforts, statewide data

20

currently demonstrates stable rates of new infections and

hospitalization, the maintenance of surge capacity, and an improved

21

ability to test, contact trace, isolate, and provide support to individuals

22

exposed to COVID-19. As State Public Health Officer, I have

determined that the statewide data now supports the gradual movement

23

of the entire state from Stage 1 to Stage 2 of California’s Pandemic

24

Resilience Roadmap.

25 Id. She further explained in the May 7 Order that:

26

gradual movement into stage 2 is intended to reintroduce activities and sectors in a phased manner and with necessary modifications, in order

27

28

10 https://www.gov.ca.gov/sp-content/uploads/2020/05/5.4.20-Update-onCalifornias-Pandemic-Roadmap.pdf.

6

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1563 Page 15 of 34

1

to protect public health and result in a lower risk for COVID-19

2

transmission and outbreak in a community. Such deliberate phasing is

critical to allowing the state to protect the public, and to mitigate and

3

manage the impact of the re-openings, such that our health care

4

delivery system has the capacity to respond to potential increased

demands.

5

Id. The Governor released additional guidance concerning the reopening plan

6 (entitled the “Resilience Roadmap”) on May 7, stating “[w]e are now moving to

7 Stage 2, where some lower-risk workplaces can gradually open with adaptations.

8 The state is issuing guidance to help these workplaces reopen safety.”11 Empasizing

9 that busineses are not permitted simply to reopen and admit customers inside, the

10 new guidance describes Stage 2 as “Gradually reopen retail (curbside only),

11 manufacturing & logistics. Later, relax retail, restrictions, adapt & reopen schools,

12 child care, offices & limited hospitality, personal services.” Id. The corresponding

13 May 7 Public Health Order states: “stage [2] allows for some retail to open, but

14 only where the business in question has adopted a plan and put in place the

15 modifications required to protect employees and customers. (Emphasis added); see

16 Trissel Decl., Ex. E.12

17 Stage 3 of the Resilience Roadmap provides for the reopening of operations

18 and entities that by their nature involve people gathering in close proximity with

19 one other for extended periods. Resilience Roadmap, supra. The Roadmap
20

21

22

11 https://www.gov.ca.gov/wp-content/uploads/2020/04/Update-on-

23 California-Pandemic-Roadmap.pdf.

12 Plaintiffs request in their TRO application that the Court categorize South

24 Bay United Pentecostal Church as being within stage “2a,” but it is unclear what

25 that would mean in practical effect, particularly given that the church seeks to resume a full in-person service and activity schedule, while the Resilience
26 Roadmap and May 7 Public Health Order indicate that “2a” entities are limited to

27 curbside operations, that is, contact-free interactions between businesses and their customers.
28

7

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1564 Page 16 of 34

1 identifies churches, personal services (hair and nail salons), gyms, movie theaters

2 and sporting events as being within this category.

3

Plaintiffs in their application and supporting documents repeatedly

4 mischaracterize the Resilience Roadmap. For example, Plaintiffs assert that under

5 the reopening plan, “manufacturing and retail (bookstores, clothing stores, florists,

6 and sporting goods) will open on Friday, May 8 (Stage 2a),” and that

7 “Manufacturing, offices, seated dining at restaurants, shopping malls, and schools

8 will open a few weeks after that (Stage 2b),” while “churches will open a few

9 months after that.” MPA at 1. Not true. The Roadmap places public safety-based

10 conditions and restrictions on all businesses and entities which they must fulfill and

11 maintain in order to reopen and operate lawfully. Plaintiffs likewise omit the fact

12 that all of the provisions of the Stay-at-Home Order and related directives requiring

13 compliance with physical distancing and other safety measures remain applicable to

14 all entities and individuals.

15 III. THE PRESENT LAWSUIT AND REQUEST FOR TRO

16

Plaintiffs are the South Bay United Pentecostal Church and South Bay’s

17 Senior Pastor Bishop Arthur Hodges III. First Amended Complaint (“FAC”), ¶¶ 9,

18 20; Declaration of Bishop Arthur Hodges III ISO Application for TRO (Hodges

19 Decl), ¶ 2. Plaintiffs filed their initial complaint against the State Defendants as

20 well as San Diego County and City of San Diego officials, along with an ex parte

21 application for a temporary restraining order, on May 8. That application was

22 denied because Plaintiffs had failed to meet and confer before filing it. Plaintiffs

23 filed the FAC and a renewed application for a temporary restraining order on May

24 11. The FAC, which drops San Diego city officials as defendants, as well as one of

25 the previously named plaintiffs (a rabbi from a San Diego-area congregation),

26 asserts claims under the First Amendment's Free Exercise Clause and ten other

27 federal and state constitutional provisions. The renewed request for a temporary

28 restraining order is based only on claimed Free Exercise violations.
8
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1565 Page 17 of 34

1

In support of the requested TRO, Hodges states a sincere religious belief that

2 “all” being gathered in “one place” is fundamental in order to fulfill Christ's final

3 charge that “you will be my witnesses,” Hodges Decl, ¶ 10, and that being together

4 physically (and spiritually) with his congregants is key in the church’s preaching,

5 teaching and worship practice. Id., ¶¶ 11, 13. According to Hodges, South Bay

6 United Pentecostal Church has a sanctuary that holds up to six hundred people,

7 “average” attendance at Sunday services is between two-hundred and three-

8 hundred, and the church conducts from three to five services each Sunday. Id., ¶ 12.

9

Services begin with Bible classes spread across different ages and groups,

10 each class having between 10 and 100 participants. Id., ¶ 13. After classes,

11 “congregants gather together with one another in the sanctuary.” Id. “Those with

12 special needs or sickness come forward and stand around the altar, where hands are

13 laid upon them and they are then anointed. Id.; see also id., ¶ 16 (services include

14 weekly and/or daily baptisms “by immersion in water . . . based on the need or

15 request of a candidate”). The services conclude with “preaching followed by a

16 challenge to physical action, where the congregation is challenged to approach the

17 altar to ‘come believing, come praying.’” Id., ¶14. Hodges further states that, as a

18 result of the State’s orders, “I am prohibited from holding the services mandated by

19 Scripture.” Id., ¶ 21.

20

Plaintiffs seek what they characterize as a “a narrow temporary restraining

21 order enjoining Defendants' enforcement of the reopening plan as applied against

22 Plaintiffs--and thus moving them from Stage 3 of the Reopening Plan to Stage 2a--

23 so they can conduct services on the weekend of May 16-17, 2020.” Plaintiffs seek a

24 TRO on the grounds that the reopening plan (1) targets Plaintiffs for discriminatory

25 treatment merely because of their religious beliefs and practices in violation of the

26 Free Exercise Clause, and (2) “is irreparably harming Plaintiffs' fundamental

27 constitutional rights.” Pls' TRO, Memorandum of Points and Authorities, p. 2.

28
9
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1566 Page 18 of 34

1

LEGAL STANDARD

2

“An application for a temporary restraining order involves the invocation of a

3 drastic remedy which a court of equity ordinarily does not grant, unless a very

4 strong showing is made of a necessity and desirability of such action.” Vaccaro v.

5 Sparks, No. SACV 11-00164, 2011 WL 16318039, at *1 (C.D. Cal. Jan. 28, 2011)

6 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 103 F. Supp. 978, 980 (D.D.C.

7 1952)). Temporary restraining orders are subject to standards similar to those

8 governing preliminary injunctions: Plaintiffs have the burden to demonstrate that

9 they are likely to succeed on the merits of their claims, they are likely to suffer

10 irreparable harm without preliminary relief, the balance of equities weighs in their

11 favor, and an injunction is in the public interest. Winter v. Nat. Res. Def. Council,

12 Inc., 555 U.S. 7, 20 (2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d

13 1127, 1135 (9th Cir. 2011).

14

ARGUMENT

15

Plaintiffs have not met their burden of demonstrating entitlement to a

16 temporary restraining order. First, they cannot demonstrate a likelihood of success

17 on the merits. Plaintiffs’ Free Exercise and other constitutional challenges fail

18 because the State’s reopening plan, like the Stay-at-Home order, is a clearly valid

19 use of the Governor’s emergency powers to combat the COVID-19 crisis and a

20 neutral enactment of general applicability. Second, Plaintiffs have not shown that

21 the balance of equities weighs in their favor. To the contrary, any harm Plaintiffs

22 may suffer is far outweighed by the significant risk of harm to public health if

23 Plaintiffs are permitted to hold in-person worship services, especially as their

24 church is very large and holds services averaging two to three hundred congregants

25 three to five times each Sunday. The potential for a substantial outbreak of COVID-

26 19 from holding in-person services for more than 500 individuals and perhaps more

27 than 1500 is very real and substantial, and Plaintiffs present no competent evidence

28 that they can do so without creating a substantial public health risk.
10
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1567 Page 19 of 34

1 I. PLAINTIFFS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR

CLAIMS

2

A. The Stay-at-Home Order and Reopening Plan Are

3

Constitutional Exercises of the Governor’s Emergency Powers

to Combat the COVID-19 Pandemic

4

5

California is in the throes of an unprecedented, once-in-a-century public health

6 crisis that has brought normal life to a halt. In response, the Governor—along with

7 other state, local, and national officials—proclaimed a state of emergency and

8 issued the Executive Order to protect the health and safety of Californians. Since

9 then, state and local officials have issued guidance interpreting and applying the

10 Order. In an extraordinary public health crisis such as this, the State has broad

11 emergency power to protect public health, and courts must afford deference to

12 temporary actions taken to curb the spread of a dangerous disease and mitigate its

13 effects. Plaintiffs have not even begun to show a likelihood that they can establish

14 the State’s exercise of this power in first establishing a shelter-in-place order, and

15 then adopting a staged reopening plan, is unconstitutional.

16

1. Under Jacobson v. Massachusetts, Governors Have Broad

Emergency Powers to Combat Health Crises

17

The Supreme Court has long recognized that “a community has the right to

18 protect itself against an epidemic of disease which threatens the safety of its

19 members.” Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905) (internal quotation

20 marks omitted); see also Kansas v. Hendricks, 521 U.S. 346, 356 (1997)

21 (recognizing the continuing vitality of Jacobson). In that regard, the Court has

22 permitted states to enact “quarantine laws and health laws of every description,”

23 Jacobson, 197 U.S. at 27, similar to the Executive Order’s measures to combat the

24 COVID-19 pandemic. See, e.g., Compagnie Francaise de Navigation a Vapeur v.

25 Bd. of Health of State of La., 186 U.S. 380 (1902) (upholding quarantine law

26 against constitutional challenges); Benson v. Walker, 274 F. 622 (4th Cir. 1921)

27 (upholding board of health resolution that prevented carnivals and circuses from

28

11

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1568 Page 20 of 34

1 entering a certain county in response to the 1918-1919 influenza epidemic); Hickox

2 v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) (upholding quarantine of a nurse

3 returning from treating Ebola patients in Sierra Leone).

4

The exercise of these emergency powers “necessarily restricts activities that

5 would normally be constitutionally protected,” and “[a]ctions which citizens are

6 normally free to engage in [have] become subject to criminal penalty.” United

7 States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971). But “measures [that] would

8 be constitutionally intolerable in ordinary times [] are recognized as appropriate and

9 even necessary responses to the present [COVID-19 pandemic] crisis.” In re

10 Abbott, 954 F.3d 772, 787 (5th Cir. 2020). Although the Constitution is not

11 suspended during a state of emergency, the Supreme Court has recognized that

12 “under the pressure of great dangers,” constitutional rights may be reasonably

13 restricted “as the safety of the general public may demand.” Jacobson, 197 U.S. at

14 29.

15

To combat a virulently infectious disease in an emergency pandemic, the State

16 must be able to take swift and decisive action. Cf. Chalk, 441 F.2d at 1281. The

17 court’s review of temporary measures during such an emergency is therefore

18 “limited to a determination of whether the [executive’s] actions were taken in good

19 faith and whether there is some factual basis for [the Governor’s] decision that the

20 restrictions he imposed were necessary to maintain order.” Id.; see also Jacobson,

21 197 U.S. at 29 (“reasonable regulations” may be implemented in the face of an

22 infectious disease epidemic); Abbott, 954 F.3d 772 (applying a deferential standard

23 to an executive order restricting otherwise constitutionally protected abortion access

24 in the face of the COVID-19 crisis). This deferential standard recognizes that, in a

25 public health crisis, “it is no part of the function of a court . . . to determine which

26 one of two modes was likely to be the most effective for the protection of the public

27 against disease,” Jacobson, 197 U.S. at 30, and that “governing authorities must be

28 granted the proper deference and wide latitude necessary for dealing with . . .
12
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1569 Page 21 of 34

1 emergenc[ies].” Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996), abrogated on

2 other grounds, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).

3

2. As Numerous Recent Decisions Recognize, Jacobson

4

Applies to Free Exercise Claims.

5

Plaintiffs argue that Jacobson has little relevance here because it either does

6 not apply to the First Amendment or because it requires application of heightened

7 scrutiny. TRO at 17-19. This argument is demonstrably wrong. The Supreme

8 Court long ago expressly recognized that “[t]he right to practice religion freely does

9 not include liberty to expose the community . . . to communicable disease,” Prince,

10 321 U.S. at 166-67, and just four years ago this court rejected a Free exercise

11 challenge to a vaccination law based on Jacobson. See Whitlow v. California, 203

12 F. Supp. 3d 1079, 1083 (S.D. Cal. 2016) (finding no likelihood of success on a free

13 exercise challenge to a law removing a religious- or conscious-based exemption for

14 mandatory vaccination of schoolchildren); see also Zucht v. King, 260 U.S. 174

15 (1922) (upholding the exclusion of non-vaccinated children from a school district

16 against a due process and equal protection challenge); Phillips v. City of New York,

17 775 F.3d 538 (2d Cir. 2015) (finding that a challenge to mandatory vaccination law

18 was “foreclosed” by Jacobson). And less than a month ago, the Fifth Circuit stated

19 that this “settled rule” allows states facing emergencies to “restrict, for example,

20 one’s right to peaceably assemble, to publicly worship, to travel, and even to leave

21 one’s home.” Abbott, 954 F.3d at 778 (emphasis added).

22

In addition, following this rule, courts across the country have denied requests

23 for preliminary injunctive relief in constitutional challenges to emergency COVID-

24 19-related measures,13 including in the three previously referenced California

25

13 See, e.g., Calvary Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT,

26

2020 WL 2310913 (D. Me. May 9, 2020) (Maine); Crowl v. Inslee, No. 3:20-cv5352, ECF No. 30 (W.D. Wash. May 8, 2020) (ECF No. 30) (Washington); Cassell

v. Snyders, No. 20 C 50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020) (Illinois);

27 Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY, 2020 WL 1905586

28 (D.N.M. Apr. 17, 2020) (New Mexico); Lighthouse Fellowship Church v. Northam,

13

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1570 Page 22 of 34

1 federal court decisions. This Court denied a motion for temporary restraining order

2 in Abiding Place Ministries v. Wooten in April. Shortly thereafter, a Central District

3 judge denied a temporary restraining order in a Free Exercise Clause challenge to

4 the Executive Order. Gish v. Newsom, No. 5:20-cv-00755, 2020 WL 1979970 (C.D.

5 Cal. Apr. 23, 2020), emergency motion for injunction pending appeal denied, No.

6 20-55445 (9th Cir. May 7, 2020) (citing Winter, 555 U.S. 7). Citing Jacobson and a

7 recent Fifth Circuit opinion applying that decision, the court observed that during a

8 public emergency such as the COVID-19 pandemic, “traditional constitutional

9 scrutiny does not apply,” and “states and municipalities have greater leeway to

10 burden constitutionally protected rights.” Id. at *4-*5 (citing Abbott, 954 F.3d at

11 784-85; Jacobson, 197 U.S. at 31). Applying the highly deferential standard of

12 review that applies to such orders, the court found that the State’s Executive Order

13 bears a substantial relation to combatting the COVID-19 pandemic because it

14 “require[s] the physical distancing that is needed to slow the spread of the virus.”

15 Id. at *5. It also rejected the assertion that the Order was a “plain or palpable

16 invasion of the general right to free exercise of religion,” given that “a wide swath

17 of religious expression remains untouched by the Order[].” Id. Although in-person

18 gatherings are not permitted, the court explained, congregants are free to “gather

19 virtually or over the phone,” “gather in-person with the members of their

20 household,” and “practice their religion in whatever way they see fit so long as they

21 remain within the confines their own homes.” Id.; see also id. at *5-*7 (no violation

22 under traditional constitutional analysis).

23

24

25

No. 2:20-cv-204, 2020 WL 2110416 (E.D. Va. May 1, 2020) (Virginia); Davis v. Berke, No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020)

26

(Chattanooga, Tenn.); Nigen v. New York, No. 1:20-cv-01576-EK-PK, 2020 WL 1950775 (E.D.N.Y. Mar. 29, 2020) (New York); Tolle v. Northam, No. 1:20-cv-

27

00363-LMB-MSN, 2020 WL 1955281 (E.D. Va. Apr. 8, 2020) (Virginia), motion for injunction pending appeal denied, No. 20-1419 (4th Cir. Apr. 28, 2020);

28

Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Sup. Ct. March 25, 2020) (New Hampshire).

14

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1571 Page 23 of 34

1

Similarly, in Cross Culture Christian Center v. Newsom, --F. Supp. 3d --, No.

2 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020), an Eastern

3 District judge applied Jacobson and upheld the State’s exercise of emergency

4 police powers to enact an emergency public health measure unless there is no real

5 or substantial relation to public health or the measures are beyond all question a

6 plain and palpable invasion of rights secured by fundamental law. Of particular

7 relevance here, the court found unpersuasive the plaintiff's argument that the

8 church’s biweekly services did not pose a unique or unacceptable threat. Id. at *4. It

9 further held that the State’s ban on mass gatherings, such as sporting event,

10 concerts, dining rooms and in-person church services, all flowed from its

11 appropriate larger goal of substantially reducing in-person interactions. Id. at *5-*7.

12

Plaintiffs attempt to distinguish the three recent California federal court

13 rulings by brute force, arguing that those cases involved challenges to the

14 Governor’s earlier order establishing the list of “essential businesses,” whereas they

15 claim they are only challenging the Resilience Roadmap and the designation of

16 religious services in Stage 3. Pls.’ TRO at 10-12. This is a distinction without a

17 difference. The reopening plan, like the Executive Order itself, relies on

18 scientifically-backed risk assessments and is a good faith, reasonable exercise of the

19 Governor’s emergency powers. Plaintiffs are simply asking the Court to second-

20 guess the judgments of the Governor and the Public Health Officer about the risks

21 associated with in-person gatherings where people mingle in close proximity to

22 each other for long periods of time—including at religious gatherings. See Watt

23 Decl. ¶¶ 8-18.

24

Plaintiffs also reference the few decisions striking down restrictions on

25 worship services from other states. Those restrictions, however, are easily

26 distinguishable. For example, On Fire Christian Ctr. v. Fischer, --5 F. Supp. 3d --,

27 No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020), does not

28 assist Plaintiffs, however, as the temporary restraining order was issued only as to
15
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1572 Page 24 of 34

1 restrictions on drive-in worship services; by contrast, here, California has

2 interpreted the Executive Order to permit drive-in worship services. See also

3 Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, No. 3:20-

4 CV-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) (applying different

5 rules to comparable religious and non-religious activities, distinct from the

6 California Executive Order).14 Likewise, the Sixth Circuit’s ruling was limited to

7 drive-in services and did not enjoin the prohibition on in-person religious

8 gatherings. Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, 2020 WL

9 2111316, at *5 (6th Cir. May 2, 2020). Plaintiffs also cite an order from a Kansas

10 district court. Pls.’ TRO at 1 n.3, 8, 14 (citing First Baptist Church v. Kelly, -- F.

11 Supp. 3d --, No. 20-1102-JWB, 2020 WL 1910021, at *7-*8 (D. Kan. Apr. 18,

12 2020)). That court, however, addressed a Kansas executive order with restrictions

13 explicitly targeting churches and other religious facilities, “prohibiting gatherings

14 of more than ten congregants,” and exempting a broad range of places from any

15 restrictions, including hotels, bars, office spaces, and even shopping malls. First

16 Baptist Church, 2020 WL 1910021, at *2, *8. Here, by contrast, the Stay-at-Home

17 Order does not target religious services, and they are categorized with and treated

18 the same as other gatherings with similar relevant characteristics in the Resilience

19 Roadmap. Thus, Plaintiffs’ attempts to evade Jacobson fail.

20

3. Under Jacobson, Both the Stay-at-Home Order and the

21

Reopening Plan Are Constitutional Exercises of the Governor’s Broad Emergency Powers.

22

Notably absent from Plaintiffs’ papers is any attempt to show that either the

23 Stay-at-Home Order or the Reopening Plan fail to satisfy the deferential standard

24 that courts have recognized Jacobson to impose. The temporary restrictions placed

25 on religious services by these measures easily satisfy the standards governing

26 emergency measures taken to combat a public health emergency. The Governor

27

28

14 As discussed herein, California’s Executive Order and ensuing guidance treat similarly all gatherings involving extended close personal contact.

16

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1573 Page 25 of 34

1 issued the Stay-at-Home Order and ensuing directives in a good-faith, science-

2 backed response to the imminent and deadly threat posed by the COVID-19

3 pandemic. To date, the disease has infected over 1.3 million people and caused over

4 80,000 deaths in the United States;15 in California, which took measures early on to

5 prevent the spread of COVID-19, approximately 67,000 people have been infected

6 and 2,700 have died.16 However, the virulently infectious nature of this disease,

7 combined with the ability of asymptomatic individuals to unknowingly spread the

8 virus and the absence of any vaccination or widely effective treatment, has limited

9 the options for combatting the disease and—as similar measures by other state,

10 local, and national officials demonstrate—made the Order’s “stay-home” strategy

11 crucial to slowing the spread of the virus. See generally Watt Decl. ¶¶ 8-18.

12

Correspondingly, the decision to assign all large public gatherings, including

13 religious services, to Stage 3 of the reopening plan is an indispensable part of the

14 state’s COVID-19 response. There are by now numerous unfortunate examples of

15 public gatherings of this nature that have fueled the spread of COVID-19, including

16 in-person religious services. In addition to being stationary in close quarters for

17 extended periods during such services, congregants often are speaking aloud and

18 singing, which increases the danger that infected individuals will project respiratory

19 droplets that contain the virus and could thereby infect others. There are numerous

20 documented examples of in-person services becoming “super-spreader” events:

21

• In South Korea, as of March 25, at least 5,080 confirmed cases of

22 COVID-19 had been traced back to one individual who attended a religious service

23 in Daegu.17

24

15 https://www.cdc.gov/coronavirus/2019-ncov/cass-updates/cases-in-us.html

25

(last accessed May 12, 2020) 16 see COVID-119 by the Numbers

26

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immumization/ncov2019.as px (last accessed May 12, 2020).

17 See Youjin Shin, Bonnie Berkowitz, Min Joo-Kim, How a South Korean

27 church helped fuel the spread of the coronarvirus, Washington Post, March 25,

28 2020, https://www.washingtonpost.com/graphics/2020/world/coronavirus-south-

17

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1574 Page 26 of 34

1

• In California, seventy-one cases of COVID-19 have been linked to a

2 church in Sacramento.18

3

• Near Seattle, according to CDC report, following a 2.5 hour church choir

4 practice attended by 61 persons on March 10, 2020, 32 of the participants were

5 confirmed to be infected with COVID-19, 20 were suspected to be infected, three

6 were hospitalized, and two died.19

7

• In Kentucky, a church revival has been linked to at least twenty-eight

8 cases and two deaths from COVID-19.20

9

In light of these risks, Plaintiffs provide no basis to override the State’s

10 determination that large in-person gatherings, including church services, should be

11 in Stage 3 of the reopening plan. Although Plaintiffs submit a declaration from a

12 doctor and demand that this Court draw a different set of lines based on their

13 assessment of the risks involved, the Supreme Court’s holding in Jacobson bears

14 repeating: “it is no part of the function of a court . . . to determine which one of two

15 modes was likely to be the most effective for the protection of the public against

16 disease.” 197 U.S. at 30. 21 Those decisions are reserved for the responsible state

17 korea-church/. Although news articles are generally hearsay, “[t]he urgency of

obtaining a preliminary injunction necessitates a prompt determination” and thus

18 they may be given some weigh when adjudicating a preliminary injunction. Flynt

19

Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984). 18 See Anita Chabria, Sean Greene, Rong-Gong Lin II, Pentecostal church in

20

Sacramento linked to dozens of coronavirus cases, Los Angeles Times, April 2, 2020, https://www.latimes.com/california/story/2020-04-02/pentecostal-church-in-

sacramento-linked-to-dozens-of-coronavirus-cases.

21

19 https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm; see also

22

Richard Read, A choir decided to go ahead with rehearsal. Now dozens have COVID-19 and two are dead, Los Angeles Times, March 29, 2020,

23

https://www.latimes.com/world-nation/story/2020-03-29/coronavirus-choiroutbreak

24

20 Bailey Loosmore & Mandy McLaren, Kentucky county ‘hit really, really

25

hard’ by church revival that spread deadly COVID-19, Louisville Courier Journal, April 2, 2020, https://www.courier-journal.com/story/news/2020/04/01/

26

coronavirus-kentucky-church-revival-leads-28-cases-2-deaths/5108111002/. 21 The declaration submitted by Plaintiffs, which is from a medical (family

practice) doctor without any apparent qualifications as an epidemiologist or expert

27 in the spread of infectious diseases, also lacks any probative value. While the

28 declarant states that “I feel that going to one’s church, synagogue or mosque should

18

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1575 Page 27 of 34

1 and local officials, and Plaintiffs do not, and cannot, show that the State’s actions

2 were taken in bad faith or without any factual basis

3

In sum, although Plaintiffs’ religious exercise rights are fundamental, they do

4 not include the “liberty to expose the community . . . to communicable disease,”

5 Prince, 321 U.S. at 166-67, especially one as contagious and deadly as COVID-19.

6 The Governor’s decision to temporarily restrict one aspect of those rights—the

7 ability to conduct in-person worship services in large communal settings, as

8 Plaintiffs wish to do here—falls well within the scope of the Governor’s emergency

9 authority to combat the current public health crisis.

10

B. Even Under Traditional Constitutional Analysis, Plaintiffs’ Free

11

Exercise Claim Fails.

12

Even if Plaintiffs’ Free Exercise claim were analyzed under the standard of

13 review applied in non-emergent circumstances, Plaintiffs have still failed to show a

14 likelihood of success.

15

1. The Executive Order and Resilience Roadmap Are Neutral

16

Laws of General Application that Survive Rational Basis Review.

17

The Executive Order and Resilience Roadmap do not violate the Free Exercise

18 Clause because they are neutral laws of general application. “The right to exercise

19 one’s religion freely . . . ‘does not relieve an individual of the obligation to comply

20 with a valid and neutral law of general applicability on the ground that the law

21 proscribes (or prescribes) conduct that [one’s] religion prescribes (or proscribes).’”

22 Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075 (9th Cir. 2015) (quoting Emp’t

23 Div. v. Smith, 494 U.S. 872, 879 (1990)). Thus, “a neutral law of general

24 application need not be supported by a compelling government interest even when

25 be much safer than going to the grocery store,” Delgado Decl. ¶ 14, he bases this

26

assertion on a relative risk calculation based on probability figures for which he offers no explanation. See id. ¶¶ 17-22. Such a conclusory, unexplained opinion

27

cannot be relied upon: “[a]n expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.” Huey v. United Parcel Serv., Inc., 165

28

F.3d 1084, 1087 (7th Cir. 1999); see also Weigel v. Target Stores, 122 F.3d 461, 468-69 (7th Cir. 1997).

19

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1576 Page 28 of 34

1 ‘the law has the incidental effect of burdening a particular religious practice.’” Id.

2 (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543

3 (1993) (Lukumi)). Instead, “[s]uch laws need only survive rational basis review.”

4 Id. at 1076. The Executive Order easily satisfies those requirements.

5

The Executive Order and reopening plan are neutral. Both are neutral on their

6 face because they “make no reference to any religious practice, conduct, belief, or

7 motivation.” Id. They are also neutral in operation because they do not single out

8 religious or faith-based services and treat them differently from analogous public

9 gatherings. Neither the Executive Order nor the reopening plan imposes

10 “restrictions against religion in disguise.” Gish, 2020 WL 1979970, at *6. Far from

11 discriminating against religious practice, the Executive Order deems faith-based

12 services essential, allowing Plaintiffs’ and other clergy to leave their homes in order

13 to provide congregants with worship opportunities through technology such as

14 online streaming or teleconferencing (using various free platforms), or via drive-in

15 services (which should be conducted with appropriate distancing and protection

16 against direct or indirect physical contact). Thus, Plaintiffs cannot show that the

17 Order or reopening plan “suppress[es], target[s], or single[s] out the practice of any

18 religion because of religious content.” Stormans v. Selecky, 586 F.3d 1109, 1131

19 (9th Cir. 2009) (reversing district court’s preliminary injunction).

20

In addition to being neutral, the Executive Order and reopening plan are

21 generally applicable. They do not “‘in a selective manner, impose[] burdens only on

22 conduct motivated by religious belief,’” nor do they “substantially underinclude”

23 analogous secular conduct. Stormans v. Wiesman, 794 F.3d at 1079 (quoting

24 Lukumi, 508 U.S. at 543). Rather, “both secular and religious conduct are

25 prohibited equally,” and, indeed, “[t]he majority of the prohibited conduct is

26 secular.” Gish, 2020 WL 1979970, at *6. As a result of the COVID-19 pandemic

27 and Executive Order, a wide variety of California businesses and community

28 activities shut down or reduced operations. Restaurants have shuttered dining
20
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1577 Page 29 of 34

1 rooms, sporting events and concerts have been cancelled, and schools have moved

2 online; even state and federal courts have taken the drastic measures of closing their

3 doors with only narrow exceptions. In arguing that the Executive Order and

4 reopening plan target them based on their religion, Plaintiffs simply ignore the fact

5 that they apply to nearly every type of public gathering.

6

Plaintiffs complain that some secular activities were permitted to continue

7 under the Executive Order. E.g., Pls.’ TRO at 7. However, they draw a

8 false equivalence between businesses that are permitted to continue to receive serve

9 customers, on the one hand, and public gatherings, including those for worship, on

10 the other. See Lukumi, 508 U.S. at 546 (comparing “analogous non-religious

11 conduct” when determining whether a law is substantially underinclusive of secular

12 conduct). Plaintiffs seek to have large groups of people gather in a communal

13 experience: people coming together at once, for the same amount of time, in the

14 same enclosed space, and for the same purpose. Thus, the proper comparison is

15 with similar communal activities such as theaters, concert halls, and large sporting

16 events, all of which were treated equivalently under the Executive Order, and all of

17 which are categorized together in phase 3 in the Resilience Roadmap.

18

In contrast, picking up essential items such as food and medicine at grocery

19 stores, drive-thru restaurants, or pharmacies are singular and transitory experiences:

20 “An in-person religious gathering is not analogous to picking up groceries, food, or

21 medicine, where people enter a building quickly, do not engage directly with others

22 except at points of sale, and leave once the task is complete.” Gish, 2020 WL

23 1979970, at *6; see also Legacy Church, 2020 WL 1905586, at *33-*37

24 (discussing the neutrality and general application of the executive orders at issue).

25 As noted above, the risk of infection is much greater where individuals are

26 stationary in close quarters for extended periods of time, especially where, as in a

27 church or synagogue, the individuals are singing and speaking aloud towards one

28 another, which increases the risk of respiratory-based transmission of the
21
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1578 Page 30 of 34

1 coronavirus. Furthermore, many services such as preparing, packaging, and

2 distributing food or medicine cannot be done remotely, unlike worship services,

3 which can be broadcast over free streaming platforms, or conducted via drive-ins.

4 See Legacy Church, 2020 WL 1905586, at *36 n.12 (“[U]nlike [worship] services, .

5 . . [t]o name a few examples, grocery store cashiers and baggers cannot do their

6 jobs, and farmers cannot grow their crops, via teleworking.”).

7

Additionally, that the Executive Order and Resilience Roadmap allow for

8 certain enterprises to continue, while subjecting them to many restrictions,

9 including those concerning distancing, physical contact, attire, and cleanliness, does

10 not render them impermissibly underinclusive: “The government need not choose

11 between doing nothing in the face of a pandemic and closing all of society. It may

12 choose a middle ground, provided that it does so ‘without reference to the content

13 of the regulated’ activity.’” Legacy Church, 2020 WL 1905586, at *36 n.12

14 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986); Va.

15 Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)).

16 So here. Neither the Executive Order nor the Resilience Roadmap is based on the

17 content, religious or otherwise, of the regulated activities.

18

Because the Executive Order and Resilience Roadmap are both neutral and

19 generally applicable, they are subject to rational basis review, which they easily

20 satisfy. See Stormans v. Wiesman, 794 F.3d at 1084. California’s interest in

21 stopping the spread of COVID-19 and protecting the health of its citizens is not

22 only legitimate, it is compelling. And the temporary stay-at-home instructions

23 issued in the Executive Order and Resilience Roadmap are rationally related to that

24 purpose. Thus, Plaintiffs’ have not shown a likelihood of success on their Free

25 Exercise Clause claims even under traditional constitutional analysis. 22

26

22 Plaintiffs also briefly assert claims under the Equal Protection and Due

Process Claims. These claims are, however, based upon the right to Free Exercise,

27 which as shown above is not violated, and other constitutional claims such as the

28

right to travel and to free speech, which Plaintiffs do not discuss and thus fails to show their applicability.

22

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1579 Page 31 of 34

1

2. The Executive Order and Resilience Roadmap Survive

Strict Scrutiny.

2

3

Plaintiffs’ claims would fail even if the Executive Order and ensuing

4 directives were subject to strict scrutiny (and they are not). The State and other

5 Defendants have a compelling interest in protecting the public from the spread of

6 COVID-19. As explained above, “[t]he right to practice religion freely does not

7 include liberty to expose the community . . . to communicable disease.” Prince, 321

8 U.S. at 166-67; see also Workman, 419 Fed.Appx. at 353 (“[T]he state’s wish to

9 prevent the spread of communicable diseases clearly constitutes a compelling

10 interest.”). Plaintiffs do not— and cannot—argue otherwise. Moreover, a grave

11 danger is present here. To appreciate the gravity of the threat facing California and

12 its residents, one need only to look at the number of confirmed cases of COVID-19

13 and the resulting deaths that have occurred in New York -- over 335,000 cases and 14 26,000 deaths.23 While it is too early to make meaningful conclusions, California’s

15 swift and decisive measures instructing residents to stay at home and prohibiting

16 public gatherings may prove to have been decisive, allowing the State to slow the

17 spread of the disease and not experience the overwhelming of hospitals and health

18 care providers seen elsewhere. The State plainly has a compelling interest in

19 continuing its public health measures, including the Executive Order and Resilience

20 Roadmap, that appear to be working.

21

The Executive Order and Resilience Roadmap are also narrowly tailored to

22 serve the State’s compelling interest in avoiding the spread of COVID-19 because

23 the virus is highly contagious and has been shown to spread from person to person,

24 especially at public gatherings. As shown above, the pandemic has provided many

25

23 See NYSDOH COVID-19 Tracker, https://covid19tracker.health.ny.gov/

26

views/NYS-COVID19-Tracker/NYSDOHCOVID-19TrackerMap?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n; Fatalities,

https://covid19tracker.health.ny.gov/views/NYS-COVID19-

27 Tracker/NYSDOHCOVID- 19Tracker-

28

Fatalities?%3Aembed=yes&%3Atoolbar=no&%3Atabs=n (last accessed April 27, 2020).

23

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1580 Page 32 of 34

1 examples of individuals, including asymptomatic individuals, spreading the virus

2 through attendance at public gatherings, including religious services. Given the

3 documented examples of how public gatherings can lead to the spread of the virus

4 not only to those in attendance, but also to the larger community, the Executive

5 Order and Resilience Roadmap are no broader than required to address the problem

6 at hand.24 For this reason as well, Plaintiffs’ Free Exercise claim fails even under

7 traditional constitutional analysis.

8 II. THE REMAINING FACTORS WEIGH HEAVILY AGAINST ISSUANCE OF A

9

TEMPORARY RESTRAINING ORDER.

10

Plaintiffs’ motion fails for an additional, independent reason. To obtain a

11 temporary restraining order, Plaintiffs must show that they will suffer irreparable

12 harm, that the balance of equities weighs in their favor, and that a temporary

13 restraining order is in the public interest. Winter, 555 U.S. at 20; Drakes Bay Oyster

14 Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (“Where the government is a

15 party to a case in which a preliminary injunction is sought, the balance of the

16 equities and public interest factors merge.”). Plaintiffs do not—and cannot—make

17 this showing. Defendants do not question the sincerity of Plaintiffs’ belief that it is

18 essential to gather in person for worship services. However, because they have not

19 shown any constitutional violation, Plaintiffs cannot show any irreparable harm to

20 their constitutional rights. But even if Plaintiffs could overcome these obstacles,

21

22

24 The prohibition on public gatherings is temporary, and even while it is in place, Plaintiffs and all Californians remain free to gather in person with members

23

of their household and otherwise practice their religion so long as they do not gather in person in public. Individuals who wish to maintain their religious

24

practices during the current emergency have options to stay connected with their communities and to hold religious services without gathering in person. As noted,

25

religious leaders and staff are specifically included in the Public Health Officer’s list of workers who provide an essential service so that they may continue

26

providing religious services in any form other than in-person gatherings involving close physical proximity. These options include free streaming services online and

27

conducting drive-in services. Thus, the Resilience Roadmap is narrowly tailored. See Legacy Church, 2020 WL 1905586, at *36 n.12 (finding that even if strict

28

scrutiny were applied to the COVID-19-related restrictions on public gatherings, they would pass constitutional muster).

24

State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1581 Page 33 of 34

1 any injury suffered would be limited. The Executive Order and Resilience

2 Roadmap are temporary, and do not prohibit them from conducting religious

3 services, only from conducting in-person gatherings during the present health

4 emergency. See footnote 24, supra.

5

Furthermore, any harm that Plaintiffs might suffer as a result of such

6 temporary restrictions is far outweighed by the potential harm to public health and

7 to individuals in Plaintiffs’ community from conducting in-person services, as

8 recent “super-spreader” events, including at religious services, vividly demonstrate.

9 The public interest would not be served by the temporary restraining order

10 Plaintiffs seek—far from it, the public interest in the health, safety, and well-being

11 of individuals and the community would be greatly threatened.

12

CONCLUSION

13

For the foregoing reasons, the Court should deny Plaintiffs’ TRO Application.

14 Dated: May 14, 2020

Respectfully Submitted,

15

XAVIER BECERRA

16

Attorney General of California PAUL STEIN

Supervising Deputy Attorney General

17

TODD GRABARSKY

18

Deputy Attorney General

19

20 21 22 23 SA2020301026 24

s/ Lisa J. Plank LISA J. PLANK Deputy Attorney General Attorneys for Defendants Gavin Newsom, et al.

25

26

27

28
25
State Defs.’ Opposition to Plaintiffs’ App. for TRO (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23 Filed 05/14/20 PageID.1582 Page 34 of 34

CERTIFICATE OF SERVICE

Case Name:

South Bay United Pentecostal No. 3:20-cv-00865-BAS-AHG Church, et al. v. Newsom et al.

I hereby certify that on May 14, 2020, I electronically filed the following documents with the Clerk of the Court by using the CM/ECF system:

1. STATE DEFENDANTS' OPPOSITION TO PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER
2. DECLARATION OF LISA J. PLANK IN SUPPORT OF STATE DEFENDANTS' OPPOSITION TO PLAINTIFFS' APPLICATION FOR TEMPORARY RESTRAINING ORDER WITH EXHIBITS 1-3
3. DECLARATION OF JAMES WATT, MD, MPH, IN SUPPORT OF STATE DEFENDANTS' OPPOSITION TO PLAINTIFFS' APPLICATION FOR
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on May 14, 2020, at San Francisco, California.

V. Jordan Declarant
SA2020301026

Signature

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1583 Page 1 of 26

1 XAVIER BECERRA Attorney General of California
2 PAUL STEIN Supervising Deputy Attorney General
3 LISA J. PLANK Deputy Attorney General
4 State Bar No. 153737 455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004 Telephone: (415) 510-4445
6 Fax: (415) 703-1234 E-mail: Lisa.Plank@doj.ca.gov
7 Attorneys for Defendants Gavin Newsom, et al.
8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

11

12

13

SOUTH BAY UNITED

3:20-cv-00865-BAS-AHG

14 PENTECOSTAL CHURCH, a

California non-profit corporation; DECLARATION OF LISA J.

15 BISHOP ARTHUR HODGES III, an PLANK IN SUPPORT OF STATE

individual,

DEFENDANTS’ OPPOSITION TO

16

PLAINTIFF’S APPLICATION FOR

Plaintiffs, TEMPORARY RESTRAINING

17

ORDER

v.

18

Judge:

Hon. Cynthia A. Bachant

19 GAVIN NEWSOM, in his official

capacity as Governor of the State of

20 California; XAVIER BECERRA, in

his official capacity as Attorney

21 General of California; SONIA

ANGELL, in her official capacity as

22 Director of the California

Department of Public Health, et al.,

23

Defendants.

24

25

26

27

28

1

Plank Decl. ISO State Defs.’ Opp’n to Pls.’ App. for TRO (3:20-cv-00865-BASAHG)

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1584 Page 2 of 26

1

DECLARATION OF LISA J. PLANK

2

I, Lisa J. Plank, declare:

3

1. I am a Deputy Attorney General at the Office of the California Attorney

4 General. I serve as counsel to Defendants California Governor Gavin Newsom,

5 Attorney General Xavier Becerra, and Public Health Officer Sonia Angell in the

6 above-captioned matter.

7

2. I make this declaration of my own personal knowledge and experience

8 and, if called as a witness, I could and would testify competently to the truth of the

9 matters set forth herein.

10

3. Attached as Exhibit 1 is a true and correct copy of the document entitled

11 “California’s Roadmap to Modify the Stay-at-Home Order” as it appears on

12 Governor Newsom’s website on May 14, 2020 at 10:00 a.m. This document should

13 also be available at: https://www.gov.ca.gov/wp-

14 content/uploads/2020/04/California-Roadmap-to-Modify-the-Stay-at-Home-

15 Order.pdf

16

4. Attached as Exhibit 2 is a true and correct copy of the document entitled

17 “Resilience Roadmap” as it appears on Governor Newsom’s website on May 14,

18 2020 at 10:00 a.m. This document should also be available at:

19 https://covid19.ca.gov/roadmap/

20

5. Attached as Exhibit 3 is a true and correct copy of the document entitled

21 Order of the State Public Health Officer, dated May 7, 2020. On May 14, 2020, this

22 document is available at:

23 https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/

24 COVID-19/SHO%20Order%205-7-2020.pdf

25

6. Judicial notice is also requested of the court decisions cited in

26 Defendants’ Opposition brief. These court decisions are judicially noticeable under

27 Federal Rule of Evidence 201(b) because “[f]ederal courts may ‘take notice of

28

proceedings in other courts, both within and without the federal judicial system, if
2

Plank Decl. ISO State Defs.’ Opp’n to Pls.’ App. for TRO (3:20-cv-00865-BASAHG)

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1585 Page 3 of 26

1 those proceedings have a direct relation to the matters at issue.’” United States v. S.

2 Cal. Edison, 300 F. Supp. 2d 964, 973 (E.D. Cal. 2004) (quoting U.S. ex rel

3 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.

4 1992)).

5

I declare under penalty of perjury under the laws of the United States that the

6 foregoing is true and correct.

7 Executed on May 14, 2020 8
9
10

/s/ Lisa J. Plank
LISA J. PLANK Deputy Attorney General

11

12 SA2020301026 13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

Plank Decl. ISO State Defs.’ Opp’n to Pls.’ App. for TRO (3:20-cv-00865-BASAHG)

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1586 Page 4 of 26
EXHIBIT 1

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1587 Page 5 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1588 Page 6 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1589 Page 7 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1590 Page 8 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1591 Page 9 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1592 Page 10 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1593 Page 11 of 26
The ability to prevent infection in people who are at risk for more severe COVID-19
Key Questions
0 Are older Californians and the medically vulnerable living in their own homes supported so they can continue appropriate physical distancing?
0 Have we developed a plan to quickly identify and contain outbreaks in facilities housing older Californians, those living with disabilities, those currently incarcerated, and those with co-morbidities?

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1594 Page 12 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1595 Page 13 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1596 Page 14 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1597 Page 15 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1598 Page 16 of 26

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1599 Page 17 of 26

en

C
0

....._ ·0-....>1

<( OJ

:-,>C

>0- V)

ae.n,

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1600 Page 18 of 26
EXHIBIT 2

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1601 Page 19 of 26
.GOV California Coronavirus (COVID-19) Response

Search
Select language
Resilience Roadmap
Last updated May 12, 2020 at 5:30 PM
:: Menu
Californians have been staying home and saving lives since the start of our statewide stay-at-home order issued on March 19, 2020. These efforts have allowed the state to move forward on our roadmap for modifying the statewide order.
We are now in early Stage 2, where retail (curbside and delivery only), related logistics and manufacturing, office workplaces, limited personal services, outdoor museums, and essential businesses can open with modifications. The state is issuing guidance to help these workplaces reopen safely.

>
STAGE 1: Safety and prepared ness

>
STAGE
2:
Lowerrisk workolac

> >

STAGE

3:

Higher-

risk wHomoe r k

i)fac~

STAGE 4: End of Stay BackHto otopme-Menu

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1602 Page 20 of 26

Make workpla ces safe for our essentia
workers.

Graduall y reopen retail (curbsid e only), manufac turing & logistics . Later, relax retail restricti ons, adapt & reopen schools, child care, offices & limited hospitali ty, personal services.

Adapt and reopen movie theaters, religious services, & more personal & hospit ality services.

Reopen areas of highest risk: e.g. Concert s, conventi ons, sports arenas.

Stage 2 expansion will be phased in gradually. Some communities may move through Stage 2 faster if they are able to show greater progress. Counties that have met the readiness criteria and worked with the California Department of Public Health can open more workplaces as outlined on the County Variance page.

Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1603 Page 21 of 26
Industry guidance to reduce the risk
California moved into Stage 2 of modifying the state's Stay-at-Home order on May 8, 2020. Our progress in achieving key public health metrics will allow a gradual re-opening of California's economy.
We recognize the impact of economic hardship. We must get our economy roaring once again and put paychecks in people's pockets. But the risk of COVID-19 infection is still real for all Californians and continues to be fatal.
The state is issuing guidance for businesses to follow, if they're permitted to open per County Public Health rules.
Customers and individuals
Customers and individuals are encouraged to stay home if they have a fever or other COVID-19 symptoms. Those with symptoms or elevated temperatures should not shop, get services in person, go to work, or gather with others. If you're not sure if this applies to you, check your symptoms with this Symptom Screener.
Higher risk individuals (over 65 or with serious medical conditions) should continue to stay home until Stage 4. Minimize errands by getting groceries delivered or asking for help from friends or family.
Shop safely! Crowded settings increase your risk of exposure to COVID-19. Wear a face covering or cloth mask, stay 6 feet away from others, avoid touching your face, and wash your hands when you get home.

Department of Public Health Governor's Newsroom

Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1604 Page 22 of 26 Statewide COVID19 Hotline Accessibility Privacy Policy Feedback Off icial California St ate Governm ent Webs ite
Home Search Back to top Menu

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1605 Page 23 of 26
EXHIBIT 3

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1606 Page 24 of 26
ORDER OF THE STATE PUBLIC HEALTH OFFICER
May 7, 2020
On March 19, 2020, I issued an order directing all individuals living in the State of California to stay at home except as needed to facilitate authorized, necessary activities or to maintain the continuity of operations of critical infrastructure sectors. (See https://covid 19.ca.gov/stay-home-except-for-essential-needs/.) I then set out California 's path forward from this "Stay-at-Home" Order in California's Pandemic Roadmap https://www.gov.ca.gov/wpcontent/uploads/2020/05/5.4.20-Update-on-Californias-PandemicRoadmap.pd f.That Roadmap identifies four stages of the pandemic: safety and preparation (Stage 1), reopening of lower-risk workplaces and other spaces (Stage 2), reopening of higher-risk workplaces and other spaces (Stage 3), and finally an easing of final restrictions leading to the end of the stay at home order (Stage 4). Today, COVID-19 continues 'to present a significant risk to the health of individuals throughout California. There are confirmed cases of the virus in 54 of the 58 counties across the State, and each day over the past two weeks over one thousand new cases have been confirmed in California and dozens of people have lost their lives due to the virus. However, owing to Californians' mitigation efforts, statewide data currently demonstrates stable rates of new infections and hospitalizations, the maintenance of surge capacity, and an improved ability to test, contact trace, isolate, and provide support to individuals exposed to COVID-19. As State Public Health Officer, I have determined that the statewide data now supports the gradual movement of the entire state from Stage 1 to Stage 2 of California's Pandemic Resilience Roadmap.

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1607 Page 25 of 26
Gradual movement into Stage 2 is intended to reintroduce activities and sectors in a phased manner and with necessary modifications, in order to protect public health and result in a lower risk for COVID-19 transmission and outbreak in a community. Such deliberate phasing is critical to allowing the State to protect the public, and to mitigate and manage the impact of the re-openings, such that our health care delivery system has the capacity to respond to potential increased demands. Differences across the state in the prevalence of COVID19, as well as testing rates, containment capability, and hospital capacity, have resulted in differences among local health jurisdictions' ability to safely progress through the various stages. The low and stable data reported by some local health officers in their local health jurisdictions, combined with sufficient COVID19 preparedness, justifies allowance for some variation in the speed with which some local health jurisdictions will be able to move through the phases of Stage 2.
NOW, THEREFORE, I as State Public Health Officer and Director of the California Department of Public Health, order:
1. All local health jurisdictions in the state may begin gradual movement into Stage 2, as set forth in this Order, effective on May 8, 2020; however, a local health jurisdiction may implement or continue more restrictive public health measures if the jurisdiction's Local Health Officer believes conditions in that jurisdiction warrant it.
2. I will progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications, based on public health and safety needs, and I will add additional sectors, businesses, establishments, or activities at a pace designed to protect public health and safety. Those sectors, businesses, establishments, or activities that are permitted to open will be designated, along with necessary modifications, at https://covid 19.ca.gov /roadmap/, as I announce them.
3. To the extent that such sectors are re-opened, Californians may leave their homes to work at, patronize, or otherwise engage with those businesses, establishments, or activities and must, when they do so, continue at all times to practice physical distancing, minimize their time outside of the home, and wash their hands frequently. To prevent further spread of COVID-19 to and within other jurisdictions within the State, Californians should not travel significant distances and should stay close to home. My March 19, 2020, Order otherwise remains in full effect.

Case 3:20-cv-00865-BAS-AHG Document 23-1 Filed 05/14/20 PageID.1608 Page 26 of 26
4. The California Department of Public Health has set forth criteria to help local health officers assess the capacity of their local health jurisdictions to move through Stage 2. Local health jurisdictions that meet the criteria and follow the process set forth https://www.cdph.ca.gov/Programs/C ID/DC DC/Pages/COVID19/COVI D- l 9-Cou nty-Variance-Attesta tion-Memo.aspx wil l be permitted to move through Stage 2 more quickly than the State as a whole and reopen additional low-risk businesses before the rest of the state, if they choose to do so . A list of the sectors, businesses, establishments, or activities, and any necessary modifications, that such a qualifying jurisdiction may choose to reopen will be available at https://covid l9.ca.gov/roadmap-counties/, and may be expanded if I deem it to be in the interest of public health and safety.
Pursuant to the authority under EO N-60-20, and Health and Safety Code sections 120125, 120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this Order is to go into effect immediately and shall stay in effect until further notice.
This Order is being issued to protect the public health of Californians as we move as expeditiously to minim ize risk to the extent possible throughout the Stages of the Pandemic Resilience Roadmap.
Sonia Y Angell, MD, MPH State Public Health Officer & Director California Department of Public Health

Case 3:20-cv-00865-BAS-AHG Document 23-2 Filed 05/14/20 PageID.1609 Page 1 of 6

1 XAVIER BECERRA Attorney General of California
2 PAUL STEIN Supervising Deputy Attorney General
3 LISA J. PLANK Deputy Attorney General
4 State Bar No. 153737 455 Golden Gate Avenue, Suite 11000
5 San Francisco, CA 94102-7004 Telephone: (415) 510-4445
6 Fax: (415) 703-1234 E-mail: Lisa.Plank@doj.ca.gov
7 Attorneys for Defendants Gavin Newsom, et al.
8

9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

11

12

13

SOUTH BAY UNITED

3:20-cv-00865-BAS-AHG

14 PENTECOSTAL CHURCH, a

California non-profit corporation;

DECLARATION OF JAMES

15 BISHOP ARTHUR HODGES III, an WATT, MD, MPH, IN SUPPORT

individual,

OF STATE DEFENDANTS'

16

OPPOSITION TO PLAINTIFFS'

Plaintiffs, APPLICATION FOR

17

TEMPORARY RESTRAINING

v.

ORDER

18

19 GAVIN NEWSOM in his official

Judge:

capacity as Governor of the State of

20 California; XAVIER BECERRA, in his

official capacity as Attorney General of

21 California; SONIA ANGELL, in her

official capacity as Director of the

22 California Department of Public

Health.,

23

Defendants.

24

Hon. Cynthia A. Bashant

25

26

27

28
1
Decl. Dr. James Watt, MD, MPH (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23-2 Filed 05/14/20 PageID.1610 Page 2 of 6

1

I, JAMES WATT, MD, MPH, declare as follows:

2

1. I am over the age of 18, and a California resident. I know the following

3 facts of my own personal knowledge, and if called upon as a witness, I could and

4 would testify competently thereto.

5

2. I am employed as the Acting Deputy Director of the Center for Infectious

6 Diseases and Interim State Epidemiologist at the California Department of Public

7 Health (CDPH).

8

3. As the Acting Deputy Director of the Center for Infectious Diseases and

9 Interim State Epidemiologist at CDPH, I coordinate the CDPH’s epidemiologic

10 response to disease outbreaks and emerging health threats.

11

4. Prior to my role as Acting Deputy Director of the Center for Infectious

12 Diseases, I was the Chief of the Division of Communicable Disease Control from

13 2010 until 2019, and Deputy State Epidemiologist from 2012 until 2019 at CDPH.

14

5. My background is in epidemiology. I completed my residency in pediatrics

15 in 1993 and obtained a Master of Public Health degree in Maternal and Child

16 Health in 1995. In 1996, I joined the California Department of Health Services

17 (CDHS) as a Public Health Medical Officer II. In 1999, I joined the federal Centers

18 for Disease Control and Prevention (CDC) as an Epidemic Intelligence Service

19 Officer in the Respiratory Diseases Branch. In 2001, I became an Assistant

20 Scientist in the School of Public Health at Johns Hopkins University. In 2006, I

21 joined the CDPH as a Public Health Medical Officer III (Epidemiology) and

22 became Chief of the Tuberculosis Control Branch in 2008 and Chief of the Division

23 of Communicable Disease Control in 2010. In 2012, I became Deputy State

24 Epidemiologist at the CDPH. In addition to my current role as Acting Deputy

25 Director of the Center for Infectious Diseases and Interim State Epidemiologist, I

26 am an Associate at the Johns Hopkins University School of Public Health and

27 Clinical Professor at the University of California, San Francisco, School of

28
2
Decl. Dr. James Watt, MD, MPH (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23-2 Filed 05/14/20 PageID.1611 Page 3 of 6

1 Medicine. I have also served on a variety of advisory panels at, among others, the

2 CDHS, CDC, and World Health Organization.

3

6. CDPH is one of sixteen departments and offices within the California

4 Health and Human Services Agency and its fundamental responsibilities include

5 infectious disease control and prevention, food safety, environmental health,

6 laboratory services, patient safety, emergency preparedness, chronic disease

7 prevention and health promotion, family health, health equity and vital records and

8 statistics. Our mission is to advance the health and well-being of California's

9 diverse people and communities.

10

7. The Center for Infectious Diseases protects the people in California from

11 the threat of preventable infectious diseases and assists those living with an

12 infectious disease in securing prompt and appropriate access to healthcare,

13 medications and associated support services.

14

8. I have been intimately involved with the statewide COVID-19 response

15 since January 2020. My role is to oversee analysis of statewide data on COVID-19

16 cases and trends in disease activity. Since January, I have been working full time

17 for approximately 60-70 hours per week to address the pandemic. I am familiar

18 with the guidance issued by the CDPH and the State of California Executive Order

19 N-33-20, which is attached as Exhibit A.

20

9. The virus that causes COVID-19 is thought to spread mainly from person to

21 person, mainly through respiratory droplets produced when an infected person

22 coughs or sneezes. These droplets can land in the mouths or noses of people who

23 are nearby or possibly be inhaled into the lungs. The role of other transmission

24 pathways such as through aerosols that may travel long distances or through

25 contaminated surfaces has been suggested and is still being researched.

26

10. One of the aspects of COVID-19 that makes it difficult to prevent spread

27 is that it can be transmitted by a person who is asymptomatic.

28
3
Decl. Dr. James Watt, MD, MPH (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23-2 Filed 05/14/20 PageID.1612 Page 4 of 6

1

11. COVID-19 can spread quickly. A person with COVID-19, on average,

2 infects approximately two people. Unchecked, COVID-19 spreads exponentially

3 and over 10 transmission cycles, one person could be responsible for 1,024 other

4 people contracting the virus. Physical distancing interventions have been

5 successful in reducing the number of persons infected by each case, and changing

6 the exponential pattern of case increases. That is why these interventions are so

7 important for controlling COVID-19 in California. Physical distancing measures

8 include staying home except for essential activities and staying at least six feet

9 away from others when outside the home.

10

12. Spread is more likely when people are in close contact with one another

11 (within about six feet). COVID-19 is currently spreading in the community

12 (community spread) in many affected geographic areas. An area is experiencing

13 community spread when residents are becoming infected with the virus in

14 community settings and it is not possible to identify the source of exposure in some

15 cases.

16

13. In light of evidence of widespread COVID-19 transmission in

17 communities across the country, CDC recommends that people wear a cloth face

18 covering to cover their nose and mouth in the community setting. This is an

19 additional public health measure people should take to reduce the spread of

20 COVID-19 in addition to, not instead of, physical distancing, frequent hand

21 cleaning, and other everyday preventive actions. A cloth face covering is not

22 intended to protect the wearer but may prevent the spread of virus from the wearer

23 to others. This would be especially important in the event that someone is infected

24 but is not aware of their illness and is not self-isolating. A cloth face covering

25 should be worn whenever people must go into public settings for essential activities

26 (grocery shopping, for example).

27

14. A main purpose of the state’s current health and safety rules and related

28 orders is to protect vulnerable people from infection with the coronavirus that
4
Decl. Dr. James Watt, MD, MPH (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23-2 Filed 05/14/20 PageID.1613 Page 5 of 6

1 causes COVID-19 (SARS-CoV-2) and to reduce the spread of that virus in the

2 community. By reducing community spread, we can protect persons at increased

3 risk of severe disease and prevent critical infrastructure, particularly health care

4 facilities, from being overwhelmed.

5

15. Whenever a large group of people interact, there is an increased risk that

6 COVID-19 may be transmitted. There have been multiple reports of sizable to large

7 gatherings such as religious services, choir practices, funerals, and parties resulting

8 in significant spread of COVID-19.

9

16. Based on my experience with infectious disease prevention, measures that

10 depend on individual behavior such as mask wearing are difficult to sustain and less

11 effective than systematic measures such as canceling gatherings. I believe that in

12 gatherings of large numbers of people it may be very hard to maintain physical

13 distancing. As noted earlier, the virus can be spread by people who are not showing

14 symptoms. Thus, people who gather in groups or near others (other than those with

15 whom they live) will not be able to know whether other individuals who are in

16 close proximity are carrying the virus. By gathering in large groups, and in close

17 proximity to others, individuals put themselves and others at risk. The risk appears

18 to be increased where groups of individuals are in close proximity for extended

19 periods.

20

17. While keeping six feet of separation and wearing masks can reduce the

21 risk of disease transmission, any gathering poses some risk. This is why the CDC

22 recommends that large gatherings be cancelled.

23

18. Individuals attending large gatherings, including but not limited to the

24 types of events where there have been prior instances of COVID-19 spreading,

25 would be at increased risk of disease and could be expected to increase the spread

26 of COVID-19 in their communities and any other communities they visit. When an

27 individual is exposed to and contracts the novel coronavirus at a large gathering,

28 there is a high likelihood that he or she will spread COVID-19 to other individuals
5
Decl. Dr. James Watt, MD, MPH (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 23-2 Filed 05/14/20 PageID.1614 Page 6 of 6

1 in his/her community, and in some cases perpetuate the infection rates across

2 county lines. This spread could fan out into different parts of the state, jeopardizing

3 the hard work to contain COVID-19 that is going on in many communities and

4 placing a further strain on hospitals and other resources across the state.

5

I declare under the penalty of perjury under the laws of the United States that

6 the foregoing is true and correct to my personal knowledge.

7

Executed on May 12, 2020, in Richmond, California.

8

9

/s/ James Watt, M.D. (original signature retained by Attorney Lisa J. Plank)

10

_____________________________

11

JAMES WATT, MD, MPH, Declarant.

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
6
Decl. Dr. James Watt, MD, MPH (3:20-cv-00865-BAS-AHG)

 
 Case 3:20-cv-00865-BAS-AHG Document 31 Filed 05/15/20 PageID.1655 Page 1 of 6

1 XAVIER BECERRA Attorney General of California
2 PAUL STEIN Supervising Deputy Attorney General
3 TODD GRABARSKY Deputy Attorney General
4 LISA J. PLANK Deputy Attorney General
5 State Bar No. 153737 455 Golden Gate Avenue, Suite 11000
6 San Francisco, CA 94102-7004 Telephone: (415) 510-4445
7 Fax: (415) 703-1234 E-mail: Lisa.Plank@doj.ca.gov
8 Attorneys for Defendants Gavin Newsom, et al.
9

10

IN THE UNITED STATES DISTRICT COURT

11

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

12

13

14

SOUTH BAY UNITED

3:20-cv-00865-BAS-AHG

15 PENTECOSTAL CHURCH, a

California non-profit corporation; STATE DEFENDANTS’

16 BISHOP ARTHUR HODGES III, an OPPOSITION TO PLAINTIFFS’

individual; RABBI MENDEL

OBJECTION (ECF No. 26)

17 POLICHENCO, an individual,

18

Plaintiffs,

Judge: The Honorable Cynthia

19

v.

Bashant

20 GAVIN NEWSOM, in his official
21 capacity as Governor of the State of California; XAVIER BECERRA, in
22 his official capacity as Attorney General of California; SONIA
23 ANGELL, in her official capacity as Director of the California
24 Department of Public Health, et al.,

Action Filed:May 8, 2020

25

Defendants.

26

27

Plaintiffs filed an Objection (ECF No. 26) contending the opposition briefs

28 filed by State Defendants Gavin Newsom, Xavier Becerra and Sonia Angell (ECF
1
State Defendants’ Opposition to Plaintiffs’ Objection (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 31 Filed 05/15/20 PageID.1656 Page 2 of 6

1 No. 23) and the San Diego County Defendants (ECF No. 22) are untimely. They

2 ask the Court to deem Plaintiffs’ request for a temporary restraining order

3 unopposed and to summarily grant the requested TRO on that basis. The ultimate

4 relief Plaintiffs seek here is an order blocking and effectively re-writing the State’s

5 risk-based pandemic reopening plan so as to permit Plaintiffs to resume large, in-

6 person worship services this Sunday, May 17, essentially substituting the Court’s

7 discretion for that of the Governor and the State Public Health Officer about the

8 significant public health risk associated with such events and other large, in-person

9 gatherings. Plaintiffs’ objection should be overruled and their request to strike the

10 opposition briefs denied. Plaintiffs fail to show a clear violation of the Court’s

11 rules or, more importantly, that they have been prejudiced, let alone to a degree that

12 would warrant the draconian sanction they seek in a matter of such overriding

13 public importance.

14

The Court’s Standing Order for Civil Cases provides, in pertinent part,

15

All motions for temporary restraining orders must be briefed. While

16

temporary restraining orders may be heard in true ex parte fashion (i.e.,

without notice to an opposing party), the Court will do so only in

17

extraordinary circumstances. The Court’s strong preference is for the

18

opposing party to be served and afforded a reasonable opportunity to

file an opposition. 19

20 Standing Order for Civil Cases of Honorable Cynthia Bashant, United States

21 District Judge, at 8 (emphasis added). Plaintiffs filed their voluminous and complex

22 TRO application the evening of May 11, 2020. The State Defendants informed

23 Plaintiffs and the Court that they would be filing an opposition, and did so

24 approximately sixty-four hours after the TRO was filed—shortly before noon on

25 May 14. Undoubtedly, this was a reasonable period of time to oppose a TRO of this

26 nature, as the Court’s Standing Order contemplates.

27

The gist of Plaintiffs’ objection is that Defendants (and the State of California)

28 should be severely sanctioned because they followed Section 9 of the Court’s
2
State Defendants’ Opposition to Plaintiffs’ Objection (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 31 Filed 05/15/20 PageID.1657 Page 3 of 6

1 standing orders applicable to motions for a temporary restraining order, under

2 which the opposing party is entitled to a reasonable opportunity to respond, instead

3 of Section 6, under which oppositions to ex parte applications (of any kind) are due

4 within two court days. Despite Plaintiffs’ protestations, their voluminous moving

5 papers do not clearly identify their request as an “ex parte application” governed by

6 Section 6, and it was not clear from the sequence of events leading up to and after

7 the case was transferred that it was in fact an “ex parte application.” Therefore,

8 Defendants proceeded under section 9, which specifically governs TROs.

9 Defendants also filed their brief within a reasonable time—Plaintiffs do not appear

10 to dispute that, nor could they fairly do so given the voluminous briefing and

11 supporting declarations and exhibits they filed in support of their request for a

12 TRO.

13

Plaintiffs also fail to show that they have been significantly prejudiced.

14 Defendants filed and served their briefs shortly before noon yesterday, leaving

15 Plaintiffs sufficient time to prepare for oral argument and prepare any further

16 submissions to the Court. Plaintiffs argue they lost a “whole evening and morning

17 to prepare,” but that is not true. Assuming Section 6 governed, the State

18 Defendants’ brief was due at 11:59 p.m. Wednesday, i.e., two court days after the

19 filing of the TRO—not at 5 p.m. Wednesday, as Plaintiffs imply. Plaintiffs lost, at

20 most, twelve hours. More importantly, the sanction they seek for receiving the

21 opposition brief shortly before noon on Thursday, instead of by midnight

22 Wednesday, is startlingly mismatched to any prejudice they could have suffered.

23 Particularly in a case of this magnitude, in which the public interest is paramount,

24 striking Defendants’ oppositions, treating Plaintiffs’ request for a TRO as

25 “unopposed,” and summarily enjoining the Governor’s public health directives in

26 the midst of the most serious pandemic in a century would be grossly

27 disproportionate to the claimed non-compliance.

28
3
State Defendants’ Opposition to Plaintiffs’ Objection (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 31 Filed 05/15/20 PageID.1658 Page 4 of 6

1

The State Defendants complied with the rules as they understood them. They

2 also notified the Court in advance that they were proceeding under Section 9 of the

3 rules, and that they intended to file their opposition by noon on Thursday.

4 Moreover, Thursday at noon was the soonest the State Defendants could reasonably

5 file their brief; counsel for the State Defendants have been defending challenges to

6 the Governor’s pandemic directives in lawsuits all over the State, and in most of

7 those cases have had to respond to emergency requests for injunctive relief. The

8 request here raises a number of significant issues and required a significant amount

9 of time and resources to address, and counsel worked long hours to meet the

10 Court’s deadlines.

11

Although the State Defendants do not concede their brief was untimely, if the

12 Court disagrees, they respectfully ask the Court to excuse the late-filing and accept

13 the brief as timely filed. The State Defendants interpreted the applicable rules in

14 good faith, and certainly did not deliberately disregard any Court rule or deadline.

15 The State Defendants also would not object to the hearing on the TRO being

16 postponed until later today or tomorrow if doing so would alleviate concerns about

17 prejudice to the Plaintiffs.

18

In sum, the State Defendants respectfully submit their brief was timely, but

19 even if not, the sanction sought by Plaintiffs is wholly unwarranted and should be

20 rejected.

21

22

23

24

25

26

27

28
4
State Defendants’ Opposition to Plaintiffs’ Objection (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 31 Filed 05/15/20 PageID.1659 Page 5 of 6

1 Dated: May 15, 2020

Respectfully submitted,

2

XAVIER BECERRA

Attorney General of California

3

PAUL STEIN

Supervising Deputy Attorney General

4

5
6
7
8
SA2020301026
9 42195078.docx

s/ Lisa J. Plank___________________ LISA J. PLANK Deputy Attorney General Attorneys for Defendants Gavin Newsom, et al.

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
5
State Defendants’ Opposition to Plaintiffs’ Objection (3:20-cv-00865-BAS-AHG)

Case 3:20-cv-00865-BAS-AHG Document 31 Filed 05/15/20 PageID.1660 Page 6 of 6

 
 Case 3:20-cv-00865-BAS-AHG Document 39 Filed 05/18/20 PageID.1719 Page 1 of 2

1

2

3

4

5

6

7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
9

10 SOUTH BAY UNITED PENTECOSTAL CHURCH, et al.,
11 Plaintiffs,
12 v.
13 GAVIN NEWSOM, in his official
14 capacity as the Governor of California, et al.,
15 Defendants.
16

Case No. 20-cv-865-BAS-AHG ORDER DENYING PLAINTIFFS’ EX PARTE MOTION FOR AN INJUNCTION PENDING APPEAL [ECF No. 36]

17

Plaintiffs South Bay United Pentecostal Church and Bishop Arthur Hodges III

18 filed a motion for temporary restraining order. (ECF No. 12.) On May 15, 2020, the

19 Court held a telephonic hearing on the motion and denied the motion. (ECF No. 32,

20 38 (transcript of hearing).) That same day, Plaintiffs filed a notice of appeal.

21 Plaintiffs also filed an ex parte motion seeking an injunction pending the appeal.

22 (ECF No. 36.)

23

Federal Rule of Appellate Procedure 8(a)(1) provides that “[a] party must

24 ordinarily move first in the district court for . . . (C) an order . . . granting an injunction

25 while an appeal is pending.” Fed. R. App. Proc. 8(a)(1). Federal Rule of Civil

26 Procedure 62(d) provides that “[w]hile an appeal is pending from an interlocutory

27 order or final judgment that grants, dissolves, or denies an injunction, the court may

28 suspend, modify, restore, or grant an injunction on terms for bond or other terms that

– 1 –

Case 3:20-cv-00865-BAS-AHG Document 39 Filed 05/18/20 PageID.1720 Page 2 of 2

1 secure the opposing party’s rights.” Fed. R. Civ. P. 62(d). The standard for granting

2 an injunction pending appeal is generally the same as the standard for granting a

3 preliminary injunction. Humane Soc’y of U.S. v. Gutierrez, 523 F.3d 990, 991 (9th

4 Cir. 2008).

5

Having reviewed Plaintiffs’ arguments, the Court DENIES the instant Motion

6 for the same reasons stated on the record at the telephonic hearing on Plaintiffs’

7 motion for temporary restraining order. (See ECF No. 38.)

8

IT IS SO ORDERED.

9 DATED: May 18, 2020

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

– 2 –

 
 Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1725 Page 1 of 21

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
MAY 22 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

SOUTH BAY UNITED PENTECOSTAL CHURCH, a California nonprofit corporation; BISHOP ARTHUR HODGES III, an individual,
Plaintiffs-Appellants,
v.

No. 20-55533
D.C. No. 3:20-cv-00865-BAS-AHG Southern District of California, San Diego
ORDER

GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SONIA ANGELL, in her official capacity as California Public Health Officer; WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego; HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services; WILIAM D, GORE, in his official capacity as Sheriff of the County of San Diego,

Defendants-Appellees.

Before: SILVERMAN, NGUYEN, and COLLINS, Circuit Judges. This appeal challenges the district court’s denial of appellants’ motion for a
temporary restraining order and order to show cause why a preliminary injunction should not issue in appellants’ challenge to the application of the State of California and County of San Diego’s stay-at-home orders to in-person religious

LCC/MOATT

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1726 Page 2 of 21
services. Appellants have filed an emergency motion seeking injunctive relief permitting them to hold in-person religious services during the pendency of this appeal.
We have jurisdiction to review the denial of a temporary restraining order where, as here, “the circumstances render the denial ‘tantamount to the denial of a preliminary injunction.’” Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (internal citation omitted); see also 28 U.S.C. § 1292(a)(1). Accordingly, the motion to dismiss for lack of jurisdiction (Docket Entry No. 24) is denied.
The request to take judicial notice (Docket Entry No. 25) is granted. In evaluating a motion for an injunction pending appeal, we consider whether the moving party has demonstrated that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 367 (9th Cir. 2016) (“The standard for evaluating an injunction pending appeal is similar to that employed by district courts in deciding whether to grant a preliminary injunction.”).

LCC/MOATT

2

20-55533

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1727 Page 3 of 21
We conclude that appellants have not demonstrated a sufficient likelihood of success on appeal. Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
The remaining factors do not counsel in favor of injunctive relief. See Winter, 555 U.S. at 20. We therefore deny the emergency motion for injunctive relief pending appeal (Docket Entry No. 2).1

1 Judge Collins would grant the motion and has filed a dissent.

LCC/MOATT

3

20-55533

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1728 Page 4 of 21

FILED

South Bay United Pentecostal Church v. Newsom, No. 20-55533

MAY 22 2020

COLLINS, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiffs-Appellants South Bay United Pentecostal Church (the “Church”)

and its Bishop, Arthur Hodges III (collectively, “Plaintiffs”), move for a

preliminary injunction pending appeal that would allow them to conduct in-person

church services. The State of California’s refusal to allow them to hold such

services likely violates the Free Exercise Clause of the First Amendment, and so I

would grant the requested injunction. Because the majority concludes otherwise, I

respectfully dissent.

I

The Church is a Christian congregation in Chula Vista, California. Until the

recent COVID-19 pandemic, the Church held between three and five Sunday

services every week, which would attract 200–300 congregants each. Its sanctuary

seats 600.

On March 19, 2020, Governor Gavin Newsom issued Executive Order N-

33-20. The order generally required “all individuals living in the State of

California to stay home or at their place of residence except as needed to maintain

continuity of operations of the federal critical infrastructure sectors.” The federal

list of critical sectors did not include churches. The State public health officer

subsequently designated a comprehensive set of “Essential Critical Infrastructure

1

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1729 Page 5 of 21
Workers.” That list designated clergy as essential, but only if they were holding services “through streaming or other technologies that support physical distancing and state public health guidelines.”
On April 28, the Governor announced a four-stage “Reopening Plan” or “Resilience Roadmap,” under which the State would initially relax the stay-athome order for some organizations but not others. At Stage 1, only “critical infrastructure” was exempted. At Stage 2, curbside retail and additional factories making previously non-essential “things like toys, clothing, . . . [and] furniture” would be permitted to reopen. Stage 2 entities also included ones that would reopen at a later date within that stage, such as schools (in an adapted form), childcare, dine-in restaurants, outdoor museums, “destination retail, including shopping malls and swap meets,” and office-based businesses where telework is not possible. At Stage 3, “higher risk workplaces” like churches could reopen, along with bars, movie theaters, hair salons, and “more personal & hospitality services.” And at Stage 4, concerts, conventions, and spectator sports could reopen. The Governor predicted that while Phase 2 would begin in “weeks, not months,” Phase 3 would begin in “months, not weeks.”
On May 4, the Governor announced that Stage 2 would commence within a week. On May 8, Plaintiffs sued the Governor and several other state officers (collectively, “the State”) as well as various local officials, claiming that the
2

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1730 Page 6 of 21
Reopening Plan’s decision to place churches within Stage 3 instead of Stage 2 violated the Free Exercise Clause of the First Amendment. The County of San Diego implemented the Reopening Plan in an order dated May 9, 2020. Plaintiffs filed an amended complaint on May 11.
On May 15, 2020, the district court denied Plaintiffs’ motion for both a temporary restraining order (“TRO”) and an order to show cause (“OSC”) why a preliminary injunction allowing the Church to hold in-person services should not issue. Plaintiffs appealed and concurrently moved for a preliminary injunction in this court.
II We have jurisdiction over this appeal under our controlling decision in Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306 (9th Cir. 1989).1 Both in Religious Tech. Ctr. and in this case, the plaintiffs filed a motion for a TRO and for an OSC why a preliminary injunction should not issue; the district court denied the motion “for a TRO and an OSC following a hearing at which all parties were represented”; and the specific grounds on which the district court denied the motion “foreclosed any interlocutory relief.” Id. at 1308–09. As to the latter point, the district court below agreed with the State that the Reopening
1 The State questioned our jurisdiction in its initial opposition to Plaintiffs’ motion in this court, but it did not renew that objection in its subsequent formal opposition. Nonetheless, we have an obligation to consider the issue sua sponte.
3

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1731 Page 7 of 21
Plan is a “neutral law of general application” that is therefore subject only to rational basis review under Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). Given that this threshold legal conclusion is indisputably fatal to Plaintiffs’ Free Exercise claim, “[t]he futility of any further hearing was thus patent; there was nothing left to talk about.” Id. at 1309. The order was thus “tantamount to a denial of a preliminary injunction,” id. at 1308, and we therefore have jurisdiction under 28 U.S.C. § 1292(a)(1).
III Plaintiffs seek a preliminary injunction pending appeal, and the standards for such relief are well-settled. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Under our ‘sliding scale’ approach, ‘the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.’” Hernandez v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)). Here, all of these factors favor the Plaintiffs.
4

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1732 Page 8 of 21
A In seeking injunctive relief pending appeal, Plaintiffs principally rely on their claim under the First Amendment’s Free Exercise Clause, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I (emphasis added). This restriction is fully applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). I conclude that Plaintiffs have established a very strong likelihood of success on the merits of their Free Exercise claim.
1 As a threshold matter, the State contends that, in light of the ongoing pandemic, the constitutional standards that would normally govern our review of a Free Exercise claim should not be applied. “Although the Constitution is not suspended during a state of emergency,” the State tells us, “constitutional rights may be reasonably restricted ‘as the safety of the general public may demand’” (quoting Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)). According to the State, the current emergency conditions preclude us from applying Lukumi’s familiar framework for evaluating Free Exercise claims and require us instead to apply Jacobson’s “highly deferential” standard of review, under which we are supposedly limited “‘to a determination of whether the [Governor’s] actions were
5

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1733 Page 9 of 21
taken in good faith and whether there is some factual basis for [the] decision’” (quoting United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971)). As the State sees it, there is no “reason why Jacobson would not extend to the First Amendment and other constitutional provisions” (emphasis added). I am unable to agree with this argument, which seems to me to be fundamentally inconsistent with our constitutional order. Cf. Sterling v. Constantin, 287 U.S. 378, 397–98 (1932) (“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases[.]”).
The State’s motion cites no authority that can justify its extraordinary claim that the current emergency gives the Governor the power to restrict any and all constitutional rights, as long as he has acted in “good faith” and has “some factual basis” for his edicts. Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards. As the Second Circuit has recognized, Jacobson merely rejected what we would now call a “substantive due process” challenge to a compulsory vaccination requirement, holding that such a mandate “was within the State’s police power.” Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015); see also Zucht v. King, 260 U.S.
6

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1734 Page 10 of 21
174, 176 (1922) (Jacobson “settled that it is within the police power of a state to provide for compulsory vaccination”). Jacobson’s deferential standard of review is appropriate in that limited context. It might have been relevant here if Plaintiffs were asserting a comparable substantive due process claim, but they are not.
Instead, Plaintiffs assert a claim under the Free Exercise Clause, whose standards are well-established and which applies to the States under the Fourteenth Amendment. Cantwell, 310 U.S. at 303. Jacobson had no occasion to address a Free Exercise claim, because none was presented there. (That is unsurprising, because the Free Exercise Clause had not yet been held to apply to the States when Jacobson was decided in 1905. See Phillips, 775 F.3d at 543.) Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right; on the contrary, Jacobson explicitly states that other constitutional limitations may continue to constrain government conduct. See 197 U.S. at 25 (emergency public health powers of the State remain subject “to the condition that no rule . . . shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument”). The State suggests that the Second Circuit’s decision in Phillips applied Jacobson to bar a First Amendment challenge, but Phillips actually confirms my narrower reading of Jacobson. After applying Jacobson to reject the plaintiffs’ substantive due process challenge to New York’s vaccination
7

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1735 Page 11 of 21
requirement, the court then addressed (and rejected) the plaintiffs’ Free Exercise challenge by applying not Jacobson, but the familiar Lukumi framework that governs all Free Exercise claims. See Phillips, 775 F.3d at 543.
The Fourth Circuit’s decision in Chalk likewise provides no support for the State’s position. In Chalk, the defendants were pulled over for driving at 11:00 PM in violation of Asheville, North Carolina’s four-night curfew, and a search of their car revealed dynamite caps and other “materials from which an incendiary bomb could be readily produced.” See 441 F.2d at 1278–79. On appeal from the defendants’ subsequent convictions, the Fourth Circuit rejected the defendants’ challenge to the traffic stop, which was “focused on the curfew imposed by the mayor as a restriction on their right to travel.” Id. at 1283 (emphasis added). Applying a deferential standard of review, the court held that the temporary travel restrictions imposed by the short-lived curfew were justified in light of the significant civil unrest in Asheville that had led to the curfew order. Id. at 1282– 83. Given that the defendants were not engaged in any expressive (or religious) activity while driving, the First Amendment was not directly implicated by the traffic stop in Chalk, and so the decision has little relevance here. If anything, Chalk’s discussion of the First Amendment undercuts the State’s argument. The Fourth Circuit stated in dicta that any incidental impact on First Amendment rights from the curfew would be governed by the intermediate scrutiny standard of
8

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1736 Page 12 of 21
United States v. O’Brien, 391 U.S. 367 (1968), and the court likened the brief restriction on travel to a time, place, and manner restriction. See 441 F.2d at 1280– 81, 1283. The fact that Chalk attempted to fit its comments within such existing First Amendment categories refutes the State’s notion that the existence of an emergency results in a wholesale displacement of conventional constitutional standards.
Moreover, the State overlooks that we have expressly rejected a comparably broad reading of Chalk in addressing a First Amendment challenge to “an emergency order prohibiting access to portions of downtown Seattle, Washington, during the 1999 World Trade Organization (WTO) conference.” Menotti v. City of Seattle, 409 F.3d 1113, 1117, 1142 n.55 (9th Cir. 2005). Instead of applying a broad “‘emergency exception’” based on Chalk, we analyzed the emergency order within the rubric of established First Amendment time, place, and manner principles, which we held provided ample room to “take[] into account a balance of the competing considerations of expression and order.” Id. at 1142 & n.55.
Accordingly, I conclude that Plaintiffs’ challenge must be evaluated under the traditional Lukumi framework that governs Free Exercise claims.2
2 Notably, the State does not cite or rely upon the circuit court decision that most directly supports its reading of Jacobson, which is In re Abbott, 954 F.3d 772 (5th Cir. 2020). For the reasons stated, I am unable to agree with the Fifth Circuit’s conclusion that “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.” Id. at 786 (emphasis in original);
9

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1737 Page 13 of 21
2 In addressing a Free Exercise claim under Lukumi, the first question is whether the challenged restriction is one “that is neutral and of general applicability.” 508 U.S. at 531. If the answer is yes, then “we review [it] for a rational basis.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1084 (9th Cir. 2015). If the answer is no, then the restriction is subject to strict scrutiny—that is, it “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Lukumi, 508 U.S. at 531–32. In denying the requested relief, the district court held that the State’s Reopening Plan is a “neutral law of general application” and that it “is rationally based on protecting safety and stopping the virus spread.” Alternatively, the district court held that the Reopening Plan is narrowly tailored to promote the State’s compelling interest in public health.3 In my view, Plaintiffs have a high likelihood of success in their appeal of these rulings.
see also In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (generally endorsing the Fifth Circuit’s description of emergency powers under Jacobson). Beyond that limited observation, I express no view on the very different substantive constitutional questions presented in those cases. 3 The district court actually reached this alternative conclusion in the context of addressing Plaintiffs’ likelihood of success on their Free Exercise claim under the California Constitution. Reliance on the California Constitution, however, would be inappropriate here. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984).
10

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1738 Page 14 of 21
a As the Supreme Court explained in Lukumi, “the minimum requirement of neutrality is that a law not discriminate on its face.” 508 U.S. at 533. Accordingly, where a regulation’s operative language restricts conduct by explicit reference to the conduct’s religious character, it is not facially neutral. Id. (citing the law at issue in McDaniel v. Paty, 435 U.S. 618 (1978), which applied specifically to members of the clergy, as an example of a law that on its face “imposed special disabilities on the basis of religious status”) (cleaned up). Because the restrictions at issue here explicitly “reference . . . religious practice, conduct, belief, or motivation,” they are not “facially neutral.” Stormans, 794 F.3d at 1076. In framing its restrictions in response to the pandemic, California did not purport simply to proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space. Instead, Executive Order N-33-20 presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities. See Cal. Exec. Order N-33-20 (Mar. 19, 2020)4 (ordering “all
4 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N33-20-COVID-19-HEALTH-ORDER.pdf.
11

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1739 Page 15 of 21
individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors,” except as the State “may designate additional sectors as critical”).5 In announcing its Reopening Plan, the State has adopted a phased approach that will progressively add more and more exceptions to the baseline stay-at-home prohibition by designating additional specific categories of activities that, in the State’s judgment, do not present an undue risk to public health. See Order of the Cal. Pub. Health Officer (May 7, 2020)6 (“I will progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications, based on public health and safety needs, and I will add additional sectors, businesses, establishments, or activities at a pace designed to protect public health and safety.”).
As set forth by the State, the four-stage Reopening Plan assigns “retail (curbside only), manufacturing & logistics” to the initial portion of “Phase 2,” and in-store retail, “child care, offices & limited hospitality, [and] personal services” to
5 Even the most ardent proponent of a broad reading of Jacobson must pause at the astonishing breadth of this assertion of government power over the citizenry, which in terms of its scope, intrusiveness, and duration is without parallel in our constitutional tradition. But since Plaintiffs do not directly challenge the validity of the original Order here, I do not address the point further. 6 See https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20 Library/COVID-19/SHO%20Order%205-7-2020.pdf.
12

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1740 Page 16 of 21
a later portion of Phase 2. (On May 20, 2020, San Diego County was given approval to begin this later portion of Phase 2; it aims to promptly reopen both dine-in restaurants and in-store retail businesses.7) By contrast, “religious services” are explicitly assigned to a “Stage 3” that also includes “movie theaters” and other “personal & hospitality services.” All reopenings under the Plan are subject to detailed, activity-by-activity State guidance that sets forth the specific actions that each activity (such as “manufacturing” or “warehousing facilities”) must take (e.g., use of face coverings, social distancing, sanitation, and employee training) in order to reopen, and to stay open.
By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services8—the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.” Lukumi, 508 U.S. at 533. Although the State insists that it has not acted out of antipathy towards religion, the “constitutional benchmark is ‘government
7 See Lori Weisberg, San Diego County gets the OK from state to resume dining-in at restaurants, SAN DIEGO UNION-TRIBUNE (May 20, 2020), https://www.sandiegouniontribune.com/business/story/2020-05-20/san-diegocounty-gets-the-ok-from-state-to-resume-dining-in-at-restaurants. 8 In this respect, this case differs from Roberts v. Neace, __ F.3d __, 2020 WL 2316679 (6th Cir. May 9, 2020), in which the challenged order prohibited “[a]ll mass gatherings,” and “faith-based” events were merely listed as one example of such “mass gatherings.” Id. at *1, 3.
13

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1741 Page 17 of 21
neutrality,’ not ‘government avoidance of bigotry.’” Roberts, 2020 WL 2316679, at *4 (quoting Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008)). Because the Reopening Plan, on its face, is not neutral, it is subject to strict scrutiny. Lukumi, 508 U.S. at 531–32.
b Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi’s additional requirement that the restrictions be “of general applicability.” 508 U.S. at 531. Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.” See Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an exception-ridden policy takes on the appearance and reality of a system
14

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1742 Page 18 of 21
of individualized exemptions, the antithesis of a neutral and generally applicable policy.”).
The State contends that its plan is generally applicable because it assertedly classifies activities neutrally, in accordance with the State’s sense of their perceived risk. But that is not how the Reopening Plan works. Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person “religious services”—merely because they are “religious services”—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct.
3 The only remaining question is whether the Reopening Plan’s treatment of religious services satisfies strict scrutiny. The district court concluded that it did, but that is plainly wrong. The State’s undeniably compelling interest in public health “could be achieved by narrower [regulations] that burdened religion to a far lesser degree.” Lukumi, 508 U.S. at 546. As Plaintiffs have reiterated throughout these proceedings, they will “comply[] with every single guideline that other businesses are required to comply with.” In their papers in the district court, Plaintiffs provided a list illustrating the range of measures they are ready and willing to
15

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1743 Page 19 of 21
implement on reopening, including spacing out the Church’s seating, requiring congregants to wear face coverings, prohibiting the congregation from singing, and banning hugging, handshakes, and hand-holding. By regulating the specific underlying risk-creating behaviors, rather than banning the particular religious setting within which they occur, the State could achieve its ends in a manner that is the “least restrictive way of dealing with the problem at hand.” Roberts, 2020 WL 2316679, at *5.9
The State’s only response on the narrow-tailoring point is to insist that there is too much risk that congregants will not follow these rules. But as the Sixth Circuit recently explained in Roberts, the State’s position on this score illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace: the State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Roberts, 2020 WL 2316679, at *3.
** * Therefore, I conclude that Plaintiffs are highly likely to succeed on the merits of their Free Exercise Clause claim.
9 On this score, it is noteworthy that, earlier today, the CDC issued “Interim Guidance for Communities of Faith.” See https://www.cdc.gov/coronavirus/2019ncov/php/faith-based.html.
16

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1744 Page 20 of 21
B All of the remaining considerations strongly favor the entry of an injunction pending appeal. The Bishop’s inability to hold in-person worship services, and the Church members’ inability to attend them, are certainly irreparable injuries. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1008 (10th Cir. 2004) (en banc) (Seymour, J., concurring in relevant part for a majority of the court) (“[T]he violation of one’s right to the free exercise of religion necessarily constitutes irreparable harm.”), aff’d sub nom. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006). The injury here is particularly poignant, given that Pentecost—which the eponymously named Church greatly desires to celebrate—falls on May 31. Indeed, the State explicitly “does not question the sincerity of Plaintiffs’ belief that it is essential to gather in person for worship services.” I do not doubt the importance of the public health objectives that the State puts forth, but the State can accomplish those objectives without resorting to its current inflexible and overbroad ban on religious services. The balance of equities, and the public interest, strongly favor requiring the State to honor its constitutional
17

Case 3:20-cv-00865-BAS-AHG Document 42 Filed 05/22/20 PageID.1745 Page 21 of 21
duty to accommodate a critical element of the free exercise of religion—public worship.
For these reasons, I would grant Plaintiffs’ request for a preliminary injunction. I respectfully dissent.
18

 
 No. 20-A_____
In The Supreme Court of the United States
SOUTH BAY UNITED PENTECOSTAL CHURCH, AND BISHOP ARTHUR HODGES III, Applicants, v.
GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California, SONIA ANGELL, in her official capacity as California Public Health Officer, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services, County of San Diego, and WILLIAM D. GORE, in his official capacity as Sheriff,
County of San Diego Respondents.
To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and
Circuit Justice for the Ninth Circuit

Emergency Application for Writ of Injunction Relief Requested by Sunday, May 24, 2020

CHARLES S. LIMANDRI Counsel of Record
PAUL M. JONNA JEFFREY M. TRISSELL LIMANDRI & JONNA LLP P.O. Box 9120 Rancho Santa Fe, CA 92067 (858) 759-9930 cslimandri@limandri.com

THOMAS BREJCHA PETER BREEN THOMAS MORE SOCIETY 309 W. Washington Street, Suite 1250 Chicago, IL 60606 (312) 782-1680
HARMEET K. DHILLON MARK P. MEUSER DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 (415) 433-1700

Counsel for Applicants South Bay United Pentecostal Church, and Bishop Arthur Hodges III

QUESTION PRESENTED Does California’s four stage Reopening Plan, which permits manufacturing, warehousing, retail, offices, seated dining at restaurants, and schools to reopen, but not places of worship, violate the Free Exercise clause of the First Amendment to the U.S. Constitution?
PARTIES AND RULE 29.6 STATEMENT The following list provides the names of all parties to the present Emergency Application for Writ of Injunction and the proceedings below: Applicants are SOUTH BAY UNITED PENTECOSTAL CHURCH and BISHOP ARTHUR HODGES III. Both are Plaintiffs in the U.S. District Court for the Southern District of California and are the Appellants in the U.S. Court of Appeals for the Ninth Circuit. South Bay Pentecostal Church is a nonprofit public benefit corporation organized under the laws of the State of California. It does not have any parent corporation or any stock. Bishop Hodges is the Senior Pastor and Chief Executive Officer of South Bay Pentecostal Church. Respondents are GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California, SONIA ANGELL, in her official capacity as California Public Health Officer, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services, County of San Diego, and WILLIAM D. GORE, in his official capacity as Sheriff,
i

County of San Diego. Respondents Newsom, Becerra, and Angell are jointly represented and referred to as the State. Respondents Wooten, Robbins-Meyer, and Gore are jointly represented and referred to as the County.
Both the State and the County are Defendants in the U.S. District Court for the Southern District of California and are the Appellees in the U.S. Court of Appeals for the Ninth Circuit.
DECISIONS BELOW All decisions in this case in the lower courts are styled South Bay United Pentecostal Church v. Newsom. The district court minute order denying Applicants’ motion for a temporary restraining order and motion for an order to show cause re: preliminary injunction is attached hereto as Ex. B. The transcript of the district court hearing is attached hereto as Ex. C. The order of the U.S. Court of Appeals for the Ninth Circuit denying Applicants’ motion for an injunction pending appeal is attached hereto as Ex. A. That order is designated “For Publication,” but is not yet available in legal databases.
JURISDICTION Applicants have a pending interlocutory appeal in the U.S. Court of Appeals for the Ninth Circuit. This Court has jurisdiction under 28 U.S.C. § 1651.
ii

TABLE OF CONTENTS QUESTION PRESENTED ............................................................................................. i PARTIES AND RULE 29.6 STATEMENT .................................................................... i DECISIONS BELOW .................................................................................................... ii JURISDICTION............................................................................................................. ii TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:........... 1 INTRODUCTION .......................................................................................................... 2 FACTUAL AND PROCEDURAL BACKGROUND...................................................... 6
A. California’s “Stay-at-Home” Orders. ....................................................... 6 B. Plaintiffs Bishop Hodges and South Bay Pentecostal Church. .............. 7 C. Proceedings Below and Across the Country. ........................................... 8 D. The Forthcoming Widespread Civil Unrest. ......................................... 11 REASONS FOR GRANTING THE APPLICATION .................................................. 14 1. There Is A “Significant Possibility” that this Court would Grant
Certiorari and Reverse Because the Violation of Plaintiffs’—and all Americans’ rights—is Indisputably Clear. ............................................ 15 1.1. The Reopening Plan is not neutral because it imposes special
burdens on Plaintiffs because of their religious practices.......... 17 1.2. The Reopening Plan is not generally applicable because it is
riddled with exceptions. ............................................................... 20 1.3. The Reopening Plan fails strict scrutiny because it is not
narrowly tailored to curbing the pandemic. ............................... 22 1.4. If Jacobson applies, it is only minimally relevant. .................... 25
iii

TABLE OF CONTENTS—Continued 2. The Balance of Equities Strongly Favor Granting an Injunction. ....... 31
2.1. Plaintiffs Face Irreparable Harm without Injunctive Relief. .... 31 2.2. The Balance of Hardships Tips Sharply in Plaintiffs’ Favor. ..... 31 2.3. An Injunction is in the Public Interest ....................................... 32 CONCLUSION............................................................................................................. 33
iv

TABLE OF AUTHORITIES

CASES

Adams & Boyle, P.C. v. Slatery 956 F.3d 913 (6th Cir. 2020)

10, 28, 29, 30

Am. Trucking Associations, Inc. v. Gray

14

483 U.S. 1306 (1987)

Burwell v. Hobby Lobby Stores, Inc.

23

573 U.S. 682 (2014)

Canyon Ridge Baptist Church, Inc. v. City of San Diego

31

No. 05CV2313 R (CAB), 2006 WL 8455354 (S.D. Cal. June 15, 2006)

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993)

passim

City of Boerne v. Flores 521 U.S. 507 (1997)

22, 23

Coll. Republicans at San Francisco State Univ. v. Reed 523 F. Supp. 2d 1005 (N.D. Cal. 2007)

31, 32

Colorado Christian Univ. v. Weaver

18

534 F.3d 1245 (10th Cir. 2008)

Doe v. Harris

32

772 F.3d 563 (9th Cir. 2014)

Elim Romanian Pentecostal Church v. Pritzker --- F.3d ---, 2020 WL 2517094 (7th Cir. May 16, 2020)

10, 15

Elrod v. Burns

31

427 U.S. 347 (1976)

Emp’t Div. v. Smith

16

494 U.S. 872 (1990)

Ex Parte Milligan 71 U.S. 2 (1866)

2, 25, 2, 27

v

TABLE OF AUTHORITIES—Continued

CASES

First Baptist Church v. Kelly

28

--- F.Supp.3d ---, 2020 WL 1910021 (D. Kan. Apr. 18, 2020)

First Pentecostal Church of Holly Springs v. City of Holly Springs, MS 10, 13, 15 --- F.3d ---, Doc. 00515426773 (5th Cir. May 22, 2020)

Fraternal Order of Police Newark Lodge No. 12 v. City of Newark 170 F.3d 359 (3d Cir. 1999)

20, 21, 30

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal

23

546 U.S. 418 (2006)

In re Abbott 954 F.3d 772 (5th Cir. 2020)

10, 28

In re Rutledge 956 F.3d 1018 (8th Cir. 2020)

10, 28

Jacobson v. Commonwealth of Massachusetts 197 U.S. 11 (1905)

passim

Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius

15

571 U.S. 1171 (2014)

Lux v. Rodrigues

14

561 U.S. 1306 (2010) (Roberts, C. J.)

Maryville Baptist Church, Inc. v. Beshear 957 F.3d 610 (6th Cir. 2020)

10, 15, 28, 32

Ohio Citizens for Responsible Energy, Inc. v. NRC

14

479 U.S. 1312 (1986)

On Fire Christian Ctr., Inc. v. Fischer

12

--- F.3d ---, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020)

Phillips v. City of New York

28

775 F.3d 538 (2d Cir. 2015)

vi

CASES

TABLE OF AUTHORITIES—Continued

Planned Parenthood Ctr. for Choice v. Abbott

9

No. A-20-CV-323-LY, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020)

Roberts v. Neace No. 20-5465, 2020 WL 2316679 (6th Cir. May 9, 2020)

10, 15, 18, 25, 28

Robinson v. Attorney Gen. 957 F.3d 1171 (11th Cir. 2020)

10, 15, 18, 25, 28

Sammartano v. First Judicial District Court

31

303 F.3d 959 (9th Cir. 2002)

South Bay Pentecostal Church v. Newsom

9

No. 3:20-cv-00865-BAS-AHG (S.D. Cal. May 8, 2020)

South Bay Pentecostal Church v. Newsom

10

No. 20-55533 (9th Cir. May 15, 2020)

Stormans, Inv. v. Weisman

17

794 F.3d 1064 (9th Cir. 2015)

S. Wind Women’s Ctr. LLC v. Stitt

9

No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020)

Terminiello v. City of Chicago

11

337 U.S. 1 (1949)

Trinity Lutheran Church of Columbia, Inc. v. Comer 137 S. Ct. 2012 (2017)

16, 17, 22

Turner Broadcasting System, Inc. v. FCC 507 U.S. 1301 (1993)

14, 15

United States v. Playboy Entm’t Grp., Inc.

22

529 U.S. 803 (2000)

Ward v. Polite 667 F.3d 727 (6th Cir. 2012)

16, 21

vii

CASES

TABLE OF AUTHORITIES—Continued

Washington v. Trump

18

847 F.3d 1151 (9th Cir. 2017)

Wheaton Coll. v. Burwell

15

573 U.S. 958 (2014)

Wisconsin Legislature v. Palm

15

2020 WI 42

Wisconsin v. Yoder

23

406 U.S. 205 (1972)

Zucht v. King

28

260 U.S. 174 (1922)

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Amendment I

i, 1, 17, 28, 31, 32

STATUTES

28 U.S.C. § 1651

ii, 1

RULES

Sup. Ct. Rule 20

1

Sup. Ct. Rule 22

1

Sup. Ct. Rule 23

1

Sup. Ct. Rule 29.6

i

viii

TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:
Pursuant to Rules 20, 22 and 23 of the Rules of this Court, and 28 U.S.C. § 1651, Appellants-Applicants South Bay United Pentecostal Church and Bishop Arthur Hodges III (“Plaintiffs”) respectfully request a writ of injunction precluding enforcement against them of various “Stay-at-Home” orders that were issued by the State of California and the County of San Diego to help mitigate the effects of the COVID-19 pandemic. Although curbing the pandemic is a laudable goal, those orders arbitrarily discriminate against places of worship in violation of their right to the Free Exercise of Religion under the First Amendment of the U.S. Constitution.
On May 19, 2020, all four of California’s U.S. Attorneys authored a letter to California Governor Newsom informing him that his Stay-at-Home orders were unconstitutional, and on May 22, 2020, President Trump announced that all state governors must immediately lift (by the weekend of May 23–24) their executive orders that discriminate against religious conduct, or he will “override them.” Relying on these actions, thousands of churches across the country and in California plan to reopen by May 31, 2020—the Christian holy day of Pentecost—in defiance of any state executive orders, leading to widespread civil unrest. Thus, this application concerns an issue of widespread national importance whose resolution is needed to avert a constitutional crisis, which may occur without guidance from this Court.
Plaintiffs initially sought an injunction from the Southern District of California and the Ninth Circuit—both of which denied the injunction. However, the Ninth Circuit’s decision was accompanied by a vigorous dissent and is having the
1

effect of deepening a circuit split as to the constitutionality of similar executive orders. According to the Fifth and Sixth Circuits, the violation of Plaintiffs’ rights is “indisputably clear,” while according to the Seventh and Ninth Circuits, no such violation occurred whatsoever.
The COVID-19 pandemic is a national tragedy, but it would be equally tragic if the federal judiciary allowed the “fog-of-war” to act as an excuse for violating fundamental constitutional rights. As this Court said in the aftermath of the Civil War, “[n]o doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any provisions [of the Bill of Rights] can be suspended during any of the great exigencies of government.” Ex Parte Milligan, 71 U.S. 2, 121 (1866). This Court then concluded with these sobering words: “[I]t could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.” Id. at 126
Plaintiffs thus respectfully request that this Circuit Justice grant the applied for injunction or refer this application to the Court. Plaintiffs request that the injunction stay in effect until such time as the State of California and the County of San Diego voluntarily withdraw their executive orders discriminating against religious conduct, which Plaintiffs understand to be forthcoming within days or weeks.
INTRODUCTION Plaintiffs’ applied for injunction concerns a series of “Stay-At-Home” Orders issued by the State of California and the County of San Diego, as most recently amended on May 7 and 10, 2020, as part of an effort to curb the COVID-19 pandemic.
2

Plaintiffs’ application is not about whether state governments have a compelling interest in curbing pandemics. They do. Nor is it about whether state governments may limit some personal liberties. They may. Nor is it about the constitutionality of California’s prior executive orders issued in March that permitted “life-sustaining” businesses to stay open.
No, this application is about California’s modifications to its Stay-At-Home order made by California Governor Newsom’s May 7, 2020, “Resilience Roadmap,” and the County of San Diego’s May 10, 2020, order implementing it. (generally, the “Reopening Plan”). 3ER559–97.1 Under the Reopening Plan, all manufacturing and logistics (warehousing) facilities opened in full on Friday, May 8 (Stage 2a). All retail, for curbside pickup only, also opened on that day. (Stage 2a). Individual counties could open further after certifying to the state that certain statistical benchmarks were met. As a result, on May 20 in San Diego, offices, seated dining at restaurants, visiting retail, and schools opened (Stage 2b). 9th Cir. Dkt. 14, at 17.2
Places of worship will open sometime after that, alongside movie theaters as well as hair and nail salons, and tattoo parlors (Stage 3). 3ER568–69. In late April, Governor Newsom said that places of worship were “months” away from opening. 3ER325. Then, in early May he indicated that they would be able to open in early June. 9th Cir. Dkt. 20, at 2–3. But most recently, he announced that on Monday, May 25, California will release further expedited plans. 9th Cir. Dkt. 27, at 3–4. It is unclear whether places of worship will be able to immediately open on that day, or
1 The three volumes of the Excerpts of Record are located at 9th Cir. Dkt. 3-1, 3-2, and 3-3. 2 Page citations are to the ECF stamp at the top of the document.
3

soon thereafter. In any event, every day that passes Plaintiffs are irreparably harmed, and there is a risk that restrictions will be reimposed in the fall if the virus resurfaces.
California’s original executive orders from March 2020 allowed “essential businesses” to continue operations subject to strict social distancing guidelines. For example, these orders permitted marijuana dispensaries, fast food restaurants, and liquor stores to remain open, presumably for the health and well-being of Californians. 3ER533–58. However, California also prioritized some economically essential businesses that were irrelevant to health and safety, including “the entertainment industries” and movie studios. 3ER558. The original orders prohibited religious leaders and churches like Plaintiffs from holding worship services and ceremonies. 3ER551.
Under the original orders, California insisted that all religious worship take place only at home, by live-streaming—apparently assuming that all Californians have access to high-speed internet, computer equipment, a desire to add intrusive, data-collecting apps to their computer devices, and the willingness to suspend a lifetime of worship practices at the command of the government. 3ER551. And in doing their part to curb their pandemic, Plaintiffs chose to abide by them.
But the Reopening Plan is beyond the pale. Communal worship and ministry are at the heart of Plaintiffs’ religious beliefs and practices. 2ER308. But these new stay-at-home orders continue making it a crime for a congregant to even step foot inside a synagogue, while permitting manufacturing, warehousing, offices, and dine-
4

in restaurants to open. 3ER559–97. California published the Reopening Plan online and described Stage 2 as
“lower-risk workplaces” and Stage 3 as “higher risk workplaces.” 3ER560–61. However, when asked at a press conference why schools are considered “lower-risk” and churches are considered “higher risk,” Governor Newsom explained that the Reopening Plan balanced risk with reward—i.e., it prioritized services considered more important to California. 3ER512. But Governor Newsom is not only prioritizing life-saving businesses, or even schools. He is prioritizing all manufacturing and warehousing—so long as they practice social distancing. In other words, Governor Newsom is criminalizing the exact same type of gatherings, but only if motivated by religious belief.
With each passing moment, Plaintiffs suffer irreparable harm of the worst caliber: a severe deprivation of religious liberty. Thus, Plaintiffs seek an injunction as follows:
Defendants, their agents, employees, and successors in office, are restrained and enjoined from enforcing, trying to enforce, threatening to enforce, or otherwise requiring compliance with any prohibition on Plaintiffs’ engagement in religious services, practices, or activities at which the County of San Diego’s Social Distancing and Sanitation Protocol and Safe Reopening Plan is being followed. Plaintiffs request this injunction by tomorrow, Sunday, May 24, 2020, so that they can resume worship services. However, in the alternative, Plaintiffs request this injunction by Pentecost Sunday—May 31, 2020.
5

FACTUAL AND PROCEDURAL BACKGROUND A. California’s “Stay-at-Home” Orders.
This case arises from executive orders issued by the State of California and the County of San Diego to prevent the spread of the novel coronavirus. On March 4, 2020, California Governor Gavin Newsom proclaimed a State of Emergency as a result of the threat of COVID-19. 3ER332. Two weeks later, on March 19, 2020, the Governor issued Executive Order N-33-20, which ordered all individuals living in the State of California to stay home or at their place of residence. 3ER533.
Executive Order N-33-20 gave some Californians the right to leave their residence, including workers “needed to maintain continuity of operations of the federal critical infrastructure sectors” as well as industries Governor Newsom viewed as “critical to protect the health and well-being of all Californians,” such as the Hollywood movie industry. 3ER536–558. Included on this list were “faith based services that are provided through streaming or other technology.” 3ER551.
Seven weeks later the pandemic had, in the Governor’s words, “stabilized.” 3ER324–25; 2ER224–67, 314–20. As a result, on May 7, 2020, the Governor published his four stage “Resilience Roadmap”—the California Reopening Plan. 3ER560. The California Reopening Plan modified Executive Order N-33-20 by adding more Californians that had the right to leave their residence. 3ER560.
“Stage 1” of the plan began on March 16, and continued until May 7, 2020. “Stage 2” of the Reopening Plan began on May 8, and allowed all manufacturing and warehousing (not just critical or essential manufacturing) to immediately reopen, as
6

well as all retail, but for curbside pickup only (Stage 2a). This also began the stage where individual counties could certify to the State that they had met certain statistical benchmarks, and then could reopen offices, schools, and destination retail (i.e., to visit and browse) (Stage 2b). 3ER325–27. San Diego county certified that it met these benchmarks on May 20, 2020. Ex. A, Dissent, at 13 n.7. As a result, presently the following can open in San Diego: “Destination retail, including shopping malls and swap meets;” “Personal services, limited to: car washes, pet grooming, tanning facilities, and landscape gardening;” “Office-based businesses;” “Dine-in restaurants;” “Schools and childcare facilities;” and “Outdoor museums and open gallery spaces.” 3ER568; 2ER298.
Religious services are relegated to “Stage 3” along with movie theaters and hair and nail salons, which has yet to start. According to California’s Public Health Officer, Stage 3 is for “things like getting your hair cut, uh getting your nails done, doing anything that has very close inherent relationships with other people, where the proximity is very close.” “Stage 4” is the end of all COVID-19 related executive orders. 3ER325–27. In assigning types of businesses to different stages (distinguishing between schools and places of worship), Governor Newsom explicitly stated that California’s Reopening Plan weighed the risk of a COVID-19 outbreak with the “reward” of the value of the business. 3ER512. B. Plaintiffs Bishop Hodges and South Bay Pentecostal Church.
Bishop Arthur Hodges III is Senior Pastor of South Bay Pentecostal Church, a diverse Christian community in Chula Vista, California. Every Sunday, the church
7

holds three to five worship services, where congregants “come together with one accord” to pray and worship. Along with worship services, the church ministers to the faithful by performing baptisms, funerals, weddings, and other religious ceremonies. The sanctuary of South Bay Pentecostal Church can seat up to 600 people, but is usually only a third-, or half-filled, with 200–300 congregants. 2ER305–13.
South Bay Pentecostal Church may be the largest food distributor to needy people in the South Bay region of San Diego County. Since the closure orders were placed, the Church has worked with the Chula Vista Police Department to develop a drive-through food distribution system so that hundreds of cars may drive into and around the Church parking lot. Volunteers are provided masks and gloves and deliver groceries, contact-free, directly into each driver’s trunk or cargo area. During any given week, the Church distributes between three and twelve tons of food. 2ER305– 13; 3ER506.
South Bay Pentecostal believes it can apply the lessons learned from proper social distancing as a food distributer to resume worship services. Due to Bishop Hodges’ experience with the social distancing guidelines needed to be a large food distributor to the needy, he is prepared to carry on the South Bay Pentecostal Church’s religious ministries consistent with federal, state, and county social distancing guidelines and other preventative measures. 2ER305–13; Ex. A, Dissent, at 15–16. C. Proceedings Below and Across the Country.
Almost as soon as various state governors began issuing executive orders
8

intended to curb the COVID-19 pandemic, various groups began filing suits alleging that the orders infringed upon constitutional rights. See Planned Parenthood Ctr. for Choice v. Abbott, No. A-20-CV-323-LY, 2020 WL 1502102 (W.D. Tex. Mar. 30, 2020). Then, beginning on April 6, courts began citing this Court’s opinion in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), for the proposition that the pandemic can justify infringements on those constitutional rights. See S. Wind Women’s Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020). Almost as soon as the various governors’ executive orders were issued, the lower courts began splitting on whether the orders violated constitutional rights, both under this Court’s regular jurisprudence and under Jacobson.
Plaintiffs here did not join in those lawsuits because they believed it was important to do their part in curbing the pandemic in March and April. However, on Friday, May 8, 2020, the day California entered into Stage 2 of its Reopening Plan, Plaintiffs filed suit in the Southern District of California. Plaintiffs contended that permitting various entities to open in Stage 2, but relegating places of worship to Stage 3, was an unconstitutional violation of their right to the Free Exercise of religion. That same day, Plaintiffs filed an application for a temporary restraining order. 3ER609–10; South Bay Pentecostal Church v. Newsom, No. 3:20-cv-00865BAS-AHG (S.D. Cal. May 8, 2020). The next Monday, May 11, Plaintiffs filed a First Amended Complaint and an amended application for a temporary restraining order. ER268–605. Plaintiffs requested a briefing schedule permitting an injunction by that weekend so they could hold worship services.
9

On Friday, May 15, 2020, the District Court denied Plaintiffs’ application for a temporary restraining order and denied Plaintiffs’ request for an order to show cause re: preliminary injunction. Ex. B; Ex. C. That same day, Plaintiffs appealed to the Ninth Circuit, and the next day filed an urgent motion for an injunction pending appeal. 2ER43–47; 9th Cir. Dkt. 2; South Bay Pentecostal Church v. Newsom, No. 2055533 (9th Cir. May 15, 2020). Again, Plaintiffs requested an injunction by the weekend so they could hold worship services on Sunday.
In the meantime, the splits in the district courts reached up to the circuit courts. The circuit courts split on whether certain executive orders limiting abortion rights were constitutional. See In re Abbott, 954 F.3d 772 (5th Cir. 2020) (constitutional); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020) (unconstitutional); In re Rutledge, 956 F.3d 1018 (8th Cir. 2020) (unconstitutional); Robinson v. Attorney Gen., 957 F.3d 1171 (11th Cir. 2020) (unconstitutional). The circuit courts also split on whether executive orders discriminating against religious activity were constitutional. Elim Romanian Pentecostal Church v. Pritzker, --- F.3d ---, 2020 WL 2517094 (7th Cir. May 16, 2020) (likely constitutional); Roberts v. Neace, --- F.3d ---, 2020 WL 2316679 (6th Cir. May 9, 2020) (unconstitutional); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (unconstitutional); First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, --- F.3d ---, Doc. 00515426773 (5th Cir. May 22, 2020) (enjoined and remanded).
On Friday, May 22, 2020, the Ninth Circuit panel issued its order on Plaintiffs’ motion for an injunction pending appeal. Ex. A. The panel, Judges Silverman and
10

Nguyen, issued a three-page order holding that strict scrutiny was not required under Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (“Lukumi”). In so holding, the panel stated: “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a ‘[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’” Ex. A, Order, at 2 (quoting Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting)).
Judge Collins published an eighteen-page dissent in which he concluded that (1) Jacobson does not apply to Free Exercise claims, Ex. A, Dissent, at 5–9; (2) California’s Reopening Plan is not “neutral” under Lukumi, id. at 11–14; (3) California’s Reopening Plan is not “of general applicability” under Lukumi, id. at 14–15; (4) California’s Reopening Plan does not satisfy strict scrutiny, id. at 15–16; and (5) the equities at issue when considering whether to grant injunctive relief favor granting it here, id. at 17–18. D. The Forthcoming Widespread Civil Unrest.
As stated above, the earliest litigation concerning executive orders infringing on constitutional rights began almost immediately after those orders were published in March. But orders granting injunctive relief on Free Exercise grounds did not begin being issued until April.
In the Christian faith, the Easter season proceeds for seven weeks, from Easter Sunday to Pentecost Sunday. The earliest temporary restraining orders against
11

unconstitutional orders like Governor Newsom’s related to Easter Sunday—six weeks
ago. See On Fire Christian Ctr., Inc. v. Fischer, --- F.3d ---, 2020 WL 1820249 (W.D.
Ky. Apr. 11, 2020). Pentecost Sunday will occur in eight days, on May 31, 2020. While
litigation is quickly moving in federal courts across the county, many places of
worship are no longer willing to wait, and are intending to reopen for Pentecost in
defiance of any executive orders. In Minnesota, the Catholic bishops (represented by
Becket Law) sent a letter to the governor announcing that they will resume services
on Pentecost regardless of his orders. 9th Cir. Dkt. 20, at 2–3, 11–19. And in
California, three thousand churches have announced that they will reopen on
Pentecost, again regardless of Governor Newsom’s orders. 9th Cir. Dkt. 20, at 2–3.
These places of worship felt inclined to reopen due to their intuited
understanding that Governor Newsom’s and other state governors’ restrictions on
their religious rights were unconstitutional. But recent action by the federal
government has all but ensured that thousands of additional churches will begin
defying the orders. On May 19, 2020, the Department of Justice sent a letter to
Governor Newsom stating that his Reopening Plan is violating the civil rights of
religious Californians. As stated by the DOJ,
South Bay United Pentecostal Church v. Newsom, No. 3:20cv-865 (S.D. Cal. May 15, 2020) . . . do[es] not justify California’s actions. . . . South Bay United Pentecostal does not describe why worship services can be distinguished from schools, restaurants, factories or other places Stage 2 permits people to come together. Other decisions around the country have followed Lukumi to make clear that reopening plans cannot unfairly burden religious services as California has done. . . .
12

We believe, for the reasons outlined above, that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.
The DOJ’s letter was sent by Eric S. Dreiband, Assistant Attorney General for
the Civil Rights Division, and California’s four U.S. Attorneys: McGregor W. Scott,
Nicola T. Hanna, David L. Anderson, and Robert S. Brewer. 9th Cir. Dkt. 14, at 6,
21–23.
In apparent response to these churches’ intent to reopen, on May 20, 2020,
“[t]he First Pentecostal Church of Holly Springs was burned to the ground.” First
Pentecostal Church of Holly Springs, Doc. 00515426773, at 3. “Graffiti spray-painted
in the church parking lot sneered, ‘Bet you Stay home Now YOU HYPOKRITS.’” Id.
This action, however, appears to have only strengthened the resolve of places of
worship to reopen.
Further, on May 22, 2020, President Donald Trump held a press briefing.
During that press briefing, President Trump stated:
Today I am identifying houses of worship: churches, synagogues, and mosques, as essential places that provide essential services. . . . These are places that hold our society together and keep our people united, the people are demanding to go to church, synagogue, go to their mosque, many millions of Americans embrace worship as an essential part of life. The ministers, pastors, rabbis, imams, and other faith leaders will make sure that their congregations are safe, as they gather and pray. I know them well, they love their congregations, they love their people, they don’t want anything bad to happen to them or anybody else. The governors need to do the right thing and allow these very important essential places of faith to open right now, for this weekend. If they don’t do it, I will override the governors.
13

9th Cir. Dkt. 25, at 3–4. Despite stating that governors need to immediately rescind their orders burdening the free exercise of religion, Governor Newsom stated that he will not respond in any way until Monday, May 25. 9th Cir. Dkt. 27, at 3–4. Other governors have responded similarly.
In light of the ongoing violations of Plaintiffs’ Free Exercise rights, the deepening of the circuit split with the Seventh and Ninth Circuits splitting from the Fifth and Sixth Circuits, Judge Collins’ vigorous dissent, and the potential for widespread civil unrest, Plaintiffs now seek emergency relief from this Court.
REASONS FOR GRANTING THE APPLICATION With respect to both a stay and an affirmative injunction, they may be issued by a Circuit Justice “[i]f there is a ‘significant possibility’ that the Court would” grant certiorari “and reverse, and if there is a likelihood that irreparable injury will result if relief is not granted.” Am. Trucking Associations, Inc. v. Gray, 483 U.S. 1306, 1308 (1987). However, unlike the issuance of a stay of a lower court order, “[a] Circuit Justice’s issuance of an injunction ‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts,’ and therefore ‘demands a significantly higher justification’ than that required for a stay.” Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C. J.) (quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J.)). Generally, therefore, “[t]o obtain injunctive relief from a Circuit Justice, an applicant must demonstrate that ‘the legal rights at issue are “indisputably clear.”‘” Id. at 1306 (quoting Turner Broadcasting System, Inc. v. FCC, 507 U.S. 1301, 1303
14

(1993) (Rehnquist, C. J.). However, the Court may also issue an injunction, “based on
all the circumstances of the case,” without having its order “construed as an
expression of the Court’s views on the merits.” Little Sisters of the Poor Home for the
Aged, Denver, Colorado v. Sebelius, 571 U.S. 1171 (2014). The Court may also
consider “a traditional ground for certiorari,” such as whether “[t]he Circuit Courts
have divided on whether to enjoin the requirement.” Wheaton Coll. v. Burwell, 573
U.S. 958 (2014).
1. There Is A “Significant Possibility” that this Court would Grant Certiorari and Reverse Because the Violation of Plaintiffs’—and all Americans’ rights—is Indisputably Clear.
Although binding precedent from this Court should have mandated that the
lower courts grant the injunction that Plaintiffs seek, there is currently a circuit split
that requires immediate guidance from this Circuit Justice or this Court. The
Seventh Circuit3 and the Ninth Circuit4 plainly agree with California. And the Fifth
Circuit,5 the Sixth Circuit,6 the Wisconsin Supreme Court,7 and France’s Highest
Court8 agree with Plaintiffs. Due to these widespread inconsistencies on matters of
fundamental constitutional importance, it is likely that four justices would be
3 Elim Romanian Pentecostal Church v. Pritzker, --- F.3d ---, 2020 WL 2517094 (7th Cir. May 16, 2020). 4 Ex. A. 5 First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, --- F.3d ---, Doc. 00515426773 (5th Cir. May 22, 2020). 6 Roberts v. Neace, --- F.3d ---, 2020 WL 2316679 (6th Cir. May 9, 2020); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020). 7 Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 53 (“There is no pandemic exception . . . to the fundamental liberties the Constitution safeguards.”). 8 France’s Highest Court held that the government’s decree “constitute[d] a serious and manifestly unlawful interference with” the fundamental religious right “to participate collectively in ceremonies, in particular in places of worships.” 9th Cir. Dkt. 14 at 5. This is undoubtedly one of those rare human rights cases where looking to foreign jurisdictions is helpful. See, e.g., Lawrence v. Texas, 539 U.S. 558, 576 (2003) (“The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.”).
15

interested in granting certiorari to provide guidance on how religious rights should be treated in an emergency.
The reality, however, is that this Court’s jurisprudence in Smith, Lukumi, and Trinity Lutheran, provide the rule of decision. So it is also likely that five justices would vote to reverse the lower court’s decisions. Indeed, a simple analysis of Lukumi, as undertaken by Dissenting Judge Collins in the Ninth Circuit, makes clear that Plaintiffs’ religious rights are “indisputably” being violated.
Under the Free Exercise Clause, a law that “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons” is subject to strict scrutiny. Lukumi, 508 U.S. at 532. To survive that “stringent standard,” the government must prove that the law is narrowly tailored to further a compelling government interest. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017). As discussed below, the Reopening Plan cannot survive strict scrutiny.
In addition, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’” Emp’t Div. v. Smith, 494 U.S. 872, 879 (1990). Thus, a law that is “neutral” and “generally applicable” is not subject to strict scrutiny even if it has the incidental effect of burdening a religious belief or practice. See id. But this “rule comes with an exception.” Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012). When the policy “appears to be neutral and generally applicable on its face, but in practice is riddled with exemptions,” it “must run the gauntlet of strict scrutiny.” Id. at 740.
16

1.1. The Reopening Plan is not neutral because it imposes special burdens on Plaintiffs because of their religious practices.
Under the First Amendment’s Free Exercise Clause, “[a]t a minimum, the
protections of the Free Exercise Clause pertain if the law at issue discriminates
against some or all religious beliefs or regulates or prohibits conduct because it is
undertaken for religious reasons.” Lukumi, 508 U.S. at 532 (emphasis added); see also
Trinity Lutheran, 137 S. Ct. at 2021 (“Nor may a law regulate or outlaw conduct
because it is religiously motivated.”) (emphasis added). Here, Judge Collins analyzed
the issue as follows:
Because the restrictions at issue here explicitly “reference . . . religious practice, conduct, belief, or motivation,” they are not “facially neutral.” Stormans, 794 F.3d at 1076. . . .
As set forth by the State, the four-stage Reopening Plan assigns “retail (curbside only), manufacturing & logistics” to the initial portion of “Phase 2,” and in-store retail, “child care, offices & limited hospitality, [and] personal services” to a later portion of Phase 2. (On May 20, 2020, San Diego County was given approval to begin this later portion of Phase 2; it aims to promptly reopen both dine-in restaurants and in-store retail businesses.) By contrast, “religious services” are explicitly assigned to a “Stage 3” that also includes “movie theaters” and other “personal & hospitality services.” All reopenings under the Plan are subject to detailed, activity-by-activity State guidance that sets forth the specific actions that each activity (such as “manufacturing” or “warehousing facilities”) must take (e.g., use of face coverings, social distancing, sanitation, and employee training) in order to reopen, and to stay open.
By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services—the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.” Lukumi, 508 U.S. at 533. Although the State insists that it has not acted out of
17

antipathy towards religion, the “constitutional benchmark is ‘government neutrality,’ not ‘government avoidance of bigotry.’” Roberts, 2020 WL 2316679, at *4 (quoting Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008)). Because the Reopening Plan, on its face, is not neutral, it is subject to strict scrutiny. Lukumi, 508 U.S. at 531–32.
Ex. A, Dissent, at 11–14 (footnotes omitted).
On this point, California and the lower courts essentially contended that
California’s Reopening Plan was neutral because it was categorizing like businesses
alike, and not treating houses of worship any worse than similarly situated entities.
This argument, however, is factually false.
On May 7, 2020, Governor Newsom held a press conference in which he stated
that the Reopening Plan took into account not just the physical layout or conditions
of the entity (risk), but the benefit they provide to California as a whole (reward).
Q: Thank you Governor. Can you clarify why churches and salons are in Stage 3 and not Stage 2. Um, what makes them more high risk than schools, for example? Uh, what factors are you weighing here when you decide what goes into what phase?
A: Yeah, we’re, we’re . . . looking at low risk-high reward, low risk-low reward. . . .
3ER3289 (bolding added); see also Washington v. Trump, 847 F.3d 1151, 1167 (9th
Cir. 2017) (“[T]he States have offered evidence of numerous statements by the
President about his intent. . . . It is well established that evidence of purpose beyond
the face of the challenged law may be considered”) (citing Lukumi, 508 U.S. at 534).
Thus, according to California, its residents may gather to manufacture
9 https://www.facebook.com/CAgovernor/videos/260976601615609/, 50:36.
18

products, to teach children, but not to worship because worship is “low reward.” Like Judge Collins, Plaintiffs do not accuse the Governor of personal bigotry or animus, but rather indifference to the religious rights of Californians. Because California thinks worship is only important for relaxation, but nothing more, that is why worship is placed in Stage 3 with salons and theaters: low reward.
Notably, the only evidence actually submitted below by California was the declaration of Dr. James Watt. 2ER123–28. But it merely established the undisputed fact that gathering can lead to COVID-19 outbreaks, and then provided examples of outbreaks connected to “religious services, choir practices, funerals, and parties.” 2ER127. It did not state that risk was the only criterion being considered by California as part of its Reopening Plan, and actually implied the opposite: “A main purpose of the state’s current health and safety rules and related orders is . . . to reduce the spread of th[e] virus.” 2ER126–27 (emphasis added).
But this simply begs the question: “Why not ban all large gatherings?” Why not create an absolutely neutral rule, such as: “In any gathering involving more than 10 people, (a) the gathering may not exceed 25% occupancy of the room, (b) when seated, the people must be equally spaced out in the whole room (greater than six feet distance), and (c) when moving around, the people must maintain at least six-foot social distancing at all time.”
The real answer is that such a neutral rule would ban activities California finds important. But this is unconstitutional religious targeting.
19

1.2. The Reopening Plan is not generally applicable because it is riddled with exceptions.
A law is not generally applicable if it targets a particular religious belief or practice for discriminatory treatment “through [its] design, construction, or enforcement.” Lukumi, 508 U.S. at 557 (Scalia, J., concurring). Here, the Reopening Plan fails the generally applicable requirement because it is underinclusive, exempting “nonreligious conduct that endangers [the government’s] interests in a similar or greater degree than [the prohibited religious conduct].” Id. at 543. For example, the Reopening Plan exempts a laundry list of industries and services purportedly “essential” to the government’s various interests, including originally the entire entertainment industry, medical cannabis dispensaries and liquor stores, and now retail stores, manufacturing, offices, and restaurants.
But California cannot provide exemptions to secular facilities on the ground that they are “essential” while denying parallel exemptions to churches that practice the same or similar degree of preventative measures. That is because favoring nonreligiously motivated activities over religiously motivated activities constitutes a forbidden governmental “value judgment.” Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999).
The Reopening Plan as applied also falls “well below the minimum standard” of general applicability because the scheme is substantially “underinclusive” and riddled with categorical and individualized exemptions. Lukumi, 508 U.S. at 543. This includes both the original Stage 1 “essential businesses” of the movie industry, liquor stores and cannabis dispensaries, and the new Stage 2 “essential businesses”
20

of retail, offices, manufacturing, and schools. “Neutrality and general applicability
are interrelated,” and “the failure to satisfy one requirement is a likely indication
that the other has not been satisfied.” Lukumi, 508 U.S. at 531.
Of course, protecting both lives and the economy are commendable values, but
the imposition of a value judgment at all is problematic and requires imposition of
strict scrutiny. Fraternal Order of Police, 170 F.3d at 366 (“[T]he Department has
made a value judgment that . . . medical[] motivations . . . are important enough . . .
but that religious motivations are not.”). Otherwise, which value judgments will be
deemed sufficient? Already non-essential manufacturing is open, as well as visiting
“bookstores, clothing stores, florists and sporting goods stores” to browse. 3ER327,
444.
Governor Newsom’s interest in protecting the economy is commendable, but
under Lukumi and its progeny, these exceptions require the application of strict
scrutiny. This same conclusion was reached by Judge Collins:
Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.” See Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an exception-ridden policy takes on
21

the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy.”).
The State contends that its plan is generally applicable because it assertedly classifies activities neutrally, in accordance with the State’s sense of their perceived risk. But that is not how the Reopening Plan works. Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person “religious services”— merely because they are “religious services”—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct.
Ex. A, Dissent, at 14–15.
In sum, the record shows that the Government has not been, and is not, acting
in a neutral manner, as required under the Free Exercise Clause. Thus, California
must satisfy strict scrutiny.
1.3. The Reopening Plan fails strict scrutiny because it is not narrowly tailored to curbing the pandemic.
Given that the Reopening Plan violates Plaintiffs’ free exercise of religion, it
must withstand “the strictest scrutiny.” Trinity Lutheran, 137 S. Ct. at 2019.
California “bears the burden of proving the constitutionality of its actions” and
California does not get “the benefit of the doubt.” United States v. Playboy Entm’t
Grp., Inc., 529 U.S. 803, 816, 818 (2000). California thus has the burden to prove that
its laws further a compelling government interest and are narrowly tailored to
achieve that end. Strict scrutiny is “the most demanding test known to constitutional
law,” and government action that imposes special burdens on religious beliefs and
practices will survive it “only in rare cases.” City of Boerne v. Flores, 521 U.S. 507,
22

534 (1997). This is not one of those cases. To satisfy the first prong of strict scrutiny, the Reopening Plan must advance
a compelling government interest “of the highest order.” Wisconsin v. Yoder, 406 U.S. 205, 215 (1972). The compelling interest prong requires a “focused inquiry” that does not turn on whether the government has a compelling interest in enforcing the Reopening Plan in the abstract. Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726 (2014). In other words, “then everybody will want an exception” is not a compelling interest. Instead, courts should “look[] beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). Thus, this Court must determine whether California has a compelling interest in not permitting South Bay Pentecostal Church to open.
Plaintiffs have never disputed that the government has a compelling interest in curbing the novel coronavirus. Nor have Plaintiffs ever disputed that the Reopening Plan furthers that interest. But the Reopening Plan fails strict scrutiny— and is therefore unconstitutional—because it is not narrowly tailored to achieve that end. Specifically, the Reopening Plan is overbroad and goes “far beyond what was reasonably required for the safety of the public.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 28 (1905).
Here, any compelling interest California may have in violating Plaintiffs’ free exercise rights is defeated by the Reopening Plan’s under-inclusivity. California
23

stated that it “has a compelling interest in protecting the public from COVID-19’s
spread.” 9th Cir. Dkt. 12, at 26. But the Reopening Plan is not narrowly tailored, and
therefore does not satisfy strict scrutiny. California argued that it is tailored because
“measures limiting physical contract [sic] are widely recognized as the ‘only way’ to
slow the spread of the virus.” Id. But a law cannot further a compelling interest when
it “fail[s] to prohibit nonreligious conduct that endangers [its asserted] interests in a
similar or greater degree” than the religious conduct. Lukumi, 508 U.S. at 543. Why
is California not “limiting physical contact” by shuttering factories, schools,
restaurants and airlines? California has never provided an answer.
Because the Reopening Plan allows broad exemptions to its stay-at-home
mandate, California cannot claim that stopping the spread of COVID-19 is a
compelling enough interest to shutter South Bay Pentecostal Church. California must
instead identify a compelling interest actually consistent with its broader powers—
exemptions and all. Unless it does so, California is left with discriminatory decrees
that “leave[] appreciable damage to [its] supposedly vital interest unprohibited,”
which is fatal under the Free Exercise Clause. Lukumi, 508 U.S. at 547. But there is
no compelling interest that requires the shuttering only of places of worship but not
other facilities. Again, Judge Collins arrived at the same conclusion:
The State’s undeniably compelling interest in public health “could be achieved by narrower [regulations] that burdened religion to a far lesser degree.” Lukumi, 508 U.S. at 546. As Plaintiffs have reiterated throughout these proceedings, they will “comply[] with every single guideline that other businesses are required to comply with.” In their papers in the district court, Plaintiffs provided a list illustrating the range of measures they are ready and willing to implement
24

on reopening, including spacing out the Church’s seating, requiring congregants to wear face coverings, prohibiting the congregation from singing, and banning hugging, handshakes, and hand-holding. By regulating the specific underlying risk-creating behaviors, rather than banning the particular religious setting within which they occur, the State could achieve its ends in a manner that is the “least restrictive way of dealing with the problem at hand.” Roberts, 2020 WL 2316679, at *5.9
9 On this score, it is noteworthy that, earlier today, the CDC issued “Interim Guidance for Communities of Faith.” See https://www.cdc.gov/coronavirus/2019ncov/php/faith-based.html.
The State’s only response on the narrow-tailoring point is to insist that there is too much risk that congregants will not follow these rules. But as the Sixth Circuit recently explained in Roberts, the State’s position on this score illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace: the State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Roberts, 2020 WL 2316679, at *3.
In this case, treating Plaintiffs equally and permitting them to hold worship
services at South Bay Pentecostal Church would not jeopardize the public health.
2ER314–20. Bishop Hodges is committed to following the County of San Diego and
the Center for Disease Control’s public health guidelines, including strict social
distancing measures. He is not asking for special treatment; he is only asking for
equal treatment.
1.4. If Jacobson applies, it is only minimally relevant.
Over 150 years ago, this Court in Ex Parte Milligan, 71 U.S. 2 (1866), held that
the Founding Fathers took into consideration the fact that emergency circumstances
25

would arise, where leaders would seek to deprive persons of their rights, and because of that, created the Bill of Rights: “Those great and good men [the Founding Fathers] foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law.” Id. at 120 (emphasis added).
According to this Court in Milligan “[n]o doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any provisions [of the Bill of Rights] can be suspended during any of the great exigencies of government.” Id. “The history of the world had taught them [the Founding Fathers] that what was done in the past might be attempted in the future.” Id.
“For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus.” Id. at 125 (emphasis added). “[T]hey limited the suspension to one great right [the right of habeas corpus], and left the rest to remain forever inviolable.” Id. (emphasis added). “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” Id. at 121 (emphasis added).
This Court then aptly concluded that if “the safety of the country” demands a
26

violation of constitutional rights, “it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation.” Id. at 126 (emphasis added).
Then, over a hundred years ago, this Court addressed whether the constitution protected an individual’s right to refuse the smallpox vaccine in contravention of a local ordinance—essentially a substantive due process claim. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). Jacobson explained that governments can validly enact restrictions on substantive due process rights to stop the spread of diseases, but they cannot do so in “an arbitrary, unreasonable manner,” or in a way that “go[es] so far beyond what was reasonably required for the safety of the public.” Id. at 28. Thus, when evaluating challenges to laws “purporting to have been enacted to protect the public health, the public morals, or the public safety,” courts must ask whether the law “has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. (emphasis added). This is a fact-intensive inquiry looking at the “necessities of the case.” Id.
Beginning on April 6 with the Western District of Oklahoma, courts have been citing Jacobson with respect to restrictions on any constitutional rights during the current pandemic. Jacobson was decided before most modern constitutional jurisprudence, and is therefore a bit of an outlier. But to date, the circuit courts have generally agreed to apply it with respect to some constitutional rights. To date, the Fifth, Sixth, Eighth, and Eleventh Circuits have analyzed Jacobson with relation to
27

restrictions on abortion rights during the pandemic.10
Notably, Jacobson was decided decades before the First Amendment was held
to apply to the States by incorporation, and was not a case specifically about
regulations of churches. So it is not plain that it should apply in this case at all. This
is implied by the Sixth Circuit’s opinions. The Sixth Circuit cited Jacobson in both its
abortion and Free Exercise cases, but only analyzed it in the former. In the latter, it
largely ignored it and concluded simply that “restrictions inexplicably applied to one
group and exempted from another do little to further these goals and do much to
burden religious freedom.” Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610
(6th Cir. 2020); Roberts, 2020 WL 2316679, at *4 (6th Cir. May 9, 2020). One district
court reached this conclusion. First Baptist Church v. Kelly, --- F.Supp.3d ---, 2020
WL 1910021, at *6 (D. Kan. Apr. 18, 2020). Judge Collins reached this conclusion as
well:
The State’s motion cites no authority that can justify its extraordinary claim that the current emergency gives the Governor the power to restrict any and all constitutional rights, as long as he has acted in “good faith” and has “some factual basis” for his edicts. Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards. As the Second Circuit has recognized, Jacobson merely rejected what we would now call a “substantive due process” challenge to a compulsory vaccination requirement, holding that such a mandate “was within the State’s police power.” Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015); see also Zucht v. King, 260 U.S. 174, 176 (1922) (Jacobson “settled that it
10 In re Abbott, 954 F.3d 772 (5th Cir. 2020); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020); In re Rutledge, 956 F.3d 1018 (8th Cir. 2020); Robinson v. Attorney Gen., 957 F.3d 1171 (11th Cir. 2020).
28

is within the police power of a state to provide for compulsory vaccination”). Jacobson’s deferential standard of review is appropriate in that limited context. It might have been relevant here if Plaintiffs were asserting a comparable substantive due process claim, but they are not. Ex. A, Dissent, at 6–7. If the Court holds that Jacobson does apply, however, then as indicated above, there are two questions the Court must analyze. Under the first prong, “no real or substantial relation to th[e] objects [of public health],” the circuit courts have treated this as essentially akin to the heightened scrutiny required under this Court’s much later developed analyses. See Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 926 (6th Cir. 2020) (“[I]t is much harder to discern that relation here, given the paltry amount of PPE saved, and limited amount of in-person contact avoided, by halting procedural abortions”); Robinson v. Attorney Gen., 957 F.3d 1171 (11th Cir. 2020) (“[T]he state did not present any evidence that applying the April 3 order to proscribe pre-viability abortions would in fact free up hospital space for COVID-19 patients or PPE for medical providers.”). Here, California has never explained why letting large numbers of people sit together indoors for eight hours at a factory or a school, but not for one hour worshipping, provides a “real or substantial” benefit to curbing the COVID-19 pandemic. That is the question. California has only ever asserted that the novel coronavirus is serious, and needs to be curbed. But that is undisputed, and it does not answer the question of “What is the factual or scientific basis for distinguishing manufacturing from churches?”—especially when there have been COVID-19
29

outbreaks at factories. Under the second prong, “invasion of rights secured by the fundamental law,”
the circuit courts have generally found for practical purposes that the “fundamental law” is simply the constitutional law readily determinable from precedent. See Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 926 (6th Cir. 2020) (“As of today, a woman’s right to a pre-viability abortion is a part of ‘the fundamental law.’”); Robinson v. Attorney Gen., 957 F.3d 1171 (11th Cir. 2020) (“[T]o the extent that the April 3 order effectively operates as a prohibition on a woman’s right to obtain an abortion before viability, the district court [reasonably] concluded that it is substantially likely to be unconstitutional as applied”).
Here, there is a “palpable invasion” of Plaintiffs’ Free Exercise rights. Under Lukumi and Fraternal Order of Police, churches have a right to be treated equally to secular interests. If other exemptions that undermine the interest is granted, then religious exemptions must be granted too. But California has never provided an explanation as to why an exemption can be granted to a factory but not a church.
More basically, banning worship in church is banning the single most important exercise of religious rights. Arguments that people of faith can engage in activity not required by their faith, while banning the activity that is required, does not help the State. Compare 9th Cir. Dkt. 12, at 14 (California arguing that “Congregants are permitted to gather over the phone”); with 2ER308 (Bishop Hodges citing scripture for the necessity of physical gathering). Indeed, disputes over how people may worship is what led to the founding of this great country.
30

2. The Balance of Equities Strongly Favor Granting an Injunction. 2.1. Plaintiffs Face Irreparable Harm without Injunctive Relief. This Court has made clear that “[t]he loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). Thus, in the First Amendment context, a plaintiff establishes irreparable injury “by demonstrating the existence of a colorable First Amendment claim.” Canyon Ridge Baptist Church, Inc. v. City of San Diego, No. 05CV2313 R (CAB), 2006 WL 8455354, at *9 (S.D. Cal. June 15, 2006) (quoting Sammartano v. First Judicial District Court, 303 F.3d 959, 973 (9th Cir. 2002)). Both the District Court and Judge Collins recognized (and California has not disputed) that Plaintiffs face irreparable harm. 1ER8; Ex A, Dissent, at 17. And Judge Collins made a further point: Plaintiffs include South Bay Pentecostal Church, and Pentecost falls on May 31, 2020. “The injury here is particularly poignant, given that Pentecost—which the eponymously named Church greatly desires to celebrate—falls on May 31.” Ex. A, Dissent, at 17.
2.2. The Balance of Hardships Tips Sharply in Plaintiffs’ Favor. The balance of hardships also tips overwhelming in favor of Plaintiffs. Here, the threatened injury to Plaintiffs is weighty—the loss of constitutional rights and the inability to practice their faith. Plaintiffs have shown that leaving the Reopening Plan in place for even a brief period “would substantially chill the exercise of fragile and constitutionally fundamental rights,” and thereby constitute an intolerable hardship to Plaintiffs. Coll. Republicans at San Francisco State Univ. v. Reed, 523 F.
31

Supp. 2d 1005, 1012 (N.D. Cal. 2007). By contrast, the cost of an injunction to California is negligible. In fact,
California has the authority to adopt, at least on an interim basis, a more narrowly crafted set of equally applied provisions that enable the government to achieve any legitimate ends without unjustifiably invading First Amendment freedoms. In addition, California will suffer no legitimate harm by accommodating Plaintiffs’ exercise of fundamental rights in the same manner that California is accommodating millions of others engaged in secular activities. The Constitution demands no less.
2.3. An Injunction is in the Public Interest An injunction is in the public interest. As the Ninth Circuit has “consistently recognized,” there is a “significant public interest in upholding First Amendment principles.” Doe v. Harris, 772 F.3d 563, 683 (9th Cir. 2014). As discussed above, Plaintiffs’ core constitutional right to the free exercise of religion will remain in jeopardy so long as California remains free to enforce its Reopening Plan. Thus, the public interest favors an injunction. See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020) (“As for the public interest, treatment of similarly situated entities in comparable ways serves public health interests at the same time it preserves bedrock free-exercise guarantees.”). California’s only argument in response was an eight-item string citation to examples of COVID-19 outbreaks connected to religious services. 9th Cir. Dkt. 12, at 27–30. But this anecdotal evidence provided no meaningful evidence. There was no comparison with factories and schools, and there was no comparison between these
32

eight examples and the hundreds of thousands of church services being conducted in
the rest of America. The most recent estimate is that there are 384,000 places of
worship in America. 9th Cir. Dkt. 14, at 17. If all eight examples happened in the
same week, this would mean that only 0.002% of worship services led to an outbreak.
This cannot outweigh the public interest in preserving fundamental constitutional
rights.
CONCLUSION
For the reasons stated in this application, Plaintiffs meet all of the
requirements for an injunction in this case, and the public interest is best served by
this Court granting Plaintiffs’ application.
Respectfully submitted,
__________________________ CHARLES S. LIMANDRI Counsel of Record PAUL M. JONNA JEFFREY M. TRISSELL LIMANDRI & JONNA LLP P.O. Box 9120 Rancho Santa Fe, CA 92067 (858) 759-9930 cslimandri@limandri.com pjonna@limandri.com jtrissell@limandri.com
THOMAS BREJCHA PETER BREEN THOMAS MORE SOCIETY 309 W. Washington Street Suite 1250
33

Chicago, IL 60606 (312) 782-1680 tbrejcha@thomasmoresociety.org pbreen@thomasmoresociety.org HARMEET K. DHILLON MARK P. MEUSER DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 (415) 433-1700 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com Counsel for Applicants South Bay United Pentecostal Church and Bishop Arthur Hodges III
34

1

EXHIBIT A

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 1 of 21

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
MAY 22 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

SOUTH BAY UNITED PENTECOSTAL CHURCH, a California nonprofit corporation; BISHOP ARTHUR HODGES III, an individual,
Plaintiffs-Appellants,
v.

No. 20-55533
D.C. No. 3:20-cv-00865-BAS-AHG Southern District of California, San Diego
ORDER

GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SONIA ANGELL, in her official capacity as California Public Health Officer; WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego; HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services; WILIAM D, GORE, in his official capacity as Sheriff of the County of San Diego,

Defendants-Appellees.

Before: SILVERMAN, NGUYEN, and COLLINS, Circuit Judges. This appeal challenges the district court’s denial of appellants’ motion for a
temporary restraining order and order to show cause why a preliminary injunction should not issue in appellants’ challenge to the application of the State of California and County of San Diego’s stay-at-home orders to in-person religious

LCC/MOATT

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 2 of 21
services. Appellants have filed an emergency motion seeking injunctive relief permitting them to hold in-person religious services during the pendency of this appeal.
We have jurisdiction to review the denial of a temporary restraining order where, as here, “the circumstances render the denial ‘tantamount to the denial of a preliminary injunction.’” Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (internal citation omitted); see also 28 U.S.C. § 1292(a)(1). Accordingly, the motion to dismiss for lack of jurisdiction (Docket Entry No. 24) is denied.
The request to take judicial notice (Docket Entry No. 25) is granted. In evaluating a motion for an injunction pending appeal, we consider whether the moving party has demonstrated that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 367 (9th Cir. 2016) (“The standard for evaluating an injunction pending appeal is similar to that employed by district courts in deciding whether to grant a preliminary injunction.”).

LCC/MOATT

2

20-55533

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 3 of 21
We conclude that appellants have not demonstrated a sufficient likelihood of success on appeal. Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
The remaining factors do not counsel in favor of injunctive relief. See Winter, 555 U.S. at 20. We therefore deny the emergency motion for injunctive relief pending appeal (Docket Entry No. 2).1

1 Judge Collins would grant the motion and has filed a dissent.

LCC/MOATT

3

20-55533

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 4 of 21

FILED

South Bay United Pentecostal Church v. Newsom, No. 20-55533

MAY 22 2020

COLLINS, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Plaintiffs-Appellants South Bay United Pentecostal Church (the “Church”)

and its Bishop, Arthur Hodges III (collectively, “Plaintiffs”), move for a

preliminary injunction pending appeal that would allow them to conduct in-person

church services. The State of California’s refusal to allow them to hold such

services likely violates the Free Exercise Clause of the First Amendment, and so I

would grant the requested injunction. Because the majority concludes otherwise, I

respectfully dissent.

I

The Church is a Christian congregation in Chula Vista, California. Until the

recent COVID-19 pandemic, the Church held between three and five Sunday

services every week, which would attract 200–300 congregants each. Its sanctuary

seats 600.

On March 19, 2020, Governor Gavin Newsom issued Executive Order N-

33-20. The order generally required “all individuals living in the State of

California to stay home or at their place of residence except as needed to maintain

continuity of operations of the federal critical infrastructure sectors.” The federal

list of critical sectors did not include churches. The State public health officer

subsequently designated a comprehensive set of “Essential Critical Infrastructure

1

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 5 of 21
Workers.” That list designated clergy as essential, but only if they were holding services “through streaming or other technologies that support physical distancing and state public health guidelines.”
On April 28, the Governor announced a four-stage “Reopening Plan” or “Resilience Roadmap,” under which the State would initially relax the stay-athome order for some organizations but not others. At Stage 1, only “critical infrastructure” was exempted. At Stage 2, curbside retail and additional factories making previously non-essential “things like toys, clothing, . . . [and] furniture” would be permitted to reopen. Stage 2 entities also included ones that would reopen at a later date within that stage, such as schools (in an adapted form), childcare, dine-in restaurants, outdoor museums, “destination retail, including shopping malls and swap meets,” and office-based businesses where telework is not possible. At Stage 3, “higher risk workplaces” like churches could reopen, along with bars, movie theaters, hair salons, and “more personal & hospitality services.” And at Stage 4, concerts, conventions, and spectator sports could reopen. The Governor predicted that while Phase 2 would begin in “weeks, not months,” Phase 3 would begin in “months, not weeks.”
On May 4, the Governor announced that Stage 2 would commence within a week. On May 8, Plaintiffs sued the Governor and several other state officers (collectively, “the State”) as well as various local officials, claiming that the
2

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 6 of 21
Reopening Plan’s decision to place churches within Stage 3 instead of Stage 2 violated the Free Exercise Clause of the First Amendment. The County of San Diego implemented the Reopening Plan in an order dated May 9, 2020. Plaintiffs filed an amended complaint on May 11.
On May 15, 2020, the district court denied Plaintiffs’ motion for both a temporary restraining order (“TRO”) and an order to show cause (“OSC”) why a preliminary injunction allowing the Church to hold in-person services should not issue. Plaintiffs appealed and concurrently moved for a preliminary injunction in this court.
II We have jurisdiction over this appeal under our controlling decision in Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306 (9th Cir. 1989).1 Both in Religious Tech. Ctr. and in this case, the plaintiffs filed a motion for a TRO and for an OSC why a preliminary injunction should not issue; the district court denied the motion “for a TRO and an OSC following a hearing at which all parties were represented”; and the specific grounds on which the district court denied the motion “foreclosed any interlocutory relief.” Id. at 1308–09. As to the latter point, the district court below agreed with the State that the Reopening
1 The State questioned our jurisdiction in its initial opposition to Plaintiffs’ motion in this court, but it did not renew that objection in its subsequent formal opposition. Nonetheless, we have an obligation to consider the issue sua sponte.
3

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 7 of 21
Plan is a “neutral law of general application” that is therefore subject only to rational basis review under Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). Given that this threshold legal conclusion is indisputably fatal to Plaintiffs’ Free Exercise claim, “[t]he futility of any further hearing was thus patent; there was nothing left to talk about.” Id. at 1309. The order was thus “tantamount to a denial of a preliminary injunction,” id. at 1308, and we therefore have jurisdiction under 28 U.S.C. § 1292(a)(1).
III Plaintiffs seek a preliminary injunction pending appeal, and the standards for such relief are well-settled. “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Under our ‘sliding scale’ approach, ‘the elements of the preliminary injunction test are balanced, so that a stronger showing of one element may offset a weaker showing of another.’” Hernandez v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017) (quoting Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)). Here, all of these factors favor the Plaintiffs.
4

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 8 of 21
A In seeking injunctive relief pending appeal, Plaintiffs principally rely on their claim under the First Amendment’s Free Exercise Clause, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I (emphasis added). This restriction is fully applicable to the States through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). I conclude that Plaintiffs have established a very strong likelihood of success on the merits of their Free Exercise claim.
1 As a threshold matter, the State contends that, in light of the ongoing pandemic, the constitutional standards that would normally govern our review of a Free Exercise claim should not be applied. “Although the Constitution is not suspended during a state of emergency,” the State tells us, “constitutional rights may be reasonably restricted ‘as the safety of the general public may demand’” (quoting Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)). According to the State, the current emergency conditions preclude us from applying Lukumi’s familiar framework for evaluating Free Exercise claims and require us instead to apply Jacobson’s “highly deferential” standard of review, under which we are supposedly limited “‘to a determination of whether the [Governor’s] actions were
5

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 9 of 21
taken in good faith and whether there is some factual basis for [the] decision’” (quoting United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971)). As the State sees it, there is no “reason why Jacobson would not extend to the First Amendment and other constitutional provisions” (emphasis added). I am unable to agree with this argument, which seems to me to be fundamentally inconsistent with our constitutional order. Cf. Sterling v. Constantin, 287 U.S. 378, 397–98 (1932) (“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases[.]”).
The State’s motion cites no authority that can justify its extraordinary claim that the current emergency gives the Governor the power to restrict any and all constitutional rights, as long as he has acted in “good faith” and has “some factual basis” for his edicts. Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards. As the Second Circuit has recognized, Jacobson merely rejected what we would now call a “substantive due process” challenge to a compulsory vaccination requirement, holding that such a mandate “was within the State’s police power.” Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015); see also Zucht v. King, 260 U.S.
6

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 10 of 21
174, 176 (1922) (Jacobson “settled that it is within the police power of a state to provide for compulsory vaccination”). Jacobson’s deferential standard of review is appropriate in that limited context. It might have been relevant here if Plaintiffs were asserting a comparable substantive due process claim, but they are not.
Instead, Plaintiffs assert a claim under the Free Exercise Clause, whose standards are well-established and which applies to the States under the Fourteenth Amendment. Cantwell, 310 U.S. at 303. Jacobson had no occasion to address a Free Exercise claim, because none was presented there. (That is unsurprising, because the Free Exercise Clause had not yet been held to apply to the States when Jacobson was decided in 1905. See Phillips, 775 F.3d at 543.) Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right; on the contrary, Jacobson explicitly states that other constitutional limitations may continue to constrain government conduct. See 197 U.S. at 25 (emergency public health powers of the State remain subject “to the condition that no rule . . . shall contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument”). The State suggests that the Second Circuit’s decision in Phillips applied Jacobson to bar a First Amendment challenge, but Phillips actually confirms my narrower reading of Jacobson. After applying Jacobson to reject the plaintiffs’ substantive due process challenge to New York’s vaccination
7

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 11 of 21
requirement, the court then addressed (and rejected) the plaintiffs’ Free Exercise challenge by applying not Jacobson, but the familiar Lukumi framework that governs all Free Exercise claims. See Phillips, 775 F.3d at 543.
The Fourth Circuit’s decision in Chalk likewise provides no support for the State’s position. In Chalk, the defendants were pulled over for driving at 11:00 PM in violation of Asheville, North Carolina’s four-night curfew, and a search of their car revealed dynamite caps and other “materials from which an incendiary bomb could be readily produced.” See 441 F.2d at 1278–79. On appeal from the defendants’ subsequent convictions, the Fourth Circuit rejected the defendants’ challenge to the traffic stop, which was “focused on the curfew imposed by the mayor as a restriction on their right to travel.” Id. at 1283 (emphasis added). Applying a deferential standard of review, the court held that the temporary travel restrictions imposed by the short-lived curfew were justified in light of the significant civil unrest in Asheville that had led to the curfew order. Id. at 1282– 83. Given that the defendants were not engaged in any expressive (or religious) activity while driving, the First Amendment was not directly implicated by the traffic stop in Chalk, and so the decision has little relevance here. If anything, Chalk’s discussion of the First Amendment undercuts the State’s argument. The Fourth Circuit stated in dicta that any incidental impact on First Amendment rights from the curfew would be governed by the intermediate scrutiny standard of
8

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 12 of 21
United States v. O’Brien, 391 U.S. 367 (1968), and the court likened the brief restriction on travel to a time, place, and manner restriction. See 441 F.2d at 1280– 81, 1283. The fact that Chalk attempted to fit its comments within such existing First Amendment categories refutes the State’s notion that the existence of an emergency results in a wholesale displacement of conventional constitutional standards.
Moreover, the State overlooks that we have expressly rejected a comparably broad reading of Chalk in addressing a First Amendment challenge to “an emergency order prohibiting access to portions of downtown Seattle, Washington, during the 1999 World Trade Organization (WTO) conference.” Menotti v. City of Seattle, 409 F.3d 1113, 1117, 1142 n.55 (9th Cir. 2005). Instead of applying a broad “‘emergency exception’” based on Chalk, we analyzed the emergency order within the rubric of established First Amendment time, place, and manner principles, which we held provided ample room to “take[] into account a balance of the competing considerations of expression and order.” Id. at 1142 & n.55.
Accordingly, I conclude that Plaintiffs’ challenge must be evaluated under the traditional Lukumi framework that governs Free Exercise claims.2
2 Notably, the State does not cite or rely upon the circuit court decision that most directly supports its reading of Jacobson, which is In re Abbott, 954 F.3d 772 (5th Cir. 2020). For the reasons stated, I am unable to agree with the Fifth Circuit’s conclusion that “Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.” Id. at 786 (emphasis in original);
9

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 13 of 21
2 In addressing a Free Exercise claim under Lukumi, the first question is whether the challenged restriction is one “that is neutral and of general applicability.” 508 U.S. at 531. If the answer is yes, then “we review [it] for a rational basis.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1084 (9th Cir. 2015). If the answer is no, then the restriction is subject to strict scrutiny—that is, it “must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” Lukumi, 508 U.S. at 531–32. In denying the requested relief, the district court held that the State’s Reopening Plan is a “neutral law of general application” and that it “is rationally based on protecting safety and stopping the virus spread.” Alternatively, the district court held that the Reopening Plan is narrowly tailored to promote the State’s compelling interest in public health.3 In my view, Plaintiffs have a high likelihood of success in their appeal of these rulings.
see also In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (generally endorsing the Fifth Circuit’s description of emergency powers under Jacobson). Beyond that limited observation, I express no view on the very different substantive constitutional questions presented in those cases. 3 The district court actually reached this alternative conclusion in the context of addressing Plaintiffs’ likelihood of success on their Free Exercise claim under the California Constitution. Reliance on the California Constitution, however, would be inappropriate here. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984).
10

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 14 of 21
a As the Supreme Court explained in Lukumi, “the minimum requirement of neutrality is that a law not discriminate on its face.” 508 U.S. at 533. Accordingly, where a regulation’s operative language restricts conduct by explicit reference to the conduct’s religious character, it is not facially neutral. Id. (citing the law at issue in McDaniel v. Paty, 435 U.S. 618 (1978), which applied specifically to members of the clergy, as an example of a law that on its face “imposed special disabilities on the basis of religious status”) (cleaned up). Because the restrictions at issue here explicitly “reference . . . religious practice, conduct, belief, or motivation,” they are not “facially neutral.” Stormans, 794 F.3d at 1076. In framing its restrictions in response to the pandemic, California did not purport simply to proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space. Instead, Executive Order N-33-20 presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities. See Cal. Exec. Order N-33-20 (Mar. 19, 2020)4 (ordering “all
4 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N33-20-COVID-19-HEALTH-ORDER.pdf.
11

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 15 of 21
individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors,” except as the State “may designate additional sectors as critical”).5 In announcing its Reopening Plan, the State has adopted a phased approach that will progressively add more and more exceptions to the baseline stay-at-home prohibition by designating additional specific categories of activities that, in the State’s judgment, do not present an undue risk to public health. See Order of the Cal. Pub. Health Officer (May 7, 2020)6 (“I will progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications, based on public health and safety needs, and I will add additional sectors, businesses, establishments, or activities at a pace designed to protect public health and safety.”).
As set forth by the State, the four-stage Reopening Plan assigns “retail (curbside only), manufacturing & logistics” to the initial portion of “Phase 2,” and in-store retail, “child care, offices & limited hospitality, [and] personal services” to
5 Even the most ardent proponent of a broad reading of Jacobson must pause at the astonishing breadth of this assertion of government power over the citizenry, which in terms of its scope, intrusiveness, and duration is without parallel in our constitutional tradition. But since Plaintiffs do not directly challenge the validity of the original Order here, I do not address the point further. 6 See https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20 Library/COVID-19/SHO%20Order%205-7-2020.pdf.
12

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 16 of 21
a later portion of Phase 2. (On May 20, 2020, San Diego County was given approval to begin this later portion of Phase 2; it aims to promptly reopen both dine-in restaurants and in-store retail businesses.7) By contrast, “religious services” are explicitly assigned to a “Stage 3” that also includes “movie theaters” and other “personal & hospitality services.” All reopenings under the Plan are subject to detailed, activity-by-activity State guidance that sets forth the specific actions that each activity (such as “manufacturing” or “warehousing facilities”) must take (e.g., use of face coverings, social distancing, sanitation, and employee training) in order to reopen, and to stay open.
By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services8—the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.” Lukumi, 508 U.S. at 533. Although the State insists that it has not acted out of antipathy towards religion, the “constitutional benchmark is ‘government
7 See Lori Weisberg, San Diego County gets the OK from state to resume dining-in at restaurants, SAN DIEGO UNION-TRIBUNE (May 20, 2020), https://www.sandiegouniontribune.com/business/story/2020-05-20/san-diegocounty-gets-the-ok-from-state-to-resume-dining-in-at-restaurants. 8 In this respect, this case differs from Roberts v. Neace, __ F.3d __, 2020 WL 2316679 (6th Cir. May 9, 2020), in which the challenged order prohibited “[a]ll mass gatherings,” and “faith-based” events were merely listed as one example of such “mass gatherings.” Id. at *1, 3.
13

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 17 of 21
neutrality,’ not ‘government avoidance of bigotry.’” Roberts, 2020 WL 2316679, at *4 (quoting Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir. 2008)). Because the Reopening Plan, on its face, is not neutral, it is subject to strict scrutiny. Lukumi, 508 U.S. at 531–32.
b Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi’s additional requirement that the restrictions be “of general applicability.” 508 U.S. at 531. Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.” See Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an exception-ridden policy takes on the appearance and reality of a system
14

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 18 of 21
of individualized exemptions, the antithesis of a neutral and generally applicable policy.”).
The State contends that its plan is generally applicable because it assertedly classifies activities neutrally, in accordance with the State’s sense of their perceived risk. But that is not how the Reopening Plan works. Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person “religious services”—merely because they are “religious services”—are categorically not permitted to take place even if they follow the same guidelines. This is, by definition, not a generally applicable regulation of underlying physical conduct.
3 The only remaining question is whether the Reopening Plan’s treatment of religious services satisfies strict scrutiny. The district court concluded that it did, but that is plainly wrong. The State’s undeniably compelling interest in public health “could be achieved by narrower [regulations] that burdened religion to a far lesser degree.” Lukumi, 508 U.S. at 546. As Plaintiffs have reiterated throughout these proceedings, they will “comply[] with every single guideline that other businesses are required to comply with.” In their papers in the district court, Plaintiffs provided a list illustrating the range of measures they are ready and willing to
15

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 19 of 21
implement on reopening, including spacing out the Church’s seating, requiring congregants to wear face coverings, prohibiting the congregation from singing, and banning hugging, handshakes, and hand-holding. By regulating the specific underlying risk-creating behaviors, rather than banning the particular religious setting within which they occur, the State could achieve its ends in a manner that is the “least restrictive way of dealing with the problem at hand.” Roberts, 2020 WL 2316679, at *5.9
The State’s only response on the narrow-tailoring point is to insist that there is too much risk that congregants will not follow these rules. But as the Sixth Circuit recently explained in Roberts, the State’s position on this score illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace: the State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Roberts, 2020 WL 2316679, at *3.
* * * Therefore, I conclude that Plaintiffs are highly likely to succeed on the merits of their Free Exercise Clause claim.
9 On this score, it is noteworthy that, earlier today, the CDC issued “Interim Guidance for Communities of Faith.” See https://www.cdc.gov/coronavirus/2019ncov/php/faith-based.html.
16

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 20 of 21
B All of the remaining considerations strongly favor the entry of an injunction pending appeal. The Bishop’s inability to hold in-person worship services, and the Church members’ inability to attend them, are certainly irreparable injuries. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1008 (10th Cir. 2004) (en banc) (Seymour, J., concurring in relevant part for a majority of the court) (“[T]he violation of one’s right to the free exercise of religion necessarily constitutes irreparable harm.”), aff’d sub nom. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006). The injury here is particularly poignant, given that Pentecost—which the eponymously named Church greatly desires to celebrate—falls on May 31. Indeed, the State explicitly “does not question the sincerity of Plaintiffs’ belief that it is essential to gather in person for worship services.” I do not doubt the importance of the public health objectives that the State puts forth, but the State can accomplish those objectives without resorting to its current inflexible and overbroad ban on religious services. The balance of equities, and the public interest, strongly favor requiring the State to honor its constitutional
17

Case: 20-55533, 05/22/2020, ID: 11699952, DktEntry: 29, Page 21 of 21
duty to accommodate a critical element of the free exercise of religion—public worship.
For these reasons, I would grant Plaintiffs’ request for a preliminary injunction. I respectfully dissent.
18

EXHIBIT B

From: To: Subject:
Date:

efile_information@casd.uscourts.gov efile_information@casd.uscourts.gov Activity in Case 3:20-cv-00865-BAS-AHG South Bay United Pentecostal Church et al v. Newsom et al Order on Motion for Leave to File Document Friday, May 15, 2020 11:50:50 AM

This is an automatic e-mail message generated by the CM/ECF system. Please DO NOT RESPOND to this e-mail because the mail box is unattended. ***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing. However, if the referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court Southern District of California

Notice of Electronic Filing

The following transaction was entered on 5/15/2020 at 11:48 AM PDT and filed on 5/15/2020

Case Name:

South Bay United Pentecostal Church et al v. Newsom et al

Case Number: 3:20-cv-00865-BAS-AHG

Filer:

Document Number: 32(No document attached)

Docket Text: Minute Order for proceedings held before Judge Cynthia Bashant: Motion Hearing (telephonic) held on 5/15/2020. For the reasons stated in the hearing, the Court grants [29] Ex Parte MOTION for Leave to File Supplemental Authority in Support of Plaintiffs Application for a Temporary Restraining Order filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III; denies [12] Ex Parte MOTION for Temporary Restraining Order and Order to Show Cause re: Preliminary Injunction filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III; and denies [21] Ex Parte MOTION for Leave to File Application for Leave To File Request for Judicial Notice Pursuant to Federal Rule of Evidence 201 filed by South Bay United Pentecostal Church, Bishop Arthur Hodges III (Court Reporter/ECR Dana Peabody). (Plaintiff Attorney Paul Jona, Charles LiMandri, Jeffrey Trissell, and Mark Meuser).(Defendant Attorney Todd Grabarsky, Lisa Plank, and Timothy White). (no document attached) (sxm)

3:20-cv-00865-BAS-AHG Notice has been electronically mailed to:
Charles S. LiMandri cslimandri@limandri.com, dpiedra@fcdflegal.org, dwilson@limandri.com, jtrissell@limandri.com, kdenworth@limandri.com, mbrandon@limandri.com, pjonna@limandri.com

Attorney General docketingsdawt@doj.ca.gov Timothy M. White timothy.white@sdcounty.ca.gov, diana.gaitan@sdcounty.ca.gov, george.kunthara@sdcounty.ca.gov, thomas.velasquez@sdcounty.ca.gov Paul Michael Jonna pjonna@limandri.com Harmeet K. Dhillon harmeet@dhillonlaw.com, HKChoi@dhillonlaw.com, SNeilsen@dhillonlaw.com Todd Grabarsky todd.grabarsky@doj.ca.gov Mark Philip Meuser MMeuser@dhillonlaw.com Milan Louis Brandon, II mbrandon@limandri.com 3:20-cv-00865-BAS-AHG Notice has been delivered by other means to:

EXHIBIT C

1

1

United States District Court

2

for the Southern District of California

3
4 SOUTH BAY UNITED PENTECOSTAL CHURCH, etc., et al.,
5 Plaintiffs,
6 v.
7 GAVIN NEWSOM, etc., et al.,
8 Defendants.
9

) ) ) No. 20cv0865-BAS ) ) May 15, 2020 ) ) San Diego, California ) ) ) )

10

TRANSCRIPT OF MOTION HEARING

11

BEFORE THE HONORABLE CYNTHIA BASHANT

United States District Judge

12

APPEARANCES:

13

For the Plaintiffs:

LiMANDRI & JONNA LLP

14

CHARLES S. LiMANDRI

PAUL MICHAEL JONNA

15

JEFFREY M. TRISSELL

Attorneys At Law

16

DHILLON & SMITH LLP

17

MARK PHILIP MEUSER

Attorney at Law

18

For the Defendants:

CALIFORNIA ATTORNEY GENERAL'S OFFICE

19

TODD GRABARSKY

Attorney at Law

20

OFFICE OF THE COUNTY COUNSEL

21

TIMOTHY M. WHITE

Attorney At Law

22

23 Court Reporter:
24
25

Dana Peabody, RDR, CRR District Court Clerk's Office 333 West Broadway, Suite 420 San Diego, California 92101 DanaPeabodyCSR@gmail.com

2

1

San Diego, California, May 15, 2020

2

* * *

3

THE CLERK: Thank you, Counsel, and everybody for

4 being on the line so promptly.

5

This is Stephanie, Judge Bashant's clerk. I just wanted to

6 give a quick admonishment before we get started and I call the

7 case.

8

The same courtroom decorum applies as though we were

9 actually in the courtroom versus telephonic. The members of

10 the public and media, if you could please mute your phones and

11 make sure they stay muted. Counsel is the only one permitted

12 to provide argument. There are also no recordings of any type.

13 We have our Official Court Reporter, Dana Peabody, on the

14 phone, and she is the one who will provide the official court

15 transcript, and you may request it through her.

16

And with that, I believe I will go ahead and call the case.

17

Calling Matter Number 1, 20cv0865, South Bay United

18 Pentecostal Church versus Newsom, et al., on calendar for a

19 motion hearing telephonically.

20

THE COURT: Counsel, state your appearances for the

21 record, please.

22

MR. JONNA: Good morning, Your Honor. Paul Jonna on

23 behalf of plaintiff South Bay United Pentecostal Church and

24 Bishop Arthur Hodges III, and I'm joined by my colleague,

25 Jeffrey Trissell.

3

1

THE COURT: Good morning.

2

MR. MEUSER: Mark Meuser, also here on behalf of the

3 plaintiff, with the Dhillon Law Group.

4

MR. LiMANDRI: Charles LiMandri with my partner,

5 Mr. Jonna, who will be arguing the case this morning.

6

THE COURT: Good morning.

7

MR. WHITE: Good morning, Your Honor. This is County

8 of San Diego for the -- County Counsel's office for the County

9 of San Diego, defendant.

10

THE COURT: And I missed the name.

11

MR. WHITE: Timothy White.

12

THE COURT: Thank you.

13

MR. GRABARSKY: And good morning, Your Honor. This is

14 Deputy Attorney General Todd Grabarsky on behalf of the state

15 defendants, Governor Gavin Newsom, Attorney General Xavier

16 Becerra, and Public Health Officer Dr. Sonia Angell.

17

THE COURT: Okay. Good morning, everyone, and thank

18 you all for agreeing to appear telephonically. I know it's not

19 easy. We're kind of talking on top of each other. I'll try to

20 make sure that I give you each a chance to be heard.

21

If anyone has any difficulty hearing anything, don't

22 hesitate to let me know, and I'll make sure that it gets

23 repeated. Sometimes when people come on the phone last minute,

24 there's a beep, and it blocks out whatever anyone is saying, so

25 feel free to let me know if you're having any difficulty

4

1 hearing what anyone has said.

2

First of all, I want to let everyone know I've reviewed

3 plaintiffs' amended complaint, I reviewed all the attached

4 rules promulgated by the State of California that were attached

5 to the complaint, I reviewed plaintiffs' motion for a TRO with

6 the various requests for judicial notice, the state and the

7 county's office, I reviewed plaintiffs' objections to

8 defendants' responses as untimely. That will be denied.

9

I also reviewed plaintiffs' leave to file supplemental

10 authorities, which will be granted. I have reviewed those

11 authorities.

12

My understanding is the plaintiffs are not objecting to the

13 initial closure order or the initial decision classifying some

14 businesses as essential and others as not, and, therefore, this

15 is not challenging the same order as the one I already

16 addressed in the Abiding Ministry case.

17

Instead, plaintiffs have filed this amended complaint

18 objecting to the state's plans for reopening, specifically the

19 classification of churches and religious services as Stage 3

20 out of four stages of reopening.

21

Plaintiffs ask that religious services be classified as

22 Stage 2 and that they be allowed to begin services immediately.

23

As a preliminary matter, there are numerous requests for

24 judicial notice, most of which I think should be denied as moot

25 or unnecessary.

5

1

First of all, with respect -- with respect to the request

2 that has to do with the number of deaths, I think that the

3 actual request for judicial notice talks about deaths and

4 population and types of death in the State of California,

5 although I think the numbers actually reflect those that are

6 for San Diego County, not for the State of California, but

7 regardless, I think that the numbers in San Diego County are

8 largely irrelevant.

9

Plaintiffs seem to concur that the coronavirus is real,

10 that the Government has a compelling interest in curbing the

11 virus, that the stay-at-home orders further that interest, and

12 simply focusing on one county in a state that is as mobile as

13 California is too limiting.

14

Ultimately I don't find that the number of deaths in

15 San Diego County are particularly helpful in my analysis of the

16 stages of reopening.

17

I also don't think I need to take judicial notice of the

18 governor's orders. They're attached to the complaint already,

19 but to the extent it is necessary, I'll take judicial notice of

20 the orders, particularly those that outline the plan for

21 reopening because ultimately that's what plaintiffs are

22 challenging in this case.

23

And finally, I don't think I need to take judicial notice

24 of opinions from other courts. I can actually look at them and

25 consider them without taking judicial notice of them. The ones

6

1 from other district courts are not binding, but certainly the

2 analysis of other courts can be helpful.

3

So let me talk about the actual restraining order request.

4 First of all, I'm prepared to find that irreparable harm will

5 occur to the plaintiffs if I don't grant the TRO. Plaintiffs

6 don't have to address that prong.

7

But I do have concern about all the other prongs, and

8 here's sort of my preliminary thoughts, and then I'll be

9 interested in hearing from each of you:

10

First of all, it appears to me that the stages in

11 California's reopening plan are carefully focused on the risk

12 each workplace poses. In other words, we have Stage 2, which

13 is a lower-risk workplace; initially curbside only and then

14 types of facilities where one moves through quickly without

15 long periods of time together. Entering these workplaces in

16 the Stage 2 are -- they're places that are by their nature

17 transitory. You're just going in for the purpose of picking

18 something up, and then you're leaving.

19

Stage 3 are higher-risk workplaces, those which by their

20 nature involve people gathering in close proximity with one

21 another for extended periods.

22

And then we've got Stage 4, which is the highest risk, so

23 very large groups, like rock concerts, conventions, events held

24 at sporting venues.

25

None of this seems to me to be targeted or focused on

7

1 limiting religion. If your religion involves walking into a

2 church, a few people at a time, keeping six feet apart, picking

3 something up from the church, and going home with you, then it

4 seems to me that would be a Stage 2 workplace.

5

But unfortunately, religious services generally involve

6 sitting together as a group. I note that in plaintiffs' case,

7 plaintiffs are proposing services involving groups of 200 to

8 300 congregants per service, and beginning with Bible classes

9 of ten to 100 people, and that they describe practices -- or

10 Bishop Hodges describes practices consisting of having people

11 with special needs or sickness come stand around an alter where

12 hands are laid on them and they are anointed, challenging

13 congregants to all approach the alter at once to come

14 believing, come praying, and practicing baptism by full

15 immersion in the water on a weekly or daily basis.

16

This seems to me to be a higher-risk environment than one

17 where you just pick something up either at curbside or walk

18 through a store, pick something up, pay for it, and walk out.

19 It's not a value judgment. It's not a judgment about what's

20 more important or what's more valuable than the other. It's

21 simply a determination of what activity poses the higher risk

22 for infecting others.

23

So I just don't see how strict scrutiny applies, but I'll

24 certainly be interested in hearing what you have to say.

25

So let me start with the plaintiff. I believe it's

8

1 Mr. Jonna who is going to be speaking. Those are my

2 preliminary thoughts.

3

MR. JONNA: Yes, Your Honor. This is Paul Jonna.

4

Thank you for those thoughts, and thank you for reviewing

5 the voluminous materials in such a short amount of time.

6

Your Honor, the problem with these orders in the reopening

7 plan is that there's arbitrary exceptions and unequal treatment

8 of churches.

9

So the government can't explain, for example, why factories

10 and schools, which don't involve transitory -- you know,

11 transitory measures -- why those places can open in Stage 2 but

12 not churches.

13

So what they've tried to argue without support is that

14 places of worship are sidelined for scientific reasons, but

15 we -- large gatherings at factories and schools where people

16 gather indoors for hours are able to reopen.

17

So under Lukumi, the state has the burden to explain why

18 they're making the distinction in order to meet strict

19 scrutiny, and they have not.

20

The answer can't be that factories and schools are just

21 more important. The right to practice your faith, you know, is

22 a first right in the First Amendment. The government has to

23 treat it equally. It can't be viewed as less important, and

24 that's why most other states, Your Honor, took steps to protect

25 the constitutional rights of churches and religious believers.

9

1 California was one of only nine states that didn't, and as the

2 Court knows, there's four federal courts that have held that

3 these types of orders are not generally applicable and that

4 they must satisfy strict scrutiny. And we have a Sixth Circuit

5 case, we have the On Fire Christian case, which said, "No

6 place, not even the unknown, is worse than any place the state

7 forbids the exercise of your sincerely held religious beliefs."

8 And we have the First Baptist case in the District of Kansas,

9 which involves in-person services. And the Tabernacle Baptist

10 case, which is very similar to our case, where the Court said,

11 "If social distancing is good enough for Home Depot and Kroger,

12 it's good enough for in-person religious services, which,

13 unlike the foregoing, benefit from constitutional protection."

14

So we believe strict scrutiny applies because gathering for

15 worship is prohibited, but not other gatherings.

16

And, Your Honor, we're not dealing with neutral laws of

17 general applicability. The orders are riddled with exceptions.

18 For example, Governor Newsom just last week said that churches

19 fall under the category of, quote, low-reward activity. Those

20 were his words. He didn't just say high risk, but he said "low

21 reward." He initially determined that marijuana dispensaries,

22 liquor stores, the entire entertainment industry, and now

23 factories and museum, those are higher-reward activities, so

24 those are the kinds of arbitrary assessments, Your Honor, that

25 are unconstitutional. Going to a factory or a museum is not

10

1 constitutionally protected, but freely exercising --

2

THE COURT: Let me just -- I'm going to interrupt you

3 for a minute because when I read through the order, I didn't

4 see that museums -- I have to hear from the state about exactly

5 what is, but I don't believe that some of the things you're

6 saying should be opened under Stage 2 or were listed as being

7 opened under Stage 2.

8

MR. JONNA: Sure, Your Honor. The fact -- certain

9 manufacturing factories were allowed to be opened from the

10 beginning, and certain ones -- the rest of them are allowed to

11 reopen in Phase 2, and if I'm misstating that, I'm sure the

12 state will correct me.

13

As far as museums, what the governor said is outdoor

14 museums can start opening in Stage 2, but an outdoor museum is,

15 you know -- I'm not sure why they're making the distinction

16 with a museum versus an outdoor church service, for example.

17 Again, freely exercising your religion is the very first right

18 in the First Amendment. And for the millions of faithful in

19 California, religion is needed in these times more than ever.

20 It might be hard for government officials to understand that,

21 especially if they're hostile to religion or don't see its

22 relevance or they think it's low reward, but to Bishop Hodges

23 and millions of Californians, free exercise of religion is

24 eternally important. To them, it's the most essential of

25 activities. It's the reason why many people came to this great

11

1 country to begin with, including the Pilgrims, who were

2 religious refugees.

3

So basically, Your Honor, the government officials

4 shouldn't be able to tell millions of people of faith that

5 their religious worship is low reward and nonessential. That's

6 hostility toward religion, and this Court has an incredible

7 opportunity to correct these constitutional violations.

8

And as Your Honor knows, the Department of Justice, the

9 U.S. Department of Justice, shares these concerns. They've

10 issued statements and intervened in multiple similar federal

11 actions, and, Your Honor, the facts have changed considerably

12 since Your Honor ruled in the Abiding Place Ministries case.

13 Mr. White, who's on the phone, who also argued that matter, he

14 said on April 10th that the next few weeks were critical and

15 necessary to flatten the curve. And that's now happened. The

16 curve has flattened, and the healthcare system has not been

17 overwhelmed. In fact, they've had to lay off workers. The

18 governor acknowledged these facts, and they're supported by

19 Dr. Delgado's declaration.

20

And, Your Honor, we had -- and I know you said in your

21 initial remarks that you weren't focused so much on San Diego,

22 but I do think it's significant that we've had less than 200

23 deaths in a county with a population of 3.3 million. I mean,

24 every human life is precious, and we all wish there were zero

25 deaths, but the data has to matter, Your Honor. And it's that

12

1 data the government is relying on to say that you can now

2 gather at factories and schools.

3

So even if the numbers go up again in the fall, the

4 solution can't be to close the churches again. There has to be

5 a balance where the Constitution is followed and people can

6 still practice their faith without the government dictating

7 that it has to be done in the confines of their home.

8

And I read statements in both the defendants' briefs that

9 are simply not true, and Your Honor repeated some of them, I

10 assume, because they were stated in the defendants' briefs, but

11 let me just clarify. My clients do not want to resume normal

12 worship services. That's just not true. We made it clear many

13 times that they should only be allowed to open in Stage 2

14 provided that they follow all of the government public health

15 measures and social distancing guidelines, and that's exactly

16 what the court said in the recent Tabernacle Baptist case,

17 which is very instructive and similar to our case.

18

In that case the Court granted the plaintiffs' TRO and

19 found that the church should be allowed to hold in-person

20 services, not drive-in, since the church was committed to

21 following the CDC's guidelines on large gatherings, practicing

22 social distancing, and --

23

THE COURT: I'm confused. Let me interrupt you a

24 minute because -- and I can see why the state might have been

25 confused as well because Bishop Hodges talks about how

13

1 important it is to resume the religious activities, including

2 the laying on of hands and approaching the alter. Is he not

3 requesting to do that by this TRO?

4

MR. JONNA: Your Honor, no. I mean -- essentially, I

5 think in these papers he described what they do -- what's

6 important to their faith, but he made it abundantly clear

7 multiple times, and he will certainly reaffirm it if it's

8 necessary, that he will only resume services by complying with

9 every single guideline that other businesses are required to

10 comply with.

11

So if, for example, that means that certain things that are

12 done normally have to be suspended because of these guidelines,

13 these social distancing guidelines, that will be done.

14

And then the Delgado declaration, Your Honor, had a long

15 list of things that churches could and should do to responsibly

16 resume services, and it included not singing, for example, it

17 included not having booklets or hymnals that would be reused,

18 it included single-file lines, it included, you know, not

19 having Holy water in the church. All sorts of things can be

20 done, and people of faith are willing to do them, and

21 Bishop Hodges is certainly willing to do them, so it's

22 absolutely not the case that he just wants to get 300 people in

23 there this Sunday. I mean, he wants to meticulously follow

24 these guidelines, and he can.

25

He's proven he can, Your Honor, by virtue of the fact that

14

1 they feed thousands of people. They're one of the most

2 charitable organizations in the South Bay region. They're

3 using masks and gloves. They're distributing food to thousands

4 of people. We included a photo. They've done it safely, and,

5 you know, the county and the government are happy to have the

6 church, you know, serve in that way, and they're willing to

7 resume services in a responsible way, and they've shown they

8 can, and other churches across the country have shown they can,

9 and so -- and, Your Honor, again, I would say the Delgado

10 declaration has a great summary of how this can be done, how it

11 should be done, how it has to be done.

12

And I'm not going to address irreparable harm because

13 Your Honor correctly pointed out that that's easily shown, and

14 I do have some thoughts on Jacobson, but I won't get into that

15 since Your Honor didn't mention it.

16

I do also have some thoughts on other cases, but that's --

17 those are my main points, and I'm happy to address the state or

18 the county's argument on rebuttal.

19

THE COURT: Okay. Let me hear from the state then

20 first.

21

MR. GRABARSKY: Good morning, Your Honor. This is

22 Deputy Attorney General Todd Grabarsky on behalf of the state

23 defendants.

24

We're dealing with an emergency situation involving a

25 highly technical public health issue where, really, the stakes

15

1 couldn't be higher, and those stakes being a significant risk

2 of severe illness and death on a massive scale. It is

3 these -- the situation that warrants judicial deference to the

4 governor's good-faith order.

5

And Your Honor has already stated in Your Honor's opening

6 remarks that this order furthers a compelling government

7 interest. Jacobson acknowledged this over a hundred years ago,

8 that it is no part of the function of the Court to determine

9 which one of two modes is likely to be the most effective for

10 the protection of the public against disease.

11

And in the Abiding Place ruling, Your Honor recognized this

12 important principle briefly quoting, "It's important that this

13 Court not usurp the state's authority to craft emergency health

14 measures. The Court shouldn't be second-guessing the wisdom or

15 efficacy of these measures as long as they have some basis in

16 reality and they aren't pretextual."

17

And that's exactly what plaintiffs are asking the Court to

18 do in this case; not only to second-guess the well-reasoned

19 decisions of the governor and the public health officer that's

20 based on science, data, facts, and experts in infectious

21 disease and epidemiology and public health, but more so,

22 they're asking the Court to disrupt the state's careful and

23 well-reasoned measures to combat this extraordinary

24 once-in-a-century public health emergency.

25

I'll note that -- and the reopening road map is really a

16

1 crucial part of those measures, and I'll note that the road map

2 is -- it's a work in progress. It's going to change based on

3 the data and how conditions on the ground change, and once we

4 gather the data based on how the virus responds to some

5 reopenings, the state and the public health officer will make

6 adjustments based on that data and those responses.

7

The reopening road map calls for careful and gradual

8 measures to see how the virus and the contagion responds to a

9 step-by-step staggered reopening. The state will look at that

10 data, whether infection or death rates change, and adapt the

11 reopening measures accordingly.

12

THE COURT: What about the argument of plaintiff that

13 there's so many arbitrary exceptions that it's, they feel,

14 singling out religion?

15

MR. GRABARSKY: I'll underscore Your Honor's remarks

16 this morning that the exceptions are based on the risk factors.

17 They're not arbitrary based on the content of what's going on

18 at the different activities. They're based on the risk

19 factors. And I'll note that contrary to what plaintiffs'

20 counsel is saying, schools, as of yet, are not open. The

21 reopening road map suggested in the future that schools might

22 reopen, but at present, schools are not permitted -- they're

23 still operating remotely, and they're not permitted to be -- to

24 hold in-person classes or instruction.

25

With regard to factories, again, that's based on the risk

17

1 factors. As Your Honor pointed out, these are leaving

2 transitions. These aren't mass groups of people gathered

3 together for a communal experience.

4

What plaintiffs are seeking to do, and I understand perhaps

5 the confusion behind this, given that the temporary restraining

6 order they've requested is a bit vague and abstract, but it

7 appears that what they're asking to do is gather indoors with

8 groups of hundreds of people together for the same purpose.

9

And I'll also note that from the onset, the state has

10 recognized the fundamental rights of religious exercise. Since

11 the beginning of the executive order, faith-based services have

12 been deemed as essential services that would allow plaintiff to

13 leave their home to provide congregants with worship

14 opportunities through various technology and free -- the free

15 online streaming or teleconferencing platform or through

16 drive-in services provided that congregants remain in their

17 cars, observe distancing, and refrain from physical contact.

18

This notion that the state has been hostile to religion

19 just simply isn't supported by the facts and how the executive

20 order has treated religion and faith-based groups from the

21 onset.

22

In other words, there's no complete or total prohibition on

23 the ability to worship. This argument was addressed by these

24 other district courts in California, the Gish case and the

25 Cross Culture case -- the Gish case from the Central District

18

1 and the Cross Culture case from the Eastern District.

2

With regard to plaintiffs' counsel citing to the Sixth

3 Circuit case, I think it's important to note that the Sixth

4 Circuit didn't go so far as to enjoin Kentucky's prohibition on

5 any person gathering for worship. The Sixth Circuit injunction

6 only applied to the prohibition on drive-in services, and that

7 was true with the On Fire district court Kentucky case. With

8 regard to the reference to the Tabernacle, the Tabernacle case,

9 also from Kentucky, that seems to go against the Sixth

10 Circuit's, I guess, refusal to enjoin the in-person ban

11 on -- the ban on in-person gatherings.

12

I'll also note that plaintiffs' counsel has suggested that

13 the United States Department of Justice had intervened in other

14 cases. That doesn't seem to be supported by the facts.

15

I think in two cases, U.S. DOJ had issued letters. There

16 was no motion to intervene in those cases at all.

17

And yeah, and finally just to touch on the notion

18 that there have been arbitrary exceptions, again, the

19 exceptions are not arbitrary. They're based on what are

20 gatherings, what are groups of people gathered together for

21 communal experience, and plaintiffs simply haven't shown that

22 comparable analogous gatherings to the hundreds of people in an

23 enclosed space that they're seeking have been permitted.

24

And I'm happy to address any other questions that the Court

25 has or that plaintiffs may raise.

19

1

THE COURT: Okay. Does the county have anything to

2 add?

3

MR. WHITE: Just briefly, Your Honor.

4

I think the state has done a great job explaining their

5 orders because they are state orders, and the county has

6 adopted them by incorporation or reference.

7

I would just point out that the state had the second

8 highest number of deaths since this pandemic started just the

9 week ending on Mother's Day, so this is not over by a long

10 shot. This still is a public health danger that the state and

11 the county officials, the public health officials, are

12 responding to and trying to protect the community as best as

13 they can while also protecting everybody's constitutional

14 rights.

15

There have been churches, as we've mentioned in our briefs,

16 that have been found, church settings to be what they call

17 superspreader events, and there seems to be something about

18 indoor congregation, for extended periods of time especially,

19 that are dangerous with this virus.

20

Everything's still being learned in real time, but that

21 seems to be a real concern, a real threat, especially when you

22 have people singing and standing close together, and I think

23 that's why in Stage 3, you'll see that movie theaters,

24 concerts, other events that may be similar that are not

25 religious are also in Stage 3, and so I don't think there

20

1 really can be an argument that the state or the county are

2 targeting religion or religious practices. That's just not

3 borne out by the facts or the order.

4

I think it would be a mistake to constitutionalize on a

5 church-by-church basis, for example, these public health issues

6 that are -- that public health experts need flexibility.

7 Things are changing rapidly. New data are coming in all the

8 time and new studies are being released and analyzed. And the

9 public health officials have scarce resources, so they set up

10 these stages to really protect the community on a general level

11 based on the science and the data at that time. To have to

12 have them analyzed on a church-by-church basis based on whether

13 this church is going to have 50 people in a room, what size the

14 room is, what square feet, or versus 200, it's not something I

15 think that is reasonable in the middle of a public health

16 crisis, in the pandemic, when they're trying to protect an

17 entire county or an entire state.

18

I think under Jacobson, this is just the type of situation

19 that Jacobson applies to, and I think that's why all three

20 courts that have reviewed the state stay-at-home order in

21 California of the churches so far have upheld it and found that

22 it is not discriminatory, that it is not arbitrary, and if

23 Jacobson would not apply, then certainly Smith applies.

24

Under Lukumi, we need to show, either by express actions or

25 implication, some desire or intent on public officials to

21

1 target or discriminate against a religious practice from

2 animus. That's certainly not shown here.

3

These are orders that apply to religious and secular

4 practices. Thank you.

5

THE COURT: Okay. Mr. Jonna, any rebuttal or any

6 response?

7

MR. JONNA: Yes, Your Honor. Thank you.

8

As far as Jacobson, I know the Court is familiar with the

9 case which involves vaccination and didn't deal with the

10 constitutional right to free exercise of religion, and it's not

11 clear that Jacobson applies to free exercise.

12

The Court in First Baptist church refused to apply it. And

13 under the case, an emergency rule is, as the Court knows,

14 invalid if it has no real or substantial relation to those

15 objects of protecting public health or if it's beyond all

16 question a plain, palpable invasion of rights secured by the

17 fundamental law. And the state or -- neither the state nor the

18 county have really explained why letting large numbers of

19 people sit together indoors in a factory is okay, but not

20 getting together for an hour of worship following the

21 government guidelines.

22

And that's really the issue. You know, the county focuses

23 on the fact that the coronavirus is serious and needs to be

24 curbed, and we're not disputing that, but it doesn't answer the

25 question of what the factual or scientific basis for

22

1 distinguishing manufacturing from churches, and there is a

2 palpable invasion of free exercise of rights. Under Lukumi and

3 Fraternal Order of Police, churches have a right to be treated

4 equally to secular interests, and if one exception that

5 undermines that interest is granted, then religious exemptions

6 must be granted too.

7

And it's also clear from the governor's statements that

8 they -- that the state views religion as a low-reward activity

9 despite the fact that it's constitutionally protected activity.

10

And as far as, Your Honor, the evidence that shows that

11 schools, factories, and museums are all part of Phase 2, I

12 would point the Court to Exhibit 1-3 attached to our first

13 amended complaint. It's not really -- I think the state was

14 careful in how they phrased it. They said they're not yet open

15 in Phase 2, but they are definitely unquestionably part of the

16 Stage 2 reopening whereas churches are not.

17

As far as, you know, I think the state or someone mentioned

18 indoors -- I mean, I'm sure many churches will be willing and

19 glad to have services outdoors if that was an option.

20

And as far as, you know, just telling all the people of

21 faith in California that they have to -- that drive-in services

22 and live-stream services are going to have to suffice for your

23 constitutionally protected exercise of religion, that's going

24 to have to suffice until we say so, without looking at the

25 data, without looking at the numbers, that's just not

23

1 acceptable to people of faith, and it's not consistent with our

2 Constitution.

3

As far as the cases, Your Honor, there are cases, and that

4 I cited, the First Baptist case and the Tabernacle Baptist

5 case, which both deal with in-person services, not drive-in

6 services.

7

And as far as the superspreading that the state mentioned,

8 that church activities, there's no evidence before this Court

9 that any of those services were following the government

10 guidelines that my client and all the other churches are

11 willing to responsibly follow to resume responsible worship

12 services like millions of other faithful are doing across this

13 country.

14

So I think there's just -- there is no evidence that

15 allowing -- you know, making an exception for churches similar

16 to the ones they're making for factories and schools is going

17 to really make this -- make the epidemic any worse than it

18 already is. In fact, I think the evidence is to the contrary.

19

THE COURT: Okay. Thank you, all.

20

Go ahead.

21

MR. GRABARSKY: This is Todd Grabarsky for the state

22 defendants. May I just respond to one point very briefly?

23

THE COURT: Sure.

24

MR. GRABARSKY: To plaintiff counsel's contention that

25 just because there's a secular exception means that there has

24

1 to be an exception for religious practices, that's just simply

2 not supported by the case law. This Court in Whitlow

3 acknowledged that, quote, nowhere has the supreme court stated

4 that if the government provides secular exception, it must also

5 provide a religious exception. Indeed, a majority of circuit

6 courts have refused to interpret Employment Division versus

7 Smith as standing for the proposition that a secular exemption

8 automatically creates a claim for a religious exemption, and

9 this principle has been acknowledged in over -- I think over

10 15 -- or over a dozen cases dealing -- across the country

11 dealing with religious challenges to stay-home orders across

12 the country that plaintiffs, in this argument or in their

13 briefings, have not addressed. They've only touched on a few

14 cases from Kentucky, and again, those cases go against the

15 Sixth Circuit ruling, which did not enjoin in-person religious

16 services.

17

THE COURT: Thank you, all.

18

MR. JONNA: There was one last thing -- this is

19 Paul Jonna -- I wanted to say, and I'm sorry, Your Honor. It's

20 the last thing.

21

To the extent the Court is willing to reconsider the

22 tentative, I just respectfully ask the Court to take a quick

23 look at the ex parte Milligan, U.S. Supreme Court case, because

24 it makes clear that the reason the Bill of Rights was added was

25 out of a concern that rulers would use the fear of an emergency

25

1 to seize power and take away constitutional rights, and I

2 really think that -- it's an old case, but it's a very

3 interesting and on-point case that I think is worth

4 consideration.

5

Thank you, Your Honor.

6

THE COURT: Okay. Thank you.

7

And by the way, I have read Milligan. I've worked my way

8 through it this morning. But, you know, I don't really find

9 Milligan -- you know, it has some wonderful phrasing, but I

10 don't really find it that applicable given the fact that it has

11 to do with suspending the writ of habeas corpus during a time

12 of war when there was a trial by jury available. There were a

13 lot of things about it that were distinguishing, but I did

14 review it.

15

So, first of all, I will deny the motion for a temporary

16 restraining order. I do not find that plaintiff has shown a

17 likelihood of success on the merits of any of its four causes

18 of action.

19

First of all, with respect to the Free Exercise Clause

20 causes of action from the U.S. Constitution, as I said in the

21 Abiding Place Ministries case, the state may limit an

22 individual's right to freely exercise his religious beliefs

23 when faced with a serious health crisis such as the one we're

24 facing now with covid-19, and I don't think plaintiffs really

25 disagree with that.

26

1

The right to practice religion freely does not include the

2 liberty to expose the community to communicable disease or to

3 ill health or death.

4

And despite plaintiffs' objections, I find that Jacobson is

5 still good law and still applicable to this case.

6

California's reopening plan seems to me to be a neutral law

7 of general application that happens to have the incidental

8 effect of burdening a particular religious practice.

9

Under The Church of Lukumi, L-U-K-U-M-I for our court

10 reporter, Babalu Aye, B-A-B-A-L-U A-Y-E, versus city Hialeah,

11 H-I-A-L-E-A-H, and that's at 508 U.S. 520 -- under that case,

12 it talks about what a law of neutrality and general

13 applicability is and if it does not aim to, quote, infringe

14 upon or restrict practices because of their religious

15 motivation, closed quote, and if it does not, quote, in a

16 selective manner impose burdens only on conduct motivated by

17 religious belief, closed quote.

18

And it seems to me that a religious service falls within

19 Stage 3 not because it's a religious service, but because the

20 services involve people sitting together in a closed

21 environment for long periods of time. Thus, any burden placed

22 by classifying church services as Stage 3 are not because of a

23 religious motivation, but because of the manner in which the

24 service is held, which happens to pose a greater risk of

25 exposure to the virus. And I note, there's lots of other

27

1 things: The SATs; the California Bar exam; lots of other

2 events that involve people sitting together in a closed

3 environment for long periods of time that are also not being

4 allowed to go forward.

5

Plaintiffs have not demonstrated arbitrary exceptions to

6 this classification, and the fact that there may be a secular

7 exemption, as the state points out, does not automatically give

8 a religious exemption, and again, as the state did, I refer to

9 the Whitlow case. I don't find that strict scrutiny applies,

10 and I do find that the reopening order is rationally based on

11 protecting safety and stopping the virus spread.

12

Turning to the California Constitution claim, again, that

13 reopening violates the California Free Exercise Clause, first,

14 I'd note that although plaintiff cites the Catholic Charities

15 case to argue that strict scrutiny should be applied to any

16 California Constitution claim, I think the Catholic Charities

17 case doesn't find that strict scrutiny applies. Instead, the

18 Court in that case found that they didn't need to determine the

19 appropriate test because even under a strict scrutiny analysis,

20 the claims pass muster, and I find the same in this case.

21

To satisfy strict scrutiny, the state must demonstrate that

22 the order is narrowly tailored to further compelling government

23 interests.

24

First, of course, there's a compelling government interest

25 in safety and health. I don't think plaintiffs dispute this,

28

1 and I do find that the order is narrowly tailored to this

2 purpose as well. The order allows congregants to gather

3 remotely, to gather over the phone, or via video conference, in

4 person with members of the same household, it allows clergy to

5 travel to churches to set up services for congregants to

6 experience remotely, the county now has opened to allow

7 congregations to gather by car in drive-in style services as

8 long as the physical distancing guidelines are followed and as

9 long as people don't touch each other. Individuals can

10 practice religion in whatever way they wish as long as they're

11 not sitting with each other in large groups inside.

12

Thus, I find that the reopening plan has been narrowly

13 tailored to further a compelling government interest, and it

14 does pass the strict scrutiny analysis.

15

Therefore, I find that plaintiff has not established that

16 they are likely to succeed on their California Constitution

17 claim.

18

Turning to the equal protection claim, the Equal Protection

19 Clause does not forbid classification. It simply keeps

20 governmental decision-makers from treating differently persons

21 who are in all relevant aspects of life, and that's a quote

22 from Nordlinger, N-O-R-D-L-I-N-G-E-R, versus Hahn, H-A-H-N, 505

23 U.S. 1 at 10.

24

Here the state's distinguishing between businesses where

25 people are more at risk and businesses where people are less at

29

1 risk, and the classification between these stages is based on

2 the type of activity that occurs within the business and the

3 risk of contracting the virus while participating in that

4 activity; therefore, the government is not treating differently

5 businesses that are alike. Religious services are treated

6 similar to other activities where large groups come together

7 for a period of time, like movies, concerts, theater, or dance

8 performances.

9

Because plaintiff has no evidence that similarly situated

10 persons or businesses are treated differently, they failed to

11 show a likelihood of success on their equal protection claim.

12

And then finally, plaintiffs claim that the reopening plan

13 violates the 14th Amendment, Due Process Clause. Substantive

14 due process, quote, forbids the government from depriving a

15 person of life, liberty, or property in such a way that shocks

16 the conscience or interferes with rights implicit in the

17 concept of ordered liberty. And that's a quote from Nunez

18 versus City of Los Angeles, 147 F.3d 867. It's a Ninth Circuit

19 case, and that's at 871. Any shock-the-conscience analysis

20 necessarily requires consideration of the justification the

21 government offers, if any, for the alleged infringement, and

22 that's referring to Reno versus Flores, 507 U.S. 292 at 301 and

23 302.

24

I find that given the circumstances and the state's

25 justification for the stay-at-home orders as well as the

30

1 planned reopening of the state in stages, plaintiffs have not

2 established that the state order shocks the conscience.

3

Furthermore, I don't find that either the balance of

4 equities or the public interest supports issuing a TRO. This

5 virus poses a serious health risk to everyone in the state; in

6 fact, everyone in the world. I don't think anyone here is

7 arguing with that. The only way currently known to curb the

8 disease is to limit personal exposure. California seems to be

9 doing a pretty good job of controlling the spread, but they

10 have to continue to monitor how each stage of reopening with

11 the increasing risk of each one affects the overall number of

12 infections.

13

I understand it's difficult for everyone involved, but it

14 is in the public interest to continue to protect the population

15 as a whole.

16

Therefore, the motion for the temporary restraining order

17 is denied.

18

Okay. Thank you, all, for your patience and working

19 through this together. I appreciate it.

20

MR. JONNA: Thank you, Your Honor.

21

MR. WHITE: Thank you, Your Honor.

22

MR. GRABARSKY: Thank you.

23

THE COURT: Okay. Thank you.

24

---000---

25

31

1

C-E-R-T-I-F-I-C-A-T-I-O-N

2

3

I certify that the foregoing is a correct transcript from

4 the record of proceedings in the above-entitled matter.

5

6

Dated May 16, 2020, at San Diego, California.

7

8

/Dana Peabody/

9

Dana Peabody,

Registered Diplomate Reporter

10

Certified Realtime Reporter

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

 
 No. 19A1044

In The Supreme Court of the United States

SOUTH BAY UNITED PENTECOSTAL CHURCH, AND BISHOP ARTHUR HODGES III,
v.

Applicants,

GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California, SONIA ANGELL, in her official capacity as California Public Health Officer, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services, County of San Diego, and WILLIAM D. GORE, in his official capacity as Sheriff,
County of San Diego
Respondents

To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and
Circuit Justice for the Ninth Circuit

OPPOSITION OF COUNTY DEFENDANTS TO PLAINTIFFS’ EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

THOMAS E. MONTGOMERY, County Counsel COUNTY OF SAN DIEGO JEFFREY P. MICHALOWSKI, Senior Deputy
*Counsel of Record 1600 Pacific Highway, Room 355 San Diego, CA 92101 (619) 531-4886 jeffrey.michalowski@sdcounty.ca.gov

Counsel for Respondents Wilma J. Wooten, in her official Capacity as Public Health Officer, County of San Diego, Helen Robbins-Meyer, in her official capacity as Director of Emergency Services, County of San Diego, and William D. Gore, in his official capacity as Sheriff, County of San Diego

JOINDER IN STATE DEFENDANTS’ OPPOSITION The County Defendants—County Public Health Officer, Dr. Wilma J. Wooten; San Diego County Sheriff William D. Gore; and County Emergency Services Director Helen Robbins-Meyer, all sued in their official capacities (the “County Defendants”)— hereby join the Opposition filed by the State Defendants. The County Defendants agree that denial of plaintiffs’ application is appropriate for all the reasons stated therein.
THE COUNTY’S SOCIAL DISTANCING AND SANITATION PROTOCOL The County Defendants further note that plaintiffs’ request for injunctive relief misunderstands the nature and purpose of the County’s public health protocols. Specifically, plaintiffs’ request assumes that the County’s Social Distancing and Sanitation Protocol (hereinafter, the “Protocol”) (Appendix A1) was designed to address public health concerns related to any organized gathering, no matter the context. In plaintiffs’ view, if adherence to the Protocol by a local business is sufficiently protective of public health, then adherence to the Protocol by a church must be too. See Plaintiffs’ Application, at p. 5 (“Plaintiffs seek an injunction as follows: Defendants . . . are restrained and enjoined from enforcing . . . any prohibition on Plaintiffs’ engagement in religious services, practices, or activities at which the
1 Available at https://tinyurl.com/qpy9sen (last visited May 28, 2020).

2
County of San Diego’s Social Distancing and Sanitation Protocol and Safe Reopening Plan is being followed.”).
In reality, the Social Distancing and Sanitation Protocol was not designed to be sufficient to regulate indoor public gatherings, in which groups of people gather in a singular and undifferentiated space. There was no need for such regulation at the time the Protocol became effective (i.e., April 7, 2020), because such gatherings were prohibited. Indeed, it was not until three weeks after the effective date of the Protocol that the Governor even announced his reopening plan, under which indoor public gatherings—whether secular or religious—would be phased in over time.
The plain language of the Protocol, too, demonstrates that it does not contemplate indoor public gatherings. Rather, it was designed to protect employees and customers of local businesses. It requires “desks or individual work stations” to be separated by at least six feet. Appendix A, p. 3. It requires disinfecting of “shopping carts and baskets,” as well as “payment portals, pens, and styluses.” Id. And most tellingly, it makes it mandatory to minimize the number of persons present, by requiring that “everyone who can carry out their work duties from home has been directed to do so.” Id. at p. 1.
Moreover, the Protocol is not designed to account for the unique risks associated with large-scale indoor gatherings involving collective singing and/or

3
recitation, especially when such gatherings are for sustained periods.2 As the Seventh Circuit explained, such gatherings are fundamentally different than ordinary business activity:
The Executive Order’s temporary numerical restrictions on public gatherings apply not only to worship services but also the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods. Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 2517093 (7th Cir. May 16, 2020) (Easterbrook, C.J., Kanne, C.J., Hamilton, C.J.). Plaintiffs’ request for injunctive relief thus rests on a misunderstanding of the County’s Protocol. When combined with the Governor’s caps on attendance, social distancing measures and sanitation becomes a useful tool for protecting public health in the context of indoor church services. But the Protocol was never intended to be
2 The CDC recently published a report detailing how a church choir practice in the State of Washington became a “superspreader event” – a single individual infected up to 52 other choir members (i.e., 86.7% of choir members), even though there was no physical contact during practice. CDC, MORBIDITY AND MORTALITY WEEKLY REPORT (Vol. 69, May 15, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm?s_cid=mm6919e6_w (last visited May 28, 2020).

4
sufficient, standing alone, to regulate indoor public gatherings. Plaintiffs’ request for injunctive relief should be denied.
MUNICIPAL OFFICIALS SHOULD NOT BE ENJOINED With respect to the County Defendants, there is an additional reason to deny the requested relief. The Governor asserted sole authority to decide when the State would move into new stages of its Resiliency Roadmap, and thus when his stay-athome order would be modified to permit in-person religious services and similar secular gatherings. On May 25, 2020, the Governor issued its Guidance regarding Places of Worship and Providers of Religious Services and Cultural Ceremonies, which authorized reopening, subject to attendance caps. The Governor again asserted sole authority to set the cap, and did not authorize municipalities to set higher caps. See Plaintiffs’ Application, Exh. A (Governor’s Guidance) at p. 3 (“Places of worship must therefore limit attendance to 25% of building capacity or a maximum of 100 attendees, whichever is lower. This limitation will be in effect for the first 21 days of a county public health department’s approval of religious services and cultural ceremonies activities at places of worship within their jurisdiction.”). On May 26, 2020, the County adopted the Guidance. Specifically, the County’s Order of the Health Officer and Emergency Regulations (Effective May 27, 2020) provides that “religious services and cultural ceremonial activities may be conducted in

5
conformance with the State Guidance,” provided that they also prepare and post a “Safe Reopening Plan.” See Appendix B, ¶¶ 11, 12, 14.
Plaintiffs’ request for injunctive relief should thus be directed at the Governor, who asserted sole authority to determine when in-person religious services would be permitted, and to impose a cap on attendance at such services. The municipal defendants need not and should not be enjoined.
Respectfully submitted, THOMAS E. MONTGOMERY, County Counsel COUNTY OF SAN DIEGO /s/ Jeffrey P. Michalowski JEFFREY P. MICHALOWSKI Senior Deputy

APPENDIX A

012345ÿ730849239
ÿ497ÿ0493848319ÿ181215ÿ
$%!"%%ÿ&'"(ÿÿ )*!+!ÿ,--."%%(ÿ 2/630:41:823810492=1F41:41Bÿ199ÿ2461ÿ7740<;1ÿ77ÿ2Eÿ3264ÿGÿB8@ÿ09H416@2ÿ3:44331;17ÿÿDI:ÿÿÿ9B9ÿ469<:C3;ÿ::37;<ÿ=B>4ÿ6ÿ84=4:810:==441;ÿÿ9721<7ÿ44;Jÿ8239:ÿ?23@ÿÿ/C@Eÿ:>3ÿ:;3ÿA>ÿÿB6449<:C10Dÿ=/40ÿ71E23:47ÿ12114ÿ31<ÿ17Eÿ2:6998ÿ1944964F473ÿ:748;8ÿ9221Fÿ:B94ÿ KLMNOPQORÿTUQPVQWXYZ[\
]ÿ"!#"ÿ%._#!"#fÿÿ"ÿ_ÿ_""ÿ*-_*%ÿ!`ÿ+!.aÿÿ"+!!*ÿ#ÿ"_"#".ÿÿ_!ÿb*""ÿÿÿÿ*ÿ_"#"ÿ_*"ÿ*%!.%+ÿ!".ÿbÿ"`.ÿ_c!ÿ'%!*.!'+ÿÿ*!++ÿÿ"'ÿ'*`!g+ÿÿ!'""'%ÿÿ%!-deÿ*%ÿ-'!%".%ÿ*_"ÿ.ÿ_'"ÿÿ%_"ÿ+-(ÿ_"b.cÿ!-ÿ-ÿ ]ÿ!##"ÿ`%!#ÿÿ*`ÿÿ_"ÿ*!+ÿ!%*!#ÿh.*+ÿÿ"*_ÿ`a+!*ÿ".*"ÿÿ_"ÿ*!+!gÿ iLURQjkYRjÿlXÿmYXWRnWÿopqrXZRRÿsRQrWtÿTUQPVQWXYZ[\ ]ÿb"."ÿu_ÿ*ÿ*..ÿÿ_"!.ÿu.fÿ-!"%ÿ.'ÿ_'"ÿ_%ÿa""ÿ-!."*"-ÿÿ-ÿ%gÿ ]ÿ,++ÿ"'`+""%ÿ_b"ÿa""ÿ+-ÿÿÿ*'"ÿÿu.fÿ!ÿ%!*fgÿ ]ÿ,++ÿ-"%f%ÿ.ÿ!-!b!-+ÿu.fÿ%!%ÿ."ÿ%"`."-ÿaÿÿ+"%ÿ%!dÿ""gÿ ]ÿ$."fÿ.'%vÿa_.'%vÿ-ÿ_".ÿ*''ÿ."%ÿ."ÿa"!#ÿ-!%!"*"-ÿ."w"+vÿÿ_"ÿ++u!#ÿ%*_"-+"(ÿ
x $."f.'%(

x $_.'%(

x ÿÿ

ÿzÿÿÿ

]ÿ !%!"*ÿ-ÿ."+"-ÿ%``+!"%ÿ."ÿb!+a+"ÿÿ++ÿ"'`+""%ÿÿ_"ÿ++u!#ÿ+*!{|}(ÿ

]ÿ~-ÿ%!!".ÿ""*!b"ÿ#!%ÿeÿ!%ÿb!+a+"ÿÿ++ÿ"'`+""%ÿÿ_"ÿ++u!#ÿ+*!{%}(ÿ

ÿÿÿ

ÿÿÿÿÿ!"#ÿÿ

012345ÿ730849239
ÿ497ÿ0493848319ÿ181215ÿ
u689:;<=9;ÿ?@ÿA=@D9ODÿvHRQ@S99ÿw9:QDJÿM8:CF:D@=SUÿyz{|}{~ #ÿ%ÿ&ÿ'!(ÿ(!ÿ)*+*!ÿÿ**ÿ!,%*!!-ÿÿ.!ÿ**'"ÿ*/0-12
#ÿ%!-ÿÿ.!ÿ3(/*ÿ.)!ÿ+!!ÿ&-(+!&ÿÿ**ÿ!,%*!!-4ÿ 56ÿ89:;<=9;ÿ?@ÿA=9B9CDÿ5=@EF;ÿG=@HÿI:DJ9=KCLÿMNJ9OPÿ:QQÿDJ:Dÿ:RRQSÿD@ÿDJ9ÿT:OKQKDSUV
W,&ÿ!ÿ,.%!*ÿ!,!+-ÿ!(ÿÿ!ÿ/-*-ÿ,,!(-ÿÿÿ.ÿ!*!ÿ--(ÿ!-ÿYZÿÿÿ&-!ÿ,/!!ÿÿ(,ÿÿÿÿÿÿÿÿÿÿ!ÿÿÿÿÿÿÿ'../!.(ÿÿ**ÿ'**ÿ-%ÿ((/ÿ//-+*!,ÿ!,(-ÿ!-4ÿÿ [+\]^)_!`ÿÿ-ÿÿ!,ÿ!%Y*/!!!&!!ÿb&]4ÿÿÿÿ.!ÿ&(ÿÿcd\bed_ÿ.ÿ.!ÿ,Y,,ÿ,+!(ÿÿ/-,!(-ÿÿ.!ÿ/*ÿ-!ÿ(.ÿ 3*/"ÿ%!(Z%!(-ÿ*,-ÿÿ"&-ÿ.ÿ(!ÿ-!**"ÿÿf/g*ÿÿ(!&/!ÿ/('&-ÿ&ÿ*!-4ÿ h%*ÿiÿ!-/(+!ÿ.!(ÿ,!-(!-2ÿ
j6ÿ89:;<=9;ÿ?@ÿl99RÿA9@RQ9ÿmDÿn9:;DÿoKpÿG99DÿmR:=DÿMqJ9OPÿ:QQÿDJ:Dÿ:RRQSÿD@ÿDJ9ÿT:OKQKDSUr 3*/"ÿ-"-ÿ-&!ÿ.!ÿ-(!ÿ(!,&"ÿ%!%*!ÿÿ+!ÿÿ*!-ÿ-Yÿ!!ÿ%(sÿ/*&"ÿ'.!ÿÿ*!4ÿ %3*+/*/"ÿ!ÿ%(!ÿ/(!ÿ-ÿ'.!(.ÿ,ÿ-"(g-ÿ&"(-!ÿ/ÿ*!"ÿ-/ÿ--Yÿ,!!!(ÿ-ÿ%ÿ(-ÿ!ÿÿ/.!-ÿ,,(!g(ÿ*"-!ÿÿÿ(,!-ÿ-&ÿ!&ÿ-.!ÿ-/!4(ÿ!ÿÿ&ÿÿ-&!'*g-ÿÿ !%(!ÿ(&!(ÿ(!-ÿ(,ÿ&!*)!(ÿ(!-ÿÿ%(!)!ÿ/-,!(-ÿ(,ÿ".!("4ÿ t!Y(**ÿ/ÿ!!-,%ÿ%ÿ!.*,!(%!'*!--ÿ!.!ÿ!)-!ÿ!/,ÿ!+-!-!ÿ,(ÿ4ÿ,ÿ-!(/!(&*ÿÿ/ÿ,,!ÿ/*-!ÿ(ÿ'ÿ*.!!-ÿÿ-!Y/ÿ!!-!-ÿ(&ÿ-ÿ///!!ÿ%(ÿ,%ÿ/,-!,sÿ!&(!-*ÿ)!&(ÿÿ"(,&-ÿ!ÿ(/ÿ.-!ÿ()./!!(-sÿsÿ h%*ÿiÿ!-/(+!ÿ.!(ÿ,!-(!-2ÿ

ÿÿÿ

ÿÿÿÿÿ!"ÿÿ

012345ÿ730849239
ÿ497ÿ0493848319ÿ181215ÿ
$%ÿ'()*+,(*ÿ./ÿ0,(1(23ÿ422(5(**),6ÿ7/23)53ÿ89:(5;ÿ)<<ÿ3:)3ÿ)==<6ÿ3/ÿ3:(ÿ>)5?<?36@A BÿDE"F"!#ÿG"GH"ÿEIÿJ"HKJ"EF!#ÿÿ!"IJÿLÿE"ÿMKE"H"MNÿ O P!MJÿEÿQGJÿMÿMKREÿG"ÿ!"IJÿE"ÿGEF!M"MÿRÿJSÿÿÿQJI"EJÿÿ#ERN O THUK!"IÿMÿR!JÿE"ÿÿF!HRH"ÿEÿQJI"EÿJ"HKJ"EF!Q"ÿJ"N BÿVÿG"EI!!#ÿQJI"EJÿÿRE!#ÿL"!EÿWÿR#JXÿI#JXÿEÿL"EÿE"JRH"ÿ!"IJÿEIÿLI"Nÿ BÿED"E#FH!ME!H#Nÿÿ"EJÿQQE!R"ÿQ[\H"]^J_JÿG`ÿÿI"ÿJJ"IJÿEXÿ!ÿÿ"J!RH"XÿJ!!Y!#ÿGI"ÿJJ"IJÿ

BÿaG!Hÿbÿ"JQE!R"ÿL"EÿI"JE"Jÿc"N#NdÿGEF!M!#ÿJ"!EKHÿLEJe`ÿ

f%'()*+,(*ÿ./ÿg25,()*(ÿh)2?3?i)3?/2ÿ8')2j)3/,6@A Bÿ !J!"Q!#ÿW!G"JÿLÿE"ÿ""Q!F"ÿ#!JÿakKlmÿE"ÿF!HRH"ÿ"EÿJLGG!#ÿQEJÿMÿJL!GG!#ÿRJU"JNÿ BÿIGH""cJeÿJJ!#"MÿÿM!J!"QÿQEJÿMÿRJU"JÿE"#HEHNÿ BÿMn!EQ"!HQM!ÿÿJ!Xÿ"!ÿEQ!YL"Q"EQ!XÿUJJNGÿÿÿQXÿMÿW"EJXÿ"EXÿMÿEÿ"W"QL"!FE""ÿÿM"!HJJ!"ÿ!"JQ!M"ÿÿL!J"ÿÿJF!EH"ÿRHE"ÿÿ!IIÿL""MÿG!"RHH!QÿÿÿJ!EMÿ""ÿWELÿ"LE""ÿÿ"G"EGH"QÿL"ÿF"ÿÿL"ÿ Bÿ !J!"Q!#ÿHHÿGI"ÿGEHJXÿG"JXÿMÿJHJ"Jÿ"Eÿ"QLÿJ"Nÿ Bÿ !J!"Q!#ÿHHÿL!#LKQQÿJEQ"JÿE"o"HNÿ
p%q/*=?3)<*rq()<3:ÿ7),(ÿf)5?<?36ÿs2<6A Bÿ"I"GE!#IÿJL"ÿ"IQG!H!"EÿE"E"ÿÿQLÿ"!HQHNUÿÿJÿÿ"JE"ÿÿJÿEÿF!J!EJÿcHHW"MÿGEJÿÿ"Q!ÿQÿÿLtÿaEM"Eeÿ

MuvQIÿM"M!N!HÿI"JE"Jÿÿ!QHM"MÿL"E"ÿJLHMÿR"ÿH!J"MÿÿJ"GE"ÿG#"JXÿWL!QLÿL"ÿRJ!"JJÿJLHMÿQLÿÿL!J

w/+ÿx)6ÿ5/23)53ÿ3:(ÿ>/<</y?2zÿ=(,*/2ÿy?3:ÿ)26ÿ{+(*3?/2*ÿ/,ÿ5/xx(23*ÿ)|/+3ÿ3:?*ÿ=,/3/5/<Aÿ

VI"`ÿÿ

DL"ÿVIR"E`ÿÿ

})3(ÿ/>ÿf/,xÿ7/x=<(3(jAÿ

~ÿÿÿ

ÿÿÿÿÿ!"#ÿÿ

APPENDIX B

 
 No. 19A1044

In the Supreme Court of the United States

SOUTH BAY UNITED PENTECOSTAL CHURCH, ET. AL., Applicants,
v.

GAVIN NEWSOM, ET AL.,

Respondents.

OPPOSITION OF STATE RESPONDENTS TO EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

XAVIER BECERRA Attorney General of California
MICHAEL J. MONGAN Solicitor General
THOMAS S. PATTERSON Senior Assistant Attorney General

SAMUEL T. HARBOURT* JOSHUA A. KLEIN
Deputy Solicitors General PAUL STEIN
Supervising Deputy Attorney General TODD GRABARSKY LISA PLANK
Deputy Attorneys General
CALIFORNIA DEPARTMENT OF JUSTICE 455 Golden Gate Avenue Suite 11000 San Francisco, CA 94102-7004 (415) 510-3919 Samuel.Harbourt@doj.ca.gov *Counsel of Record

Counsel for Respondents Gavin Newsom, Governor; Xavier Becerra, Attorney General; and Sonia Angell, Director of the California Department of Public
Health

i TABLE OF CONTENTS

Page

STATEMENT ..................................................................................................1
ARGUMENT .................................................................................................. 13
I. Because In-Person Worship Services Are Permitted, Plaintiffs Fail To Show An Irreparable Injury, Let Alone One That Outweighs The Public Interest In Combatting A Pandemic .......................................14
II. There Is No Reasonable Probability That The Court Will Grant Review and Reverse ..............................................17
CONCLUSION ..............................................................................................25

ii TABLE OF AUTHORITIES

Page

CASES
Abiding Place Ministries v. Wooten No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020).............................. 23
Antietam Battlefield KOA v. Hogan 2020 WL 2556496 (D. Md. May 20, 2020) ................................................... 23
Binford v. Sununu No. 217-2020-CV-00152 (N.H. Superior Ct. March 25, 2020) .................... 23
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993) .................................................................................. 9, 18
City of Los Angeles v. Lyons 461 U.S. 95 (1983) .................................................................................. 14, 15
City of Richmond v. J.A. Croson Co. 488 U.S. 469 (1989) ...................................................................................... 16
Conforte v. C.I.R. 459 U.S. 1309 (1983) .................................................................................... 14
Cross Culture Christian Ctr. v. Newsom 2020 WL 2121111 (E.D. Cal. May 5, 2020) ................................................. 23
Elim Romanian Pentecostal Church v. Pritzker 2020 WL 2517093 (7th Cir. May 16, 2020) ........................................... 18, 24
Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons 954 F.3d 118 (2d Cir. 2020) ........................................................................... 1
First Pentecostal Church of Holly Springs v. City of Holly Springs 2020 WL 2616687 (5th Cir. May 22, 2020) ................................................. 24
Gish v. Newsom 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020) ............................................... 23
Jacobson v. Massachusetts 197 U.S. 11 (1905) ........................................................................................ 16
Kingdomware Techs., Inc. v. United States 136 S. Ct. 1969 (2016) .................................................................................. 15

iii TABLE OF AUTHORITIES

Page

Larson v. Valente 456 U.S. 228 (1982) ...................................................................................... 22
Lux v. Rodrigues 561 U.S. 1306 (2010) .............................................................................. 13, 17
Medtronic, Inc. v. Lohr 518 U.S. 470 (1996) ...................................................................................... 16
Quern v. Mandley 436 U.S. 725 (1978) ...................................................................................... 16
Respect Maine PAC v. McKee 562 U.S. 996 (2010) ...................................................................................... 13
Roberts v. Neace 2020 WL 2316679 (6th Cir. May 9, 2020) ............................................. 21, 24
Spell v. Edwards 2020 WL 2509078 (M.D. La. May 15, 2020)................................................ 23
St. Paul Fire & Marine Ins. Co. v. Barry 438 U.S. 531 (1978) ...................................................................................... 16
Tolle v. Northam No. 20-1419 (4th Cir. Apr. 28, 2020) ........................................................... 24
Tory v. Cochran 544 U.S. 734 (2005) ...................................................................................... 15
Winter v. Nat. Res. Def. Council, Inc. 555 U.S. 7 (2008) .............................................................................. 13, 15, 16
Yakus v. United States 321 U.S. 414 (1944) ...................................................................................... 16

STATUTES AND REGULATIONS 28 U.S.C. § 1292(a) .............................................................................................. 9 Cal. Labor Code § 226(a) ................................................................................... 22

iv TABLE OF AUTHORITIES

Page

Cal. Labor Code § 6409.1(b) .............................................................................. 22 2019 Cal. Building Code, pt. 2, ch. 10
Table 1004.5 ................................................................................................. 23 § 1004.6.........................................................................................................23 Cal. Code Regs., title 8, § 340 ........................................................................... 22

COURT RULES Sup. Ct. R. 23.3.................................................................................................. 14

GOVERNMENTAL ORDERS AND GUIDANCE
California Department of Public Health, Coronavirus Disease (COVID-19) and Guidance on Retail Food, Beverage, and Other Related Service Venues (March 16, 2020), https://tinyurl.com/ycdltlhf ...................................................................... 4, 19
California Department of Public Health, COVID-19 Industry Guidance: Dine-In Restaurants (May 12, 2020), https://tinyurl.com/y7r7o75j ........................................................................ 19
California Department of Public Health, COVID-19 Industry Guidance: Manufacturing (May 12, 2020), https://tinyurl.com/y8owdgw3........................................................................ 6
California Department of Public Health, COVID-19 Industry Guidance: Office Workplaces (May 12, 2020), https://tinyurl.com/y9xrdjws;......................................................................... 6
California Department of Public Health, COVID-19 Industry Guidance: Places of Worship and Providers of Religious Services and Cultural Ceremonies (May 25, 2020), https://tinyurl.com/y97vsvnv ............................................................... passim
California Department of Public Health, Symptoms and Risks, https://tinyurl.com/ycsnarry .......................................................................... 1

v TABLE OF AUTHORITIES

Page

California Department of Public Health, Face Coverings Guidance (April 1, 2020), https://tinyurl.com/smhvkua ............................... 4
California Department of Public Health, Guidance for Pharmacies and Pharmacy Staff (May 13, 2020), https://tinyurl.com/y7vlmzgd; ...................................................................... 19
California Department of Public Health, Press Release, Counties Statewide Can Reopen Places of Worship for Religious Services and Retail Stores (May 25, 2020), https://tinyurl.com/y7ke2ju4.......................................................................... 6
California Stay Home Q&A, https://tinyurl.com/y7w4nqs8 .................. 3, 11, 21
Centers for Disease Control & Prevention, Coronavirus Disease, Cases in the U.S., https://tinyurl.com/qqt3aq6 ............................................. 1
Centers for Disease Control & Prevention, Interim Guidance for Communities of Faith (May 22, 2020), https://tinyurl.com/y7v7a342 ................................................................. 11, 12
Centers for Disease Control & Prevention, Interim Guidance on Large Events & Mass Gatherings (March 15, 2020), https://tinyurl.com/yx3l8kct;........................................................................ 19
County of San Diego, Order of the Health Officer & Emergency Regulations (May 26, 2020), https://tinyurl.com/uhnq3gb ......................... 12
Department of Homeland Security, Critical Infrastructure Sectors, https://tinyurl.com/qlpwg6x ............................................................. 4
Executive Order N-25-20 (March 12, 2020)........................................................ 3
Executive Order N-33-20 (March 19, 2020).................................................... 3, 4
Governor Gavin Newsom, Press Conference, Transcript (May 7, 2020), https://tinyurl.com/y9vm9wbe/...................................... 21, 22
Governor Gavin Newsom, Press Conference, Transcript (May 22, 2020), https://tinyurl.com/y7sgqefm............................................. 11

vi TABLE OF AUTHORITIES

Page

Governor Gavin Newsom, Press Release, Governor Newsom Provides Update on California’s Progress Toward Stage 2 Reopening (May 4, 2020), https://tinyurl.com/y9ru2sam.............................. 6
Order of the California State Public Health Officer (May 7, 2020), https://tinyurl.com/ybn45nux ............................................................. 7
Report Card: Criteria for Moving to Stage 2 on the Resilience Roadmap (May 4, 2020), https://tinyurl.com/ycgkec6g ................................ 7
Statewide Industry Guidance to Reduce Risk: Office Workplaces & Limited Services, https://tinyurl.com/y8xtowt6 ...................................... 18
Update on California’s Pandemic Roadmap, https://tinyurl.com/yaamk84m ............................................................ passim

OTHER AUTHORITIES
California Advises Against Even Small Social Gatherings, Associated Press (March 12, 2020), https://tinyurl.com/yahxkqqt ......................................................................... 3
Coronavirus Map & Case Count: California, N.Y. Times, https://tinyurl.com/u6r2cf2 ............................................................................ 5
Coronavirus Map & Case Count: New York, N.Y. Times, https://tinyurl.com/yczhbv4w......................................................................... 5
Ercolano, Johns Hopkins University Hub, A Coronavirus Vaccine Is In The Works—But It Won’t Emerge Overnight, April 16, 2020, https://tinyurl.com/y8sypwke. .............................................. 1
Galiatsatos, Johns Hopkins Medicine, What Coronavirus Does to the Lungs (April 13, 2020), https://tinyurl.com/ycfk6s57 ............................. 2
Harvard Health Publishing, Harvard Medical School, Coronavirus Resource Center, https://tinyurl.com/wmdmeym ..................... 3
Ledford, How Does COVID-19 Kill? Uncertainty Is Hampering Doctors’ Ability To Choose Treatments, Nature, April 9, 2020, https://tinyurl.com/v8z9b6b ........................................................................... 2

vii TABLE OF AUTHORITIES

Page

Marks & Pour, What We Still Don’t Know About the Coronavirus, The New Yorker, April 29, 2020.............................................. 2
National Governors Association, COVID-19 State and Territory Actions Tracker: Statewide Limits on Gatherings, https://tinyurl.com/ybwoo8l8 ....................................................................... 20
Shapiro et. al., Supreme Court Practice (11th ed. 2019)............................ 13, 18
Stadnytskyi et al., The Airborne Lifetime of Small Speech Droplets and their Potential Importance in SARS-CoV-2 Transmission, Proceedings of the National Academy of Sciences (May 4, 2020), https://tinyurl.com/y8d6jmk8 ................................. 2
Thompson, et al., California Advises Against Even Small Social Gatherings, Associated Press (March 12, 2020), https://tinyurl.com/yahxkqqt ......................................................................... 3
Tracking Coronavirus in California, L.A. Times, https://tinyurl.com/qu79hu7 .......................................................................... 5
Weitz, et al., Online COVID-19 Dashboard Calculates How Risky Reopenings and Gatherings Can Be, Scientific American, May 21, 2020, https://tinyurl.com/yd3sl5qx ............................. 20

1
STATEMENT 1. The novel coronavirus disease (COVID-19) has infected nearly 1.7 million people in the United States.1 To date, over 100,000 Americans have died.2 There is not yet a cure or a vaccine, and likely will not be for many months.3 In response to this pandemic, governments, private organizations, and individuals have taken unprecedented steps to protect their communities. The country has witnessed “a rapid reorientation of workplace practices and social life in support of public health.” Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 135 (2d Cir. 2020). While there remain many areas of uncertainty about this new disease and the virus that causes it, medical and public-health experts now have a basic understanding of who is most vulnerable to severe infection and how the virus spreads. People over 65 years of age and individuals with chronic health conditions, such as diabetes or heart disease, are most likely to develop severe symptoms.4 In such cases, the virus causes parts of the lungs to collapse or fill with fluid, thereby inhibiting breathing and preventing sufficient oxygen from
1 Centers for Disease Control & Prevention, Coronavirus Disease, Cases in the U.S., https://tinyurl.com/qqt3aq6 (last visited May 28, 2020).
2 Id. 3 See, e.g., Ercolano, Johns Hopkins University Hub, A Coronavirus Vaccine Is In The Works—But It Won’t Emerge Overnight, April 16, 2020, https://tinyurl.com/y8sypwke. 4 California Department of Public Health, Symptoms and Risks, https://tinyurl.com/ycsnarry (updated May 15, 2020).

2
reaching the bloodstream.5 Doctors are also finding that the virus can “push kidneys into failure, send the body’s immune system into catastrophic overdrive, and cause blood clots that impede circulation to the lungs, heart, or brain.” 6 For patients who survive, medical experts believe it may take upwards of a year for the organ damage to heal.7
Coronavirus spreads easily. The virus “is thought to spread mainly from person to person . . . through respiratory droplets,” which often “land in the mouths or noses of people who are nearby.” E.R. 125 (Declaration of James Watt, M.D., M.P.H.).8 Vocal activity such as “loud speech” “can emit thousands of oral fluid droplets per second,” “confirm[ing] that there is a substantial probability that normal speaking causes airborne virus transmission in confined environments.”9 And the virus “can be transmitted by a person who is asymptomatic.” E.R. 125. Indeed, “[e]merging research suggests that people may actually be most likely to spread the virus to others during the 48 hours
5 Galiatsatos, Johns Hopkins Medicine, What Coronavirus Does to the Lungs (April 13, 2020), https://tinyurl.com/ycfk6s57.
6 Marks & Pour, What We Still Don’t Know About the Coronavirus, The New Yorker, April 29, 2020, https://tinyurl.com/y7svnhrr; see also Ledford, How Does COVID-19 Kill? Uncertainty Is Hampering Doctors’ Ability To Choose Treatments, Nature, April 9, 2020, https://tinyurl.com/v8z9b6b.
7 Galiatsatos, supra, What Coronavirus Does to the Lungs. 8 “E.R.” refers to the Excerpts of Record in the court of appeals. 9 Stadnytskyi et al., The Airborne Lifetime of Small Speech Droplets and their Potential Importance in SARS-CoV-2 Transmission, Proceedings of the National Academy of Sciences (May 4, 2020), https://tinyurl.com/y8d6jmk8.

3
before they start to experience symptoms.”10 That “makes it difficult to prevent spread,” E.R. 125, because people may engage in certain risky activities, such as attending events in close proximity to others, that they would avoid if they were experiencing symptoms.
2. In the absence of a vaccine or cure, many jurisdictions, including California, have adopted emergency measures to slow the virus’s spread. On March 4, 2020, California Governor Gavin Newsom declared a state of emergency and, not long afterward, issued executive orders directing most Californians to stay home and “to heed any orders and guidance” issued by the California Public Health Officer. Executive Order N-25-20 (March 12, 2020), https://tinyurl.com/uuq893k; see E.R. 156-157 (Executive Order N-33-20 (March 19, 2020) (stay-at-home order)). While exceptions to the stay-at-home order were made for certain activities like grocery shopping and some types of outdoor physical fitness, the State has urged people to respect physicaldistancing protocols at all times, remaining at least six feet apart from those who are not from the same household.11 The State has also advised people to wear masks or other face coverings in public, while cautioning that face
10 Harvard Health Publishing, Harvard Medical School, Coronavirus Resource Center, https://tinyurl.com/wmdmeym (last updated May 22, 2020).
11 California Stay Home Q&A, https://tinyurl.com/y7w4nqs8 (last visited May 28, 2020); see also, e.g., Thompson et al., California Advises Against Even Small Social Gatherings, Associated Press (March 12, 2020), https://tinyurl.com/yahxkqqt.

4
coverings should not substitute for other “strong defenses, such as physical distancing and frequent hand washing.”12
At the same time, California recognized the importance of balancing these extraordinary measures against the need to maintain “Californians’ health and well-being.” E.R. 156-157 (Executive Order N-33-20). The State’s health care directives thus provided exemptions for those working in “critical infrastructure sectors” as designated by the federal Department of Homeland Security and supplemented by the California Public Health Officer. See id. at 156; id. at 162 (Supplemental Guidance on Critical Infrastructure Workers).13 For example, because members of the community depend upon continued access to food and medicine, grocery stores and pharmacies were permitted to remain open—but only with safeguards in place to protect store workers and members of the community from undue risks of exposure. See E.R. 163-164, 167-168. Likewise, because many people rely on restaurants as a source of food, restaurants were allowed to continue operating, but were limited to providing take-out and delivery options. See id. at 167-168.14
12 California Department of Public Health, Face Coverings Guidance (April 1, 2020), https://tinyurl.com/smhvkua.
13 See also Department of Homeland Security, Critical Infrastructure Sectors, https://tinyurl.com/qlpwg6x.
14 California Department of Public Health, Coronavirus Disease (COVID-19) and Guidance on Retail Food, Beverage, and Other Related Service Venues (March 16, 2020), https://tinyurl.com/ycdltlhf.

5
Religious organizations were also deemed essential in California. The State recognized that members of the clergy provide “support and faith-based services” critical to the spiritual needs of many Californians. E.R. 177. While the risk of viral spread from large in-person gatherings was too substantial to permit in-person religious services in the initial weeks of the crisis, California authorized clergy to travel to church facilities and offices to record, broadcast, or stream services that their congregations could view at home. See id. The State also allowed churches to host drive-in services, so long as attendees remained in their vehicles, sufficiently far apart from one another.15
3. As a result of its early steps to combat the spread of COVID-19, California has not seen infection or death rates climb as high as in other parts of the country. As of May 27, 2020, the State has reported about 99,000 cases and approximately 3,800 deaths, or about 250 cases and 10 deaths per 100,000 people (compared, for example, to about 1,900 cases and 150 deaths per 100,000 people in New York).16 Infections continue to increase, but the rate of new cases appears to have slowed.17
15 California Department of Public Health, COVID-19 Industry Guidance: Places of Worship and Providers of Religious Services and Cultural Ceremonies 9 (May 25, 2020), https://tinyurl.com/y97vsvnv.
16 See https://covid19.ca.gov (last visited May 27, 2020); Coronavirus Map & Case Count: California, N.Y. Times, https://tinyurl.com/u6r2cf2 (last visited May 27, 2020); Coronavirus Map & Case Count: New York, N.Y. Times, https://tinyurl.com/yczhbv4w (last visited May 27, 2020).
17 See Tracking Coronavirus in California, L.A. Times,

6
In light of that progress, Governor Newsom and the California Public
Health Officer announced on April 28, 2020 that California would begin to
implement a reopening plan called the Pandemic Resilience Roadmap. See
Update on California’s Pandemic Roadmap, https://tinyurl.com/yaamk84m (Roadmap).18 The plan calls for gradually moving through four stages: Stage
One, the strict, initial response to the pandemic, including the stay-at-home
order; Stage Two, reopening “lower risk sectors”; Stage Three, reopening
certain “higher risk sectors”; and finally, Stage Four, at which point all
restrictions will be lifted. Roadmap at 5. Public health officials classified
workplaces as “lower risk” if they can safely reopen with adaptations to allow
for physical distancing. For example, retail stores, manufacturing operations,
and offices may reopen, but only with measures in place to limit “the number
of [people] in enclosed areas,” where feasible, and additional measures to ensure “at least six feet of separation to limit transmission of the virus.”19
Stages Three and Four were reserved for workplaces, events, and other
https://tinyurl.com/qu79hu7 (last visited May 28, 2020). 18 See also Governor Gavin Newsom, Press Release, Governor Newsom
Provides Update on California’s Progress Toward Stage 2 Reopening (May 4, 2020), https://tinyurl.com/y9ru2sam.
19 California Department of Public Health, COVID-19 Industry Guidance: Manufacturing 7 (May 12, 2020), https://tinyurl.com/y8owdgw3; see also California Department of Public Health, COVID-19 Industry Guidance: Office Workplaces 6 (May 12, 2020), https://tinyurl.com/y9xrdjws; California Department of Public Health, Press Release, Counties Statewide Can Reopen Places of Worship for Religious Services and Retail Stores (May 25, 2020), https://tinyurl.com/y7ke2ju4.

7
settings in which people gather in close proximity for extended periods of time—for example, in-person religious services, movie theaters, and nail salons, Roadmap at 12 (Stage Three), as well as larger gatherings, such as concerts and athletic events with live audiences, id. (Stage Four).
Decisions to move from one stage to the next are based upon several riskbased indicators, including the rate of hospitalizations, available levels of testing, and progress in implementing “contact tracing,” which allows officials to identify and warn those who have been in close proximity to an infected individual. See Roadmap at 2.20 On May 7, 2020, the California Public Health Officer announced that there had been sufficient progress on a statewide level to move to Stage Two. See Order of the California State Public Health Officer (May 7, 2020), https://tinyurl.com/ybn45nux. In doing so, she indicated that the State would continue to reevaluate the Roadmap in light of evolving conditions, “progressively designat[ing] sectors, businesses, establishments, or activities that may reopen.” Id. at 2.
4. South Bay United Pentecostal Church is a religious community located near San Diego, California. Bishop Arthur Hodges III is the Church’s senior presiding pastor. On May 11, 2020, the Church and Bishop Hodges sought a temporary restraining order, asking the U.S. District Court for the Southern District of California to order state and county officials to “mov[e]”
20 See also State Report Card: Criteria for Moving to Stage 2 on the Resilience Roadmap (May 4, 2020), https://tinyurl.com/ycgkec6g.

8
in-person worship services “from Stage 3 of the Reopening Plan to Stage 2.” E.R. 280. According to plaintiffs, so long as they agreed to abide by certain physical-distancing measures, it would violate the Free Exercise Clause, Equal Protection Clause, and Due Process Clause to forbid the Church from hosting “[c]ommunal worship and ministry.” Id. Plaintiffs agreed that the State has a “compelling interest in curbing pandemics.” Id. at 279. But they argued that California had inadequately justified its decision to slate in-person worship services for reopening in Stage Three of the Roadmap, while permitting “manufacturing and retail” to reopen during Stage Two. Id. at 279-280.
The defendants opposed the requested restraining order, explaining that the State had consistently assigned “all large public gatherings, including religious services” to Stage Three. E.R. 87. In the view of state public-health officials, large public gatherings pose a heightened risk of spread because attendees are “stationary in close quarters for extended periods of time.” Id. Moreover, at religious services, “congregants are often speaking aloud and singing, which increases the danger that infected individuals will project respiratory droplets that contain the virus,” “thereby infect[ing] others.” Id.; see supra at 2. As James Watt, M.D., M.P.H., an epidemiologist with the California Department of Health, explained in a declaration submitted to the district court, there “have been multiple reports of sizable to large gatherings such as religious services, choir practices, funerals, and parties resulting in significant spread of COVID-19.” E.R. 127. Defendants pointed, for example,

9
to a worship service in Sacramento tied to 71 COVID-19 cases; a choir practice in Seattle linked to 32 cases; a Kentucky church revival tied to 28 cases; and a religious service in South Korea where over 5,000 cases were traced back to a single infected individual in attendance. Id. at 87-88 (collecting citations).
On May 15, 2020, the district court denied the requested restraining order, reasoning that the plaintiffs were unlikely to succeed on the merits and that the balance of equities weighed against relief because the “virus poses a serious health risk” and the “only way currently known to curb the disease is to limit personal exposure.” E.R. 32.
Plaintiffs appealed, moving for expedited briefing and an emergency injunction pending appeal. On May 22, 2020, the Ninth Circuit agreed to consider the appeal on an expedited basis but denied immediate injunctive relief. Appl. Ex. A at 2; C.A. Dkt. No. 28.21 The court concluded that plaintiffs had not demonstrated a likelihood of success on the merits because, “[w]here state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment.” Appl. Ex. A at 3 (quoting Church of the Lukumi Babalu Aye, Inc.
21 The Ninth Circuit denied the defendants’ motion to dismiss the appeal for lack of jurisdiction. While acknowledging that the court generally lacks appellate jurisdiction to review the denial of a temporary restraining order, the court concluded that the denial here was “tantamount to the denial of a preliminary injunction” for purposes of 28 U.S.C. § 1292(a). Appl. Ex. A at 2 (internal quotation marks omitted).

10
v. City of Hialeah, 508 U.S. 520, 533, 543 (1993)). The court also stressed that “we’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.” Id. Judge Collins dissented, agreeing with plaintiffs that the State had failed to provide a sufficient justification for assigning in-person worship services to Stage Three of the reopening plan. Appl. Ex. A, Dissent at 15-16. Plaintiffs’ appeal remains pending; the opening brief is due on June 5, 2020. C.A. Dkt. No. 28.
5. On May 23, 2020, plaintiffs filed an emergency application for injunctive relief with Justice Kagan. Plaintiffs sought the ability to “resume worship services” by May 24, or “in the alternative,” “by Pentecost Sunday— May 31, 2020.” Appl. 5; see id. at 11-12. They explained that “this application is about California’s modifications to its Stay-At-Home order made by California Governor Newsom’s May 7, 2020, ‘Resilience Roadmap.’” Id. at 3. Plaintiffs argued that injunctive relief is appropriate because, following completion of the pending appeal before the Ninth Circuit, this Court is likely to grant certiorari on the question whether “California’s four stage Reopening Plan, which permits manufacturing, warehousing, retail, offices, seated dining at restaurants, and schools to reopen, but not places of worship, violate[s] the Free Exercise Clause.” Appl. i; see id. at 14-15. Plaintiffs noted, however, that the Governor had “announced that on Monday, May 25” the State would “release further expedited plans” for in-person religious services. Id. at 3.

11
6. In the statement referenced by plaintiffs, made on May 22, Governor Gavin Newsom had announced that the State was “working with the faith community . . . to put out guidelines, processes, and procedures,” allowing “churches [to] reopen[ ] in a safe and responsible manner.”22 The State issued those guidelines on May 25, 2020. The Department of Public Health concluded that places of worship could hold in-person services during Stage Two of the reopening so long as they adhered to certain restrictions, including “limit[ing] attendance to 25% of building capacity or a maximum of 100 attendees” and implementing “measures to ensure physical distancing.” California Department of Public Health, COVID-19 Industry Guidance: Places of Worship and Providers of Religious Services and Cultural Ceremonies 3, 9 (May 25, 2020), https://tinyurl.com/y97vsvnv (Guidance on In-Person Worship). This policy tracked recent guidance issued by the federal Centers for Disease Control and Prevention on in-person religious services, including the CDC’s recommendation for churches “to limit the size of gatherings in accordance with the guidance and directives of state and local authorities.” Centers for Disease Control & Prevention, Interim Guidance for Communities of Faith (May 22, 2020), https://tinyurl.com/y7v7a342.23
22 Governor Gavin Newsom, Press Conference, Transcript (May 22, 2020), https://tinyurl.com/y7sgqefm.
23 The State’s new guidance, including the 100-person or 25% capacity cap, applies to both in-person religious gatherings and political protests. But other large gatherings remain barred. See California Stay Home Q&A: Are

12
California’s new guidance cautioned that, even with distancing measures in place, “convening in a congregational setting of multiple different households” still “carries a relatively higher risk for widespread transmission of the COVID-19 virus, and may result in increased rates of infection, hospitalization, and death, especially among more vulnerable populations.” Guidance on In-Person Worship at 3. So, while the State allowed the new guidance to take effect immediately (subject to approval by county publichealth departments), it committed to monitoring the issue closely over the coming 21 days to “review and assess the impact of [the new guidance] on public health.” Id. On May 26, 2020, the San Diego County Department of Public Health issued an order allowing churches within the county—including South Bay United Pentecostal—to hold in-person services pursuant to the guidance issued by the State.24
7. On May 26, 2020, plaintiffs filed a supplemental brief with Justice Kagan asking the Court to issue “an injunction permitting them to hold worship services this Pentecost Sunday” without adhering to the newly issued guidance—in particular, the “25% or 100-person cap.” Supp. Br. 2. Plaintiffs
Gatherings Permitted?, https://tinyurl.com/y7w4nqs8 (last visited May 28, 2020) (defining prohibited gatherings as “meetings or other events that bring together persons from multiple households at the same time for a shared or group experience in a single room, space, or place such as an auditorium, stadium, arena, large conference room, meeting hall, or other indoor or outdoor space”).
24 County of San Diego, Order of the Health Officer & Emergency Regulations ¶ 14 (May 26, 2020), https://tinyurl.com/uhnq3gb.

13
argue that they will be injured absent injunctive relief because their “sanctuary seats 600 persons, and each service normally brings in between 200 and 300 congregants.” Id.
ARGUMENT As plaintiffs acknowledge (Appl. 14), a request for injunctive relief from this Court in the first instance “‘demands a significantly higher justification’ than a request for a stay, because unlike a stay, an injunction ‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.’” Respect Maine PAC v. McKee, 562 U.S. 996 (2010). The “legal rights at issue” must be “‘indisputably clear.’” Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J., in chambers). Plaintiffs must also show that they are “likely to suffer irreparable harm in the absence of preliminary relief,” “that the balance of equities tips in [their] favor,” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008), and that the Court is likely to grant certiorari and reverse after the completion of lower-court proceedings, Shapiro et. al., Supreme Court Practice § 17.13(b), p. 17-38 (11th ed. 2019). Plaintiffs fail to satisfy these standards because, among other things, California’s updated guidance allows them to do what their emergency application requests—“resume worship services.” Appl. 5.

14
I. BECAUSE IN-PERSON WORSHIP SERVICES ARE PERMITTED, PLAINTIFFS FAIL TO SHOW AN IRREPARABLE INJURY, LET ALONE ONE THAT OUTWEIGHS THE PUBLIC INTEREST IN COMBATTING A PANDEMIC 1. Plaintiffs cannot demonstrate “the basic requisite[ ] of the issuance of
equitable relief ”: “the likelihood of substantial and immediate irreparable injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (internal quotation marks omitted). Under California’s newly issued guidance, plaintiffs are no longer “[r]equir[ed] . . . to abstain from religious gatherings.” E.R. 516. They may now “resume in-person activity,” Guidance on In-Person Worship at 3—including on this coming Sunday, May 31, 2020, the Christian holy day of Pentecost, see Appl. 1. The harm that plaintiffs have alleged throughout this litigation has thus been redressed. E.g., Appl. 30-31; E.R. 300, 516.
Although plaintiffs’ supplemental brief contends that they continue to face irreparable harm from the new guidance, they acknowledge that the guidance was “not included in the record below.” Supp. Br. 1-2. Because an order enjoining the new guidance was not “first sought in the appropriate court or courts below,” the Court should not entertain plaintiffs’ request to address the new guidance in the first instance. Sup. Ct. R. 23.3; cf. Conforte v. C.I.R., 459 U.S. 1309, 1312 n.2 (1983) (Rehnquist, J., in chambers) (“Applicant’s failure to seek a stay in the Court of Appeals provides an alternative ground for denial of the stay.”).
In any event, plaintiffs fail to explain how they are injured by the new guidance. The Church typically holds three to five Sunday services, with each

15
“normally bring[ing] in between 200 and 300 congregants.” Supp. Br. 2; see Appl. 8. While the updated guidance limits attendance at each service to 100 persons or 25% of building capacity, plaintiffs point to nothing preventing them from “offering additional meeting times” if necessary to accommodate all congregants—just as the new guidance encourages and plaintiffs’ own expert has recommended. Guidance on In-Person Worship at 9; see E.R. 319. Indeed, plaintiffs might have to increase the number of services anyway to fulfill their stated intent of keeping every other row of seats empty and maintaining six feet of separation between family groups. E.R. 319-320; see id. at 294, 505. And in pledging to “encourage” congregants to “stay home” if they feel “uncomfortable with gathering during the pandemic,” plaintiffs have suggested that congregant attendance may be lower than normal. Id. at 505.
Plaintiffs also argue that the case is not moot. Supp. Br. 3. But whether or not that is so, plaintiffs are not excused from satisfying the requirements for injunctive relief, including the need to show that they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. “[N]o court can enjoin” conduct that has ceased and thus no longer threatens irreparable injury. Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016); see Lyons, 461 U.S. at 101, 111-112; cf. Tory v. Cochran, 544 U.S. 734, 739 (2005) (Thomas, J., dissenting) (“[w]hether or not” a changed

16
circumstance “moots this case, it certainly renders the case an inappropriate vehicle for resolving the question presented”).25
2. Even if plaintiffs could articulate an injury that is not redressed by the recent guidance, the “overall public interest” in enforcement of that guidance would “tip strongly in favor of” the State as it continues to work to protect the public health during this pandemic. Winter, 555 U.S. at 26. “Plaintiffs have never disputed that the government has a compelling interest in curbing the novel coronavirus.” Appl. 23. A “community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). And the public interest in enforcement of the law is substantial when the government acts as “guardian of the public” during a crisis. Yakus v. United States, 321 U.S. 414, 441-442 (1944) (citing, e.g., Jacobson, 197 U.S. at 11); see City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia, J., concurring in the judgment) (referring to extraordinary governmental power during “a social emergency rising to the level of imminent danger to life and limb”); cf. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (emphasizing “the historic primacy of state regulation of matters of health and safety”).
25 If the case is subject to the “capable of repetition, yet evading review” exception, as plaintiffs suggest, Supp. Br. 3, the appropriate remedy would be to seek declaratory relief. See Quern v. Mandley, 436 U.S. 725, 733 n.7 (1978); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 538 n.7 (1978). While plaintiffs may continue pressing a claim for declaratory relief in the ongoing lower-court proceedings, see E.R. 520; supra at 7-10, the only request now pending before this Court is an application for an injunction.

17
Here, the California Department of Public Health has concluded that places of worship must “limit attendance to 25% of building capacity or a maximum of 100 attendees” to diminish the serious risk of “widespread transmission of the COVID-19 virus” in a setting where many people gather indoors for an extended period of time. Guidance on In-Person Worship at 3; see E.R. 126-127 (Declaration of James Watt, M.D., M.P.H.). Consistent with the State’s risk-based approach to combatting the virus, supra at 7, 12, California will continue to “review and assess the impact” of this policy in the coming weeks, Guidance on In-Person Worship at 3. When the attendance restriction proves unnecessary, the State will lift it or loosen it. In light of the tremendous uncertainty continuing to surround this new and deadly virus, however, it would be rash to do so today, before public-health officials have had the opportunity to evaluate evidence of the policy’s effectiveness in practice.
II. THERE IS NO REASONABLE PROBABILITY THAT THE COURT WILL GRANT REVIEW AND REVERSE Far from demonstrating that “the legal rights at issue are “‘indisputably
clear,’” Lux, 561 U.S. at 1307 (Roberts, C.J., in chambers), plaintiffs fail to show that it is likely that any court will conclude that the current policy, which allows them to hold in-person religious services subject to reasonable safety restrictions, violates their constitutional rights. For that reason, and because California’s new guidance makes this a poor vehicle for considering the constitutionality of broader restrictions on religious worship that may continue to exist in other States (Appl. 2), there is no “reasonable probability” that this

18
Court would grant certiorari and reverse following the completion of proceedings before the Ninth Circuit. Shapiro et. al., Supreme Court Practice § 17.13, p. 17-32 (11th ed. 2019).
1. Plaintiffs’ free exercise claim is unlikely to succeed. Whatever the merit of their prior contention that the State had failed to justify slating inperson religious services for “Stage Three” of the reopening plan, supra at 710, plaintiffs’ supplemental brief does not demonstrate that the revised guidance is unconstitutional. Indeed, while in-person religious services are now permitted, many other activities that are “most comparable” in terms of COVID-transmission risk factors—“concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods”—continue to be barred. Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 2517093, at *1 (7th Cir. May 16, 2020); see supra at 11-12 & n.23. Plaintiffs are thus incorrect that the State has engaged in “unconstitutional religious targeting.” Appl. 19; see id. at 17-19 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)).26 And while it is not at all clear that ordinary constitutional analysis would be
26 Moreover, the exceptions from the stay-at-home order that plaintiffs refer to—for “retail, offices, manufacturing, and schools,” among others, Appl. 20-21—are entirely neutral towards religion: church-run retail and offices, manufacturers of religious items, sellers of sacramental wine, producers of religious movies, and religiously affiliated schools and counseling services are treated the same as their secular counterparts. See, e.g., Statewide Industry Guidance to Reduce Risk: Office Workplaces & Limited Services, https://tinyurl.com/y8xtowt6 (last visited May 27, 2020).

19
appropriate in today’s “emergency circumstances,” Appl. 25, California’s revised guidance is constitutional under any applicable standard of scrutiny.
California public-health officials have employed a variety of tools to combat the unprecedented threat of COVID-19. One is requiring physical distancing, ensuring that people remain at least six feet apart when it is necessary for them to be in one another’s presence. See e.g., supra at 3-4, 6. Another is following the CDC’s recommendation to limit overall group size so that fewer people have to be around one another in the first place.27 For example, California has directed grocery stores and pharmacies to limit the total number of customers “at any given time as necessary to reduce outdoor/indoor crowding.”28 And as the State begins to allow the reopening of restaurants for in-person dining, it has required restaurants to “[a]djust maximum occupancy rules . . . to limit the number of people inside.”29
The newly issued guidance on in-person religious services follows the same approach. Attendance is limited “to 25% of building capacity or a

27 See, e.g., Centers for Disease Control & Prevention, Interim Guidance on Large Events & Mass Gatherings (March 15, 2020), https://tinyurl.com/yx3l8kct.

28 California Department of Public Health, Guidance on Retail Food, Beverage, and Other Related Service Venues (March 16, 2020), https://tinyurl.com/ycdltlhf; California Department of Public Health, Guidance for Pharmacies and Pharmacy Staff (May 13, 2020), https://tinyurl.com/y7vlmzgd; see also Supp. Br. 2 (noting that California has established a cap on retail-store capacity).

29 California Department of Public Health, COVID-19 Industry

Guidance:

Dine-In Restaurants 10 (May 12, 2020),

https://tinyurl.com/y7r7o75j.

20
maximum of 100 attendees.” Guidance on In-Person Worship at 3. This
approach is informed by the practical recognition that, “in gatherings of large
numbers of people, it may be very hard to maintain physical distancing” and
that “measures that depend on individual behavior . . . are difficult to sustain.”
E.R. 127 (Declaration of James Watt, M.D., M.P.H.). It is also based on
evidence that the risk of infection increases rapidly with group size: in a larger
group, there is not only a greater chance that one or more people will be
infected, but also a larger number of people present and potentially exposed to
the virus. See Guidance on In-Person Worship at 3.30 Numerous States have
thus adopted limits on the size of gatherings.31 And the few courts that have
struck down bans on in-person worship have done so precisely on the
assumption that it is permissible to “cap the number of congregants coming
30 If, for example, “there are 50,000 new cases in a state of 10 million, the per-person probability is 0.5 percent.” Weitz, et al., Online COVID-19 Dashboard Calculates How Risky Reopenings and Gatherings Can Be, Scientific American, May 21, 2020, https://tinyurl.com/yd3sl5qx (describing analysis by “interdisciplinary researchers from Georgia Tech, Stanford University, and the Applied Bioinformatics Laboratory”). Although that probability may “seem[ ] quite small,” “the probability that at least one individual is infected with COVID-19 goes up rapidly with group size.” Id. “In this example, there’s a 4.9 percent chance that one or more people in a dinner party for 10 would be infected, a 22 percent chance that one or more people in a restaurant with 50 would be infected, a 71 percent chance that that one or more people in a dance club for 250 would be infected, and over a 99 percent chance that one or more people in a concert or sports event for 1,000 would be infected.” Id. “In other words: small risks for individuals rapidly become large risks when viewed collectively.” Id.
31 See National Governors Association, COVID-19 State and Territory Actions Tracker: Statewide Limits on Gatherings, https://tinyurl.com/ybwoo8l8 (last visited May 27, 2020).

21
together at one time.” E.g., Roberts v. Neace, 2020 WL 2316679, at *4 (6th Cir.
May 9, 2020).
Plaintiffs nonetheless contend that California’s attendance cap is
“arbitrary” because “there is no percentage limitation for manufacturing and
warehousing facilities.” Supp. Br. 2. But these workplaces are not comparable
to in-person religious services. Labor in manufacturing facilities, warehouses,
and offices does not typically involve large numbers of people singing or
reading aloud together in the same place, in close proximity to one another, for
an extended duration. And the State prohibits workplace activities that
resemble in-person religious services—for example, meetings of numerous
workers in an “auditorium,” “large conference room,” or “meeting hall.”
California Stay Home Q&A: Are Gatherings Permitted?,
https://tinyurl.com/y7w4nqs8 (last visited May 28, 2020). While the State’s
new guidance lifted restrictions on in-person worship services and political
protests to accommodate core First Amendment-protected activity, the general
ban on large gatherings remains in place. See id.; supra at 11-12 & n.23.32
32 According to plaintiffs, California’s governor stated on May 7, 2020 that manufacturing and other sectors slated for Stage Two reopening provide a greater “reward” than religious services. Appl. 5. That is inaccurate. The governor stated that “low risk” activities were favored for opening regardless of perceived “reward.” See Governor Gavin Newsom, Press Conference, Transcript (May 7, 2020), https://tinyurl.com/y9vm9wbe/ (“we’re looking at the science, epidemiology looking again at frequency, duration, time and looking at low risk, high reward, low risk, low reward, looking at a series of conditions and criteria as well as best practices from other States and nations”). “As it relates to churches,” the governor continued, “[o]ur fear is simply this,

22
Manufacturing facilities, warehouses, and offices are also subject to a number of regulations that diminish the risk to public health when people go to work there. They are, for example, subject to occupational safety regulations and inspections; they must notify workers of how to report dangerous practices; and they must immediately notify authorities when on-site COVID contraction is suspected. See Cal. Labor Code § 6409.1(b) (reporting requirement); 8 Cal. Code Regs. § 340 (required notice to workers of right to report dangerous conditions and request inspection). They also know each employee’s identity, and often maintain records of which employees are present and when. See Cal. Labor Code § 226(a) (requiring wage statements to include employee’s name and partial social security number, and “total hours worked”). The State does not regulate religious services in the same way, for good reason. Cf. Larson v. Valente, 456 U.S. 228, 255 (1982) (“[S]tate inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids.”) (internal quotation marks omitted).33
congregations of people mixing from far and wide, coming together proximate in an enclosed space at large scales, is a point of obvious concern and anxiety.” Id. Presaging the new guidance released this week, the governor also noted his sensitivity to “those that want to get back into church,” and his desire to “see what we can do to accommodate that.” Id.
33 Another reason that “there is no percentage limitation for manufacturing and warehousing facilities,” Supp. Br. 2, and that there is a higher percentage limitation for “retail” operations, id., is that ordinary occupancy limits for those establishments already ensure that crowd size will

23
2. Finally, there is no significant likelihood of the Court granting
certiorari for plenary review following the Ninth Circuit’s resolution of the
pending appeal. While conflicting authority could eventually develop in the
lower courts on questions like those raised here, no conflict currently exists.
No state or federal court has declared California’s past or current restrictions
unconstitutional on free exercise grounds.34 Across the country, trial courts
have overwhelmingly rejected challenges to the various restrictions of other
States. 35 And the courts of appeal have largely rejected requests for
be limited. With respect to manufacturing facilities, for example, the California Building Code bases the “design occupant load” (which is used to determine the number of required exits and similar rules for safe egress) on the premise that each occupant will have, on average, 100-150 square feet of space. 2019 Cal. Building Code, pt. 2, ch. 10, table 1004.5, https://tinyurl.com/ybtvbr9a (addressing “concentrated business use” and “industrial” space); see also id. (60 square feet per occupant for mercantile use). By contrast, occupant-load allowances for places of assembly, such as auditoriums and churches, are premised on an expectation of far denser occupancy. See id. (seven square-feet per occupant for assembly areas without fixed seats); id. § 1004.6 (basing limits for assembly areas with fixed seats on the total number of seats). Thus, to achieve low-density occupancy in places where occupancy would otherwise be dense requires a significant deviation from preexisting limits.
34 See Abiding Place Ministries v. Wooten, No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020); Cross Culture Christian Ctr. v. Newsom, 2020 WL 2121111 (E.D. Cal. May 5, 2020); Gish v. Newsom, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020), emergency motion for injunction pending appeal denied, No. 20-55445 (9th Cir. May 7, 2020) (Dkt. No. 21).
35 See, e.g., Antietam Battlefield KOA v. Hogan, 2020 WL 2556496 (D. Md. May 20, 2020); Spell v. Edwards, 2020 WL 2509078 (M.D. La. May 15, 2020); Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Superior Ct. March 25, 2020).

24
injunctions pending appeals of those orders. See Elim Romanian Pentecostal Church, 2020 WL 2517093 at *1; Tolle v. Northam, No. 20-1419, Dkt. No. 14 (4th Cir. Apr. 28, 2020), pet. for cert. pending, No. 19-1283. Even the primary appellate authority relied upon by plaintiffs (App. 15; Supp. Br. 4-5), the Sixth Circuit’s decision in Roberts v. Neace, 2020 WL 2316679, at *5, recognized that it would be constitutional for a State to “cap the number of congregants,” as California’s new guidance does.36
Indeed, California’s new guidance makes this case especially unfit for plenary review. Plaintiffs have failed to demonstrate any substantial, impending injury. Supra at 14-15. And the record, which was developed with respect to the State’s prior reopening policy, would provide a poor basis on which to judge the new guidance. If infections continue to decline, then California’s policies could be further loosened, supra at 7, 12, 17, making any determination by this Court here largely advisory. Plaintiffs argue that review is nevertheless warranted, because state policy could also move in the opposite direction if infection rates increase. Supp. Br. 3. But it would surely be premature to assess whether a hypothetical future pandemic response would be constitutionally justified without knowing the circumstances that prompted
36 As plaintiffs acknowledge, the Fifth Circuit’s ruling in First Pentecostal Church of Holly Springs v. City of Holly Springs, 2020 WL 2616687, is “not entirely clear.” Supp. Br. 4. It does not explain whether that court’s grant of an injunction pending proceedings on remand was based on an assessment of the merits of constitutional or non-constitutional claims. See Mot. for Injunction. Pending Appeal, Case No. 20-60399, at 8-15 (May 16, 2020) (arguing that local restrictions violate a state statute and executive order).

25
its adoption. Issues of coronavirus precautions and the Free Exercise Clause
may eventually require decision from this Court; this case does not.
CONCLUSION
The Court should deny the application for writ of injunction.
Respectfully submitted,
XAVIER BECERRA Attorney General of California MICHAEL J. MONGAN Solicitor General THOMAS S. PATTERSON Senior Assistant Attorney General JOSHUA A. KLEIN Deputy Solicitor General PAUL STEIN Supervising Deputy Attorney General TODD GRABARSKY LISA PLANK Deputy Attorneys General
/S/ Samuel T. Harbourt
SAMUEL T. HARBOURT Deputy Solicitor General
May 28, 2020

 
 No. 19A1044
In The Supreme Court of the United States
SOUTH BAY UNITED PENTECOSTAL CHURCH, AND BISHOP ARTHUR HODGES III, Applicants, v.
GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California, SONIA ANGELL, in her official capacity as California Public Health Officer, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services, County of San Diego, and WILLIAM D. GORE, in his official capacity as Sheriff,
County of San Diego Respondents.
To the Honorable Elena Kagan, Associate Justice of the United States Supreme Court and
Circuit Justice for the Ninth Circuit

Reply Brief in Support of Emergency Application for Writ of Injunction
Relief Requested by Sunday, May 31, 2020

CHARLES S. LIMANDRI

THOMAS BREJCHA

Counsel of Record

PETER BREEN

PAUL M. JONNA

THOMAS MORE SOCIETY

JEFFREY M. TRISSELL

309 W. Washington

LIMANDRI & JONNA LLP Street, Suite 1250

P.O. Box 9120

Chicago, IL 60606

Rancho Santa Fe, CA

(312) 782-1680

92067

(858) 759-9930

HARMEET K. DHILLON

cslimandri@limandri.com MARK P. MEUSER

DHILLON LAW GROUP INC.

177 Post Street, Suite 700

San Francisco, CA 94108

(415) 433-1700

Counsel for Applicants South Bay United Pentecostal Church,

and Bishop Arthur Hodges III

TABLE OF CONTENTS

TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF

THE SUPREME COURT AND CIRCUIT JUSTICE FOR THE NINTH

CIRCUIT

1

ARGUMENT

2

1. There Is A “Significant Possibility” that this Court Would

Grant Certiorari and Reverse Because the Violation of

Plaintiffs’—and all Americans’ rights —is Indisputably

Clear

2

1.1 The Reopening Plan is neither generally applicable

nor neutral

2

1.2 The Reopening Plan fails strict scrutiny because it is

not narrowly tailored to curbing the pandemic

5

2. The Balance of Equities Strongly Favor Granting an

Injunction

9

CONCLUSION

11

i

TABLE OF AUTHORITIES

CASES

Abiding Place Ministries v. Wooten No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020)

10, 11

Berean Baptist Church v. Cooper

4

--- F.Supp.3d ---, 2020 WL 2514313 (E.D.N.C. May 16, 2020)

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993)

passim

Cross Culture Christian Ctr. v. Newsom

11

No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020)

Doe v. Harris

10

772 F.3d 563 (9th Cir. 2014)

Elim Romanian Pentecostal Church v. Pritzker

1

No. 19A1046 (May 27, 2020)

Elim Romanian Pentecostal Church v. Pritzker

2

No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020)

Elrod v. Burns

10

427 U.S. 347 (1976)

Jacobson v. Commonwealth of Massachusetts

9

197 U.S. 11 (1905)

Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius

2

571 U.S. 1171 (2014)

Roberts v. Neace 958 F.3d 409 (6th Cir. 2020)

4, 6, 7

United States v. Playboy Entm’t Grp., Inc.

5

529 U.S. 803 (2000)

ii

TO THE HONORABLE ELENA KAGAN, ASSOCIATE JUSTICE OF THE SUPREME COURT AND CIRCUIT JUSTICE FOR THE NINTH CIRCUIT:
The Government’s oppositions to Plaintiffs’ emergency application fail to address the significant constitutional issues at stake in this important case. Instead, as stated by Judge Collins, California is simply trying to convince this Court that its “highly reticulated patchwork of designated activities and accompanying guidelines [] make sense from a public health standpoint.” Ex. A, Dissent, at 14. California also asserts — independent of any reference to the First Amendment— that Plaintiffs are no longer being harmed because the State is now permitting them to hold worship services with an arbitrary cap of 100 people.
The Government’s primary argument is that their recent actions moot Plaintiffs’ claims, and that the Court should not get involved at this stage. But this reveals the main problem with California’s position—that the violation of Plaintiffs’ constitutional rights is indisputably clear. The eleventh hour attempts by California and Illinois 1 to moot the applications to this Court do not impact the analysis. California is still violating Plaintiffs’ fundamental constitutional rights, and millions of Americans across the county are still having their constitutional rights trampled upon. As stated by Judge Collins, there is “no authority that can justify [California’s] extraordinary claim that the current emergency gives the Governor the power to
1 Currently pending before Justice Kavanaugh is an emergency application for a writ of injunction similar to the present one, but against Illinois. See Elim Romanian Pentecostal Church v. Pritzker, No. 19A1046 (May 27, 2020). Plaintiffs here incorporate by reference the arguments made by the applicants there.
1

restrict any and all constitutional rights, as long as he has acted in ‘good faith.’” Ex. A, Dissent, at 6.
In determining whether to take up this dispute at this time, the Court may consider “all the circumstances of the case.” Little Sisters of the Poor Home for the Aged, Denver, Colorado v. Sebelius, 571 U.S. 1171 (2014). Those circumstances, including civil unrest, a standoff between governors and the President, and arson attacks against churches, warrant immediate guidance from this Court.
ARGUMENT 1. There Is A “Significant Possibility” that this Court would Grant
Certiorari and Reverse Because the Violation of Plaintiffs’—and all Americans’ rights—is Indisputably Clear. 1.1. The Reopening Plan is neither generally applicable nor neutral. California’s argument with respect to general applicability under the Free Exercise clause relies, without any analysis, on Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020). Indeed, the term “generally applicable” (or any variant thereof) does not appear at all in California’s brief. Instead, relying on Elim, California asserts that its Reopening Plan is constitutional because it applies to all industries, and it has grouped like industries together. State Opp., 18–19, 21. In this respect, California’s constitutional analysis is as light as the Ninth Circuit’s, which appealed to the supposed constitutional principle that in interpreting the Bill of Rights, courts must “temper [their] doctrinaire logic with a little practical wisdom.” Ex. A, Opn., at 3. But as Judge Collins held in his dissent, there is a significant problem with the argument that a law is generally applicable so long as it regulates every industry by
2

name. A law is not generally applicable simply because it identifies every industry within its subdivisions. Ex. A, Dissent, at 14–15. It is wordplay to say that California’s Reopening Plan is generally applicable because it applies to all industries—when it applies to different industries in different ways. See id.
Turning to neutrality, California spends a significant amount of time trying to convince the Court that its Reopening Plan is neutral because it has honestly and fairly treated like entities alike. State Opp., 21–22 & nn. 32–33. But this is a red herring. As Judge Collins held: “By explicitly and categorically assigning all in-person ‘religious services’ [various limitations]—without any express regard to . . . the size of the space, or the safety protocols followed in such services—the State’s Reopening Plan undeniably ‘discriminate[s] on its face’ against ‘religious conduct.’” Ex. A, Dissent, at 13 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)).
Judge Collins’ logic is sound. From a broad perspective, there are easy and there are difficult ways to achieve California’s interests. The easy way is to promulgate an overbroad ban on activity (e.g., music festivals) that is somewhat related to the State’s concern (preventing COVID-19 outbreaks). The difficult way is to promulgate a narrowly tailored ban that targets the State’s actual concerns. The easy way may be fine for activity to which the constitution is indifferent (music festivals), but it is not fine for activity that the constitution protects (worship).
Stated differently, with respect to worship, the constitution mandates that California take the difficult route. To be neutral, California must start with the hard
3

work of promulgating a regime that prohibits gatherings in a similar manner across
all industries without singling out “worship.” If California does single out worship,
then it must satisfy strict scrutiny, and end with the hard work, by showing that it
was impossible to design a regime that prohibited gatherings in a similar manner
across all industries. What the constitution does not permit, is for California to both
infringe constitutional rights and skip the hard work. In that case, California’s
actions will—by definition—ban more constitutionally protected activity than
necessary.2
Because California has regulated houses of worship because they are houses of
worship, “the Reopening Plan, on its face, is not neutral, [and] it is subject to strict
scrutiny.” Ex. A, Dissent, at 14 (quoting Lukumi, 508 U.S. at 531–32). Otherwise, it
is simply too easy for the government to get away with “the sort of ‘subtle departures
from neutrality’ that the Free Exercise Clause is designed to prevent.” Berean Baptist
Church v. Cooper, --- F.Supp.3d ---, 2020 WL 2514313, at *6 (E.D.N.C. May 16, 2020).3
2 For example, if California promulgated neutral rules on gatherings that applied across all industries, then creative Californians would figure out how to optimize worship activities within those neutral requirements. But by imposing arbitrary limitations solely on worship qua worship, California unconstitutionally limits activity that it has no need to. As stated by Judge Collins, “By regulating the specific underlying risk-creating behaviors, rather than banning the particular religious setting within which they occur, the State could achieve its ends in a manner that is the ‘least restrictive way of dealing with the problem at hand.’” Ex. A, Dissent, at 16 (quoting Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020)). 3 Indeed, if California’s argument were the rule, a state could simply assert that the classification of industries was based on “risk,” with no citation except to a press release stating as much, not address why the Hollywood movie industry was prioritized above all other industries, and simply hope that this glaring favoritism was overlooked. Compare State Opp., at 6–7 (stating classification was based on risk); with 3ER558 (inexplicably classifying the Hollywood movie industry as Stage 1 essential, as important as hospitals).
4

1.2. The Reopening Plan fails strict scrutiny because it is not narrowly tailored to curbing the pandemic.
Judge Collins rightly concluded that “[t]he State’s undeniably compelling interest in public health ‘could be achieved by narrower [regulations] that burdened religion to a far lesser degree.’” Ex. A, Dissent, at 15 (quoting Lukumi, 508 U.S. at 546.) California’s arguments against this do not logically follow.4
First, California states that “the California Department of Public Health has concluded that places of worship must ‘limit attendance to 25% of building capacity or a maximum of 100 attendees’ to diminish the serious risk of ‘widespread transmission of the COVID-19 virus.’” State Opp., at 17. To support this, California merely cites to the Public Health Department’s guidance on houses of worship. Id. In other words, according to California, strict scrutiny is satisfied because it has asserted that what it is doing must be done. This is not “bear[ing] the burden of proving the constitutionality of its actions”—especially when California does not get “the benefit of the doubt.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816, 818 (2000). The question that Plaintiffs have repeatedly asked: “Why not ‘limit attendance to 25% of building capacity or a maximum of 100 attendees’ for all industries?”—has never been straightforwardly answered.
4 Throughout its brief, California cites outside the record to provide this Court with articles relevant to a strict scrutiny analysis. These outside-the-record citations should be ignored. The entirety of the District Court briefing is available in the Excerpts of Record filed with the Ninth Circuit. California believed that record was sufficient for an outright ban on all worship activities. If it truly was sufficient, there is no need for California to now cite outside the record to justify its lesser rule, which simply places an arbitrary cap on attendance at worship, but not other, gatherings.
5

In partial response, California states that every industry—including houses of
worship—are required to “limit ‘the number of [people] in enclosed areas.’” State Opp.,
at 6, 19. California also argues that the CDC recommends “limit[ing] the size of
gatherings.” Id. at 11. But again, only one industry has a 25% capacity or 100-person
cap—houses of worship. If California’s interest in limiting gatherings is not
important enough to be enforced against other industries, it is not important enough
to be enforced against churches. Lukumi, 508 U.S. at 547.5
Then California states that gatherings are actually only permitted at houses
of worship, and all “other large gatherings remain barred.” State Opp., at 11 n. 23.
But, in this context, “gathering” is a defined term of art meaning “a shared or group
experience.” See id. California does not mean that 101 people cannot come together
in a factory or a grocery store—and indeed, they do all the time.6
Finally, California argues that there are meaningful (generalized) differences
between houses of worship and other industries. California argues that “[l]abor in
5 California states that the Sixth Circuit endorsed “cap[ping] the number of congregants.” State Opp., at 24 (citing Roberts, 958 F.3d at 415). But this is misleading. In context, the Sixth Circuit discussed a cap as a neutral rule that could be applied across the board. It did not endorse capping the number of attendees only at worship services, or even when responsible social distancing could be practiced without caps. 6 California also states that, “the State prohibits workplace activities that resemble in-person religious services,” and cites to the Q&A page on its pandemic website. State Opp., at 21. The cited source, however, merely discusses “mass gatherings” in the abstract—not as specifically applied to workplaces. Further, the definition of “mass gatherings” on that Q&A page is simply (1) multiple people; (2) single space; and (3) shared experience. In other words, that definition bans all office meetings with two or more people (even at the Stage 1 essential businesses such as hospitals and the movie industry). It also does not apply to shopping, since everyone present is there for their own purposes—not a shared experience—and so the Rose Bowl Flea Market, which brings in 20,000 people when it opens for one day a month, would be allowed to operate at 50% capacity, only 10,000. The citation does not support California’s argument at all.
6

manufacturing facilities, warehouses, and offices does not typically involve large
numbers of people singing or reading aloud together in the same place, in close
proximity to one another, for an extended duration.” State Opp., at 21. Further,
“[v]ocal activity such as ‘loud speech’ ‘can emit thousands of oral droplets per second,’
‘confirming that there is a substantial probability that normal speaking causes
airborne virus transmission in confined environments.’” Id. at 2 (quoting scientific
study from outside the record) (brackets omitted); see also id. at 8 (same argument).
And in manufacturing, the owners “know each employee’s identity, and often
maintain records of which employees are present and when.” Id. at 22.
But this begs the question, why not ban “loud speech” across the board? Why
not ban “singing” across the board? Why not require churches to track which of their
registered parishioners are attending? What is the compelling interest in
generalizing industries, and banning whole industries based on generalizations?
Here, Judge Collins provides the answer:
The State’s only response on the narrow-tailoring point is to insist that there is too much risk that congregants will not follow these rules. But as the Sixth Circuit recently explained in Roberts, the State’s position on this score illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace: the State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”
Ex. A, Dissent, at 16 (quoting Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020)).
A further problem with generalizations is that, by definition, they are not precise.
Under California’s Reopening Plan, all manufacturing and retail can reopen so long as
7

they follow neutral social distancing guidelines (and 50% building occupancy for retail). But where is the real science indicating that attending church is more dangerous than visiting a grocery store—especially when it is the same people visiting a grocery store on Saturday and church on Sunday? It is not in the record. Contrast 2ER314–20 (Plaintiffs’ expert discussing how visiting a grocery store is riskier).
Due to California’s reliance on generalizations, its Reopening Plan necessarily pulls in certain manufacturing plants that are similar to houses of worship. For example, a quintessential California manufacturing industry is clothing. Below is an image Plaintiffs submitted with the district court of a California clothing factory in the Los Angeles area (2ER38):
Under California’s Reopening Plan, the above factory may reopen, even though it operates similar to how a house of worship ordinarily would—people sitting fairly
8

close together for certain periods of time, presumably talking at some points. California has not satisfied its burden under strict scrutiny.7 2. The Balance of Equities Strongly Favor Granting an Injunction.
California’s argument on the equities is primarily an argument that the equities do not warrant this Court’s emergency intervention at this time. These arguments all fail.
First, California rejects Plaintiffs’ assertion of a Circuit split, arguing that no other Circuit has split from the Ninth Circuit in adjudicating whether “California’s past or current restrictions [are] unconstitutional on free exercise grounds.” State Opp., at 23. But this makes little sense—California is in the Ninth Circuit; no other Circuit will be adjudicating the constitutionality of its pandemic related executive orders.
Second, California argues that “it would surely be premature to assess whether a hypothetical future pandemic response would be constitutionally justified without knowing the circumstances that prompted its adoption.” State Opp., at 24–25. But Plaintiffs are not asking this Court to assess a “future pandemic response”—but merely to provide guidance to the lower courts on what legal standards to apply, as there is widespread confusion. There are very clear splits in the Circuits, on how to apply Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) and Church
7 The factory image was taken from a news article dated January 30, 2020—before the pandemic. The use of facemasks appears to be due to the presence of fabric particles in the factory. Plaintiffs do not mean to imply that this is an image of a factory operating under California’s current regulations; it is simply the type of factory that can reopen if it follows California’s neutral guidelines.
9

of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), to a situation giving rise to very similar responses by state governors. If the pandemic resurfaces as a result of America’s reopening, or if it resurfaces in the Fall, the lower courts need to know what standards to apply.
Third, California states that “the record [here] . . . provide[s] a poor basis on which to judge the [State’s] new guidance” because it “was developed with respect to the State’s prior reopening policy.” State Opp., at 24. But this does not logically follow. If the record were actually sufficient to justify singling out religious worship for an outright ban, it would be sufficient to justify singling out worship for an arbitrary 100-person cap. The issue is, and always has been, how California justifies singling out churches for discriminatory treatment.
Finally, this Court has made clear that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373 (1976), and there is a “significant public interest in upholding First Amendment principles.” Doe v. Harris, 772 F.3d 563, 683 (9th Cir. 2014). But California’s brief makes clear that millions of Californians will continue losing those First Amendment freedoms until it decides otherwise.
In this respect, California states that “100 persons” should simply be good enough. State Opp., at 15. This is a repeat of its early argument that live-stream services or drive-in services should simply be good enough.8 Before May 28, 2020,
8 With respect to its prior restrictions, California states that it “also allowed churches to host drive-in services so long as attendees remained in their vehicles, sufficiently far apart from one another.” State Opp., at 5. This statement is misleading. In the first lawsuit in the Southern District of California, the district court denied a requested temporary restraining order against a drive-in ban. See Abiding Place
10

Governor Pritzker from Illinois argued that “10 persons” should simply be good
enough—that 10 should be enough to satisfy the Christian requirement of gathering
together. But where is the line? Is 20 good enough? Is 90 good enough? In light of the
First Amendment, it is not for any governor—or even any court—to answer this
question.
CONCLUSION
For the reasons stated above, in their supplemental brief, and in their initial
application, Plaintiffs respectfully request that this Court grant their requested
emergency writ for an injunction.
Respectfully submitted,
__________________________ CHARLES S. LIMANDRI Counsel of Record PAUL M. JONNA JEFFREY M. TRISSELL LIMANDRI & JONNA LLP P.O. Box 9120 Rancho Santa Fe, CA 92067 (858) 759-9930 cslimandri@limandri.com pjonna@limandri.com jtrissell@limandri.com
Ministries v. Wooten, No. 3:20-cv-00683-BAS-AHG, Dkt. No. 10 (S.D. Cal. Apr. 10, 2020). At the time, San Diego’s Public Health Officer Wilma Wooten declared that California’s drive-in ban was necessary because “[a]llowing people to leave their homes and drive to a religious service puts everyone’s health in San Diego County at risk. . . . While driving to [church], the congregants may stop to put gasoline in their car, purchase food or use the restroom.” See id. at Dkt. No. 6-2. Only following a second round of litigation did California capitulate and agree to permit drive-in worship. Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111, at *3 n.2 (E.D. Cal. May 5, 2020).
11

THOMAS BREJCHA PETER BREEN THOMAS MORE SOCIETY 309 W. Washington Street Suite 1250 Chicago, IL 60606 (312) 782-1680 tbrejcha@thomasmoresociety.org pbreen@thomasmoresociety.org HARMEET K. DHILLON MARK P. MEUSER DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 (415) 433-1700 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com Counsel for Applicants South Bay United Pentecostal Church and Bishop Arthur Hodges III
12

IN THE SUPREME COURT OF THE UNITED STATES
No. 19A1044
SOUTH BAY UNITED PENTECOSTAL CHURCH, AND BISHOP ARTHUR HODGES III,
Applicants,
v.
GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California, SONIA ANGELL, in her official capacity as California Public Health Officer, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego,
HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services, County of San Diego, and WILLIAM D. GORE, in his official capacity as
Sheriff, County of San Diego,
Respondents.
CERTIFICATE OF SERVICE
I, Charles S. LiMandri, counsel of record for Applicants South Bay United Pentecostal Church and Bishop Arthur Hodges III, hereby certify that on this 30th day of May, 2020, I caused 2 packages containing 1 copy of the REPLY BRIEF IN SUPPORT OF EMERGENCY APPLICATION FOR WRIT OF INJUNCTION RELIEF REQUESTED BY SUNDAY, MAY 31, 2020 in the above entitled case to be served by via electronic mail on the following counsel:
XAVIER BECERRA, Attorney General of California PAUL STEIN, Supervising Deputy Attorney General TODD GRABARSKY, Deputy Attorney General LISA J. PLANK, Deputy Attorney General California Department of Justice STATE OF CALIFORNIA 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (415) 510-4445 Facsimile: (415) 703-1234 Lisa.Plank@doj.ca.gov
13

todd.grabarsky@doj.ca.gov giam.nguyen@doj.ca.gov misha.igra@doj.ca.gov Attorneys for Defendants and Respondents, GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California, SONIA ANGELL, in her official capacity as California Public Health Officer
THOMAS E. MONTGOMERY, County Counsel County of San Diego TIMOTHY M. WHITE, Senior Deputy JEFFREY P. MICHALOWSKI VALERIE PALID DIANA GAITAN 1600 Pacific Highway, Room 355 San Diego, California 92101-2469 Telephone: (619) 531-4865 Facsimile: (619) 531-6005 timothy.white@sdcounty.ca.gov diana.gaitan@sdcounty.ca.gov Jeffrey.Michalowski@sdcounty.ca.gov valerie.palid@sdcounty.ca.gov diana.gaitan@sdcounty.ca.gov Attorneys for Defendants and Respondents, WILMA J. WOOTEN, in her official capacity as Public Health Officer, County of San Diego, HELEN ROBBINS-MEYER, in her official capacity as Director of Emergency Services, County of San Diego, and WILLIAM D. GORE, in his official capacity as Sheriff, County of San Diego
I further certify that all parties required to be served have been served.
______________________ CHARLES S. LIMANDRI Counsel of Record PAUL M. JONNA JEFFREY M. TRISSELL LIMANDRI & JONNA LLP P.O. Box 9120 Rancho Santa Fe, CA 92067 (858) 759-9930 cslimandri@limandri.com
14

 
 Cite as: 590 U. S. ____ (2020)

1

ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES _________________
No. 19A1044
_________________
SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[May 29, 2020]
The application for injunctive relief presented to JUSTICE KAGAN and by her referred to the Court is denied.
JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE KAVANAUGH would grant the application.
CHIEF JUSTICE ROBERTS, concurring in denial of application for injunctive relief.
The Governor of California’s Executive Order aims to limit the spread of COVID–19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others. The Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency. State guidelines currently limit attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.
Applicants seek to enjoin enforcement of the Order. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U. S. 996 (2010) (internal quotation marks omitted). This

2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
ROBERTS, C. J., concurring
power is used where “the legal rights at issue are indisputably clear” and, even then, “sparingly and only in the most critical and exigent circumstances.” S. Shapiro, K. Geller, T. Bishop, E. Hartnett & D. Himmelfarb, Supreme Court Practice §17.4, p. 17-9 (11th ed. 2019) (internal quotation marks omitted) (collecting cases).
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks

Cite as: 590 U. S. ____ (2020)

3

ROBERTS, C. J., concurring
emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

Cite as: 590 U. S. ____ (2020)

1

KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES _________________
No. 19A1044
_________________
SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[May 29, 2020]
JUSTICE KAVANAUGH, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting from denial of application for injunctive relief.
I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.
In response to the COVID–19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.
South Bay United Pentecostal Church has applied for temporary injunctive relief from California’s 25% occupancy cap on religious worship services. Importantly, the Church is willing to abide by the State’s rules that apply to comparable secular businesses, including the rules regarding social distancing and hygiene. But the Church objects to a 25% occupancy cap that is imposed on religious worship services but not imposed on those comparable secular businesses.

2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
KAVANAUGH, J., dissenting
In my view, California’s discrimination against religious worship services contravenes the Constitution. As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” McDaniel v. Paty, 435 U. S. 618, 639 (1978) (Brennan, J., concurring in judgment). This Court has stated that discrimination against religion is “odious to our Constitution.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, ___ (2017) (slip op., at 15); see also, e.g., Good News Club v. Milford Central School, 533 U. S. 98 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); McDaniel, 435 U. S. 618.
To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Lukumi, 508 U. S., at 531–532. California undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens. But “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.
California has not shown such a justification. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” Ibid.

Cite as: 590 U. S. ____ (2020)

3

KAVANAUGH, J., dissenting
The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Ibid.
California has ample options that would allow it to combat the spread of COVID–19 without discriminating against religion. The State could “insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities.” Id., at 415. Or alternatively, the State could impose reasonable occupancy caps across the board. But absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.
The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.
In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment. See Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312 (1986) (Scalia, J., in chambers). The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities. I would therefore grant the Church’s request for a temporary injunction. I respectfully dissent.

 
 DOCKET NO. 20-55533
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SOUTH BAY UNITED PENTECOSTAL CHURCH, et al., Plaintiffs/Appellants v.
GAVIN NEWSOM, in his official capacity as the Governor of California, et al.,
Defendants/Appellees
On Appeal From The United States District Court, For The Southern District of California Case No. 20-cv-00865-BAS-AHG, Hon. Cynthia A. Bashant, District Judge
BRIEF OF COUNTY DEFENDANTS/APPELLEES AND JOINDER IN STATE DEFENDANTS’ BRIEF
THOMAS E. MONTGOMERY, County Counsel County of San Diego Timothy M. White, Senior Deputy (SBN 220847) Jeffrey P. Michalowski, Senior Deputy (SBN 248073) 1600 Pacific Highway, Room 355 San Diego, CA 92101 Tel: (619) 531-4865; (619) 531-4886 E-mail: timothy.white@sdcounty.ca.gov E-mail: jeffrey.michalowski@sdcounty.ca.gov
Attorneys for Defendants/Appellees Dr. Wilma J. Wooten, William D. Gore; and Helen Robbins-Meyer
In Their Official Capacities

TABLE OF CONTENTS JOINDER ................................................................................................................ 1 ADDITIONAL ARGUMENT ...................................................................................... 1 I. PLAINTIFFS’ CLAIMS AGAINST THE COUNTY DEFENDANTS
ARE MOOT AND MISDIRECTED ............................................................ 1 A. Plaintiffs’ Claims Are Moot.................................................................... 1 B. The County Representatives Are Not the Proper Defendants. ............... 3 II. PLAINTIFFS’ CLAIMS AGAINST THE COUNTY ARE FACTUALLY AND LEGALLY FLAWED ............................................... 5 A. Plaintiffs Rely on an Elementary Fallacy to Trivialize the Risk of
COVID-19 in San Diego County. ........................................................... 5 B. Plaintiffs’ Assurance that They Will Adhere to the County’s
Social Distancing Protocols Is Not Sufficient to Satisfy Public Health Concerns. ..................................................................................... 7 C. Plaintiffs’ Selective Enforcement Theory Is Procedurally Improper and Substantively Meritless. ................................................................. 10 CONCLUSION ....................................................................................................... 12
i

TABLE OF AUTHORITIES

Cases

Page(s)

Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 2517093 (7th Cir. May 16, 2020) ....................................................... 9

Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir. 1995) ............................................................................. 11

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) ............................................................................................ 7

Jacobson v. Massachusetts, 197 U.S. 11 (1905) .............................................................................................. 6

Lewis v. Cont’l Bank Corp., 494 U.S. 472 (1990) ............................................................................................ 3

Lowry v. Barnhart, 329 F.3d 1019 (9th Cir. 2003) ........................................................................... 10

Marshall v. United States, 414 U.S. 417 (1974) ........................................................................................ 6-7

N.Y. State Rifle & Pistol Ass’n v. City of N.Y. , 140 S. Ct. 1525 (2020) ........................................................................................ 3

S. Bay Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) .................................................................................... 7, 8

Seven Words L.L.C. v. Network Sols., 260 F.3d 1089 (9th Cir. 2001) ............................................................................. 2

Tonry v. Sec. Experts, 20 F.3d 967 (9th Cir. 1994) ............................................................................... 10

United States v. Armstrong, 517 U.S. 456 (1996) .......................................................................................... 11

ii

JOINDER Please take notice that Defendants/Appellees—County Public Health Officer, Dr. Wilma J. Wooten; San Diego County Sheriff William D. Gore; and County Emergency Services Director Helen Robbins-Meyer, all sued in their official capacities (the “County Defendants”)—hereby join the brief filed by the State Defendants. The County Defendants agree that the district court’s order should be affirmed for all the reasons stated therein.
ADDITIONAL ARGUMENT I. PLAINTIFFS’ CLAIMS AGAINST THE COUNTY DEFENDANTS
ARE MOOT AND MISDIRECTED A. Plaintiffs’ Claims Are Moot. Plaintiffs filed their Application for a Temporary Restraining Order on May 11, 2020. They challenged Governor Newsom’s May 7, 2020 “Resilience Roadmap,” and the County’s May 10, 2020 Order implementing it. See 2 ER 279, 282. The County’s Order has since been superseded. On May 25, 2020, the Governor issued his Guidance regarding Places of Worship and Providers of Religious Services and Cultural Ceremonies, which authorized reopening, subject to attendance caps. See State Defendants’ Motion for Judicial Notice (hereinafter, “State MJN.”). On May 26, 2020, the County adopted the Guidance. Specifically, the County’s Order of the Health Officer and Emergency Regulations (Effective
1

May 27, 2020) provides that “religious services and cultural ceremonial activities may be conducted in conformance with the State Guidance,” provided that they also prepare and post a “Safe Reopening Plan.” See County Defendants’ Motion for Judicial Notice (hereafter, “County MJN”), Exh. 1, ¶¶ 11, 12, 14.
Churches were permitted to reopen immediately, and South Bay United Pentecostal began holding in-person services – which is precisely what their lawsuit sought to achieve. See 2 ER 280 (“Communal worship and ministry are at the heart of Plaintiffs’ religious beliefs and practices.”). Their action is thus moot. Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001) (“‘[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.’”).
Plaintiffs argue that the May 26, 2020 order is still too restrictive, as they wish to hold services that exceed the numerical caps.1 But even if Plaintiffs “‘may have some residual claim under the new [legal] framework,’” the Court should dismiss this appeal and remand to the district court to permit Plaintiffs, should they so choose, to amend their complaint to include allegations about the new
1 Notably, plaintiffs are now free to hold services of any size – it is only indoor activities that are subject to numerical caps. On June 12, 2020, the State released updated guidelines to remove numerical limits on outdoor worship services. See State MJN. The County’s public health order conforms to the less restrictive state rules. See County MJN, Exh. 2, ¶¶ 12, 14.
2

guidelines so that the record may be developed more fully.” N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per curiam), (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 482 (1990). Here, the record does not address the numerical caps; their constitutionality was not litigated below; nor has it been decided by the district court. Dismissal and remand is warranted.
B. The County Representatives Are Not the Proper Defendants. Plaintiffs’ request for injunctive relief against the County Defendants is particularly inappropriate. The Governor asserted sole authority to decide when the State would move into new stages of its Resiliency Roadmap, and thus when his stay-at-home order would be modified to permit in-person religious services and similar secular gatherings. Plaintiffs themselves contend that the County has no authority to relax, for residents of San Diego, the statewide requirements imposed by the Governor: The County of San Diego has issued orders alongside California, but Executive Order N-33-20 is the floor. See 3 ER 589-97. San Diego may issue more restrictive orders than the Governor’s, or simply issue guidance on how to follow Executive Order N-33-20 within San Diego. AOB 4 (emphasis supplied). See also 3 ER 500 (FAC ¶ 35). Moreover, in his May 25, 2020 Guidance regarding Places of Worship and Providers of Religious Services and Cultural Ceremonies, the Governor again asserted sole authority to set the cap, and did not authorize municipalities to set
3

higher caps. See State MJN (“Places of worship must therefore limit attendance to 25% of building capacity or a maximum of 100 attendees, whichever is lower. This limitation will be in effect for the first 21 days of a county public health department’s approval of religious services and cultural ceremonies activities at places of worship within their jurisdiction.”). The County has adopted the Guidance, and has not imposed any greater restrictions. Specifically, the County’s Order of the Health Officer and Emergency Regulations (Effective May 27, 2020) provides that “religious services and cultural ceremonial activities may be conducted in conformance with the State Guidance,” provided that they also prepare and post a “Safe Reopening Plan.” See County MJN, Exh. 1, ¶¶ 11, 12, 14.
Moreover, the County formally requested the Governor’s authorization to open religious facilities “more broadly – beyond the 25% or 100 person cap . . . .” See County MJN, Exh. 3 (Letter from Greg Cox, Chairman, San Diego County Board of Supervisors (June 3, 2020)).2 As of this writing, the County has not received a response.
Plaintiffs’ request for injunctive relief should thus be directed at the Governor, who asserted sole authority to determine when in-person religious services would be permitted, and to impose a cap on attendance at such services. The County Defendants need not and should not be enjoined.
2 Available at bit.ly/376cChq, cited in AOB at p. 58, n. 34. 4

II. PLAINTIFFS’ CLAIMS AGAINST THE COUNTY ARE FACTUALLY AND LEGALLY FLAWED A. Plaintiffs Rely on an Elementary Fallacy to Trivialize the Risk of COVID-19 in San Diego County. Plaintiffs claim that “the probability of dying of COVID-19,” as of May 2,
2020, was approximately 5.6 out of 100,000 in California, and 5.2 out of 100,000 in San Diego County. AOB 5. These rates, plaintiffs contend, are much lower than the rates for heart disease, accidents, diabetes, and suicide. AOB 6.
But the fact that the death rate is comparatively low, following an extended period of aggressive restrictions, does not mean that concerns about the virus were misplaced. Nor does it mean that restrictions on gatherings in churches were unwarranted. It means that the hard decisions made by public health officials and the many sacrifices made by County residents paid off, slowed the spread, and saved lives.
When seatbelt legislation reduced accident fatalities, no serious observers argued that the lower figures meant that the legislation was ill-conceived. When age restrictions on tobacco reduced youth addiction rates, no serious observers argued that the reduction proved the age restrictions unnecessary. Likewise, a comparatively low death rate during a period of social distancing does not mean that social distancing has been proved unnecessary. Rather, a low death rate
5

confirms that the restrictions helped mitigate against outcomes that could have
been far, far worse.
Moreover, plaintiffs’ argument has not aged well. The County of San
Diego, in recent days, has experienced a significant increase in infections. It
reached record case numbers, and the percentage of positive COVID-19 tests has
increased too. See County MJN, Exh. 4.3 The County has adopted a multi-
factored set of triggers for modification of its health orders (see County MJN, Exh.
5),4 and continually monitors the local situation.
Only time will tell whether this week’s spikes will subside, plateau, or reach
new heights. But the fluidity and volatility of the pandemic’s spread confirms that
local officials need broad discretion to craft appropriate solutions, based on expert
analysis of the evidence as it unfolds from day to day. As Justice Roberts
explained in response to plaintiffs’ application in this case:
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U.S. 11, 38, 25 S.Ct. 358, 49 L.Ed. 643 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an
3 Available at https://tinyurl.com/y7qwkra6 (last visited June 26, 2020). 4 Available at https://tinyurl.com/y7z8coha (last visited June 26, 2020).
6

“unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). South Bay Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020).
B. Plaintiffs’ Assurance that They Will Adhere to the County’s Social Distancing Protocols Is Not Sufficient to Satisfy Public Health Concerns.
Plaintiffs claim they will abide by the County’s Social Distancing and
Sanitation Protocol and Safe Reopening Plan. AOB 21. See also 2 ER 312 (“[W]e
can and will abide by the County’s Social Distancing and Sanitation Protocol just
like any other organization.”). And the injunctive relief they requested specifically
incorporates the Protocol. See 2 ER 35, 269, 303 (seeking order enjoining
“Defendants . . . from enforcing . . . any prohibition on Plaintiffs’ engagement in
religious services . . . at which the County of San Diego’s Social Distancing and
Sanitation Protocol and Safe Reopening Plan is being followed.”). See also 3 ER
530 (same). In plaintiffs’ view, the Bishop’s promise to adhere to the County’s
Protocol means “he is not asking for special treatment; he is only asking for equal
treatment.” AOB 55-56.
This argument misunderstands the nature and purpose of the County’s public
health protocols. Specifically, plaintiffs’ argument assumes that the County’s
Social Distancing and Sanitation Protocol (hereinafter, the “Protocol”) (3 ER 599-
7

601) was designed to address public health concerns related to any organized gathering, no matter the context. In plaintiffs’ view, if adherence to the Protocol by a local business is sufficiently protective of public health, then adherence to the Protocol by a church must be too.
In reality, the Social Distancing and Sanitation Protocol was not designed to be sufficient to regulate indoor public gatherings, in which groups of people gather in a singular and undifferentiated space. There was no need for such regulation at the time the Protocol became effective (i.e., April 7, 2020), because such gatherings were prohibited. Indeed, it was not until three weeks after the effective date of the Protocol that the Governor even announced his reopening plan, under which indoor public gatherings—whether secular or religious—would be phased in over time.
The plain language of the Protocol, too, demonstrates that it does not contemplate indoor public gatherings. Rather, it was designed to protect employees and customers of local businesses. It requires “desks or individual work stations” to be separated by at least six feet. 3 ER 599. It requires disinfecting of “shopping carts and baskets,” as well as “payment portals, pens, and styluses.” 3 ER 601. And most tellingly, it makes it mandatory to minimize the number of persons present, by requiring that “everyone who can carry out their work duties from home has been directed to do so.” 3 ER 599.
8

Moreover, the Protocol is not designed to account for the unique risks associated with large-scale indoor gatherings involving collective singing and/or recitation, especially when such gatherings are for sustained periods. As the Seventh Circuit explained, such gatherings are fundamentally different than ordinary business activity:
The Executive Order’s temporary numerical restrictions on public gatherings apply not only to worship services but also the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the COVID-19 virus. Worship services do not seem comparable to secular activities permitted under the Executive Order, such as shopping, in which people do not congregate or remain for extended periods. Elim Romanian Pentecostal Church v. Pritzker, 2020 WL 2517093 (7th Cir. May 16, 2020) (Easterbrook, C.J., Kanne, C.J., Hamilton, C.J.). Plaintiffs’ request for injunctive relief thus rests on a misunderstanding of the County’s Protocol. When combined with the Governor’s caps on attendance, social distancing measures and sanitation becomes a useful tool for protecting public health in the context of indoor church services. But the Protocol was never intended to be sufficient, standing alone, to regulate indoor public gatherings.
9

C. Plaintiffs’ Selective Enforcement Theory Is Procedurally Improper and Substantively Meritless.
The County defendants join in the State Defendants’ arguments regarding
plaintiffs’ selective enforcement theory. In particular, the County objects to
plaintiffs’ disregard of the most basic rules of appellate procedure. Plaintiffs never
pursued a selective enforcement theory below, and the district court never ruled on
it. Accordingly, plaintiffs inappropriately ask this Court to serve as a factfinder,
and to decide the issue in the first instance.
Plaintiffs likewise ignore the fundamental canon of appellate practice – that
“only the court may supplement the record.” Lowry v. Barnhart, 329 F.3d 1019,
1024 (9th Cir. 2003). Instead, plaintiffs rely heavily on unauthenticated tweets,
photographs and videos, and even cite a newspaper’s opinion section. They treat
the judicial notice process as an unnecessary nicety, and instead ask this Court to
decide the case based on untested hearsay, the bulk of which is outside the record.
This violates the most basic rules of appellate practice, and this Court has
sanctioned similar efforts to unilaterally “supplement” the record:
Only the court may supplement the record. “[It is a] basic tenet of appellate jurisprudence ... that parties may not unilaterally supplement the record on appeal with evidence not reviewed by the court below.” Tonry v. Sec. Experts, Inc., 20 F.3d 967, 974 (9th Cir.1994). Litigants should proceed by motion or formal request so that the court and opposing counsel are properly apprised of the status of the documents in question.
10

Lowry, 329 F.3d at 1024-25. The Court found that the inclusion of material outside the record was improper, and awarded monetary sanctions. Id. at 1025-26.
Moreover, even if plaintiffs’ selective enforcement theory were properly before this Court, it would fail on the merits. Plaintiffs’ theory is based exclusively on their claim that “San Diego has refused to enforce its orders against the George Floyd protests.” AOB 38. But non-enforcement against one group, taken alone, does not violate equal protection. Rather, a plaintiff must show selective enforcement – that a law was enforced against one group, and that it was not enforced against another. See U.S. v. Armstrong, 517 U.S. 456, 465 (1996) (“The requirements for a selective-prosecution claim draw on ‘ordinary equal protection standards.” Thus, an individual who was prosecuted “must show that similarly situated individuals of a different race were not prosecuted.”). Here, plaintiffs do not claim that they were subject to any enforcement action. Their selective enforcement theory is not viable.
Moreover, even if there had been any disparity in enforcement, plaintiffs’ theory would fail for an additional reason, too. A selective enforcement plaintiff must show that a similarly situated individual or class was treated more favorably. Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995). Plaintiffs cannot do that here. They refer only to outdoor protests, which are categorically
11

different than gatherings in enclosed spaces, like churches.5 Moreover, large-scale political protests—which have at times been tense, fraught, and dangerous—pose unique law enforcement challenges, and are not comparable to church services. Plaintiffs have not identified any “similarly situated” group, and their selective enforcement theory fails.
CONCLUSION The County Defendants respectfully ask this Court to affirm the district court’s order denying plaintiffs’ Motion for a Temporary Restraining Order.
Dated: June 26, 2020 Respectfully submitted, THOMAS E. MONTGOMERY, County Counsel
By: /s/ JEFFREY P. MICHALOWSKI, Senior Deputy Attorneys for County Defendants/Appellees Email: Jeffrey.michalowski@sdcounty.ca.gov
5 Moreover, as noted above, the state rules and the County’s public health order now permit outdoor religious services, without numerical caps. See Section I.A, supra, at pp. 1-2.
12

CERTIFICATE OF BRIEF COMPLIANCE 9th Cir. Case Number(s) 20-55533
I am the attorney or self-represented party. This brief contains 2,664 words, excluding the items exempted by Fed. R. App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P. 32(a)(5) and (6). I certify that this brief (select only one): complies with the word limit of Cir. R. 32-1. is a cross-appeal brief and complies with the word limit of Cir. R. 28.1-1. is an amicus brief and complies with the word limit of Fed. R. App. P. 29(a)(5), Cir. R. 29-2(c)(2), or Cir. R. 29-2(c)(3). is for a death penalty case and complies with the word limit of Cir. R. 32-4. complies with the longer length limit permitted by Cir. R. 32-2(b) because (select only one):
it is a joint brief submitted by separately represented parties; a party or parties are filing a single brief in response to multiple briefs; or a party or parties are filing a single brief in response to a longer joint brief. complies with the length limit designated by court order dated _____________. is accompanied by a motion to file a longer brief pursuant to Cir. R. 32-2(a).
Signature s/Jeffrey Michalowski Date June 26, 2020
13

 
 20-55533 IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SOUTH BAY UNITED PENTECOSTAL CHURCH; et al.,
Plaintiffs-Appellants, v.
GAVIN NEWSOM, in his official capacity as the Governor of California; et al.,
Defendants-Appellees.

On Appeal from the United States District Court for the Southern District of California

No. 3:20-cv-00865-BAS-AHG The Honorable Cynthia A. Bashant, District Judge

STATE DEFENDANTS-APPELLEES’ ANSWERING BRIEF

XAVIER BECERRA

TODD GRABARSKY

Attorney General of California

Deputy Attorney General

THOMAS S. PATTERSON

State Bar No. 286999

Senior Assistant Attorney General PAUL STEIN

300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 269-6044

Supervising Deputy Attorney General Fax: (916) 731-2124

LISA J. PLANK Deputy Attorney General

E-mail: Todd.Grabarsky@doj.ca.gov Attorneys for Defendants-Appellees Governor Gavin Newsom, Attorney General Xavier Becerra, and Public Health Officer Dr. Sonia Angell

TABLE OF CONTENTS
Page
Introduction ................................................................................................... 1 Statement of Jurisdiction ............................................................................... 3 Statement of Issues ........................................................................................ 3 Statement of the Case .................................................................................... 4
I. California’s Stay-at-Home Order and Related COVID-19 Directives .................................................................................. 4
II. The April 28, 2020 Resilience Roadmap .................................. 7 III. The Proceedings Below ............................................................ 7
A. Plaintiffs’ Complaint ...................................................... 7 B. The District Court’s Denial of Plaintiffs’
Application for Temporary Restraining Order ............... 8 C. This Court’s Denial of Plaintiffs’ Motion for
Injunction Pending Appeal ........................................... 11 IV. The May 25, 2020 Guidelines Reopening In-Person
Religious Worship Services .................................................... 12 V. The Supreme Court’s Denial of Plaintiffs’ Request for
Injunctive Relief...................................................................... 13 VI. The June 12, 2020 Amendment to the Guidelines for In-
Person Worship Services ........................................................ 15 Summary of Argument ................................................................................ 15 Standard of Review ..................................................................................... 18 Argument ..................................................................................................... 19
I. This Appeal Should Be Dismissed as Moot Because Guidance Issued Since the Order on Appeal Permits InPerson Worship ....................................................................... 19 A. Plaintiffs Have Already Received Their Requested Relief............................................................................. 19 B. Exceptions to Mootness Do Not Apply ........................ 23
i

TABLE OF CONTENTS (continued)

Page

C. Vacatur of the District Court’s Order Is Not Appropriate ................................................................... 25
II. In the Alternative, If the Merits of this Appeal Are Reached, the Order on Appeal Should Be Affirmed. ............. 26
A. Plaintiffs Have Not Shown that They Will Suffer Irreparable Harm Absent Injunctive Relief .................. 26
B. The District Court Correctly Held that Plaintiffs Are Not Likely to Succeed on the Merits of their Claims ........................................................................... 28
1. Plaintiffs’ Claims Contradict Rulings of this Court, the Supreme Court, and the Vast Majority of Decisions on this Issue Across the Country ......................................................... 28
2. The State’s Directives Do Not Violate the Free Exercise Clause .......................................... 33
a. The State’s Restrictions on Indoor, InPerson Worship Services Do Not Discriminate Against Religion ................. 33
b. The Restrictions on Indoor, In-Person Worship Services Are Also a Permissible Exercise of the State’s Power to Respond to Public Health Emergencies ............................................. 44
c. Plaintiffs’ Newly Asserted Discriminatory Enforcement Theory Should Be Rejected .................................. 48
d. Even Under Strict Scrutiny, the State’s Directives Pass Constitutional Muster ...................................................... 51
3. Plaintiffs’ Remaining Claims Lack Merit .......... 56

ii

TABLE OF CONTENTS (continued)

Page

a. Substantive Due Process .......................... 56 b. Equal Protection ....................................... 57 c. Religious Exercise Under State Law........ 58 C. The Balance of Equities Weighs Heavily Against Issuance of Injunctive Relief ........................................ 59 Conclusion ................................................................................................... 61

iii

TABLE OF AUTHORITIES
Page
CASES
Abiding Place Ministries v. Wooten No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020) ...................... 28
Adams & Boyle, P.C. v. Slatery 956 F.3d 913 (6th Cir. 2020) ............................................................. 46, 47
Albright v. Oliver 510 U.S. 266 (1994) ................................................................................ 57
Alliance for the Wild Rockies v. Cottrell 632 F.3d 1127 (9th Cir. 2011) ................................................................. 19
Alliance for the Wild Rockies v. Savage 897 F.3d 1025 (9th Cir. 2018) ................................................................. 50
Am. Cargo Transp., Inc. v. United States 625 F.3d 1176 (9th Cir. 2010) ........................................................... 23, 24
Am. Trucking Ass’ns v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009) ................................................................. 18
Antietam Battlefield KOA v. Hogan No. 1:20-cv-01130-CCB, 2020 WL 2556496 (D. Md. May 20, 2020)............................................................................................ 29, 46
Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers 941 F.3d 1195 (9th Cir. 2019) ..................................................... 20, 23, 24
Berean Baptist Church v. Cooper No. 4:20-CV-81-D, 2020 WL 2514313 (E.D.N.C. May 16, 2020).................................................................................................. 31, 32
Best Supplement Guide, LLC v. Newsom No. 2:20-cv-00965-JAM-CKD, 2020 WL 2615022 (E.D. Cal. May 22, 2020) .................................................................................. 59
iv

TABLE OF AUTHORITIES (continued)

Page

Binford v. Sununu No. 217-2020-CV-00152 (N.H. Superior Ct. March 25, 2020)........................................................................................................ 29
Brown v. City of Pittsburgh 586 F.3d 263 (3d Cir. 2009) .................................................................... 49
Bullock v. Carney __ F.3d __, No. 20- 2096, 2020 WL 2819228 (3d Cir. May 30, 2020).................................................................................................. 30
Bullock v. Carney No. 1-20-cv-674, 2020 WL 2813316 (D. Del. May 29, 2020)................ 29
Calvary Chapel of Bangor v. Mills No. 1:20-CV-00156-NT, 2020 WL 2310913 (D. Me. May 9, 2020)........................................................................................................ 29
Calvary Chapel of Bangor v. Mills No. 20-1507 (1st Cir. June 2, 2020) ........................................................ 30
Calvary Chapel Lone Mountain v. Sisolak No. 2:20-cv-00907-RFB-VCF, 2020 WL 3108716 (D. Nev. June 11, 2020) ................................................................................... 29, 50
Camreta v. Greene 563 U.S. 692 (2011) ................................................................................ 25
Cassell v. Snyders No. 20-C-50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020) .......... 29, 50
Chamber of Commerce v. Dep’t of Energy 627 F.2d 289 (D.C. Cir. 1980)................................................................. 22
Church of the Lukumi Babalu Aye, Inc. v. Hialeah 508 U.S. 520 (1993) .................................................................... 33, 41, 42

v

TABLE OF AUTHORITIES (continued)

Page

City of Los Angeles v. Lyons 461 U.S. 95 (1983) ............................................................................ 26, 29
City of Cleburne v. Cleburne Living Ctr. 473 U.S. 432 (1985) ................................................................................ 57
Cross Culture Christian Ctr. v. Newsom No. 2:20-cv-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020) .......................................................................... 6, 28, 45
Crowl v. Inslee No. 3:20-cv-5352 (W.D. Wash. May 8, 2020) ........................................ 29
Davis v. Berke No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020)........................................................................................................ 29
De Beers Consol. Mines v. United States 325 U.S. 212 (1945) .............................................................................. 22
Democratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm. 950 F.3d 790 (11th Cir. 2020) ................................................................. 26
Devose v. Herrington 42 F.3d 470 (8th Cir. 1994) ..................................................................... 22
Drakes Bay Oyster Co. v. Jewell 747 F.3d 1073 (9th Cir. 2014) ................................................................. 59
Elim Romanian Church v. Pritzker __ S. Ct. __, No. 19A1046, 2020 WL 2781671 (May 29, 2020).................................................................................................. 20, 21
Elim Romanian Pentecostal Church v. Pritzker __ F.3d __, No. 20-1811, 2020 WL 3249062 (7th Cir. June 16, 2020)........................................................................................... passim

vi

TABLE OF AUTHORITIES (continued)

Page

Elim Romanian Pentecostal Church v. Pritzker __ F.3d __, No. 20-1811, 2020 WL 2517093 (7th Cir. May 16, 2020)........................................................................................... passim
Elim Romanian Pentecostal Church v. Pritzker No. 20-C-2782, 2020 WL 2468194 (N.D. Ill. May 13, 2020) ................ 29
Elkhorn Baptist Church v. Brown 366 Or. 506 (2020) .................................................................................. 29
Ex parte Milligan 71 U.S. 2 (1866) ...................................................................................... 47
First Baptist Church v. Kelly No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020)........................................................................................................ 31
First Pentecostal Church of Holly Springs v. City of Holly Springs, Miss. 959 F.3d 669 (5th Cir. 2020) ................................................................... 31
Flynt Distrib. Co. v. Harvey 734 F.2d 1389 (9th Cir. 1984) ................................................................. 52
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. 528 U.S. 167 (2000) ................................................................................ 24
Garcia v. Google 786 F.3d 733 (9th Cir. 2015) ................................................................... 19
Garcia v. San Antonio Met. Transit Auth. 469 U. S. 528, (1985) .............................................................................. 14
Gish v. Newsom No. EDCV-20-755-JGB, 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020)............................................................................................ 28, 45

vii

TABLE OF AUTHORITIES (continued)

Page

Gov’t Employees Ins. Co. v. Dizol 133 F.3d 1220 (9th Cir. 1998) ................................................................. 25
Grace United Methodist Church v. City of Cheyenne 451 F.3d 643 (10th Cir. 2006) ................................................................. 41
Harborview Fellowship v. Inslee No. 3:20-cv-05518-BHS (W.D. Wash. June 18, 2020)........................... 29
Hawse v. Page No. 20-1960 (8th Cir. May 19, 2020)...................................................... 30
High Plains Harvest Church v. Polis No. 1:20-cv-01480-RM-MEH, 2020 WL 3263902 (D. Colo. June 16, 2020) ......................................................................................... 29
Huey v. United Parcel Serv., Inc. 165 F.3d 1084 (7th Cir. 1999) ................................................................. 37
Jacobson v. Massachusetts 197 U.S. 11 (1905) ........................................................................... passim
Lacey v. Maricopa Cty. 693 F.3d 896 (9th Cir. 2012) ................................................................... 49
Larson v. Valente 456 U.S. 228 (1982) ................................................................................ 39
Legacy Church v. Kunkel No. CIV-20-0327-JB\SCY, 2020 WL 1905586 (D.N.M. Apr. 17, 2020).................................................................................... 29, 46
Lewis v. Cont’l Bank Corp. 494 U.S. 472 (1990) ................................................................ 3, 19, 20, 22

viii

TABLE OF AUTHORITIES (continued)

Page

Lighthouse Fellowship Church v. Northam No. 2:20-cv-204, 2020 WL 2110416 (E.D. Va. May 1, 2020) (May 21, 2020) ........................................................................................ 29
Lowry v. Barnhart 329 F.3d 1019 (9th Cir. 2003) ........................................................... 28, 37
Marshall v. United States 414 U.S. 417 (1974) .............................................................................. 14
Maryville Baptist Church, Inc. v. Beshear 957 F.3d 610 (6th Cir. 2020) ................................................................... 30
Maryville Baptist Church, Inc. v. Beshear No. 3:20-cv-278-DJH-RSE, 2020 WL 2393359 (W.D. Ky. May 8, 2020) ........................................................................................... 31
Mitchell v. Wall 808 F.3d 1174 (7th Cir. 2015) ................................................................. 26
Nordlinger v. Hahn 505 U.S. 1 (1992) .................................................................................... 58
Nunez v. City of Los Angeles 147 F.3d 867 (9th Cir. 1998) ................................................................... 57
N.Y. State Rifle & Pistol Ass’n v. City of New York 140 S. Ct. 1525 (2020) ............................................................... 20, 22, 24
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv. 422 F.3d 782 (9th Cir. 2005) ................................................................... 48
Nigen v. New York No. 1:20-cv-01576-EK-PK, 2020 WL 1950775 (E.D.N.Y. Mar. 29, 2020) ......................................................................................... 29

ix

TABLE OF AUTHORITIES (continued)

Page

On Fire Christian Center v. Fischer No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020).................................................................................................. 31
Orion Sales, Inc. v. Emerson Radio Corp. 148 F.3d 840 (7th Cir. 1998) ................................................................... 26
Our Lady of Sorrows Church v. Mohammad No. 3:20-cv-00674-AVC (D. Conn. May 18, 2020) ............................... 29
Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr. 810 F.3d 631 (9th Cir. 2015) ............................................................. 22, 23
PCG-SP Venture I LLC v. Newsom No. 20-1138 JGB (C.D. Cal. June 23, 2020) .......................................... 50
Pennhurst State School & Hosp. v. Halderman 465 U.S. 89 (1984) ........................................................................ 3, 58, 59
Phillips v. City of New York 775 F.3d 538 (2d Cir. 2015) .................................................................... 46
Prince v. Massachusetts 321 U.S. 158 (1944) .......................................................................... 44, 57
Puente Arizona v. Arpaio 821 F.3d 1098 (9th Cir. 2016) ................................................................. 18
Quern v. Mandley 436 U.S. 725 (1978) ................................................................................ 25
Roberts v. Neace 958 F.3d 409 (6th Cir. 2020) ............................................................. 30, 32
Robinson v. Attorney General 957 F.3d 1171 (11th Cir. 2020) ......................................................... 46, 47

x

TABLE OF AUTHORITIES (continued)

Page

Rosebrock v. Mathis 745 F.3d 963 (9th Cir. 2014) ............................................................. 19, 23
S. Bay United Pentecostal Church v Newsom 140 S. Ct. 1613 (2020) ..................................................................... passim
S. Bay United Pentecostal Church v. Newsom 959 F.3d 938 (9th Cir. 2020) ............................................................ passim
S. Utah Wilderness Alliance v. Smith 110 F.3d 724 (10th Cir. 1997) ................................................................. 22
Seven Words LLC v. Network Solutions 260 F.3d 1089 (9th Cir. 2001) ................................................................. 19
Shirk v. U.S. ex rel. Dep’t of Interior 773 F.3d 999 (9th Cir. 2014) ................................................................... 48
Six v. Newsom No. 8:20-cv-00877-JLS-DFM, 2020 WL 2896543 (C.D. Cal. May 22, 2020) ......................................................................................... 59
Smith v. Marsh 194 F.3d 1045 (9th Cir. 1999) ................................................................. 48
Spell v. Edwards __ F.3d __, No. 20-30358, 2020 WL 3287239 (5th Cir. June 18, 2020).................................................................................................. 24
Spell v. Edwards No. CV-20-00282-BAJ-EWD, 2020 WL 2509078 (M.D. La. May 15, 2020) ......................................................................................... 29
St. Paul Fire & Marine Ins. Co. v. Barry 438 U.S. 531 (1978) ................................................................................ 25

xi

TABLE OF AUTHORITIES (continued)

Page

Stormans, Inc. v. Selecky 586 F.3d 1109 (9th Cir. 2009) ................................................................. 50
Stormans, Inc. v. Wiesman 794 F.3d 1064 (9th Cir. 2015) .......................................................... passim
Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear No. 3:20-cv-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020) ........................................................................................... 31
Tenafly Eruv Ass’n v. Borough of Tenafly 309 F.3d 144 (3d Cir. 2002) .............................................................. 49, 50
Terminiello v. City of Chicago 337 U.S. 1 (1949) .................................................................................... 11
Tolle v. Northam No. 1:20-cv-00363-LMB-MSN, 2020 WL 1955281 (E.D. Va. Apr. 8, 2020) ..................................................................................... 30
Tolle v. Northam No. 20-1419 (4th Cir. Apr. 28, 2020)...................................................... 29
United States v. Arpaio 951 F.3d 1001 (9th Cir. 2020) ................................................................. 25
United States v. Microsoft Corp. 138 S. Ct. 1186 (2018) ...................................................................... 19, 24
United States v. Munsingwear, Inc. 340 U.S. 36 (1950) .................................................................................. 25
United States v. Salerno 481 U.S. 739 (1987) ............................................................................... 57
Vegas Diamond Properties v. F.D.I.C. 669 F.3d 933 (9th Cir. 2012) ................................................................... 20

xii

TABLE OF AUTHORITIES (continued)

Page

W. Ill. Serv. Coordination v. Ill. Dep’t of Human Servs. 941 F.3d 299 (7th Cir. 2019) ................................................................... 26
Whitlow v. California 203 F. Supp. 3d 1079 (S.D. Cal. 2016) ............................................. 41, 46
Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7 (2008) ............................................................................. passim
Wisconsin Legislature v. Palm 391 Wis. 2d 497 (2020) ........................................................................... 32
Workman v. Mingo Cty. Bd. of Ed.. 419 Fed. Appx. 348 (4th Cir. 2011) ........................................................ 46

STATUTES
28 U.S.C. § 1292(a)(1) ............................................................................................... 3 § 1331 ........................................................................................................ 3 § 1343(a).................................................................................................... 3 § 2106 ...................................................................................................... 20
42 U.S.C. § 1983 ............................................................................................ 3
California Labor Code § 226(a).................................................................................................... 39 § 6409.1(b) .............................................................................................. 39

CONSTITUTIONAL PROVISIONS
California Constitution Article 1, § 1 .............................................................................................................. 8 § 2 .............................................................................................................. 8 § 3 .............................................................................................................. 8 § 4 ........................................................................................................ 8, 59

xiii

TABLE OF AUTHORITIES (continued)

Page

United States Constitution Article III, § 2 .......................................................................................... 19 First Amendment .............................................................................. passim Eleventh Amendment .................................................................. 17, 58, 59 Fourteenth Amendment ....................................................................... 8, 56

COURT RULES 9th Circuit Rule 10-2 .................................................................................... 48 Federal Rule of Appellate Procedure 10................................................. 48, 49

xiv

INTRODUCTION Events have outrun the order on appeal. When Plaintiffs sought a temporary restraining order, the State was still in the early stages of its response to the COVID-19 pandemic and had prohibited all in-person gatherings, including worship services (though not online or drive-in services). Since then, the State has loosened these restrictions, and Californians may now congregate for indoor, inperson worship services in groups of up to 100 people or 25% building capacity (whichever is lower), or outdoors with no attendance limit, provided distancing and other precautions are taken. Especially as Plaintiffs have not amended their operative complaint or presented any evidence that the loosened restrictions harm them, the order denying their request to enjoin the earlier restrictions on worship services is now moot. If the Court nonetheless reaches the merits of this appeal, it should affirm the denial of a TRO for three reasons. First, because the operative guidelines permit in-person worship services subject to attendance restrictions for indoor services, and Plaintiffs have not presented any evidence that these restrictions harm them, they have not satisfied the threshold requirement of irreparable injury. Second, Plaintiffs have not shown a likelihood of success on the merits. The novel coronavirus that causes COVID-19 poses an acute risk of transmission at large public gatherings such as indoor, in-person worship services, and unfortunate
1

instances in which such services have become “super-spreader” events abound. As the Chief Justice of the Supreme Court recently explained in rejecting Plaintiffs’ prior request to enjoin the guidelines at issue here, the restrictions on in-person worship services do not violate the Free Exercise Clause because they are consistent with the similar or more severe restrictions imposed on comparable secular gatherings. S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613, 1613-14 (2020) (Roberts, C.J., concurring in denial of injunctive relief). In addition, because “[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic” is properly left to “politically accountable officials” entrusted to guard and protect public health, id., the restrictions survive any applicable level of scrutiny.
Third, given the serious public health risks involved, the balance of equities and the public interest weigh decisively against the equitable relief Plaintiffs seek. To the extent that Plaintiffs have suffered any injury from the attendance restrictions imposed on indoor, in-person worship services, that injury is limited. By contrast, the public’s interest in protecting itself against the spread of COVID19 is of the utmost significance, and the recent rise in COVID-19 infections as well as the repeated reports of outbreaks traced to reopenings of in-person worship services underscore how strong that public interest is. Thus, all relevant factors weigh against the extraordinary equitable relief sought by Plaintiffs.
2

This appeal should be dismissed for mootness, or, in the alternative, the district court’s order denying a TRO should be affirmed.
STATEMENT OF JURISDICTION Plaintiffs brought this action under 42 U.S.C. § 1983. Pls.’ Excerpts of Record (“ER”) 490. The district court has subject matter jurisdiction over Plaintiffs’ federal claims, 28 U.S.C. §§ 1331, 1343(a), but not over Plaintiffs’ state law claims, Pennhurst State School & Hosp. v. Halderman 465 U.S. 89, 106, 124125 (1984). This Court previously found that it had appellate jurisdiction under 28 U.S.C. § 1292(a)(1) to review the district court’s denial of Plaintiffs’ TRO application. Dkt. 29, at 21 (citing Religious Tech. Ctr. v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989)). However, in light of developments since that finding, the appeal has become moot because Plaintiffs may now worship in the way they seek to do. See Argument Section I, infra. This Court should therefore dismiss the appeal for lack of jurisdiction. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990).
STATEMENT OF ISSUES 1. Whether there is any live controversy over the temporary restraining order sought by Plaintiffs now that the prohibition on in-person worship services is
1 Citations to “Dkt.__, at __,” refer to this Court’s docket. 3

no longer in effect and has been superseded by guidelines that permit in-person services.
2. Whether, now that in-person worship services are permitted, Plaintiffs have shown irreparable injury.
3. Whether Plaintiffs have demonstrated a likelihood of success on the merits of their claims under (a) the Free Exercise Clause, (b) the Due Process Clause, (c) the Equal Protection Clause, and (d) the free religious exercise provision of the California Constitution.
4. Whether the balance of equities favors equitable relief where Plaintiffs have presented little or no evidence of harm and the relief sought may undermine the State’s efforts to slow the spread of this highly infectious and often deadly disease.
STATEMENT OF THE CASE I. CALIFORNIA’S STAY-AT-HOME ORDER AND RELATED COVID-19
DIRECTIVES As this Court is by now well aware, COVID-19 is a highly transmissible and often fatal disease, which to date has infected nearly 9.5 million people and caused almost half-a-million deaths worldwide,2 including more than 2.3 million
2 Coronavirus disease 2019 (COVID-19) Situation Report 158, https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200626covid-19-sitrep-158.pdf?sfvrsn=1d1aae8a_2 (last accessed June 26, 2020).
4

infections and over 120,000 deaths in the United States.3 The novel coronavirus that causes COVID-19 spreads through respiratory droplets that remain in the air or on surfaces, and it may be transmitted unwittingly by individuals who exhibit no symptoms. South Bay, 140 S. Ct. at 1613 (Roberts, C.J., concurring). There is no known cure, no widely effective treatment, and no vaccine for this novel disease. Id. As a consequence, measures such as physical distancing that limit physical contact are the only widely recognized way to slow the virus’s spread. ER 32, 125. Although California has made significant progress in doing so, to date COVID-19 already has taken a devastating toll on the State, with more than 200,000 infections and 5,800 deaths.4
California responded early and decisively to the threat posed by COVID-19. As early as December 2019, the State began working closely with the national Centers for Disease Control and Prevention (CDC), the United States Health and Human Services Agency, and local health departments to monitor and plan for the potential spread of COVID-19. ER 533. The California Department of Public Health also has been in regular communication with hospitals, clinics, and other
3 Cases in U.S., https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/cases-in-us.html (last accessed June 26, 2020).
4 California COVID-19 by the Numbers, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.as px#COVID-19%20by%20the%20Numbers (last accessed June 26, 2020).
5

health providers and has been providing guidance to health facilities and providers regarding COVID-19. Id.
To prepare for and implement measures to mitigate the spread of COVID-19, the Governor proclaimed a State of Emergency in California on March 4, 2020. Id. This proclamation makes additional resources available, formalizes emergency state actions already underway, and helps the State prepare to combat the broader spread of the disease. Id.
On March 19, the Governor issued Executive Order N-33-20, the Stay-atHome Order, which required “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” ER 533. On March 22, the Public Health Officer designated a supplemental list of “Essential Critical Infrastructure Workers.” ER 536. That list included “[f]aith based services that are provided through streaming or other technology,” which has been updated as “[c]lergy for essential support and faith-based services that are provided through streaming or other technologies that support physical distancing and state public health guidelines.” ER 499, 551. This provision permitted places of worship to conduct services over online streaming or teleconferencing and via drive-ins, but not in person. ER 75; Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv00832-JAM-CKD, 2020 WL 2121111, at *3 n.2 (E.D. Cal. May 5, 2020).
6

San Diego County, where Plaintiffs’ church is located, issued similar directives. ER 589. II. THE APRIL 28, 2020 RESILIENCE ROADMAP
On April 28, 2020, the Governor announced a “Resilience Roadmap” to guide the gradual and safe reopening of the State. ER 101, 115. The Roadmap had four stages: safety and preparation (Stage 1); reopening of lower-risk workplaces and spaces (Stage 2); reopening of higher-risk workplaces and spaces (Stage 3); and an end to the Stay-at-Home Order (Stage 4). Id. To implement the Roadmap, on May 4, 2020, the Governor issued Executive Order N-60-20, requiring California residents to continue complying with the Stay-at-Home Order and the State Public Health Officer to establish criteria and procedures for qualifying local jurisdictions to move more quickly through Stage 2 of the Roadmap. ER 444. At first, religious services were included in Stage 3. ER 116. III. THE PROCEEDINGS BELOW
A. Plaintiffs’ Complaint On May 8, 2020, Plaintiffs sued Governor Newsom, Attorney General Becerra, Public Health Officer Dr. Angell, as well as numerous county officials to enjoin the Stay-at-Home Order, Resilience Roadmap, and related county orders. ER 609-10. Plaintiffs, which include South Bay United Pentecostal Church and its Senior Pastor, Bishop Arthur Hodges III, allege that their sincerely and deeply held religious beliefs make it essential for them to congregate in person to worship. ER
7

502-05. On May 11, Plaintiffs filed the operative First Amended Complaint. ER 490.
Plaintiffs typically hold indoor religious worship services consisting of 200300 persons per service, three to five times per day. ER 308. Plaintiffs’ services begin with Bible classes spread across different ages and groups, each with 10 to 100 participants. Id. After classes, all congregants gather in the sanctuary for services that include baptisms, gathering closely around the altar, and laying hands upon the sick. ER 308-09. Nevertheless, Plaintiffs assert that they are willing and able to comply with distancing, cleanliness, and attire guidelines implemented by the CDC, San Diego County, and other organizations. ER 311, 505.
Plaintiffs asserted claims under the First Amendment’s Free Exercise, Establishment, Free Speech, and Assembly Clauses; the Fourteenth Amendment’s Due Process and Equal Protection Clauses; and the rights to liberty, freedom of speech, freedom of assembly, and free exercise of religion enumerated in Article 1, sections 1 through 4, of the California Constitution. ER 515-530.
B. The District Court’s Denial of Plaintiffs’ Application for Temporary Restraining Order
After their initial application for a TRO was rejected for non-compliance with local meet-and-confer rules, ER 610, Plaintiffs filed an amended TRO application on May 11. ER 268. Plaintiffs based the application on their claims under the Free Exercise, Due Process, and Equal Protection Clauses and the free religious
8

exercise provision of the California Constitution. See ER 272. As Plaintiffs sought relief by the next Sunday, Defendants filed an opposition three days later. ER 63, 129.
On May 15, after a one-hour hearing, the district court denied the TRO application. ER 1, 27-32. Applying the Supreme Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the court ruled that, given the serious public health crisis, the State imposed permissible, reasonable restrictions on the rights of individuals to freely exercise their religion, and, therefore, Plaintiffs were unlikely to succeed on their claims. ER 27; see also ER 32 (“The only way currently known to curb the disease is to limit personal exposure.”).
Addressing the Free Exercise Clause directly, the court ruled the State’s thencontrolling directives constitutional because “any burden placed by classifying church services as Stage 3 are not because of a religious motivation,” but rather because such gatherings “pose a greater risk of exposure to the virus.” ER 28. The court further found that many other comparable activities “that involve people sitting together in a closed environment for long periods of time” are prohibited. ER 28-29; see also ER 31 (“Religious services are treated similar to other activities where large groups come together for a period of time, like movies, concerts, theater, or dance performances.”). In that regard, the court found that the categorization of activities in each stage of the Resilience Roadmap reopening plan
9

was based on the “risk of contracting the virus while participating in that activity.” ER 30-31. The court concluded that the restrictions imposed were rationally based on “protecting safety and stopping the virus spread.” ER 28-29.
Although the district court held strict scrutiny inapplicable, it also found in the alternative that the directives would satisfy such scrutiny because they were narrowly tailored to furthering the State’s compelling interest in safety and health, ER 29-30, and congregants were permitted to gather over the phone, via video conference, in person with household members, and at drive-in services. Id.
In addition, the district court found that Plaintiffs failed to show a likelihood of success on their equal protection claim because they presented “no evidence that similarly situated persons or businesses are treated differently.” ER 30-31. In that regard, the court found, the distinctions among business and activities were based on the risk factors of contracting COVID-19, and therefore, “the government is not treating differently businesses that are alike.” Id. The district court also found that Plaintiffs’ substantive due process claim is unlikely to succeed because the State’s directives did not “shock[] the conscience.” ER 31-32.
Finally, noting that “[t]he only way currently known to curb the disease is to limit personal exposure,” the court held neither the public interest nor the balance of equities supported issuance of a TRO. ER 32 (“[I]t is in the public interest to continue to protect the population as a whole.”). In so doing, the court observed
10

that State officials still need to continue to monitor how each stage of reopening affects infection rates and public health, and adapt accordingly. Id.
C. This Court’s Denial of Plaintiffs’ Motion for Injunction Pending Appeal
A few hours after the hearing, Plaintiffs noticed an appeal, ER 43, and filed a
pro forma application for injunction pending appeal, ER 34, which the district court denied, 2020 WL 2529620.
The next day, Saturday, May 16, at around 6:30 p.m., Plaintiffs filed with this Court an emergency motion for injunction pending appeal seeking relief the following day. Dkt. No. 2. This Court denied that motion on May 22 ruling that Plaintiffs “have not demonstrated a sufficient likelihood of success on appeal.”
Dkt. No. 29, at 3 (S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020) (South Bay II)).5 The Court explained,
We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” South Bay II, 959 F.3d at 939 (quoting Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting)). The Court also found that the remaining
5 For ease of reference, this brief will cite to the published version of this Court’s opinion denying Plaintiffs’ emergency motion for injunction pending appeal, 959 F.3d 938 (South Bay II).
11

injunction factors “do not counsel in favor of injunctive relief.” Id. at 940. Judge
Collins dissented. Id.
IV. THE MAY 25, 2020 GUIDELINES REOPENING IN-PERSON RELIGIOUS WORSHIP SERVICES On May 25, 2020, in light of the State’s success in slowing the spread of
COVID-19 and marshaling public health resources, California issued guidelines
for places of worship and providers of religious services. State Defs.’ Mot. for
Judicial Notice (“State Defs.’ MJN”) Ex. 2. Much like the guidance developed in parallel by the CDC,6 California’s guidelines contain instructions and
recommendations for physical distancing during worship services as well as
cleaning and disinfection protocols, training for employees and volunteers, and
individual screening and monitoring. In keeping with the CDC’s recognition and
recommendation that the size of worship services may be limited in “accordance with guidance from state and local authorities,”7 the May 25 guidelines also limited
in-person worship services to 100 attendees or 25% of building capacity, whichever is less. State Defs.’ MJN Ex. 2.8 In light of these guidelines, there is no
6 Interim Guidance for Communities of Faith, CDC, https://www.cdc.gov/coronavirus/2019-ncov/php/faith-based.html (last accessed June 24, 2020).
7 Id. 8 Similar numerical limits were placed on protests, but no other mass gatherings were permitted. See Stay home Q&A, https://covid19.ca.gov/stayhome-except-for-essential-needs/ (last accessed June 23, 2020).
12

longer any statewide prohibition against in-person religious services in California,
and such services may resume if permitted by the relevant county.
V. THE SUPREME COURT’S DENIAL OF PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF
On May 23, the day after this Court denied a motion for injunction pending
appeal, Plaintiffs filed with the Supreme Court an emergency application for writ
of injunction which they later amended to seek an injunction pending appeal
against the May 25 guidelines as well as the Resilience Roadmap.9
On May 29, the Supreme Court denied that application, in a 5-4 decision.
Dkt. No. 31 (S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020)
(South Bay III)).10 Chief Justice Roberts filed a concurring opinion concluding that
the California restrictions are consistent with the Free Exercise Clause:
Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people
9 Emergency App. for Writ of Inj., https://www.supremecourt.gov/DocketPDF/19/19A1044/144133/20200523140701 636_Emergency%20Application%20for%20Writ%20of%20Injunction.pdf; Supplemental Br. in Supp. of Emergency App. for Writ of Inj., https://www.supremecourt.gov/DocketPDF/19/19A1044/144227/20200526154016 842_Supplemental%20Brief%20iso%20Emergency%20Application.pdf.
10 For ease of reference, this brief will cite to the published version of the Supreme Court’s opinion denying Plaintiffs’ application for writ of injunction, 140 S. Ct. 1613 (South Bay III).
13

neither congregate in large groups nor remain in close proximity for extended periods. 140 S. Ct. at 1613; see also id. at 1614 (“The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.”). Chief Justice Roberts further explained that the “Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials in the States ‘to guard and protect,’” id. at 1613 (quoting Jacobson, 197 U.S. at 38), and that the latitude of those officials “‘must be especially broad’” and “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” id. at 1613-14 (quoting Marshall v. United States, 414 U. S. 417, 427 (1974); Garcia v. San Antonio Met. Transit Auth., 469 U. S. 528, 545 (1985)). Justice Kavanaugh filed a dissenting opinion in which he compared religious services to “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries,” which are not subject to the same capacity caps as are in-person, indoor religious services. Id. at 1614. He did not explain why these activities—all of which involve transitory interactions where people neither congregate in large groups nor remain in close proximity for extended periods—are analogous to inperson worship services. Id.
14

VI. THE JUNE 12, 2020 AMENDMENT TO THE GUIDELINES FOR IN-PERSON WORSHIP SERVICES On June 12, the State amended the in-person worship guidelines to remove
any attendance limit on outdoor services. State Defs.’ MJN Ex. 1, at 3. Still, the new guidelines recommend that “outdoor attendance should be limited naturally through implementation of strict physical distancing measures” and other protocols. Id. The June 12 guidelines keep in place the 100-person or 25% capacity cap for indoor worship services. Id.
To date, Plaintiffs have not sought to amend their complaint to include any allegations about the State’s operative guidelines on worship services, nor have they moved the district court for a TRO or preliminary injunction against these guidelines.
SUMMARY OF ARGUMENT 1. This Court should dismiss the appeal because it is moot. In their TRO application, Plaintiffs sought to enjoin the prohibition on in-person worship services in the State’s initial Stay-at-Home Order and the Resilience Roadmap, both of which have been superseded by the specific guidelines for worship services allowing Plaintiffs to congregate in person for worship services, albeit subject to attendance limits indoors. In addition, Plaintiffs have not sought to amend their operative complaint to include allegations of harm related to the new guidelines, moved the district court to enjoin them in the first instance, or presented evidence
15

of any harm under the new guidelines. Thus, no actual live controversy concerning the order on appeal remains.
2. Even if the appeal is not moot, this Court should affirm the district court’s order because Plaintiffs have failed to demonstrate any of the elements required for preliminary injunctive relief.
a. Plaintiffs have not demonstrated that they will suffer irreparable harm absent injunctive relief. Because the new guidelines permit in-person worship services, and Plaintiffs have not presented evidence of any injury from the attendance limits in the guidelines, Plaintiffs have shown no irreparable injury.
b. Plaintiffs also have not shown a likelihood success on the merits. Plaintiffs’ claims are contrary to the vast weight of precedent. Every request so far to enjoin California’s temporary restrictions on religious worship has failed, including Plaintiffs’ own motions for an injunction pending appeal in this Court and the Supreme Court. In addition, more than twenty similar challenges have been rejected by trial and appellate courts across the country. Plaintiffs’ Free Exercise Clause Claims fails because, as Chief Justice Roberts recognized, far from discriminating against religious conduct, California imposes similar or more severe restrictions on all comparably risky secular gatherings such as plays, concerts, and sporting events in which groups of people gather together in the same place at the same time for extended periods in a shared, communal
16

experience. In addition, the limited restrictions imposed on worship services are constitutional exercises under Jacobson, 197 U.S. 11, which numerous courts as well as Chief Justice Roberts have recognized applies here, because these restrictions further the State’s interest in combatting the COVID-19 virus and do not constitute a plain, palpable constitutional violation. Plaintiffs’ new claim of selective enforcement is not properly before this Court and, in any event, is baseless. And, in light of the well-documented threat to public health posed by inperson worship services and the deference owed to the expert medical judgments that public health officials must make in the face of the epidemic to save lives, the restrictions in question survive even strict scrutiny.
Plaintiffs’ claims under the Due Process and Equal Protection Clauses are unlikely to succeed for similar reasons, and the Eleventh Amendment bars their claim under state law.
c. The balance of equities weighs sharply and heavily against issuance of an injunction. As they may now congregate for in-person worship, if Plaintiffs are threatened by any irreparable injury, it is limited. In stark contrast, enjoining any and all limits on worship could severely endanger public health and safety and the State’s efforts to protect Californians against a virulent and frequently deadly disease, especially given how often in-person worship services have acted as “super-spreader” events and caused far-reaching outbreaks of the disease.
17

STANDARD OF REVIEW This Court reviews an appeal from the denial of preliminary injunctive relief for abuse of discretion. Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009). Such review is “limited and deferential,” id. (internal quotation marks omitted), and the denial of Plaintiffs’ TRO should be reversed only if the district court “abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact,” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th Cir. 2016) (internal quotation marks omitted). Like a preliminary injunction, a temporary restraining order is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). In particular, parties seeking such extraordinary relief bear the heavy burden to demonstrate (1) a strong likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest. Id. at 20. Alternatively, injunctive relief “is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor,” but even under this test, plaintiffs must still make a showing of each of the four Winter factors: irreparable harm, likelihood of success on the merits, balance of hardships favoring
18

the plaintiffs, and the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132-35 (9th Cir. 2011).
Finally, because they seek a mandatory injunction to disrupt the alreadyimplemented COVID-19-related directives regarding religious services, Plaintiffs must meet the “doubly demanding” burden of “establish[ing] that the law and facts clearly favor [their] position.” Garcia v. Google, 786 F.3d 733, 740 (9th Cir. 2015) (en banc).
ARGUMENT I. THIS APPEAL SHOULD BE DISMISSED AS MOOT BECAUSE GUIDANCE
ISSUED SINCE THE ORDER ON APPEAL PERMITS IN-PERSON WORSHIP. A. Plaintiffs Have Already Received Their Requested Relief. Because this Court’s jurisdiction is limited to live cases or controversies, U.S. Const. art. III, § 2, it must dismiss an appeal when the issues presented are no longer live. Lewis, 494 U.S. at 477-78; see also Seven Words LLC v. Network Solutions, 260 F.3d 1089, 1095 (9th Cir. 2001) (“[A]n actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”). A change in the applicable law or regulatory framework “is usually enough to render a case moot, even if the [government] possesses the power to reenact the [law] after the lawsuit is dismissed.” Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (internal quotation marks omitted); see also United States v. Microsoft Corp., 138 S. Ct. 1186 (2018) (finding no live dispute remained because the statute
19

at issue had been amended); Bd. of Trustees of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019) (same).
Where “the mootness is attributable to a change in the legal framework governing the case,” the appropriate action is for this Court to “remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully.” Lewis, 494 U.S. at 482-83; N.Y. State Rifle & Pistol Ass’n v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per curiam); Vegas Diamond Props. v. F.D.I.C., 669 F.3d 933, 937 (9th Cir. 2012); 28 U.S.C. § 2106.
Here, the relevant legal framework has changed. In their operative complaint and in the TRO application underlying this appeal, Plaintiffs sought relief only from the Resilience Roadmap (and continued application of the Stay-at-Home Order) so they could hold in-person worship services. But as a result of the May 25 guidelines issued after this appeal was noticed, the reopening plan no longer prevents them from holding in-person worship services, and they may hold services outdoors without any attendance limit and indoors with a limit of 100 persons or 25% building capacity (whichever is less). Because Plaintiffs no longer need any relief from the order on appeal, the appeal is now moot. N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. at 1526 (finding appeal moot where state law changed while the case was pending); cf. Elim Romanian Church v. Pritzker, __ S. Ct. __,
20

No. 19A1046, 2020 WL 2781671, at *1 (May 29, 2020) (Elim Romanian III) (denying injunctive relief due to issuance of new guidance).
Although the new guidelines impose some restrictions on in-person services, Plaintiffs have not asserted, much less demonstrated, that they are harmed by those limits. The guidelines limit the number of individuals who may attend an indoor service at one time, but nothing prevents Plaintiffs from holding multiple indoor services (or larger services outside) to accommodate all interested congregants; indeed, the guidelines encourage them to “offer[] additional meeting times.” State Defs.’ MJN Ex. 1, at 9. Notably, Plaintiffs do not assert that they are unable to hold a sufficient number of services to accommodate all those interested. In fact, Plaintiffs indicated to the district court that fewer congregants will attend services during the current public health crisis, because some congregants may “feel uncomfortable gathering during the pandemic;” and they pledged to “encourage” such uncomfortable congregants “to stay at home” and also to “require” anyone who is sick to also “stay at home.” ER 505. Plaintiffs also affirm that they are willing and able to comply with guidelines concerning distancing, cleanliness, and attire, including those promulgated by the CDC, to which California’s new guidelines refer. ER 311-12, 505-06; State Defs.’ MJN Ex. 1, at 6-11.
While Plaintiffs possibly “‘may have some residual claim under the new [legal] framework,’” the Court should nevertheless dismiss this appeal and remand
21

to the district court to permit Plaintiffs to amend their complaint to include allegations about the new guidelines so that the record may be developed more fully.11 N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. at 1526 (quoting Lewis, 494 U.S. at 482).
Indeed, the Court lacks authority to enjoin the new guidelines because such relief is greatly attenuated from the allegations, claims, and relief requested in the operative complaint and TRO application. Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015) (courts only have authority to grant injunctive relief where the relationship between the requested injunctive relief and the underlying complaint is “sufficiently strong” such that it is “‘of the same character as that which may be granted finally’”) (quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945)); see also Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). Plaintiffs have not sought to amend the operative complaint to allege harm from the new guidelines, much less moved the district court for relief from the new rules. These failures have left Defendants and the
11 Even if not moot strictly “in the Article III sense,” the Court may still find Plaintiffs’ request no longer live because it is “so attenuated” from the present reality on the ground “that considerations of prudence and comity for coordinate branches of government counsel the court to stay its hand, and to withhold relief it has the power to grant.” Chamber of Commerce v. Dep’t of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980); see also S. Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997).
22

district court—which is best suited to make such determinations in the first instance—without evidence or even allegations explaining why Plaintiffs’ constitutional rights are injured by the new guidelines. As a consequence, enjoining the new directives would be far from the “same character” of relief Plaintiffs sought in the Complaint, and thus inappropriate. Pac. Radiation, 810 F.3d at 636.
B. Exceptions to Mootness Do Not Apply. Neither the “voluntary cessation” nor the “capable of repetition, yet evading review” exceptions to mootness apply. As noted, a change in the governing law or regulatory framework is enough to render a case moot “even if the [government] possesses the power to reenact the [law] after the lawsuit is dismissed.” Rosebrock, 745 F.3d at 971. Indeed, a change in the law “should not be treated the same as voluntary cessation of challenged acts by a private party” and creates a presumption of mootness that can only be overcome with “evidence in the record” showing that the prior law or policy is likely to be reimposed. Glazing Health, 941 F.3d at 1198-99 (describing the decisions from “nearly all [other] circuits” that support this rule); Am. Cargo Transp. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010) (citing cases). Plaintiffs have not pointed to any evidence in the record demonstrating that the State’s initial prohibition on in-person worship services is likely to be
23

reimposed on them. Since the initial Stay-at-Home Order in March, the
restrictions on public gatherings including those for religious worship have been
loosening, not tightening, and far from offering any reason to believe that this trend
will be reversed in San Diego, Plaintiffs point to evidence that San Diego has
sought to ease further the restrictions on in-person worship services. See Pls.’
Opening Br. (“OB”) 58 & n.34. An opinion rendered under such circumstances
would be merely advisory and, as such, improper. See Spell v. Edwards, __ F.3d
__, No. 20-30358, 2020 WL 3287239, at *3 (5th Cir. June 18, 2020) (“[I]t is
speculative, at best, that the Governor might reimpose the ten-person restriction or
a similar one.”); Glazing Health, 941 F.3d at 1199 (requiring the expectation be
demonstrated by evidence in the record, “rather than on speculation alone”).12
12 Although the Seventh Circuit recently found no mootness under the voluntary cessation exception in a similar case, it incorrectly applied a standard requiring non-government defendants to show that it is “‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Elim Romanian Pentecostal Church v. Pritzker, __ F.3d __, No. 20-1811, 2020 WL 3249062, at *3 (7th Cir. June 16, 2020) (Elim Romanian IV) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000)). As explained above, in cases against the government, this Court’s precedent makes clear that changes in governing law “should not be treated the same as voluntary cessation of challenged acts by a private party.” Glazing Health, 941 F.3d at 1199; see also Am. Cargo Transp., Inc., 625 F.3d at 1180 (“[C]essation of the allegedly illegal conduct by government officials has been treated with more solicitude by the courts than similar action by private parties.”) (internal quotation marks omitted); cf. also N.Y. State Rifle & Pistol Ass’n, 140 S. Ct. at 1526 (declining to apply the “absolutely clear” standard of Friends of the Earth); Microsoft Corp., 138 S. Ct. 1186 (same).
24

Even if those exceptions to mootness were to apply, the remedy would not be to disregard the well-established limits on injunctive relief and issue an injunction anyway; it would be to provide declaratory relief. Quern v. Mandley, 436 U.S. 725, 733 n.7 (1978); St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 538 n.7 (1978); 13C Wright, Miller, et al., Fed. Prac. & Proc. Juris. § 3533.7 (3d ed.). But this Court should not provide declaratory relief at this stage because the district court is better positioned to address the request for declaratory relief in the first instance. See Gov’t Employees Ins. Co. v. Dizol, 133 F.3d 1220, 1223 (9th Cir. 1998) (en banc).
C. Vacatur of the District Court’s Order Is Not Appropriate. Upon dismissing this appeal as moot, the Court should not vacate the district court’s order denying the TRO Plaintiffs requested. Although appellate courts generally vacate decisions on issues that have become moot during the pendency of an appeal, United States v. Munsingwear, Inc., 340 U.S. 36 (1950), vacatur is only appropriate to “‘prevent an unreviewable decision from spawning any legal consequences, so that no party is harmed by . . . a “preliminary” adjudication.’” United States v. Arpaio, 951 F.3d 1001, 1005-06 (9th Cir. 2020) (quoting Camreta v. Greene, 563 U.S. 692, 713 (2011)). Thus, vacatur applies where the underlying decision has a preclusive effect, such as where a final judgment has been entered. Id.
25

The district court’s order on Plaintiffs’ request for preliminary injunctive relief, however, has no preclusive effect on the district court’s deciding whether to issue a permanent injunction. Mitchell v. Wall, 808 F.3d 1174, 1176 (7th Cir. 2015); Democratic Exec. Comm. of Fla. v. Nat’l Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020); Orion Sales, Inc. v. Emerson Radio Corp., 148 F.3d 840, 843 (7th Cir. 1998). To underscore that point, all of Plaintiffs’ claims will proceed before the district court regardless as to what happens with the TRO order, whether it is affirmed, reversed, or vacated by this Court. W. Ill. Serv. Coordination v. Ill. Dep’t of Human Servs., 941 F.3d 299, 302 (7th Cir. 2019). In that regard, the district court’s TRO denial has no binding or preclusive effect on the remainder of the litigation, and, accordingly, it should not be vacated. II. IN THE ALTERNATIVE, IF THE MERITS OF THIS APPEAL ARE REACHED,
THE ORDER ON APPEAL SHOULD BE AFFIRMED. A. Plaintiffs Have Not Shown that They Will Suffer Irreparable
Harm Absent Injunctive Relief. “[T]he basic requisite[] of the issuance of equitable relief” is a showing of “substantial and immediate irreparable injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 104, 111 (1983) (internal quotation marks omitted); see also Winter, 555 U.S. at 20 (“A plaintiff seeking a preliminary injunction must establish that he is . . . likely to suffer irreparable harm in the absence of preliminary relief.”). At the time that the order under review was issued, Plaintiffs contended that they were
26

suffering irreparable injury because they could not hold or attend in-person worship services. ER 279-80. But that injury no longer exists: as explained in Section I, supra, under California’s May 25 guidelines, Plaintiffs may now resume in-person services.
Nor have Plaintiffs shown that application of the May 25 guidelines threatens them with irreparable injury. Plaintiffs devote only two sentences to the irreparable harm question, asserting in conclusory fashion that their “fundamental constitutional rights” have been violated. OB 64-65. But, as shown above, there is no evidence or formal allegation that the attendance limits on indoor worship in those guidelines have prevented any congregants from attending worship services. Although Plaintiffs include a cursory assertion that they “had to turn away congregants who wished to attend after [the 100-person] cap was reached,” OB 29, they do not allege that they could not have accommodated those additional congregants by holding additional services or conducting services outdoors. Nor is there any suggestion of injury from other aspects of the guidelines. Given Plaintiffs’ extensive use of evidence outside the record, see, e.g., OB 25-26, 29-30, 37-39, 50-52, 55, these omissions are noteworthy.13
13 See also Section II(B)(2)(c) (explaining why the Court should reject Plaintiffs’ improper attempt to supplement the record).
27

Thus, Plaintiffs have failed to satisfy their burden of proving an irreparable injury absent injunctive relief, and for that reason alone, their appeal from the district court’s refusal to grant them such relief fails. See Winter, 555 U.S. at 20; Lyons, 461 U.S. at 101, 111-12.
B. The District Court Correctly Held that Plaintiffs Are Not Likely to Succeed on the Merits of their Claims. 1. Plaintiffs’ Claims Contradict Rulings of this Court, the Supreme Court, and the Vast Majority of Decisions on this Issue Across the Country.
Plaintiffs assert that, as soon as governors began issuing executive orders seeking to curb the COVID-19 pandemic, groups “began successfully seeking emergency injunctive relief” against them. OB 18. In fact, in the overwhelming majority of cases considering restrictions on in-person worship services, injunctive relief has been denied.
Including this case, plaintiffs in four lawsuits have moved for preliminary injunctive relief against the temporary restrictions California has imposed on worship services; each has failed. ER 1 (TRO); Abiding Place Ministries v. Wooten, No. 3:20-cv-00683-BAS-AHG (S.D. Cal. Apr. 10, 2020) (TRO) (State Defs.’ MJN Ex. 3); id., 2020 WL 2991467 (June 4, 2020) (preliminary injunction); Gish v. Newsom, No. EDCV-20-755-JGB (KKx), 2020 WL 1979970 (C.D. Cal. Apr. 23, 2020) (TRO); id. No. 20-55445 (9th Cir. May 7, 2020) (injunction pending appeal); Cross Culture, 2020 WL 2121111 (TRO). Additionally, in this
28

case, this Court has already denied Plaintiffs’ motion for injunction pending
appeal, South Bay II, 959 F.3d 938, and the Supreme Court denied Plaintiffs’
request to enjoin the May 25 guidelines, South Bay III, 140 S. Ct. 1613.
Other courts have done the same. State and federal district courts have denied
temporary restraining orders or preliminary injunctions against restrictions on in-
person worship services in at least eighteen cases.14 In addition, five circuits in
addition to this one have denied motions for injunctions pending appeal against
such restrictions. Elim Romanian IV, 2020 WL 3249062 (affirming denial of
14 Harborview Fellowship v. Inslee, No. 3:20-cv-05518-BHS (Docket Entry 42) (W.D. Wash. June 18, 2020); High Plains Harvest Church v. Polis, No. 1:20cv-01480-RM-MEH, 2020 WL 3263902 (D. Colo. June 16, 2020); Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv-00907-RFB-VCF, 2020 WL 3108716 (D. Nev. June 11, 2020), appeal docketed, No. 20-16169 (9th Cir.); Bullock v. Carney, No. 1-20-cv-674, 2020 WL 2813316 (D. Del. May 29, 2020); Antietam Battlefield KOA v. Hogan, No. 1:20-cv-01130-CCB, 2020 WL 2556496 (D. Md. May 20, 2020); Our Lady of Sorrows Church v. Mohammad, No. 3:20-cv-00674-AVC (D. Conn. May 18, 2020); Spell v. Edwards, No. CV-20-00282-BAJ-EWD, 2020 WL 2509078 (M.D. La. May 15, 2020); Elim Romanian Pentecostal Church v. Pritzker, No. 20-C-2782, 2020 WL 2468194 (N.D. Ill. May 13, 2020) (Elim Romanian I); Calvary Chapel of Bangor v. Mills, No. 1:20-CV-00156-NT, 2020 WL 2310913 (D. Me. May 9, 2020); Crowl v. Inslee, No. 3:20-cv-5352 (W.D. Wash. May 8, 2020); Cassell v. Snyders, No. 20-C-50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020); Lighthouse Fellowship Church v. Northam, No. 2:20-cv204, 2020 WL 2110416 (E.D. Va. May 1, 2020); Legacy Church v. Kunkel, No. CIV-20-0327-JB\SCY, 2020 WL 1905586 (D.N.M. Apr. 17, 2020); Davis v. Berke, No. 1:20-CV-98, 2020 WL 1970712 (E.D. Tenn. Apr. 17, 2020); Tolle v. Northam, No. 1:20-cv-00363-LMB-MSN, 2020 WL 1955281 (E.D. Va. Apr. 8, 2020), motion for injunction pending appeal denied, No. 20-1419 (4th Cir. Apr. 28, 2020); Nigen v. New York, No. 1:20-cv-01576-EK-PK, 2020 WL 1950775 (E.D.N.Y. Mar. 29, 2020); Elkhorn Baptist Church v. Brown, 366 Or. 506 (2020); Binford v. Sununu, No. 217-2020-CV-00152 (N.H. Superior Ct. March 25, 2020).
29

motion for preliminary injunction of ten-person limit); id., 2020 WL 2517093, at *1 (May 16, 2020) (Elim Romanian II) (denying motion for injunction pending appeal); Calvary Chapel of Bangor v. Mills, No. 20-1507 (1st Cir. June 2, 2020) (Doc. No. 117596871) (ten-person limit); Bullock v. Carney, __ F.3d __, No. 202096, 2020 WL 2819228 (3d Cir. May 30, 2020) (30% capacity limit); Hawse v. Page, No. 20-1960 (8th Cir. May 19, 2020) (ten-person limit); Tolle v. Northam, No. 20-1419 (4th Cir. Apr. 28, 2020) (ten-person limit).
Glossing over the decisions from the Fourth and Seventh Circuits, OB 22, 24, and ignoring entirely the First, Third, and Eighth Circuits’ rulings issued prior to their Opening Brief, Plaintiffs focus on the Sixth Circuit’s opinion in Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (per curiam), which imposed an injunction pending appeal on a Kentucky restriction on in-person worship services. But that restriction, which even Kentucky’s attorney general believed unconstitutional, id. at 411, was part of an order that, in sharp contrast to California’s directives, prohibited all worship services, even drive-in services, id. at 411-12. In addition, Kentucky’s governor failed to explain the distinctions drawn between worship services and permitted secular activities, id. at 414, even though the Sixth Circuit had partially enjoined the order a week earlier due to the absence of an explanation, Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 615-16 (6th Cir. 2020).
30

Plaintiffs also incorrectly state that the Fifth Circuit enjoined a “similar governor’s executive order.” OB 24 (discussing First Pentecostal Church of Holly Springs v. City of Holly Springs, Miss., 959 F.3d 669 (5th Cir. 2020) (per curiam)). In fact, the Fifth Circuit enjoined a municipal order, which, in sharp contrast to California’s guidelines, prohibited all in-person services. 959 F.3d at 669-70. In addition, far from challenging the guidelines issued by the governor in that state, the Fifth Circuit “refer[red] the Church [plaintiff] to the Governor’s new ‘Safe Worship Guidelines for In-Person Worship Services.” Id.
Plaintiffs similarly fail to mention the district court cases listed above refusing to enjoin restrictions on worship services, including those in California. While Plaintiffs point to five other district court decisions, OB 41, two of those concerned the anomalous Kentucky order discussed above. Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, No. 3:20-cv-00033-GFVT, 2020 WL 2305307 (E.D. Ky. May 8, 2020); Maryville Baptist Church, Inc. v. Beshear, No. 3:20-cv-278DJH-RSE, 2020 WL 2393359 (W.D. Ky. May 8, 2020). Another enjoined a municipal prohibition against drive-in services, On Fire Christian Center v. Fischer, No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020), something California has never prohibited. And the remaining two enjoined bans against all in-person religious services, see First Baptist Church v. Kelly, No. 201102-JWB, 2020 WL 1910021, at *6 (D. Kan. Apr. 18, 2020); Berean Baptist
31

Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313, at *7 (E.D.N.C. May 16, 2020), which California’s guidelines have dropped. And far from suggesting that attendance limits are unconstitutional, the Sixth Circuit decision on which Plaintiffs rely faulted Kentucky’s governor for not considering “a limit [on] the number of people who can attend a service at one time.” Roberts, 958 F.3d at 416.15
Plaintiffs also point to the dissent from this Court’s denial of Plaintiffs’ request for an injunction pending appeal, OB 25, and the dissenting opinion from the Supreme Court’s denial, OB 28-29. However, they fail to explain why opinions that failed to garner a majority in either this Court or the Supreme Court suggest a likelihood of success. Nor, for that matter, do Plaintiffs recognize that the dissent in this Court faulted the State’s reopening plan for not imposing restrictions on “the number of attendees, the size of the space, or the safety protocols followed in such services,” South Bay II, 959 F.3d at 946 (Collins, J., dissenting), which California has now done because it is now permitted by public health conditions.
In short, precedent suggests little likelihood of success.
15 Plaintiffs’ citation to the decision in Wisconsin Legislature v. Palm, 391 Wis. 2d 497 (2020), OB 58 n.35, is also misplaced because that case did not concern the emergency powers of the state or individual constitutional rights.
32

2. The State’s Directives Do Not Violate the Free Exercise Clause.
Plaintiffs’ discussion of their Free Exercise claim fares no better. a. The State’s Restrictions on Indoor, In-Person Worship Services Do Not Discriminate Against Religion.
As Plaintiffs recognize, the Free Exercise Clause’s protections apply “if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 533, 543 (1993). The Clause is not violated, however, by state action that does not “‘infringe upon or restrict practices because of their religious motivation,’” and does not “in a selective manner[,] impose[] burdens only on conduct motivated by religious belief.’” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076, 1079 (9th Cir. 2015) (quoting Lukumi, 508 U.S. at 533, 543). There is no discrimination here—and the case therefore falls into the latter category—because under the State’s directives “[s]imilar or more severe restrictions apply to comparable secular settings.” South Bay III, 140 S. Ct. at 1613 (Roberts, C.J., concurring).
In applying the Free Exercise Clause, courts compare the treatment of religious activity to that of “analogous non-religious conduct.” Lukumi, 508 U.S. at 546 (emphasis added); see also Stormans, 794 F.3d at 1079 (examining “comparable secular conduct”) (emphasis added). As the Seventh Circuit has
33

explained, in terms of risk of spreading COVID-19, in-person worship services are
comparable to other “congregate functions” that occur in a single place for an
extended period of time:
[Worship services] seem most like other congregate functions that occur in auditoriums, such as concerts and movies. Any of these indoor activities puts members of multiple families close to one another for extended periods, while invisible droplets containing the virus may linger in the air. Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce.
Elim Romanian IV, 2020 WL 3249062, at *5. Thus, religious services are
analogous to “concerts, lectures, theatrical performances, or choir practices, in
which groups of people gather together for extended periods,” but not to activities
such as “shopping, in which people do not congregate or remain for extended
periods.” Elim Romanian II, 2020 WL 2517093, at *1.
Plaintiffs are unlikely to show any discrimination against religious beliefs in
California’s restrictions on in-person worship services because, as Chief Justice
Roberts found, California imposes similar or more severe restrictions on
comparable secular gatherings:
Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for
34

extended periods.
South Bay III, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (emphasis added).
Indeed, while California now permits in-person religious services with attendance
limits for indoor services (but not for outdoor services), many other activities that
are comparable in terms of COVID-transmission risk—concerts, lectures,
theatrical performances, movie theaters, in which groups of people gather together
for extended periods in a shared, communal experience—are either barred or
subject to similar limits.
As Dr. James Watt, the Acting Deputy Director of the Center for Infectious
Diseases and Interim State Epidemiologist at the California Department of Public
Health, explained, the limits on indoor religious services and similar communal
gatherings are based on the risk of transmission those gatherings pose:
Whenever a large group of people interact, there is an increased risk that COVID-19 may be transmitted. There have been multiple reports of sizable to large gatherings such as religious services, choir practices, funerals, and parties resulting in significant spread of COVID-19. . . . [T]he virus can be spread by people who are not showing symptoms. Thus, people who gather in groups or near others (other than those with whom they live) will not be able to know whether other individuals who are in close proximity are carrying the virus. By gathering in large groups, and in close proximity to others, individuals put themselves and others at risk. The risk appears to be increased where groups of individuals are in close proximity for extended periods.
ER 125; see also ER 127 (“Individuals attending large gatherings . . . would be at
increased risk of disease and could be expected to increase the spread of COVID35

19 in their communities and any other communities they visit.”). This is especially true for gatherings that include singing, chanting, or group recitation because the novel coronavirus that causes COVID-19 spreads “mainly through respiratory droplets” which can “land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs.” ER 125. The numerous reports of worship services becoming “super-spreader” events resulting in dozens, hundreds and even thousands of new infections, unfortunately, confirm the conclusion that large gatherings, including religious services, create a high risk of transmission. See Section II(B)(2)(d), infra.
Plaintiffs assert that the comparisons drawn by Dr. Watt and adopted by Chief Justice Roberts are “factually false.” OB 49. In support of this bold assertion, they point to the comparison drawn by Justice Kavanaugh and the Sixth Circuit between in-person worship services and shopping. OB 50. As noted above, however, the Sixth Circuit had no evidence or explanation before it to support a different comparison, and Plaintiffs do not explain how a comparison drawn by a dissenting Supreme Court justice is reason to discount the comparison drawn by the Chief Justice who cast the deciding vote against their motion, especially when other judges have drawn the same comparison as the Chief Justice. See, e.g., Elim Romanian IV, 2020 WL 3249062, at *5; Elim Romanian II, 2020 WL 2517093, at *1. Even more importantly, while Plaintiffs assemble statistics and present
36

screenshots from videos, they do not even attempt to explain how an appellate court may reject the opinion of a public health expert such as Dr. Watt based on such scant evidence.16
Plaintiffs point to a declaration from a family practice doctor, George Delgado, submitted in the trial court. OB 53; ER 317-18. Dr. Delgado, however, does not claim to have any training in epidemiology or public health beyond treating people with “viral illnesses such as influenza, which tend to occur in epidemics.” ER 315. Thus, his expertise pales in comparison to that of Dr. Watt, who has worked as an epidemiologist at the CDC; taught at Johns Hopkins and UCSF; served on advisory panels at the World Health Organization and the CDC; and acted as California’s Deputy State Epidemiologist for seven years. ER 124-25. Moreover, far from offering any persuasive explanation for the conclusion that grocery stores pose a higher risk than worship services, Dr. Delgado calculated the risk using relative risks he asserted, without data or explanation. Such unexplained opinions have no probative value. See Huey v. United Parcel Serv., Inc., 165 F.3d 1084, 1087 (7th Cir. 1999) (“An expert who supplies nothing but a bottom line
16 Plaintiffs also fail to explain how this evidence, which was not presented to the district court, may be considered by this Court in the first instance. As this Court has observed, it is a “basic tenet of appellate jurisprudence” that “parties may not unilaterally supplement the record on appeal with evidence not reviewed by the court below.” Lowry v. Barnhart, 329 F.3d 1019, 1024–25 (9th Cir. 2003) (internal quotation marks omitted).
37

supplies nothing of value to the judicial process.”). Moreover, Dr. Delgado’s tragically incorrect prediction of the deaths in Los Angeles County17 removes any credibility from his opinions regarding epidemiology.
Plaintiffs provide their own ruminations concerning the relative risks of shopping. OB 50-51. As they acknowledge, however, when shopping people “do not spend a significant amount of time next to a single person,” OB 52, nor do they engage in the sort of group singing, chanting, and recitation that is typical of activities like worship services, sporting events, and concerts. See Elim Romanian IV, 2020 WL 3249062, at *5. Plaintiffs try to downplay these factors by asserting that “what matters is that someone coughs or speaks next to someone else[,] not how long they spend together.” OB 52. But, as Dr. Watt showed, those factors matter as well, ER 125-27, and Plaintiffs do not even begin to explain how their observations provide a basis for second guessing the State’s expert judgment on this issue.
Plaintiffs also equate worship services with factories. OB 54-55. They do so based solely on a photograph, which is not in the record and which they
17 Dr. Delgado predicted that “total deaths in Los Angeles County will be approximately 1,900 for this year,” ER 317, but, to date, more than 3,200 people have already died there, see http://publichealth.lacounty.gov/media/coronavirus/ (last accessed June 26, 2020). Plaintiffs’ suggestion that the COVID-19 pandemic has reached “Stabilization” (OB 4) likewise has turned out to be demonstrably wrong. See id.
38

acknowledge was taken before the pandemic, OB 55 n. 29, and, indeed, is from an American Apparel factory that has not operated in the United States since 2017.18 Plaintiffs offer no evidence that any factories currently operate under the conditions depicted; indeed, current manufacturing guidelines require physical distancing of at least six feet between each worker, as well as worksite specific COVID-19 prevention plans, employee training, and daily screening.19 In addition, manufacturing facilities are subject to regulations and inspections that provide workers with protections not enjoyed by religious congregants. For example, employers must immediately notify authorities when on-site COVID-19 contraction is suspected, see Cal. Labor Code § 6409.1(b), and they are required to maintain records of the employees present, see Cal. Labor Code § 226(a), which permits easy contact tracing. There are no parallel requirements for religious services, for good reason. Cf. Larson v. Valente, 456 U.S. 228, 255 (1982). Thus, there is no reason to equate factories with worship services. See Elim Romanian IV, 2020 WL 3249062, at *5 (“It is not clear to us that warehouse workers engage
18 See https://www.latimes.com/business/la-fi-american-apparel-made-inusa-20140810-story.html; https://www.latimes.com/business/la-fi-americanapparel-layoffs-20170116-story.html.
19 COVID-19 Industry Guidance: Manufacturing (May 12, 2020), https://files.covid19.ca.gov/pdf/guidance-manufacturing.pdf (last accessed June 26, 2020).
39

in the sort of speech or singing that elevates the risk of transmitting the virus, or that they remain close to one another for extended periods[.]”).
Plaintiffs’ cursory assertions about restaurants and schools are equally unpersuasive. See OB 55. Although Plaintiffs quote statistics—again, outside the record—about the average time spent dining from nearly two decades ago, they offer no evidence concerning the comparative risks posed by restaurants or schools. Diners, however, usually do not go to restaurants to engage in a shared communal experience with others not at their tables, and they typically arrive for their meals and leave at time of their own choosing. In addition, in asserting that some restaurants can seat 100 guests or more, Plaintiffs ignore the current guidelines for restaurants, which limit current capacity by, among other things, requiring that tables be spaced six feet apart as well as physical distancing in kitchens and other high-traffic employee areas.20
Even if Plaintiffs had submitted their newly presented evidence to the district court and subjected it to adversarial testing, it would provide no ground on which to question the assessment of comparative risk made by State public health officials, much less deem that assessment “factually false,” as Plaintiffs so contend, OB 49. As Chief Justice Roberts observed in rejecting such arguments,
20 See COVID-19 Industry Guidance: Dine-In Restaurants (May 12, 2020), https://files.covid19.ca.gov/pdf/guidance-dine-in-restaurants.pdf (last accessed June 26, 2020).
40

“[o]ur Constitution principally entrusts ‘[t]he safety and health of the public’ to the politically accountable officials of the State ‘to guard and protect.’” South Bay III, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (quoting Jacobson, 197 U.S. at 38). Consequently, when an emergency requires public health officials to make decisions and act “in areas fraught with medical and scientific uncertainties, their latitude must be especially broad,” and “they should not be subject to second guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Id. at 1614 (internal quotation marks omitted). Thus, even if they had been properly raised below, Plaintiffs’ arguments concerning the comparative risks of shopping, manufacturing, and restaurants should be rejected.
Plaintiffs also fault the State’s response to the COVID-19 pandemic because it permitted various businesses identified as “essential” to remain open. OB 40-41. It is well-settled, however, that the mere presence of some secular exemptions does not automatically mandate exemptions for any and all religious activity. Lukumi, 508 U.S. at 543 (requiring “substantial” underinclusivity for a finding of nongeneral applicability) (emphasis added); Stormans, 794 F.3d at 1079 (same); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 651 (10th Cir. 2006) (recognizing that courts have “refused to interpret [Emp’t Div. v. Smith] as standing for the proposition that a secular exemption automatically creates a claim
41

for a religious exemption”); Whitlow v. California, 203 F. Supp. 3d 1079, 1086-87 (S.D. Cal. 2016) (collecting cases). “The government need not choose between doing nothing in the face of a pandemic and closing all of society.” Legacy Church, 2020 WL 1905586, at *36 n.12. Exemptions raise Free Exercise Clause concerns only if they apply to secular conduct that endangers the government’s interest “in a similar or greater degree” than the prohibited religious conduct. Lukumi, 508 U.S. at 543. As just demonstrated, Plaintiffs have not shown that to be the case here.
Finally, Plaintiffs assert that the restrictions on worship services have been motivated by animus or indifference. OB 34-35. Plaintiffs base this charge on a statement made by Governor Newsom on May 7, 2020 in which, they assert, he deemed worship a “low reward” activity.” OB 35. That is inaccurate. The Governor stated that “low risk” activities were favored for opening regardless of perceived “reward.” See Gov. Gavin Newsom, Press Conference, Tr. 50:58-51:23 (May 7, 2020) (“We’re looking at the science, epidemiology looking again at frequency, duration, time and looking at low risk, high reward, low risk, low reward, looking at a series of conditions and criteria as well as best practices from other States and nations[.]”).21 Moreover, in comments that Plaintiffs ignore, the
21 https://www.rev.com/blog/transcripts/gov-gavin-newsom-californiacovid-19-briefing-transcript-may-7.
42

Governor stressed the risk of transmission posed by worship services: “As it relates to churches . . . [o]ur fear is simply this, congregations of people mixing from far and wide, coming together proximate in an enclosed space at large scales, is a point of obvious concern and anxiety.” Id. at 52:22-53:25 And presaging the new guidance released on May 25, the Governor noted his sensitivity to “those that want to get back into church,” and his desire to “see what we can do to accommodate that.” Id. at 53:25-54:20. Not surprisingly, no judge at the district court, appellate, or Supreme Court level has credited Plaintiffs’ assertions of animus.22
In sum, because the State’s directives treat religious activities no worse and in some instances better than secular ones posing a comparable risk of spreading COVID-19, the restrictions imposed on indoor, in-person worship services are subject to deferential, rational basis review, Stormans, 794 F.3d at 1076, which they easily satisfy because the restrictions undoubtedly further the government’s interest in curbing COVID-19’s spread. Thus, Plaintiffs are unlikely to succeed in showing that the State’s directives violate the Free Exercise Clause.
22 Contrary to Plaintiffs’ assertion, OB 35, this issue was addressed before the Supreme Court, see Opp’n of State Respondents, at 21 n.32, South Bay III, https://www.supremecourt.gov/DocketPDF/19/19A1044/144426/20200528194451 283_South%20Bay%20Pentecostal%20Church%20v.%20Newsom%20%20Opposition%20-%205.28.20%20-%20No%2019A1044.pdf.
43

b. The Restrictions on Indoor, In-Person Worship Services Are Also a Permissible Exercise of the State’s Power to Respond to Public Health Emergencies.
Even if Plaintiffs somehow could muster the evidence to prove a violation of the Free Exercise Clause under ordinary constitutional analysis, they still would have no likelihood of success in light of the current public health emergency.
The Supreme Court has long recognized that “[t]he right to practice religion freely does not include liberty to expose the community . . . to communicable disease,” Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944), and that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Jacobson, 197 U.S. at 27 (internal quotation marks omitted). Consequently, it is not a court’s role “to determine which one of two modes [is] likely to be the most effective for the protection of the public against disease.” Id. at 30. To the contrary, because States often must take swift and decisive action during a health emergency, constitutional rights may be reasonably restricted “as the safety of the general public may demand.” Jacobson, 197 U.S. at 29. Thus, a measure taken to combat a public health emergency will be upheld against constitutional challenge unless that measure has no “real or substantial relation” to the emergency or “is, beyond all question, a plain, palpable invasion of rights” secured by the Constitution. Id. at 31.
44

The State’s restrictions imposed on indoor, in-person worship services plainly have a “real [and] substantial relation” to public health and safety, namely, combatting the spread of the contagious and deadly COVID-19 virus. Jacobson, 197 U.S. at 31. Indeed, the virus’s infectious nature and asymptomatic spread, as well as the absence of any vaccination or widely effective treatment, make restrictions on public gatherings crucial to slowing its spread. As the district court observed, “[t]he only way currently known to curb the disease is to limit personal exposure.” ER 32; see also Gish, 2020 WL 1979970, at *4 (“[M]easures limiting physical contact between citizens . . . are widely recognized as the only way to effectively slow the spread of the virus.”); Cross Culture, 2020 WL 2121111, at *5 (finding the initial executive order to “bear a real and substantial relation to public health”).
In addition, the State’s directives are not “beyond all question” a “plain, palpable” invasion of Plaintiffs’ constitutional right to exercise their religion. Jacobson, 197 U.S. at 31. Contrary to Plaintiffs’ assertion, OB 64, not even the initial Stay-at-Home Order and accompanying directives—which temporarily prohibited in-person services altogether—banned worship. To the contrary, because the directives permitted on-line and drive-in services, as well as worship at home, “a wide swath of religious expression remain[ed] untouched.” Gish, 2020 WL 1979970, at *5; see also Elim Romanian IV, 2020 WL 3249062, at *5. This is
45

even more true with the current guidelines, which permit Plaintiffs to congregate for in-person outdoor worship services without limit and subject to attendance limits for indoor services only.
Plaintiffs assert that Jacobson is inapposite because it was decided before the incorporation of the First Amendment to the States, OB 61-62, but they do not explain why the Supreme Court’s reasoning in Jacobson does not extend to the First Amendment as well as other constitutional provisions. Nor is there one, as evidenced by the plethora of cases cited above that have applied Jacobson to First Amendment challenges to COVID-19 emergency measures, e.g., Elim Romanian IV, 2020 WL 3249062; Antietam Battlefield, 2020 WL 2556496; Cassell, 2020 WL 2112374; Legacy Church, 2020 WL 1905586, as well as recent cases concerning mandatory vaccination programs, e.g., Workman v. Mingo Cty. Bd. of Ed.., 419 Fed. Appx. 348 (4th Cir. 2011); Whitlow, 203 F. Supp. 3d 1079; see also Phillips v. City of New York, 775 F.3d 538 (2d Cir. 2015) (“[W]e agree with [Workman], following the reasoning of Jacobson and Prince, that mandatory vaccination as a condition for admission to school does not violate the Free Exercise Clause.”). While Plaintiffs point out that past cases in the Supreme Court have not applied Jacobson to First Amendment challenges, Chief Justice Roberts exploded that contention by applying Jacobson to the Free Exercise claim in this case. South Bay III, 140 S. Ct. at 1613-14.
46

The cases cited by Plaintiffs where courts, applying Jacobson, enjoined COVID-19-related abortion restrictions are readily distinguishable because those restrictions amounted to an outright ban on abortion for the affected women, given the time-sensitive nature of this right. See Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020); Robinson v. Attorney General, 957 F.3d 1171 (11th Cir. 2020). In addition, those cases did not involve state actions designed to reduce the risk of COVID-19 transmission from communal gatherings and interactions, unlike here. Adams, 956 F.3d at 918; Robinson, 957 F.3d at 1181-82. And in both cases, the courts doubted the states’ asserted interests in preserving personal protective equipment based on the limited amount used in the abortion context and in eliminating of the risk of transmission given the controlled nature of the clinical environment. Adams, 956 F.3d at 928; Robinson, 957 F.3d at 1181-82.
Plaintiffs’ reliance on Ex parte Milligan, 71 U.S. 2 (1866), OB 60-62, is also misplaced, as that case concerned the suspension of the writ of habeas corpus during a time of war when there was a trial by jury available. Milligan simply had no occasion to consider what measures might be justified in response to the exigencies of a global pandemic. See Adams, 956 F.3d at 927 (“[W]e do not mean to suggest that [constitutional] rights during a public health crisis are identical to [constitutional] rights during normal times. If Jacobson teaches us anything, it is that context matters.”) (citing Milligan).
47

c. Plaintiffs’ Newly Asserted Discriminatory Enforcement Theory Should Be Rejected.
Plaintiffs raise an entirely new theory on appeal: that, in light of the widespread protests that erupted on May 27 after a police officer killed an AfricanAmerican man in his custody, the State’s directives have been enforced in a discriminatory fashion against places of worship. OB 26-27, 36-39. That claim and the evidence supporting it were not presented to the district court and should not be considered by this Court in the first instance.
As a federal court of appeals, this Court is “court of review, not first view.” Shirk v. U.S. ex rel. Dep’t of Interior, 773 F.3d 999, 1007 (9th Cir. 2014) (internal quotation marks omitted). It is therefore well-established that it is “inappropriate” for this Court to decide “issues that have arisen after the issuance of the preliminary injunction.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 799-800 (9th Cir. 2005) (per curiam); see also Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[W]e will not consider arguments that are raised for the first time on appeal.”). That rule carries particular force here, given the deference due to the district court’s denial of a TRO. See Puente Arizona, 821 F.3d at 1103.
Relatedly, the record on appeal is limited to the “original papers and exhibits filed in the district court,” transcripts, and a certified copy of docket entries. Fed. R. App. P. 10(a); 9th Cir. R. 10-2. And a party may not “unilaterally supplement
48

the record” with evidence not reviewed by the district court. Lowry, 329 F.3d at 1024–25 (internal quotation marks omitted).
Those principles apply with special force to Plaintiffs’ newly asserted theory of selective enforcement, OB 36-39, because that inquiry under the Free Exercise Clause is highly fact-based and dependent on factual rulings and determinations made by the trial court. See Stormans, 794 F.3d at 1083-84 (examining the record on appeal and the trial court’s factual findings to determine selective enforcement); Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 167-72 (3d Cir. 2002) (same); Brown v. City of Pittsburgh, 586 F.3d 263, 296 n.41 (3d Cir. 2009) (deeming claim of selective enforcement as “fact-intensive”); cf. also Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012) (“The standard for proving discriminatory effect is a demanding one.”). Plaintiffs’ new theory depends on incomplete and untested evidence, and concerns protests that occurred after the district court’s TRO denial. Moreover, Plaintiffs are inappropriately asking this Court to review that theory for the first time in this appeal without the benefit of the district court’s factual determinations.
In addition, Plaintiffs embed in their Opening Brief evidence in support their newly asserted selective enforcement claim, including photographs, videos, and screenshots, that are not part of the appellate record. OB 26-27, 29, 36-39; see also OB 7, 9, 20, 30, 50-52, 54. Yet, tellingly, Plaintiffs have not moved this Court to
49

supplement the record under Federal Rule of Appellate Procedure 10(e), or made any formal request to include any of this new evidence. Especially as the district court has not yet had the opportunity to authenticate, admit, and consider any of that new evidence, or made any factual determinations based thereon, it should be disregarded by this Court.23
Even on the merits, Plaintiffs’ discriminatory enforcement theory fails. It is not enough for Plaintiffs to allege that the COVID-19-related directives are not being enforced against secular activities like political protests; they must also demonstrate that the State is only or primarily enforcing them against places of worship. See Stormans, 794 F.3d at 1083; Stormans v. Selecky, 586 F.3d 1109, 1125 (9th Cir. 2009); Tenafly Eruv Ass’n, 309 F.3d at 167-68; Calvary Chapel Lone Mountain, 2020 WL 3108716, at *4. Plaintiffs, however, submit no evidence whatsoever that the State is enforcing the restrictions on worship services at all; they point only to bare allegations of local police enforcement in two other cases. OB 36 n.11. Even if they had presented such evidence, their theory would still fail because as a recent district court ruling recognizes, the recent protests raised concerns not present here. Enforcement of the prohibition against public
23 Although this Court may consider new facts for jurisdictional purposes such as establishing mootness, Alliance for the Wild Rockies v. Savage, 897 F.3d 1025, 1029 n.4 (9th Cir. 2018), these newly asserted facts and evidence concern the merits of Plaintiffs’ claims.
50

gatherings have presented “serious public safety concerns that overcome otherwise valid considerations of public health.” PCG-SP Venture v. Newsom, No. 20-1138 JGB, at 11 (C.D. Cal. June 23, 2020).
Thus, even if they had been properly raised, Plaintiffs’ conclusory assertions that the State has enforced the restrictions on worship services but not on political protests would not establish discriminatory enforcement.
d. Even Under Strict Scrutiny, the State’s Directives Pass Constitutional Muster.
Finally, even if, as Plaintiffs contend, strict scrutiny applied, their Free Exercise claim would still fail.
Plaintiffs concede that the State has a compelling interest in protecting the public from COVID-19’s spread. OB 47. And the State’s directives, which permit indoor worship services under a 100-person or 25% capacity cap and outdoor worship with no attendance limit, are narrowly tailored to serve that interest. As noted above, due to the asymptomatic transmission of the virus and the lack of a vaccine or widely effective treatment, measures limiting the size of group gatherings and physical contact are widely recognized as the only effective way to slow the spread of the virus. This comports with the CDC’s guidance, which
51

recommends “taking steps to limit the size of gatherings” and “promot[ing] social
distancing.”24
Moreover, State public health officials have every reason to believe that
indoor, in-person worship services pose a significant threat of spreading COVID-
19. As Dr. Watt explained, in addition to being stationary in close quarters for
extended periods during such services, congregants at religious services often
speak aloud and sing, which increases the danger that infected individuals will
project respiratory droplets containing the virus, and that individuals attending
such services will become infected. ER 125-27.
In fact, one of the more unfortunate aspects of the current crisis is the way in
which worship services have become “super-spreader” events. As is now well
known, at the beginning of the pandemic, a religious service in South Korea led to
over 5,000 infections,25 and the first major event identified in the United States was
a church choir practice in Seattle that led to 53 infections and two deaths.26 Even
24 See Interim Guidance for Communities of Faith, CDC, https://www.cdc.gov/coronavirus/2019-ncov/php/faith-based.html (last accessed June 24, 2020).
25 https://www.washingtonpost.com/graphics/2020/world/coronavirus-southkorea-church/. News articles may be given probative weight for preliminary injunction determinations. Flynt Distrib. Co. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984).
26 https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e6.htm; https://www.businessinsider.com/coronavirus-cdc-says-washington-choir-session53-cases-2-deaths-2020-5.
52

after the virus was identified and people began to engage in physical distancing and take other precautions, worship services have continued to cause outbreaks. For example, 71 infections have been traced to a single church service in Sacramento in March,27 and church services on Mother’s Day in rural California communities likewise caused COVID-19 outbreaks.28 There are numerous other documented cases in which church services have spread the virus:
• More than 200 cases in rural Oregon have been traced to a church that recently held services with at least 100 people present.29
• Thirty-eight percent of people who attended a rural Arkansas church in March contracted COVID-19, which killed at least three.30
27 https://www.latimes.com/california/story/2020-04-02/pentecostal-churchin-sacramento-linked-to-dozens-of-coronavirus-cases.
28 https://www.latimes.com/california/story/2020-05-18/mendocino-countychurch-service-linked-to-coronavirus-cluster; https://www.sfchronicle.com/news/article/Butte-County-churchgoer-exposes-180at-service-15276426.php; https://www.cnn.com/2020/05/19/us/california-churchpastor-coronavirus/index.html.
29 https://www.wweek.com/news/state/2020/06/16/oregon-reports-278covid-19-cases-another-record-as-outbreak-at-pentecostal-church-ravages-unioncounty/.
30
https://www.cdc.gov/mmwr/volumes/69/wr/mm6920e2.htm?s_cid=mm6920e2_w. 53

• Reopenings of churches in Texas,31 Georgia,32 Illinois,33 Idaho,34
Kentucky,35 Canada,36 and Germany37 have resulted in COVID-19 outbreaks.
Given such reports, the risk posed by large, indoor, in-person worships services,
even when physical distancing and other precautions are taken, cannot be denied.
Contrary to Plaintiffs’ assertion, OB 57, California has searched for less
restrictive alternatives. The State began cautiously by prohibiting all in-person
public gatherings, but as it has gained further information about the spread of
COVID-19 and obtained medical equipment and other resources needed to treat
those infected, it relaxed the restrictions, first permitting in-person services of
either 100 persons or 25% capacity and, second, permitting outdoor services
without attendance limits.
31 https://www.washingtonpost.com/religion/2020/05/19/two-churchesreclose-after-faith-leaders-congregants-get-coronavirus/.
32 https://www.christianpost.com/news/georgia-church-closes-two-weeksafter-reopening-as-families-come-down-with-coronavirus.html.
33 https://thesouthern.com/news/local/as-more-places-begin-to-reopenfriday-jackson-county-experiences-covid-19-spike/article_8023b2e2-ca1c-5dc8a46c-8e85c0288643.html.
34
https://www.idahostatesman.com/news/coronavirus/article243274446.html. 35 https://hoptownchronicle.org/church-whose-pastor-pressured-governor-to-
allow-in-person-services-goes-back-to-online-worship-after-coronavirus-outbreak/. 36 https://calgary.ctvnews.ca/i-would-do-anything-for-a-do-over-calgary-
church-hopes-others-learn-from-their-tragic-covid-19-experience-1.4933461. 37 https://www.latimes.com/world-nation/story/2020-05-29/germany-
reopened-churches-offer-road-map-new-coronavirus-outbreak-shows-risks. 54

Plaintiffs assert that the restrictions on indoor, in-person worship services are overinclusive because several other states have not imposed attendance limits on such services. OB 58-59. But California was one of the first states hit by COVID19, and Plaintiffs do not even suggest that the states they invoke face circumstances similar to those in California where, in the past month, the total number of infections has doubled from 94,000 confirmed cases to around 200,000, and, even more importantly, the number of new infections per day has more than doubled from nearly 2,200 to over 5,100.38 Although California has managed to keep the fatality rate low,39 this is no time to second-guess the State’s public health officials and force it to loosen restrictions based on actions taken in other states facing different sets of circumstances.
Contrary to Plaintiffs’ suggestion, OB 58, the State is not required to prove with certainty or through peer-reviewed studies that there is no less restrictive alternative that would protect the public. Where, as here, the State is dealing with a pandemic involving a poorly understood but nonetheless highly deadly and frequently fatal novel coronavirus, it is not required to wait until it is certain exactly what measures are necessary to protect the public. Indeed, were it to wait for such certainty, many lives would be lost in the interim. Where there is
38 United States COVID-19 Cases and Deaths by State, https://www.cdc.gov/covid-data-tracker/#cases (last accessed June 23, 2020).
39 Id. 55

uncertainty over a deadly infectious disease, a State may err on the side of caution and adopt the least restrictive alternative that it believes, in its expert judgment, will provide adequate protection against the risk of infection. See Jacobson, 197 U.S. at 30. As this Court has recognized, the Bill of Rights is not “a suicide pact,”
and in a public health crisis a court must temper its “doctrinaire logic with a little practical wisdom.” South Bay II, 959 F.3d at 939.
3. Plaintiffs’ Remaining Claims Lack Merit. Plaintiffs are also unlikely to succeed on the other claims that underlie their TRO application. In addition to failing under both Jacobson and strict scrutiny, as explained above, these claims fail for the reasons detailed below.
a. Substantive Due Process Plaintiffs have asserted a substantive due process claim under the Fourteenth Amendment, but this claim is not materially different than Plaintiffs’ Free Exercise Clause claim because it simply asserts that the orders at issue impinge on their “right to freely engage in worship.” OB 44.40 “Where a particular Amendment provides an explicit textual source of constitutional protection against a particular
40 Plaintiffs also assert that California has “started handing out 21-day licenses,” “shut down all places of worship,” and “dictat[ed] what type of worship is permissible.” OB 45, 47. These assertions are unfounded: the State relaxed the attendance limits on worship services after 21 days when it issued the June 12 amendment to the guidelines—indeed, California now permits worship services subject only to attendance limits on indoor, in-person services—and Plaintiffs have not pointed to any way in which the State dictates the types of permissible worship.
56

sort of government behavior, the Amendment, not the more generalized notion of ‘substantive due process’ must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 (1994) (internal quotation marks omitted). As Plaintiffs’ right to free religious exercise is specifically protected by the First Amendment, a substantive due process analysis is inapposite.
Even if the Court were to perform an independent analysis of the substantive due process claim, the claim would still fail. Substantive due process “forbids the government from depriving a person of life, liberty, or property in such a way that ‘shocks the conscience’ or ‘interferes with rights implicit in the concept of ordered liberty.’” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). Plaintiffs have not alleged any government conduct that, in light of the current pandemic, “shocks the conscience,” especially as Plaintiffs may now hold in-person for worship services. ER 29-30. And, like other rights, Plaintiffs right to gather for religious services may be temporarily restricted to protect public health. See, e.g., Prince, 321 U.S. at 166-67.
b. Equal Protection The Equal Protection Clause forbids the government from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). The Equal Protection Clause
57

requires only that the classification rationally further a legitimate state interest unless “a [statutory] classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic[.]” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
The restrictions at issue do not impinge on any fundamental right. As shown above, they do not violate the Free Exercise Clause, and while Plaintiffs assert that the restrictions violate the rights to free speech, assembly, and travel, OB 43, they do not even attempt to explain how. Plaintiffs also allege that the classifications of “essential” and “nonessential” workers and activities discriminate against them, but these distinctions do not implicate any suspect classifications, see Nordlinger, 505 U.S. at 21, and are rationally based on assessment of risk of transmission of COVID-19. Furthermore, since the Stay-at-Home Order in March, faith-based work has been treated as “essential” and exempted from the general stay-home requirement to provide worship opportunities through remote technology or driveins. ER 499, 551.
c. Religious Exercise Under State Law Under the Eleventh Amendment, federal courts lack jurisdiction to enjoin state institutions and state officials on the basis of state law. Pennhurst, 465 U.S. at 124-125. The limited exception under which state officials may be enjoined from violating federal law does not apply “when a plaintiff alleges that a state
58

official has violated state law.” Pennhurst, 465 U.S. at 106. Thus, as courts considering challenges to the Stay-at-Home Order have recognized, Plaintiffs’ state claim, under Article 1, section 4 of the California Constitution, is barred the Eleventh Amendment. E.g., Best Supplement Guide, LLC v. Newsom, No. 2:20-cv00965-JAM-CKD, 2020 WL 2615022, at *7 (E.D. Cal. May 22, 2020); Six v. Newsom, No. 8:20-cv-00877-JLS-DFM, 2020 WL 2896543, at *8 (C.D. Cal. May 22, 2020). Far from suggesting otherwise, Plaintiffs limit their state claims to San Diego. OB 42.
C. The Balance of Equities Weighs Heavily Against Issuance of Injunctive Relief.
The district court’s order should be affirmed for an additional, independent reason: Plaintiffs cannot show that the balance of equities weighs in their favor in light of the overwhelming public interest in slowing the spread of COVID-19 and preventing unnecessary infections and death. See Winter, 555 U.S. at 20; see also Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (“Where the government is a party to a case in which a preliminary injunction is sought, the balance of the equities and public interest factors merge.”).
The State does not question the sincerity of Plaintiffs’ belief that it is essential to gather in person for worship services. But if there is any remaining burden on their constitutional rights, it is limited, as Plaintiffs may now hold indoor, in-
59

person worship services in groups of up to 100 persons or outdoors with no attendance limit.
Any such harm is far outweighed by the public’s interest in slowing COVID19’s spread and protecting public health. Enjoining the State’s 100-person or 25% capacity cap on indoor religious gatherings, as well as the other cleanliness and distancing restrictions set forth in the new guidelines, could result in indoor religious gatherings that number in the hundreds, thousands, or tens of thousands. This could have disastrous effects far beyond those individuals who would choose to attend such large worship services. As noted, one of the most unfortunate aspects of the current crisis is the way in which worship services have been transformed into “super-spreader” events resulting in dozens, hundreds and even thousands of new infections. See Section II(B)(2)(d), supra. Despite the obvious and serious risk to public health, in arguing about the balance of equities, Plaintiffs ignore the present public health emergency, which, as shown above, is currently getting worse. This Court should not make the same mistake. Nor should it credit Plaintiffs’ assertions that they can resume services safely in groups that exceed the capacity cap when they fail to present any evidence supporting this assertion.
The right of Californians to practice their religion freely is of fundamental importance. Given the ongoing public health emergency, however, a TRO exempting religious and faith-based gatherings from the limited restrictions
60

imposed by the State would not be in the public interest, but instead would threaten the effectiveness of the State’s prudent efforts to curb COVID-19’s spread and protect the health and safety of all individuals in California.
CONCLUSION For the foregoing reasons, this Court should dismiss this appeal as moot, or, in the alternative, affirm the district court’s order.

Dated: June 26, 2020
SA2020301266

Respectfully submitted,
XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General PAUL STEIN Supervising Deputy Attorney General LISA J. PLANK Deputy Attorney General
s/ Todd Grabarsky TODD GRABARSKY Deputy Attorney General Attorneys for Defendants-Appellees Governor Gavin Newsom, Attorney General Xavier Becerra, and Public Health Officer Dr. Sonia Angell

61

STATEMENT OF RELATED CASES

The following case pending before this Court is related to the present matter

because it also involves a challenge to the State’s COVID-19-related guidelines for

religious worship services: Gish v. Newsom, 9th Cir. No. 20-55445.

Dated: June 26, 2020

Respectfully submitted,

XAVIER BECERRA Attorney General of California THOMAS S. PATTERSON Senior Assistant Attorney General PAUL STEIN Supervising Deputy Attorney General LISA J. PLANK Deputy Attorney General

s/ Todd Grabarsky TODD GRABARSKY Deputy Attorney General Attorneys for Defendants-Appellees Governor Gavin Newsom, Attorney General Xavier Becerra, and Public Health Officer Dr. Sonia Angell

62

CERTIFICATE OF COMPLIANCE

The undersigned certifies that this brief complies with the length limits

permitted by Ninth Circuit Rule 32-1. The brief is 13,993 words excluding the

portions exempted by Federal Rule of Appellate Procedure 32(f). The brief’s type

size and type face comply with Federal Rules of Appellate Procedure 32(a)(5)

and (6).

Dated: June 26, 2020

/s/ Todd Grabarsky TODD GRABARSKY

63

CERTIFICATE OF SERVICE

I hereby certify that on June 26, 2020, I electronically filed the foregoing

document with the Clerk of the Court by using the CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and that

service will be accomplished by the CM/ECF system.

Dated: June 26, 2020

/s/ Todd Grabarsky TODD GRABARSKY

64

 
 Case 3:20-cv-00865-BAS-AHG Document 45 Filed 07/10/20 PageID.1752 Page 1 of 2

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

Case No.: 20-cv-865-BAS
Notice of Motion and Motion for an Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1(a)(3)
Judge: Cynthia Bashant Dept: Courtroom: 4B Date: August 10, 2020 Time: No Oral Argument Unless
Requested by the Court
ORAL ARGUMENT REQUESTED

27

28

Notice of Motion and Motion for an Indicative Ruling `

Case 3:20-cv-00865-BAS-AHG Document 45 Filed 07/10/20 PageID.1753 Page 2 of 2

1 TO: THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

2

RECORD:

3

PLEASE TAKE NOTICE that Plaintiffs South Bay United Pentecostal

4 Church and Bishop Arthur Hodges III, by and through counsel, will and hereby do

5 move for an indicative ruling that events occurring since its May 15, 2020 order on

6 Plaintiffs’ application for temporary restraining order, and order to show cause re:

7 preliminary injunction, raise “substantial issues” which should be addressed by this

8 Court in the first instance.

9

This motion is made on the grounds that good cause exists to grant the

10 application because: (1) California’s changes to its coronavirus regulatory scheme

11 since May 15 constitute significant changes; (2) California’s decision to not enforce

12 that regulatory scheme against the “George Floyd” protestors constitutes a

13 significant change; (2) the manner in which California’s regulations burden

14 Plaintiffs’ religious rights has changed along with the regulations; and

15 (4) subsequently published Supreme Court authority affects the analysis.

16

This motion is supported by the accompanying Memorandum of Points and

17 Authorities, by the declaration of Charles S. LiMandri, Esq. and all exhibits attached

18 thereto, by the supplemental declaration of Bishop Arthur Hodges III, by the briefing,

19 original declarations, and requests for judicial notice submitted by Plaintiffs with their

20 ex parte application for a temporary restraining order and order to show cause re:

21 preliminary injunction, and by such further argument and evidence that may be

22 adduced at any hearing on this matter.

23

LiMANDRI & JONNA LLP

24

25 Dated: July 10, 2020 26 27 28

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

1 Notice of Motion and Motion for an Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1754 Page 1 of 27

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

Case No.: :20-cv-865-BAS
Memorandum of Points & Authorities in Support of Motion for an Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1(a)(3)

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

Judge: Cynthia Bashant Dept: Courtroom: 4B Date: August 10, 2020 Time: No Oral Argument Unless
Requested by the Court
ORAL ARGUMENT REQUESTED

28

Ex Parte App. for OSC re: Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1755 Page 2 of 27

1 TABLE OF CONTENTS
2 3 INTRODUCTION ................................................................................................ 1
4 PROCEDURAL HISTORY ................................................................................... 1

5 LEGAL STANDARD ............................................................................................3

6 ARGUMENT........................................................................................................ 4

7

1. California’s Regulation of Worship Continues to Act as a

8

Ban on Plaintiffs’ Free Exercise of Religion ....................................... 6

9

2. Strict Scrutiny is Required Because California’s Regulation

10

of Worship Burdens Plaintiffs because of their Religious

11

Practices .............................................................................................7

12

3. Strict Scrutiny is Required because of California’s

13

Discriminatory Enforcement of its Regulation of Worship/Protest ................................................................................ 8

14 4. If Jacobson Applies, it is Only Minimally Relevant. ...........................10
15

16

5. The Ban on Plaintiffs’ Free Exercise of Religion is not

Narrowly Tailored ............................................................................ 14

17

18

5.1. The Ban on Worship is Underinclusive. ................................... 14

19

5.2. California has not satisfied its burden of establishing

narrow tailoring........................................................................18

20

21

6. The Public Interest Favors an Injunction .......................................... 21

22 CONCLUSION.................................................................................................... 21

23

24

25

26

27

28
i
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1756 Page 3 of 27

1

TABLE OF AUTHORITIES

2 Cases:

3 All. for the Wild Rockies v. Cottrell,

5

4

632 F.3d 1127 (9th Cir.2011)

5 Antietam Battlefield KOA v. Hogan,

18

6

No. 1:20-cv-01130, 2020 WL 2556496 (D. Md. May 20, 2020)

7 Ashcroft v. ACLU,

20

8

542 U.S. 656 (2004)

9 Berean Baptist Church v. Cooper, --- F. Supp. 3d ---, 2020 WL 2514313 (E.D.N.C. 2020)
10

11 Blackhawk v. Pennsylvania, 381 F.3d 202 (3d Cir. 2004)
12

13

Bruni v. City of Pittsburgh, 824 F.3d 353 (3d Cir. 2016)

14

Calvary Chapel of Bangor v. Mills,

15

No. 1:20-cv-00156, 2020 WL 2310913 (D. Me. May 9, 2020)

13, 20 8 19 18

16 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

17

508 U.S. 520 (1993)

14, 16

18 Cross Culture Christian Ctr. v. Newsom,

8, 18

19

No. 2:20-CV-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020)

20 Espinoza v. Montana Dep’t of Revenue,

21

--- S. Ct. ---, 2020 WL 3518364 (2020)

6, 8, 14

22 First Baptist Church v. Kelly,

11

23

--- F. Supp. 3d ---, 2020 WL 1910021 (D. Kan. 2020)

24 Friery v. Los Angeles Unified Sch. Dist.,

3

25

448 F.3d 1146 (9th Cir. 2006)

26 Jacobson v. Commonwealth of Massachusetts,

27

197 U.S. 11 (1905)

10, 11, 12, 21

28
ii
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1757 Page 4 of 27

1

TABLE OF AUTHORITIES—Continued

2 Cases:

3 Keller v. NCAA,

4

4

No. C 09-1967 CW, 2015 WL 8916392 (N.D. Cal. Dec. 15, 2015)

5 League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer,

18

6

---Fed. Appx. ---, 2020 WL 3468281 (6th Cir. June 2020)

7 Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania,

8

--- S.Ct. ---, 2020 WL 3808424 (2020)

9 Maryville Baptist Church v. Beshear, No. 3:20-cv-278, 2020 WL 1909616 (W.D. Ky. Apr. 18, 2020)
10

11 McCullen v. Coakley, 134 S. Ct. 2518 (2014)
12

13

Mendia v. Garcia, 874 F.3d 1118 (9th Cir. 2017)

14

Miller v. United Food & Commercial Workers Union, Local 498, AFL-CIO,

15

708 F.2d 467 (9th Cir. 1983)

16 Mohasco Indus., Inc. v. Lydick,

17

459 F.2d 959 (9th Cir. 1972)

18 Mujica v. AirScan Inc.,

19

771 F.3d 580 (9th Cir. 2014)

12, 13 18 19 4 3 3 3

20 Our Lady of Guadalupe Sch. v. Morrissey-Berru,

21

--- S.Ct. ---, 2020 WL 3808420 (2020)

6, 11, 13

22 Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church,11, 12

23

393 U.S. 440 (1969)

24 Roberts v. Neace,

25

958 F. 3d 409 (6th Cir. 2020)

8, 15, 18

26 S. Bay United Pentecostal Church v. Newsom,

27

140 S. Ct. 1613 (2020)

4, 11, 15

28
iii
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1758 Page 5 of 27

1

TABLE OF AUTHORITIES—Continued

2 Cases:

3 S. Bay United Pentecostal Church v. Newsom,

4, 11

4

959 F.3d 938 (9th Cir. 2020)

5 Sable Commc’ns of Cal., Inc. v. FCC,

14

6

492 U.S. 115 (1989)

7 SAS Inst. Inc. v. World Programming Ltd.,

3

8

No. LACV 18-00603-VAP (PJWx), 2018 WL 6843727 (C.D. Cal. Nov. 14, 2018)

9 Scorpio Music (Black Scorpio) S.A. v. Willis,

4

No. 11-CV-01557-BTM(RBB), 2016 WL 7438325 (S.D. Cal. Dec. 27, 2016)

10

11 Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich,

12

426 U.S. 696 (1976)

12

13

Soos v. Cuomo,

6, 10, 18, 21

No. 1:20-cv-651 (GLS/DJS), 2020 WL 3488742 (N.D.N.Y. June 26, 2020)

14

Sorrell v. IMS Health, Inc.,

14

15

564 U.S. 552 (2011)

16

Spell v. Edwards

10

17

962 F.3d 175 (5th Cir. 2020)

18 Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear,

19

19

--- F. Supp. 3d ---, 2020 WL 2305307 (E.D. Ky. 2020)

20 Tribe v. United States Bureau of Reclamation,

4

21

319 F. Supp. 3d 1168 (N.D. Cal. 2018)

22 Trinity Lutheran Church of Columbia, Inc. v. Comer,

8, 14

23

137 S. Ct. 2012 (2017)

24 United States v. Playboy Entm’t Grp., Inc.,

18

25

529 U.S. 803 (2000)

26

27

28
iv
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1759 Page 6 of 27

1

TABLE OF AUTHORITIES—Continued

2 Statutes & Rules:

3 28 U.S.C. § 2106

3

4

9th Cir. General Orders, App. A(18)

4

5

6 Fed. R. Civ. P. 62.1

4

7 Fed. R. Civ. P. 62.1(a)

4

8 Fed. R. Civ. P. 62.1(a)(3) 9

cover

10 Other Authorities:
11

12 1 GOELZ ET AL., RUTTER GROUP PRACTICE GUIDE: FEDERAL NINTH CIRCUIT

CIVIL APPELLATE PRACTICE (2020)

3, 4

13

14 16 WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE (3d ed. 2012)

3

15 Verified Complaint, Abiding Place Ministries v. Cty. of San Diego, No. 20-cv-

0683-BAS, 2020 WL 1881323 (S.D. Cal. Apr. 9, 2020)

8

16

17

18

19

20

21

22

23

24

25

26

27

28
v
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1760 Page 7 of 27

1

INTRODUCTION

2

The fast-changing nature of the coronavirus pandemic has caused both sides in

3 the pending appeal in the Ninth Circuit (No. 20-55533) from this Court’s May 15,

4 2020 order (Dkt. 32) to cite outside the record to an amazing degree.1 It has also led

5 the defendants—California and San Diego—to argue that Plaintiffs South Bay

6 United Pentecostal Church’s and Bishop Arthur Hodges III’s claims are moot.2

7

As a result, after concerted deliberation, South Bay has decided to move in the

8 Ninth Circuit for a “limited remand” to this Court, so that the record can be

9 supplemented, and so that this Court can address in the first instance how the most

10 up-to-date changes in California’s pandemic regime and enforcement of it affect its

11 injunction analysis. Prior to granting a “limited remand,” however, the Ninth Circuit

12 usually prefers some indication from the district court that it agrees that the new

13 issues are “substantial” enough to warrant the remand—called an “indicative

14 ruling.” Thus, Plaintiffs now move for an “indicative ruling” that these new issues

15 are “substantial.”

16

PROCEDURAL HISTORY

17

Trying to keep up with the quick changes, both sides in the pending appeal

18 have cited outside the record, and the Ninth Circuit has so far permitted it. For

19 example, on Friday, May 22, 2020, Plaintiffs South Bay United Pentecostal Church

20 and Bishop Arthur Hodges III moved for judicial notice of the White House press

21 briefing of that date, as well as the updated CDC guidelines with respect to Houses of

22 Worship, published on that date. 9th Cir. Dkt. 25. California opposed the motion, 9th

23 Cir. Dkt. 27, but the Ninth Circuit granted it. 9th Cir. Dkt. 29, at 2.

24

Similarly, on Friday, June 22, 2020, both California and San Diego filed their

25 own motions for judicial notice, seeking to provide the Ninth Circuit with the most

26
27 1 See Cal. RB, 9th Cir. Dkt. 46, at 4 n.2, 5 nn.3–4, 12 nn.6–8, 38 n.17, 38 nn.18–19, 40 n.20, 42 n.21, 52 nn.24–26, 53 nn.27–30, 54 nn.31–37, 55 n.38.
28 2 See S.D. RB, 9th Cir. Dkt. 45, at 1–3; Cal. RB, 9th Cir. Dkt. 46, at 19–26.
1
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1761 Page 8 of 27

1 up-to-date coronavirus statistics and regulations. 9th Cir. Dkt. 47 (California); 9th

2 Cir. Dkt. 48 (San Diego). California also cited outside the record in its Respondents’

3 Brief, hyperlinking to numerous news articles and government statistics. 9th Cir. Dkt.

4 46, 4 n.2, 5 nn.3–4, 12 nn.6–8, 38 n.17, 38 nn.18–19, 40 n.20, 42 n.21, 52 nn.24–26, 53

5 nn.27–30, 54 nn.31–37, 55 n.38.

6

However, in their most recent briefs filed on Friday, June 26, both California

7 and San Diego criticized South Bay for relying on material outside the record. 9th

8 Cir. Dkt. 45, at 10–11; 9th Cir. Dkt. 46, at 27, 37 n.16, 40, 49–50. Both also argued

9 that the intervening developments had mooted South Bay’s appeal. 9th Cir. Dkt. 45,

10 at 1–3; 9th Cir. Dkt. 46, at 19–26.

11

In light of these arguments, after concerted deliberation, on Thursday, June 2,

12 2020, South Bay informed both California and San Diego during a telephone

13 conference that it was intending “to move for a ‘limited remand’ to the trial court, so

14 that Judge Bashant can decide in the first instance how (1) California’s present 100-

15 person cap; and (2) the George Floyd protests, affect Plaintiffs’ request for a

16 preliminary injunction.” (Ex. 1, at 3.) More recent developments also include

17 California’s July 6, 2020 ban on singing in places of worship, as well as several new

18 cases—including Supreme Court authority.

19

In light of California’s and San Diego’s arguments in their respective

20 Respondents’ Briefs, South Bay was hopeful that the parties could proceed through

21 the entire process with “joint motion[s]” (Ex. 1, at 4), but after the call, both

22 California and San Diego informed South Bay that they would oppose the limited

23 remand. (Ex. 1, at 1.) It is unclear why Defendants oppose limited remand—as

24 remand is essentially the relief they both requested in their Respondents’ Briefs.

25

Due to the short time in which South Bay is seeking a limited remand, it has

26 not had the opportunity to obtain an “indicative ruling” from this Court prior to

27 moving for a limited remand with the Ninth Circuit. Instead, South Bay has just filed

28 with the Ninth Circuit a motion for a limited remand, and is now moving in this
2
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1762 Page 9 of 27

1 Court for an indicative ruling. See SAS Inst. Inc. v. World Programming Ltd., No.

2 LACV 18-00603-VAP (PJWx), 2018 WL 6843727, at *2 (C.D. Cal. Nov. 14, 2018)

3 (“[A]s SAS has already applied to the Ninth Circuit for a limited remand to allow the

4 Court to amend the September 5, 2018 Assignment Order, the Court finds it prudent

5 to issue an indicative ruling.”).

6

LEGAL STANDARD

7

“The Supreme Court or any other court of appellate jurisdiction . . . may

8 remand the cause and . . . require such further proceedings to be had as may be just

9 under the circumstances.” 28 U.S.C. § 2106. As a result, “the courts of appeals often

10 have retained jurisdiction while making a limited remand for additional findings or

11 explanations.” 16 WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3937.1 (3d ed.

12 2012) (citing Friery v. Los Angeles Unified Sch. Dist., 448 F.3d 1146, 1147 n.2, 1150

13 (9th Cir. 2006); Miller v. United Food & Commercial Workers Union, Local 498, AFL-

14 CIO, 708 F.2d 467, 468 (9th Cir. 1983)); see also Mujica v. AirScan Inc., 771 F.3d 580,

15 584 (9th Cir. 2014); Mohasco Indus., Inc. v. Lydick, 459 F.2d 959, 960 (9th Cir. 1972).

16

“After the filing of a notice of appeal, a limited remand is often used to restore

17 the district court’s jurisdiction for a particular purpose or period of time. Generally,

18 the Ninth Circuit regains full jurisdiction after a specified time or upon a completion

19 of some event.” 1 GOELZ ET AL., RUTTER GROUP PRACTICE GUIDE: FEDERAL NINTH

20 CIRCUIT CIVIL APPELLATE PRACTICE § 6:184 (2020). “No new notice of appeal is

21 necessary to obtain review of issues raised before the district court on remand if the

22 district court enters a nonappealable order that merely supplements the prior

23 judgment then on appeal.” Id. at § 6:197 (italics omitted).

24

Although ordering a “limited remand” is within the Ninth Circuit’s inherent

25 authority, and can be ordered sua sponte, see Friery, 448 F.3d at 1150; Miller, 708 F.2d

26 at 468; Mujica, 771 F.3d at 584; Mohasco, 459 F.2d at 960, upon a motion by a party,

27 “[t]he Ninth Circuit rarely remands a case to the district court” without “some

28 indication the district would” invite remand. 1 GOELZ ET AL., supra at § 6:189. In this
3
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1763 Page 10 of 27

1 context, the normal route would be to file a renewed motion for a preliminary

2 injunction with the district court, Fed. R. Civ. P. 62.1, and with the court of appeal “a

3 concurrent stay [of the] appeal or an extension of the briefing schedule.” 1 GOELZ ET

4 AL., supra at § 6:191 (citation omitted).

5

The district court can then simply deny the motion if the new issues are wholly

6 irrelevant or weak, or issue an order stating either that the new issues are substantial,

7 and should be addressed by it in the first instance, or that the new issues are

8 dispositive, such that the trial court would change its decision. Fed. R. Civ. P. 62.1(a).

9 A latter such statement “is referred to as an ‘indicative ruling,’” which requests

10 remand so that the district court can grant the renewed motion, or at least properly

11 consider the “substantial issues” it raises. Tribe v. United States Bureau of Reclamation,

12 319 F. Supp. 3d 1168, 1174 (N.D. Cal. 2018). This normal route, however, is not always

13 required. Mendia v. Garcia, 874 F.3d 1118, 1121–22 (9th Cir. 2017). It is only required

14 for the Clerk of the Court to grant remand on its own, as opposed to the Court of

15 Appeal ordering a limited remand itself. 9th Cir. General Orders, App. A(18).

16

Because the Ninth Circuit only requires some indication that the District

17 Court views the issues as “substantial,” some courts have granted parties’ joint

18 motion/ stipulation for an indicative ruling. See Keller v. NCAA, No. C 09-1967 CW,

19 2015 WL 8916392, at *3 (N.D. Cal. Dec. 15, 2015). And others have entertained ex

20 parte requests for an indicative ruling. See Scorpio Music (Black Scorpio) S.A. v. Willis,

21 No. 11-CV-01557-BTM(RBB), 2016 WL 7438325 (S.D. Cal. Dec. 27, 2016).

22

ARGUMENT

23

A limited remand is uniquely appropriate in this case. Both the Ninth Circuit

24 and the Supreme Court have already weighed in on the propriety of urgent injunctive

25 relief on the present record. See S. Bay United Pentecostal Church v. Newsom, 959 F.3d

26 938 (9th Cir. 2020) (“S. Bay I”), aff’d, 140 S. Ct. 1613 (2020) (“S. Bay II”). Further,

27 although the changes in the government’s regulatory scheme can be added to the

28 record on appeal via judicial notice, it is much more difficult to add to the record
4
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1764 Page 11 of 27

1 supplemental declarations explaining how those changes severely burden Plaintiffs. If

2 the Ninth Circuit refuses to look outside the present record, a continuation of the

3 appeal appears unlikely to result in a substantively different order than the ones

4 already published by the Ninth Circuit and the Supreme Court.

5

Pursuant to this motion, Plaintiffs request that this Court consider whether the

6 below materials would change its analysis—thus warranting the granting of

7 preliminary injunctive relief, or at least being substantial enough for this Court to

8 supplement its prior order. A plaintiff seeking a preliminary injunction must establish

9 (1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable

10 harm without injunctive relief, (3) that the balance of harm tips in his favor, and

11 (4) that a preliminary injunction is in the public interest. All. for the Wild Rockies v.

12 Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011). These factors are evaluated through a

13 “sliding scale approach.” Id. at 1131. So, for example, “a stronger showing of

14 irreparable harm to plaintiff might offset a lesser showing of likelihood of success on

15 the merits.” Id.

16

The issues which South Bay believes are “substantial” include:

17

(1) The actions of the federal government on May 19 and 22, including the

18 letter from California’s four U.S. Attorneys to Governor Newsom informing him that

19 his treating worshippers less favorably than other groups was unconstitutional; and

20 the President Trump’s press conference announcing that worship is an essential

21 activity (Ex. 2, 3);

22

(2) California’s May 25 and San Diego’s May 27, 2020, changes in their

23 regulations to permit worship services and political protests so long as the events do

24 not exceed 100-persons or 25% of the area’s occupancy capacity (whichever is lower)

25 (Ex. 4–6);

26

(3) San Diego’s June 3, 2020, letter to California requesting that worship

27 services be allowed to exceed 100-person or 25% cap, because those restrictions are

28 not necessary in San Diego (Ex. 7);
5
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1765 Page 12 of 27

1

(4) The George Floyd protests beginning in San Diego on May 30, 2020,

2 which numbered in the thousands of protestors, and California’s and San Diego’s

3 statements that its pandemic restrictions would not be enforced against them;

4

(5) California’s June 12 and San Diego’s June 19, 2020, changes in its

5 regulations to permit worship services and political protests without any restrictions

6 so long as they occur outdoors—and not indoors (Ex. 8–10);

7

(6) California’s July 6, 2020, changes in its regulations to ban singing or

8 chanting at worship services or political protests that occur indoors (but not

9 outdoors) (Ex. 11–12);

10

(7) San Diego’s July 7, 2020 changes to its regulations to limit the time of day

11 when restaurants can open, showing its regulations are distinct from California’s

12 (Ex. 13);

13

(8) The most up-to-date statistics on coronavirus infections and deaths,

14 showing that California’s refusal to enforce its restrictions against political protestors

15 has caused a spike in infections, but no significant change in the number of

16 hospitalizations or deaths;

17

(9) New case-law including Our Lady of Guadalupe School, Espinoza, and Soos;

18

(10) The Supplemental Declaration of Bishop Arthur Hodges III explaining

19 how the above regulations severely burden Plaintiffs’ exercise of their faith; and

20

(11) Other materials included in the briefing on appeal, better explaining how

21 places of worship are similar to, or dissimilar to, other industries and activities.

22 1. 23

California’s Regulation of Worship Continues to Act as a Ban on Plaintiffs’ Free Exercise of Religion

24

The first step in a Free Exercise analysis—under either the California or U.S.

25 constitutions is whether the government conduct burdens Plaintiffs’ free exercise of

26 religion. As explained in the Supplemental Hodges declaration, the regulations here

27 continue to so burden him and South Bay Pentecostal Church, to the point where

28 they continue to effectively act as a ban on religious worship. See Supp. Hodges
6
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1766 Page 13 of 27

1 Decl., ¶15 (“This requirement is essentially a ban on Pentecostal worship services.”)

2 2. 3

Strict Scrutiny is Required Because California’s Regulation of Worship Burdens Plaintiffs because of their Religious Practices

4

This Court’s May 15, 2020, order held that California’s prohibition on

5 worship services, along with many other events, was a neutral and generally

6 applicable prohibition not requiring the application of strict scrutiny. Dkt. 32. The

7 Court explained its reasoning as follows:

8

And it seems to me that a religious service falls within

9

Stage 3 not because it’s a religious service, but because the

services involve people sitting together in a closed

10

environment for long periods of time. Thus, any burden

11

placed by classifying church services as Stage 3 are not

because of a religious motivation, but because of the

12

manner in which the service is held, which happens to pose

13

a greater risk of exposure to the virus. And I note, there’s

14

lots of other things: The SATs; the California Bar exam; lots of other events that involve people sitting together in a

15

closed environment for long periods of time that are also

16

not being allowed to go forward.

17 Dkt. 38, Hearing Transcript, at 26. This reasoning no longer follows for two reasons.

18 First, as shown above, California has issued unique regulations on worship and

19 protest that do not apply to any other industry or group. Thus, it cannot say that it is

20 promulgating a neutral regulation that applies to all.

21

Second, the Supreme Court has recently reaffirmed that where government

22 conduct identifies religious conduct by name, strict scrutiny is necessarily required.

23 In other words, California cannot ban worship, the SATs, and the bar exam, and later

24 explain that all involve people sitting together indoors for long periods of time.

25 Rather, to be neutral, its ban must simply state that it applies to all people sitting

26 together indoors for long periods of time. Stated differently, saying “worshippers

27 may not gather” is no different than—and equally repugnant as—saying “African-

28 Americans may not gather.” Even if the government later identifies a purportedly
7
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1767 Page 14 of 27

1 neutral explanation, classifying people based on a protected characteristic is always

2 repugnant (and indeed, trying to come up with an explanation, such as preventing

3 rioters from destroying private property, is equally repugnant). Therefore, the court

4 does not look to that justification or whether it is a good fit—and immediately

5 proceeds to a strict scrutiny analysis. “Status-based discrimination remains status

6 based even if one of its goals or effects is” a valid, neutral goal. Espinoza v. Montana

7 Dep’t of Revenue, --- S. Ct. ---, 2020 WL 3518364, at *7 (2020); see also id. at *9

8 (explaining that this is an “unremarkable” proposition, and citing Trinity Lutheran

9 Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)).

10 3. 11

Strict Scrutiny is Required because of California’s Discriminatory Enforcement of its Regulation of Worship/Protest

12

A new issue which arose after this Court’s May 15, 2020, order concerns

13 California’s discriminatory enforcement of its pandemic regulations. By permitting

14 them to be “enforced in a discriminatory manner,” they are not generally applicable,

15 and must satisfy strict scrutiny. Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir.

16 2004). “Faith-based discrimination can come in many forms.” Roberts v. Neace, 958

17 F. 3d 409, 413 (6th Cir. 2020).

18

Here, since May 25, California has nominally treated political protests and

19 religious worship exactly the same—imposing a limit on gatherings at 25% of

20 “building capacity” or “the relevant area’s maximum occupancy,” along with a

21 maximum cap of 100 persons. (Ex. 4–6, 8–12.) Nevertheless, despite enforcing its

22 restrictions against houses of worship,3 California has steadfastly refused to enforce

23 3 In two similar cases in California challenging Governor Newsom’s executive orders,

24 Abiding Place Ministries and Cross Culture Christian Center, the factual record

involved actual police enforcement, or threats of police enforcement, levelled against 25 churches trying to reopen. See Verified Complaint, Abiding Place Ministries v. Cty. of

26

San Diego, No. 20-cv-0683-BAS, 2020 WL 1881323 (S.D. Cal. Apr. 9, 2020); Cross Culture Christian Ctr. v. Newsom, No. 2:20-CV-00832-JAM-CKD, 2020 WL 2121111

27 (E.D. Cal. May 5, 2020). This is despite well-publicized statements by Governor Newsom and San Diego officials that no police enforcement would be forthcoming.

28 (Trissell Decl., ¶¶ 9–11.)

8
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1768 Page 15 of 27

1 its restrictions against political protests.

2

The same day that California created that regime—Monday, May 25, 2020—a

3 police officer in Minneapolis, Minnesota killed an African-American man in his

4 custody named George Floyd. The next day, a video-recording of the incident went

5 viral on social media, leading to protests in Minneapolis. The day after that,

6 Wednesday, May 27, protests erupted in cities across the country, including a protest

7 with hundreds of participants in Los Angeles. (Ex. 14.) These protests plainly

8 violated Governor Newsom’s ban on political protests exceeding 100 persons.

9

The next day, Saturday, May 30, 2020, the George Floyd protests reached San

10 Diego County. That day, a group of 1,000 protestors blocked the I-8 highway. This

11 protest also violated Governor Newsom’s 100-person cap on political protest. The

12 protests in San Diego continued daily for weeks. (Ex. 15.)

13

As stated above, the George Floyd protests in California have plainly violated

14 the Governors’ orders against protest and worship—violating the 100-person cap

15 through protests numbering in the thousands, but instead of trying to shut down

16 these unlawful gatherings, California encouraged them.

17

In response to the killing of George Floyd, on May 30 Governor Newsom

18 issued a press release “thank[ing] . . . community members who exercised their right

19 to protest peacefully and encouraged others to do the same.” (Ex. 16.) The next day,

20 Governor Newsom held a press briefing in which he again thanked and encouraged

21 the protestors and the protest organizers, stating: “To those who want to express

22 themselves . . . God bless you. Keep doing it. Your rage is real.” (Ex. 17.) “I just

23 again want to express my deep gratitude and my deep humility, to those leaders of

24 every stripe, that all across this state and all across our nation, are doing justice in this

25 moment, those demonstrators who are reaching out.” (Ex. 18.) “So I just want to

26 thank all the leaders, not only again assembled here, but throughout the state, once

27 again, for your courage, because now is a time for courage, now is a time for your

28 voice to be brought to the forefront.” Id. Further, when asked whether he was
9
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1769 Page 16 of 27

1 worried that the protests would lead to a COVID-19 spike, Governor Newsom

2 ducked the question and focused on the need for people to get tested if they are

3 worried about exposure. Id.

4

Similarly, San Diego has refused to enforce its orders against the George Floyd

5 protests. When Supervisor Nathan Fletcher was asked about them, he simply stated

6 that when San Diegans “choose to express their First Amendment right, which is

7 their right, then we hope that they do it as safely and responsibly as they can.”

8 (LiMandri Decl., ¶ 25; Ex. 19.) And San Diego law enforcement published a tweet

9 about a protest exceeding the 100+ cap, stating “[w]e are facilitating this protest to

10 ensure everyone remains safe.” (Ex. 20.) This facilitation, has led to thousands of

11 people protesting, as shown in several videos obtained from Twitter. (Ex. 21–23.)

12

Thus, if concerned about the plight of African-Americans in our nation, or

13 about the death of George Floyd, or about police brutality generally, Californians are

14 de facto allowed to join a 1,000-person protest, but are not allowed to join with 101

15 people to pray. (Cf. Ex. 24.) This is discriminatory enforcement, mandating strict

16 scrutiny. See Ex. 25, 26 (letter and press release from DOJ stating that New York’s

17 discriminatory enforcement was unconstitutional); Soos v. Cuomo, No. 1:20-cv-651

18 (GLS/DJS), 2020 WL 3488742 (N.D.N.Y. June 26, 2020) (enjoining New York

19 Governor Cuomo and New York Mayor de Blasio from enforcing coronavirus

20 regulations against places of worship differently from other places due to lax

21 enforcement against political protestors); Spell v. Edwards, 962 F.3d 175, 180–83 (5th

22 Cir. 2020) (Ho, J., concurring) (explaining how “the principle that freedom for me,

23 but not for thee, has no place under our Constitution”).

24 4. If Jacobson Applies, it is Only Minimally Relevant.

25

Over a hundred years ago, the Supreme Court addressed whether the

26 constitution protected an individual’s right to refuse the smallpox vaccine in

27 contravention of a local ordinance—essentially a substantive due process claim.

28 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). Jacobson explained
10
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1770 Page 17 of 27

1 that governments can validly enact restrictions on substantive due process rights to

2 stop the spread of diseases, but they cannot do so in “an arbitrary, unreasonable

3 manner,” or in a way that “go[es] so far beyond what was reasonably required for the

4 safety of the public.” Id. at 28.

5

Jacobson was decided before most modern constitutional jurisprudence and is

6 therefore a bit of an outlier. But to date, the circuit courts have generally agreed to

7 apply it with respect to some constitutional rights—specifically abortion rights.

8 Notably, Jacobson was decided decades before the First Amendment was held to

9 apply to the States by incorporation, and was not a case about regulations of

10 churches. So it is not plain that it should apply in this case at all—despite this Court’s

11 earlier application of it in its May 15, 2020, order. The conclusion that Jacobson does

12 not apply to Free Exercise claims has been reached by at least one district court. First

13 Baptist Church v. Kelly, --- F. Supp. 3d ---, 2020 WL 1910021, at *6 (D. Kan. 2020).

14 When this issue was presented to the Ninth Circuit, the dissent vigorously argued

15 against applying Jacobson to Free Exercise claims, and the majority conspicuously

16 ignored Jacobson altogether. And when it was presented to the Supreme Court, only

17 one justice approved of it. See S. Bay I, 959 F.3d 938, aff’d, S. Bay II, 140 S. Ct. 1613.

18

But if the Court continues to hold that Jacobson does apply, then there are two

19 questions the Court must analyze. If the government does not have a satisfactory

20 answer to either, the conduct is unconstitutional. Importantly, these questions must

21 be analyzed in tandem with regular First Amendment jurisprudence which stresses

22 that “First Amendment values are plainly jeopardized when litigation is made to turn

23 on the resolution by civil courts of controversies over religious doctrine and

24 practice.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, --- S.Ct. ---, 2020 WL

25 3808420, at *9 n.10 (2020) (quoting Presbyterian Church in U.S. v. Mary Elizabeth

26 Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969)) (ellipses omitted).

27 Because such values are jeopardized, the high court has made clear that courts are

28 forbidden from issuing legal opinions that have the effect of “resolving underlying
11
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1771 Page 18 of 27

1 controversies over religious doctrine.” Id. (quoting Presbyterian Church, 393 U.S. at

2 449).

3

“In a country with the religious diversity of the United States, judges cannot

4 be expected to have a complete understanding and appreciation of” the requirements

5 of various faiths. Id. at *12. “It is not to be supposed that the judges of the civil courts

6 can be as competent in the ecclesiastical law and religious faith of all these bodies as

7 the ablest men in each are in reference to their own.” Id. at *9 n.10 (quoting Serbian

8 E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 715 n.8

9 (1976)). As a result, “[a] religious institution’s explanation of . . . the life of the

10 religion in question is important.” Id. at *12. And in regular First Amendment

11 jurisprudence, neither the government nor the courts may “tell the plaintiffs that

12 their beliefs are flawed,” but “must accept the sincerely held []objections.” Little

13 Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, --- S.Ct. ---, 2020 WL

14 3808424, at *11 (2020).

15

Under Jacobson, the first question is whether the law “has no real or substantial

16 relation to those objects” of protecting public health. Jacobson, 197 U.S. at 28. The

17 second question is whether the law is an “invasion of rights secured by the

18 fundamental law.” Id. Here, as explained more fully infra in § 4, neither California

19 nor San Diego has convincingly explained why letting large numbers of people sit

20 together indoors for eight hours at a factory or a school, but not for one-hour

21 worshipping, provides a “real or substantial” benefit to curbing the pandemic.

22 California has only ever asserted that the novel coronavirus is serious, and needs to

23 be curbed. But that is not a sufficient answer—especially when California lets

24 factories, potential hotbeds for coronavirus outbreaks, to operate without complying

25 with the restrictions placed on churches.

26

More importantly, there is an especially “palpable invasion” of Plaintiffs’ Free

27 Exercise rights here. Previously, this Court stated:

28
12
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1772 Page 19 of 27

1

The order allows congregants to gather remotely: to gather

2

over the phone, or via video conference, in person with members of the same household. It allows clergy to travel

3

to churches to set up services for congregants to experience

4

remotely.

5

The county now has opened to allow congregations to

6

gather by car in drive-in style services as long as the

physical distancing guidelines are followed and as long as

7

people don’t touch each other.

8

Individuals can practice religion in whatever way they wish

9

as long as they’re not sitting with each other in large

10

groups inside.

11 Dkt. 38, at 28 (punctuation cleaned up). The problem is that none of that meets the

12 requirements of Plaintiffs’ faith. Physical, in-person worship services are required,

13 not video-recorded or drive-in services. (Hodges Decl., ¶¶ 10–13, 19–23; Supp.

14 Hodges Decl., ¶¶ 7–18.) Bishop Hodges and his congregants may also participate in

15 the George Floyd protests, or go to a restaurant, or go to the mall—but that is also

16 not required by their faith. As the Supreme Court recently explained, courts may not

17 “tell the plaintiffs that their beliefs are flawed,” Little Sisters of the Poor, --- S.Ct. ---,

18 2020 WL 3808424, at *11, and as a result, “[a] religious institution’s explanation of

19 . . . the life of the religion in question is important.” Our Lady of Guadalupe Sch., ---

20 S.Ct. ---, 2020 WL 3808420, at *12 n.10; see also Berean Baptist Church v. Cooper, ---

21 F. Supp. 3d ---, 2020 WL 2514313, at *7 (E.D.N.C. 2020) (“Again, the question

22 becomes: who decides whether a religious organization or group of worshipers

23 correctly determined that their religious beliefs dictated the need to have more than

24 10 people inside to worship? Under EO 138, the answer is [the government]. This

25 court has grave concerns about how that answer comports with the Free Exercise

26 Clause.”).

27 ///

28 ///

13
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1773 Page 20 of 27

1 5. The Ban on Plaintiffs’ Free Exercise of Religion is not Narrowly Tailored

2

Given that California’s regulation of worship burdens Plaintiffs’ free exercise

3 of religion, it can only stand if it satisfies “the strictest scrutiny.” Trinity Lutheran,

4 137 S. Ct. at 2019. “That stringent standard is not watered down but really means

5 what it says. To satisfy it, government action must advance interests of the highest

6 order and must be narrowly tailored in pursuit of those interests.” Espinoza, --- S. Ct.

7 ---, 2020 WL 3518364, at *10 (cleaned up).

8

Here, California’s compelling interest is in protecting the public from COVID-

9 19’s spread. But the manner in which it is doing so does not meet the test of strict

10 scrutiny—and is therefore unconstitutional. As explained below, banning

11 worshippers from gathering and singing is not narrowly tailored to achieve the

12 Government’s objectives.4

13

5.1. The Ban on Worship is Underinclusive.

14

“It is not enough to show that the Government’s ends are compelling; the

15 means must be carefully tailored to achieve those ends.” Sable Commc’ns of Cal., Inc.

16 v. FCC, 492 U.S. 115, 126 (1989). “There must be a fit between the . . . ends and the

17 means chosen to accomplish those ends.” Sorrell v. IMS Health, Inc., 564 U.S. 552,

18 572 (2011) (cleaned up). Thus, a law cannot be narrowly tailored to furthering a

19 compelling interest when it “fail[s] to prohibit nonreligious conduct that endangers

20 [its asserted] interests in a similar or greater degree” than the religious conduct. See

21 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 543 (1993). In

22 this context, the government must identify a compelling interest actually consistent

23 with its broad actions—exemptions and all. Unless it does so, the government is left

24 with discriminatory decrees that “leave[] appreciable damage to [its] supposedly vital

25 4 California has not asserted that it simply has a compelling interest in more generally

26

protecting public health. If it did, this argument would also not be narrowly tailored. In some areas, the suicide rate has spiked to the point where there are more deaths

27 from suicide than COVID-19. (Ex. 27.) And the medical literature is overwhelming that exercising one’s faith during times of crisis is necessary for mental and physical

28 health. (See, e.g., Ex. 28–33.)

14
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1774 Page 21 of 27

1 interest unprohibited” which is fatal under strict scrutiny. Id. at 547.

2

Here, California has banned Plaintiffs’ worship to prevent the spread of the

3 coronavirus, but allows many other activities and industries to proceed. Therefore,

4 California cannot claim that stopping the spread of the coronavirus is a compelling

5 enough interest to unreasonably limit South Bay Pentecostal Church—there is no

6 compelling interest that requires unfairly limiting only churches but not other

7 facilities.

8

On this point, California has contended throughout this action that the Court

9 should not look to its Reopening Plan generally, but rather to its regulation of specific

10 types of gatherings. In other words, California contends that it is categorizing like

11 businesses alike, and not treating houses of worship any different than similarly

12 situated entities. This argument, however, is factually false.

13

California has constantly moved the ball concerning how it distinguishes the

14 gatherings that require specifically tailored restrictions, but to date, California has

15 identified five factors: (1) a long period of time (i.e., distinct from early essential

16 shopping, where Californians were advised to obtain their necessities and quickly

17 depart); (2) a large number of distinct households (i.e., distinct from workplaces that

18 generally have a smaller number of distinct households); (3) a shared experience (i.e.,

19 distinct from later permitted non-essential shopping, where individuals are present to

20 browse for themselves only); (4) loud and frequent vocalizations spreading aerosol

21 particles (i.e., distinct from manufacturing and shopping that have large numbers of

22 distinct households, but generally not singing); and (5) lack of identified attendees

23 (i.e., distinct from workplaces who track their employees’ attendance).

24

But these comparisons do not hold up under scrutiny. The comparison upon

25 which four dissenting justices and the Sixth Circuit seized is between churches and

26 shopping. As stated by Justice Kavanaugh, “Assuming all of the same precautions are

27 taken, why can someone safely walk down a grocery store aisle but not a pew?” S.

28 Bay II, 140 S. Ct. at 1615 (quoting Roberts v. Neace, 958 F. 3d 409, 414 (6th Cir.
15
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1775 Page 22 of 27

1 2020)). Why is permitting shopping not “leav[ing] appreciable damage to [a]

2 supposedly vital interest unprohibited?” Lukumi, 508 U.S. at 547. Previously, this

3 Court held that “plaintiff has no evidence that similarly situated persons or

4 businesses are treated differently.” Dkt. 38, at 29.5 But a subsequent development of

5 the record refutes this conclusion.

6

It is plain that grocery stores and non-essential retail shopping primarily

7 involve strangers, and do not involve pre-registered attendees. Further, the average

8 grocery shopper takes 43 minutes to complete his shopping. (Ex. 34.) The average

9 trip to the mall, for those aged 18–34, is 158.4 minutes. (Ex. 35.) The average person

10 makes 1.6 trips to the grocery store every week. (Ex. 36.) And the average woman

11 spends 399 hours shopping a year. (Ex. 37.) This all adds up, with Americans

12 spending a collective 37 billion hours per year waiting in lines. (Ex. 38.) Under

13 California’s current rules, one can take as long as one likes to complete their

14 shopping. This results, as numerous Twitter videos demonstrate, in large gatherings.

15 (Ex. 39–41.)

16

The only true distinction is that in shopping centers people are milling about,

17 and so may not spend a significant amount of time next to a single person (except

18 when waiting in line). But that is a distinction without a difference. As stated by

19 California’s expert, “Coronavirus spreads easily. The virus ‘is thought to spread

20 mainly from person to person through respiratory droplets,’ which often ‘land in the

21 mouths or noses of people who are nearby.’” Opp. to App. to Justice Kagan, 2

22 (quoting Watt Decl., ¶ 9). In other words, what matters is that someone coughs or

23 speaks next to someone else—not how long they spend together.

24

Further, this one distinction does not take into account other factors, which

25 make shopping more dangerous than attending worship services. Previously, Dr.

26 Delgado opined on the relative risk of shopping versus worship services. Dr. Delgado

27 5 Importantly, the placement of the burden of production on Plaintiffs was legally 28 erroneous. See § 5.2, infra.
16
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1776 Page 23 of 27

1 ultimately concluded that “the calculated risk of contracting COVID-19 at the house

2 of worship is 0.25 or 25% the risk at the grocery store.” Delgado Decl., ¶¶ 14–22.

3 This conclusion is not unique to Dr. Delgado. Rather, the general unsanitariness of

4 grocery stores is widely known. (Exs. 42–43.) California has never provided a

5 meaningful refutation of Dr. Delgado’s conclusions in that regard—presumably

6 because it cannot.

7

Further, under California’s Stage 2a, which began on May 8, there was no limit

8 on the number of people, or length of time spent, in factories. For example,

9 Defendant Angell specifically identified that what could open was “manufacturing,

10 which can include things like toys, clothing, other things.” (Trissell Decl., Ex. E, at

11 28.) California is famous for its clothing manufacturing, and pictures of them show

12 that they result in a gathering involving (1) a long period of time (presumably an eight

13 hour shift); (2) a large number of distinct households; and (3) a shared experience.

14 (Ex. 44.)6

15

Similarly, in California’s later Stage 2b, which began in May, restaurants could

16 open with no capacity limit. On average, Americans expect to spend 60.2 minutes

17 dining at a restaurant—essentially the same amount of time as the typical worship

18 service. (Ex. 45.) But of course, diners can take as long as they want to eat their meal.

19 Further, in a busy restaurant, most diners could also be expected to be strangers to

20 those around them, and to speak loudly so as to be heard by their own party without

21 wearing masks. The only difference between restaurants and worship would appear

22 to be the size of the gathering, as some restaurants may be small—but plenty of

23 restaurants can seat 100 guests or more. (Ex. 46.) As a result, restaurants are

24 coronavirus epicenters (Ex. 47; 48), and lower courts are in broad agreement that

25

26

27

6 This news article was published before the pandemic. The use of facemasks appears to be due to the presence of fabric particles in the factory—not due to the pandemic.

28 It is only used for illustrative purposes.

17
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1777 Page 24 of 27

1 gatherings at restaurants are comparable to those at places of worship.7 Finally, most

2 recently, California has announced that schools may reopen (Ex. 49), as well as

3 fitness facilities (Ex. 50)—even though they two can serve as coronavirus spreaders.

4 See Ex. 51; League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, ---Fed. Appx.

5 ---, 2020 WL 3468281, at *3 (6th Cir. June 2020).

6

In this case, following Dr. Delgado’s protocol, treating South bay Pentecostal

7 Church equally, and permitting it to hold worship services with no greater

8 restrictions than other entities, would not jeopardize the public health. (Delgado

9 Decl., ¶¶ 14–23.) Further, Bishop Hodges is committed to following the County of

10 San Diego and the Center for Disease Control’s public health guidelines, including

11 strict social distancing measures and wearing masks. He is not asking for special

12 treatment; he is only asking for equal treatment.

13

Thus, based on this better developed record, California has “no good reason

14 for refusing to trust the congregants who promise to use care in worship in just the

15 same way it trusts accountants, lawyers, and laundromat workers to do the same.”

16 Roberts v. Neace, 958 F.3d 409, 414 (6th Cir. 2020).

17

5.2. California has not satisfied its burden of establishing narrow

18

tailoring.

19

Under strict scrutiny, California “bears the burden of proving the

20 constitutionality of its actions” and California does not get “the benefit of the

21 doubt.” United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 816, 818 (2000).

22 California thus has the burden to prove that its laws further a compelling government

23 interest and are narrowly tailored to achieve that end. As indicated supra, at note 5,

24 7 E.g., Soos v. Cuomo, No. 1:20-cv-651, 2020 WL 3488742, at *11 (N.D.N.Y. June 26,

25 2020); Antietam Battlefield KOA v. Hogan, No. 1:20-cv-01130, 2020 WL 2556496, at *9 (D. Md. May 20, 2020); Calvary Chapel of Bangor v. Mills, No. 1:20-cv-00156,

26 2020 WL 2310913, at *8 (D. Me. May 9, 2020); Cross Culture Christian Ctr. v.

27

Newsom, No. 2:20-cv-00832, 2020 WL 2121111, at *6 (E.D. Cal. May 5, 2020); Maryville Baptist Church v. Beshear, No. 3:20-cv-278, 2020 WL 1909616, at *2 (W.D.

28 Ky. Apr. 18, 2020).

18
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1778 Page 25 of 27

1 this Court previously misallocated the burden, warranting a fresh look.

2

Under this burden, California must demonstrate that it seriously undertook to

3 consider other, less-restrictive alternatives and ruled them out for good reason,

4 meaning that it “considered different methods that other jurisdictions have found

5 effective.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014). Under its burden,

6 California “would have to show either that substantially less-restrictive alternatives

7 were tried and failed, or that the alternatives were closely examined and ruled out for

8 good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016).

9

Here, there is no evidence that California engaged in these actions. Notably,

10 the only evidence actually submitted below by California was one expert declaration.

11 Watt Decl., ¶¶ 1–18. But that declaration merely established the undisputed fact that

12 gatherings can lead to COVID-19 outbreaks, and then provided examples of

13 outbreaks connected to “religious services, choir practices, funerals, and parties.”

14 Watt Decl., ¶ 15.

15

But that declaration does not answer the real question. There have been plenty

16 of outbreaks related to factories, such as the clothing factory depicted above. (Exs.

17 52–55.) What is California’s compelling interest in restricting churches, but not

18 factories or other industries? “There is ample scientific evidence that COVID-19 is

19 exceptionally contagious. But evidence that the risk of contagion is heightened in a

20 religious setting any more than a secular one is lacking.” Tabernacle Baptist Church,

21 Inc. of Nicholasville v. Beshear, --- F. Supp. 3d ---, 2020 WL 2305307, at *5 (E.D. Ky.

22 2020). Further, examples abound of less restrictive approaches that California has

23 neither tried nor considered:

24

Notably, 15 other Governors trusted the people of their

25

states and exempted religious gatherings from any attendance limitations during this pandemic. The Governor

26

has failed to cite any peer-reviewed study showing that

27

religious interactions in those 15 states have accelerated the

spread of COVID-19 in any manner distinguishable from

28

19
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1779 Page 26 of 27

1

non-religious interactions.

2 Berean Baptist, 2020 WL 2514313, at *9 (footnote omitted). Indeed, Illinois’ orders

3 simply adopt California’s guidance and make the standards permissive, not

4 mandatory. (Ex. 56.) California has no evidence that a permissive approach will not

5 be sufficient. And San Diego itself has sent a letter to Governor Newsom stating that

6 due to its “positive data results” it “believe[s] that religious facilities could be

7 opened more broadly—beyond the 25% or 100 person cap provided we have another

8 week of positive data.” (Ex. 7.) Further, many states have never had any state-wide

9 shutdown whatsoever. (Ex. 57.)8 The COVID-19 rates in those states have been 10 largely similar to California’s. (Ex. 58.) Other states have set their caps at 25%

11 capacity or no more than 50 persons—leading to lawsuits. (Ex. 59–60.) And others

12 have set the cap at 250 persons. (Ex. 61.) Why 50 or 250 and not 100? It is not clear, 13 but it appears that the numbers have simply been arbitrarily picked.

14

Plaintiffs’ food distribution and Pentecost worship services met or exceeded

15 the distancing and hygiene requirements California and San Diego deem sufficient for 16 other industries. As such, there is no justification for restricting Plaintiffs in a manner

17 disparate from those other industries.

18

California’s failure to tailor its Reopening Plan to closely fit the safety ends it

19 espouses, and its failure to try other, less restrictive alternatives that it cannot

20 demonstrate are not working in other jurisdictions across the country, defeats

21 California’s satisfaction of its burden to prove narrow tailoring. “As the Government

22 bears the burden of proof on the ultimate question of . . . constitutionality, [Plaintiffs]

23 must be deemed likely to prevail unless the Government has shown that [its]

24 proposed less restrictive alternatives are less effective than [unduly limitting

25 Plaintiffs’ worship].” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). It has not shown

26
27 8 This includes Arkansas, Iowa, Nebraska, North Dakota, South Dakota, Utah, and Wyoming. (See Ex. 56.) Wisconsin had a state-wide shut down, but it was lifted by its
28 supreme court. Wisconsin Legislature v. Palm, 2020 WI 42.
20
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-1 Filed 07/10/20 PageID.1780 Page 27 of 27

1 as much.

2 6. The Public Interest Favors an Injunction

3

Much has been made over how California’s refusal to apply its pandemic

4 restrictions to political protestors has caused a spike in infection rates. (Ex. 62 [LA

5 Mayor acknowledging connection].) However, despite this spike in infection rates,

6 the hospitalization and death rates have not meaningfully changed. (Ex. 63–64.)

7 Further, we now know that the coronavirus is not spread by asymptotic carriers, and

8 so it is easy to prevent its spread through requiring individuals with symptoms to stay

9 home. (Ex. 65.)

10

Therefore, California’s self-created spike is not a justification for further

11 curtailing Plaintiffs’ rights.

12

CONCLUSION

13

The above new matters undoubtedly constitute “substantial issues”

14 warranting this Court’s attention. Indeed, the court in Soos recognized that the

15 discriminatory enforcement of pandemic restrictions against worship only—and not

16 the George Floyd protesters—was enough to even overcome the Jacobson standard.

17 Thus, Plaintiffs respectfully request that this Court grant this motion for an

18 indicative ruling, inviting the Ninth Circuit to order a limited remand on the above

19 issues.

20

21

LiMANDRI & JONNA LLP

22

23 Dated: July 10, 2020 24 25 26

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

27

28
21
Memo. of P&A ISO Mtn. for Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1781 Page 1 of 7

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067

5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

28

Case No.: :20-cv-865-BAS
(Supplemental) Declaration of Bishop Arthur Hodges III in Support of Motion for an Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1(a)(3)
Judge: Cynthia Bashant Dep’t: Courtroom: 4B Date: August 10, 2020 Time: No Oral Argument Unless
Requested by the Court
ORAL ARGUMENT REQUESTED

Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1782 Page 2 of 7

1

I, Bishop Arthur Hodges III, declare and state as follows:

2

1. I am a plaintiff in the this action. I am a resident of San Diego County,

3 California. I serve as Senior Pastor of South Bay Pentecostal Church, also a plaintiff. I

4 also serve as Superintendent for the SoCal District of the United Pentecostal Church

5 International.

6

2. I submit this supplemental declaration with respect to Plaintiffs’ request

7 for injunctive relief enjoining California and San Diego from treating them less

8 favorably than other entities under their coronavirus pandemic regulations. This

9 declaration is meant to supplement my prior declaration dated May 11, 2020, and

10 available at Dkt. 12-2. As a result, I largely do not repeat the matters discussed in that

11 declaration. I have personal knowledge of the matters set forth below, and could and

12 would testify competently to them if called upon to do so.

13

3. I have served as Senior Pastor of South Bay United Pentecostal Church

14 for thirty-five years. I also oversee more than one-hundred Pentecostal churches

15 across Southern California, and more than two-hundred pastors and ministers.

16

4. South Bay Pentecostal Church is a reflection of the Chula Vista

17 community. It is a multi-national, multi-cultural congregation. The majority of its

18 members are Hispanic, with the balance consisting of Filipino, Caucasian, African-

19 American, and other ethnic groups. It is an open and accepting community that

20 believes all humans are children of God.

21

5. Before the coronavirus pandemic, South Bay Pentecostal Church held

22 between three and five services each Sunday. The average attendance at some of

23 these services was between two-hundred and three-hundred congregants.

24

6. As the below photos demonstrate, South Bay Pentecostal Church

25 possesses a large sanctuary. The sanctuary can hold up to six-hundred people, and

26 provides ample room to accommodate the six feet of social distancing promoted by

27 national, state, and local regulations.

28
1 Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1783 Page 3 of 7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2 Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1784 Page 4 of 7

1

7. During the week following Monday, May 25, 2020, California and San

2 Diego lifted the outright ban on worship services. As a result, the following Sunday,

3 May 31 (Pentecost Sunday), South Bay Pentecostal Church held worship services

4 with no more than 100 persons in attendance. Below are photos of those services:

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3 Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1785 Page 5 of 7

1

8. To attend a Sunday worship service, South Bay Pentecostal Church

2 requires its congregants to reserve their place online. Every Sunday, South Bay

3 Pentecostal Church has had to turn numerous people away because we met the 100

4 person cap for each of our services. This is despite the fact that the sanctuary could

5 safely (with social distancing) accommodate more than 100 persons.

6

9. Each worship service requires the participation of least 30

7 volunteers/staff to be held. Such individuals serve as parking lot attendants, members

8 of the COVID-safe intake team, security, cleaners between services, ushers, greeters,

9 musicians, singers, and video/audio projection operators. Many of our volunteers and

10 staff are elderly or high-risk, and so South Bay Pentecostal Church has asked them to

11 not participate. This, however, has limited our ability to hold multiple services.

12 Presently, South Bay Pentecostal Church has been holding, and cannot feasibly hold

13 more than, three worship services each Sunday. If we had the resources and staffing

14 to hold more services, we would, but we presently do not have the ability to do so.

15

10. As stated at length in my original declaration dated May 11, 2020, South

16 Bay Pentecostal Church has a complex theology, based on Sacred Scripture, relating

17 to the requirement that “all” of its congregants gather together. California’s present

18 regulations continue to burden those religious beliefs, by preventing “all” to gather.

19 See Dkt. 12-2 (citing Hebrews 10:25; Acts 1:8, 2:1, 2:42, 2:46–27). These religious

20 requirements disfavor multiple worship services, by preferring that the entire

21 congregation meet at once. For example, it would be like holding a family reunion in

22 three sessions, with one-third of the family gathering at each session, but not being

23 allowed to meet the rest of the family gathering in the other sessions.

24

11. South Bay Pentecostal Church’s religious requirements also permit of,

25 and encourage, congregants to attend multiple worship services—which many

26 normally do. Nevertheless, because the interplay of California’s regulations and the

27 nature of our worship services limits us to serving 300 people each Sunday (at three

28
4 Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1786 Page 6 of 7

1 worship services), we have had to limit congregants’ ability to attend more than one

2 service per Sunday.

3

12. On June 12, 2020, after our opening brief on appeal noted that political

4 protests and worship services were treated the same under California’s regulations—

5 but in practice certain political protests were entirely exempt from those

6 regulations—California modified them. Under the June 12 regulations, there are no

7 restrictions on protest or worship, so long as it occurs outdoors, not indoors.

8

13. Regardless of whether this regulation was motivated by good or bad

9 intent, it does not help South Bay Pentecostal Church. We do not have any place

10 where we can meet outdoors. More problematically, as stated in my original

11 declaration, our theology requires approaching the altar at the end of each service and

12 performing baptisms (both with social distancing). Our altar and baptistery is in our

13 sanctuary auditorium, which is indoors.

14

14. On July 6, 2020, in addition to the above restrictions, California

15 published regulations stating that “activities such as singing and chanting negate the

16 risk-reduction achieved through six feet of physical distancing. *Places of worship

17 must therefore discontinue indoor singing and chanting activities.” (italics modified).

18

15. This restriction is particularly concerning because singing is at the very

19 heart of Pentecostal worship services. This requirement is essentially a ban on

20 Pentecostal worship services.

21

16. The ban on singing also makes little sense when applied to South Bay

22 United Pentecostal Church, since all of our congregants wear masks. Further, as I

23 explained previously, since the closure orders were put in place, South Bay

24 Pentecostal Church has worked with the Chula Vista Police Department to develop a

25 drive-through food distribution system staffed by volunteers wearing masks and

26 gloves. During any given week, the South Bay Pentecostal Church distributes

27 between three and twelve tons of food. Below is a photograph of the food distribution

28 service in action:

5 Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-2 Filed 07/10/20 PageID.1787 Page 7 of 7

1

2

3

4

5

6

7

8

9

10

11

12

17. Due to that experience, I was confident that South Bay Pentecostal

13 Church could resume worship services safely and without incident. So far, my

14 confidence has proven correct. Despite regularly testing our staff and volunteers, we

15 have yet to receive a positive test for the coronavirus. We also encourage our

16 congregants to notify us if they test positive for the coronavirus, and we unaware of

17 any congregant testing positive as a result of our worship services.

18

18. Thus, banning indoor worship singing—when it is most likely outdoor

19 protest chanting and shouting, by many people not wearing masks, which has caused

20 any spike in coronavirus cases—makes no logical sense.

21

I declare until penalty of perjury under the laws of the United States and the

22 State of California that the foregoing is true and correct. Executed on July 9, 2020.

23

24

25

Bishop Arthur Hodges III

26

27

28
6 Supp. Bishop Hodges Decl.

Case 3:20-cv-00865-BAS-AHG Document 45-4 Filed 07/10/20 PageID.2307 Page 1 of 6

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

Case No.: 20-cv-865-BAS
Request for Judicial Notice in Support of Motion for an Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1(a)(3)

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

Judge: Cynthia Bashant Dept: Courtroom: 4B Date: August 10, 2020 Time: No Oral Argument Unless
Requested by the Court
ORAL ARGUMENT REQUESTED

28

Request for Judicial Notice ISO Motion for an Indicative Ruling `

Case 3:20-cv-00865-BAS-AHG Document 45-4 Filed 07/10/20 PageID.2308 Page 2 of 6

1

NOTICE OF MOTION AND MOTION

2 TO: PLAINTIFFS AND THEIR ATTORNEY(S) OF RECORD:

3

PLEASE TAKE NOTICE that Plaintiffs South Bay United Pentecostal

4 Church and Bishop Arthur Hodges III respectfully submit a Request for Judicial

5 Notice of the following exhibits to the LiMandri declaration:

6

o Exhibit 2: letter from Eric S. Dreiband, and California’s four U.S.

7

Attorneys to Governor Newsom, dated May 19, 2020.

8

o Exhibit 3: transcript of President Trump’s May 22, 2020, remarks on

9

the necessity of Governors permitting worship services to continue.

10

o Exhibit 4: California’s coronavirus industry guidance for places of

worship, dated May 25, 2020.

11

12

o Exhibit 5: the relevant pages of California’s Stay home Q&A page from

the www.covid19.ca.gov website, as of May 25, 2020.

13

14

o Exhibit 6: San Diego County’s Order of the Health Officer and Emergency Regulations, dated May 27, 2020.

15

o Exhibit 7: letter from Greg Cox, Chairman, San Diego County Board of

16

Supervisors to Governor Gavin Newsom, dated June 3, 2020.

17 o Exhibit 8: California’s coronavirus industry guidance for places of

18

worship, dated June 12, 2020.

19

o Exhibit 9: the relevant pages of California’s Stay home Q&A page from

20

the www.covid19.ca.gov website, as of June 12, 2020.

21

o Exhibit 10: San Diego County’s Order of the Health Officer and

22

Emergency Regulations, dated June 19, 2020.

23

o Exhibit 11: California’s coronavirus industry guidance for places of

24

worship, dated July 6, 2020.

25

o Exhibit 12: the relevant pages of California’s Stay home Q&A page

26

from the www.covid19.ca.gov website, as of June 6, 2020.

27

o Exhibit 13: San Diego County’s Order of the Health Officer and

28

Emergency Regulations, dated July 7, 2020.

1 Request for Judicial Notice ISO Motion for an Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-4 Filed 07/10/20 PageID.2309 Page 3 of 6

1

o Exhibit 16: the press release titled Governor Newsom Statement on

2

Demonstrations across California and the Passing of Federal Officer, published by the office of Governor Newsom, dated May 30, 2020.

3

4

o Exhibit 18: the transcript of Governor Newsom’s June 1, 2020, remarks regarding the George Floyd protestors.

5

o Exhibit 25: the Department of Justice’s press release titled: Statement

6

from Assistant Attorney General Eric Drieband and U.S. Attorney

7

Matthew Schneider on New York City’s Reopening Plans,” dated June

8

22, 2020.

9

o Exhibit 26: letter from Assistant Attorney General Eric Drieband to

New York Mayor Bill de Blasio dated June 19, 2020.

10

11

o Exhibit 51: abstract of the journal article Cluster of Coronavirus Disease

Associated with Fitness Dance Classes, South Korea, CDC Research Letter,

12

dated August 2020.

13

o Exhibit 58: printout of the CDC website page Cases in the US, as of June

14

3, 2020.

15

o Exhibit 64: the webpage Key Health Indicators, National Center for

16

Health Statistics, last modified April 20, 2020.

17

This motion is based on this Motion, the concurrently filed declaration of

18 Charles S. LiMandri, the pleadings and papers on file herein, and upon such other

19 matters as may be presented to the Court at the time of the hearing.

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /
2 Request for Judicial Notice ISO Motion for an Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-4 Filed 07/10/20 PageID.2310 Page 4 of 6

1

INTRODUCTION

2

Plaintiffs South Bay United Pentecostal Church and Bishop Arthur Hodges III,

3 by and through their attorneys, hereby request that the Court take judicial notice of

4 various governmental orders, letters, press releases, statistics, and press conference

5 statement, all of which are attached to the Declaration of Charles S. LiMandri.

6

LEGAL STANDARDS

7

“The court may judicially notice a fact that is not subject to reasonable dispute

8 because it: (1) is generally known within the trial court’s territorial jurisdiction; or

9 (2) can be accurately and readily determined from sources whose accuracy cannot

10 reasonably be questioned.” Fed. R. Evid. 201(b). “The court . . . must take judicial

11 notice if a party requests it and the court is supplied with the necessary information.”

12 Id. at subd. (c)(2); see also Lyon v. Gila River Indian Cmty., 626 F.3d 1059, 1075 (9th

13 Cir. 2010) (abuse of discretion to not take judicial notice “when a party requests it

14 and supplies all necessary information”).

15

Fed. R. Evid. 201 “deals only with judicial notice of ‘adjudicative’ facts.” Adv.

16 Comm. Notes to Fed. R. Evid. 201(a). “Adjudicative facts are simply the facts of the

17 particular case. Legislative facts, on the other hand, are those which have relevance to

18 legal reasoning and the lawmaking process, whether in the formulation of a legal

19 principle or ruling by a judge or court or in the enactment of a legislative body.” Id.

20 (italics added). Stated differently, “[a]djudicative facts are facts that normally go to

21 the jury in a jury case. They relate to the parties, their activities, their properties,

22 their businesses. By contrast, legislative facts do not relate specifically to the

23 activities or characteristics of the litigants. A court generally relies upon legislative

24 facts when it purports to develop a particular law or policy and thus considers

25 material wholly unrelated to the activities of the parties.” Qualley v. Clo-Tex Int’l,

26 Inc., 212 F.3d 1123, 1128 (8th Cir. 2000) (quotation marks, brackets, and citations

27 omitted).

28 ///
3 Request for Judicial Notice ISO Motion for an Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-4 Filed 07/10/20 PageID.2311 Page 5 of 6

1

LEGAL ARGUMENT

2

Here, Plaintiffs ask that this Court take judicial notice of: state and local

3 pandemic executive orders (Ex. 4–6, 8–13); letters and press releases published by

4 local, state, and federal officials (Ex. 2, 7, 16, 25, 26), remarks of executive officials at

5 press conferences (Ex. 3, 18), and various government statistics (Ex. 51, 58, 64).

6 These are all properly judicially noticeable.

7

For example, “a court may take judicial notice of ‘matters of public record.’”

8 Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citing Mack v. South Bay

9 Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)). Government documents that are

10 public records are appropriate subjects for judicial notice. See, e.g., Cachil Dehe Band

11 of Wintun Indians of the Colusa Indian Cmty. v. California, 547 F.3d 962, 968 n.4 (9th

12 Cir. 2008) (government documents on government website); Greeson v. Imperial Irr.

13 Dist., 59 F.2d 529, 531 (9th Cir. 1932) (“[T]he court is bound to take notice of public

14 facts . . . [and] public documents . . . .”). In that regard, official acts of the executive

15 branch may alos be judicially noticeable. See, e.g., Pratap v. Wells Fargo Bank, N.A., 63

16 F. Supp. 3d 1101, 1104 n.1 (N.D. Cal. 2014); Nat. Res. Def. Council v. McCarthy, No.

17 16-CV-02184-JST, 2016 WL 6520170, at *2 (N.D. Cal. Nov. 3, 2016).

18

Courts also routinely hold that it is proper to take judicial notice of information

19 and statistics collected by a government agency. Such information is treated under

20 Rule 201 of the Federal Rules of Civil Procedure as facts from a governmental agency

21 that are not subject to reasonable dispute. See, e.g., Hollinger v. Home State Mut. Ins.

22 Co., 654 F.3d 564, 571–72 (5th Cir. 2011) (“United States census data is an

23 appropriate and frequent subject of judicial notice); Ibrahim v Department of

24 Homeland Sec., 669 F.3d 983, 988–90 (citing extensively to federal reports by the

25 Department of Homeland security, Department of Justice – Office of Inspector

26 General, and Government Accountability office, as well as statements made at

27 congressional hearings); see generally Winzler v. Toyota Motor Sales U.S.A., Inc., 681

28 F.3d 1208, 1213 (10th Cir. 2012) (“The contents of an administrative agency’s
4 Request for Judicial Notice ISO Motion for an Indicative Ruling

Case 3:20-cv-00865-BAS-AHG Document 45-4 Filed 07/10/20 PageID.2312 Page 6 of 6

1 publicly available files . . . traditionally qualify for judicial notice”); New Mexico ex rel.

2 Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n.22 (10th Cir. 2009) (taking

3 judicial notice of materials on the websites of two federal agencies). See also United

4 States v. Chester, 628 F.3d 673, 692 & n.4 (4th Cir. 2010) (taking judicial notice of

5 records of the CDC); Gent v. CUNA Mut. Ins. Soc’y, 611 F.3d 79, 84 n.5 (1st Cir.

6 2010) (taking judicial notice of records on the CDC’s website).

7

CONCLUSION

8

For the foregoing reasons, Plaintiffs respectfully request that this Court take

9 judicial notice of the above-referenced governmental documents, all of which are

10 attached to the Declaration of Charles S. LiMandri.

11

12

LiMANDRI & JONNA LLP

13 14 Dated: July 10, 2020 15 16 17

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

18

19

20

21

22

23

24

25

26

27

28
5 Request for Judicial Notice ISO Motion for an Indicative Ruling

 
 Case 3:20-cv-00865-BAS-AHG Document 53 Filed 08/10/20 PageID.2960 Page 1 of 3

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

Case No.: 3:20-cv-865-BAS
Notice of Motion and Renewed Motion for a Temporary Restraining Order / Preliminary Injunction

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

Judge: Cynthia Bashant Dept: Courtroom: 4B Date: TBD Time: No Oral Argument Unless
Requested by the Court
ORAL ARGUMENT REQUESTED

28

Notice of Motion and Renewed Motion. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53 Filed 08/10/20 PageID.2961 Page 2 of 3

1 TO: THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

2

RECORD:

3

PLEASE TAKE NOTICE that Plaintiffs South Bay United Pentecostal

4 Church and Bishop Arthur Hodges III, by and through counsel, will and hereby do

5 renew their motion for a temporary restraining order / preliminary injunction

6 pursuant to Fed. R. Civ. P. 65(b), seeking an order enjoining Defendants Gavin

7 Newsom, in his official capacity as the Governor of California; Xavier Becerra, in his

8 official capacity as the Attorney General of California, Sonia Angell, in her official

9 capacity as California Public Health Officer, Wilma J. Wooten, in her official capacity

10 as Public Health Officer, County of San Diego, Helen Robbins-Meyer, in her official

11 capacity as Director of Emergency Services, and William D. Gore, in his official

12 capacity as Sheriff of the County of San Diego (“Defendants”), as follows:

13

Defendants, their agents, employees, and successors in office, are restrained

14 and enjoined from enforcing, trying to enforce, threatening to enforce, or otherwise

15 requiring compliance with:

16

1. any industry-specific standards for Places of Worship that do not apply to

17

other industries;

18

2. any government order treating Places of Worship dissimilarly from

19

shopping (whether deemed by California to be essential or non-essential

20

shopping), restaurants, factories, and protests; and

21

3. any prohibition on indoor worship services, including singing or chanting

22

during such worship services.

23

This Motion is made on the grounds that Plaintiffs are likely to succeed on the

24 merits of this case, they will suffer irreparable harm without injunctive relief, the

25 balance of equities tips sharply in their favor, and the relief sought is in the public

26 interest.

27

Good cause exists to issue the requested Order to preserve Plaintiffs’ rights

28 under the Constitution of the United States and the Constitution of the State of
1
Notice of Motion and Renewed Motion. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53 Filed 08/10/20 PageID.2962 Page 3 of 3

1 California, and to avoid irreparable harm to those rights. This Motion is supported by

2 the accompanying Memorandum of Points and Authorities; by the declarations of

3 Plaintiff Bishop Arthur Hodges III, Attorney Jeffrey M. Trissell, Esq., and experts

4 Dr. Charles Cicchetti, Dr. James Lyons-Weiler, Sean G. Kaufmann, Dr. George

5 Delgado, and Dr. Jayanta Bhattacharya, and all exhibits attached thereto; by the

6 Verified Second Amended Complaint (Dkt. 47); by the prior briefing (Dkt. 12, 29, 36,

7 45); by the prior declarations of Bishop Hodges (Dkt. 12-2, 45-2); by the prior

8 declaration of Dr. Delgado (Dkt. 12-3); by the prior attorney declarations with

9 exhibits (Dkt. 12-4, 45-3); by the prior requests for judicial notice (Dkt. 13, 21, 45-4);

10 and by such further argument and evidence that may be adduced at any hearing on

11 this matter or of which the Court may take judicial notice.

12

Plaintiffs request that the Court waive any bond requirement, because

13 enjoining Defendants from unconstitutionally prohibiting religious practices will not

14 financially affect Defendants.

15

16

LiMANDRI & JONNA LLP

17

18 Dated: August 10, 2020 19 20 21

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

22

23

24

25

26

27

28
2
Notice of Motion and Renewed Motion. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2963 Page 1 of 32

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

28

Case No.: 3:20-cv-865-BAS
Memorandum of Points & Authorities in Support of Renewed Motion for a Temporary Restraining Order / Preliminary Injunction
Judge: Cynthia Bashant Dept: Courtroom: 4B Date: TBD Time: No Oral Argument Unless
Requested by the Court
ORAL ARGUMENT REQUESTED

Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2964 Page 2 of 32

1 TABLE OF CONTENTS
2 3 INTRODUCTION ................................................................................................ 1
4 PROCEDURAL HISTORY ................................................................................... 1

5

A. The Stabilization of the Pandemic in California ..................................1

6

B. The Present Ban on Pentecostal Worship ...........................................3

7

C. Plaintiffs Bishop Hodges and South Bay Pentecostal Church ..............5

8

9 LEGAL STANDARD ............................................................................................7

10 ARGUMENT........................................................................................................ 8

11

1. South Bay Pentecostal Church Will Likely Succeed on the Merits....... 8

12

1.1. California’s Worship Restrictions Violate Plaintiffs’

13

Free Exercise Rights. ................................................................ 8

14

1.1.1. California’s worship restrictions are not neutral.............. 8

15

1.1.2. California’s worship and protest restrictions

16

are not generally applicable because they have

17

been enforced discriminatorily ....................................... 9

18

1.2. The Worship Restrictions Fail Strict Scrutiny and

19

Jacobson Scrutiny Because They Are Not Narrowly Tailored. .................................................................................10

20

1.2.1. The worship restrictions violate the California

21

Constitution .................................................................. 10

22

1.2.2. The worship restrictions violate the U.S.

23

Constitution.................................................................. 17

24

2. The Other Injunction Factors Favor South Bay. ............................... 24

25

CONCLUSION .................................................................................................... 25 26

27

28
i
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2965 Page 3 of 32

1

TABLE OF AUTHORITIES

2 Cases:

3 A&M Records, Inc. v. Napster, Inc .

7

284 F.3d 1091 (9th Cir. 2002)

4

5 Antietam Battlefield KOA v. Hogan

14

6

No. 1:20-cv-01130, 2020 WL 2556496 (D. Md. May 20, 2020)

7 Ashcroft v. ACLU

17

8

542 U.S. 656 (2004)

9 Berean Baptist Church v. Cooper,

10

No. 4:20-CV-81-D, 2020 WL 2514313 (E.D.N.C. May 16, 2020)

16, 24

11 Blackhawk v. Pennsylvania,

9, 12

12

381 F.3d 202 (3d Cir. 2004)

13 Brown v. Smith

10

14

24 Cal. App. 5th 1135 (2018)

15

Bruni v. City of Pittsburgh

16

16

824 F.3d 353 (3d Cir. 2016)

17

Calvary Chapel of Bangor v. Mills

14

18

No. 1:20-cv-00156, 2020 WL 2310913 (D. Me. May 9, 2020)

19

20

Calvary Chapel Dayton Valley v. Sisolak --- S. Ct. ---, 2020 WL 4251360 (2020)

12, 13, 15, 18, 20, 21

21

22 Catholic Charities of Sacramento, Inc. v. Superior Court

10

32 Cal. 4th 527 (2004)

23

24 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

8, 12

508 U.S. 520 (1993) 25

26 Coll. Republicans at San Francisco State Univ. v. Reed,

26

523 F. Supp. 2d 1005 (N.D. Cal. 2007)

27

28
ii
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2966 Page 4 of 32

1

TABLE OF AUTHORITIES—Continued

2 Cases:

3 Compassion in Dying v. State of Wash.

18

4

79 F.3d 790 (9th Cir. 1996)

5 Cross Culture Christian Ctr. v. Newsom

14

6

No. 2:20-CV-00832-JAM-CKD, 2020 WL 2121111 (E.D. Cal. May 5, 2020)

7 DiMartile v. Cuomo

19

8

No. 1:20-CV-0859 (GTS/CFH), 2020 WL 4558711 (N.D.N.Y. Aug. 7, 2020)

9 Doe v. Harris

26

772 F.3d 563 (9th Cir. 2014)

10

11

Elrod v. Burns 427 U.S. 347 (1976)

25

12 Engle v. Vitale

24

13

370 U.S. 421 (1962)

14 Espinoza v. Montana Dep’t of Revenue

15

140 S. Ct. 2246 (2020)

8, 9, 10, 12

16 Everson v. Bd. of Ed. of Ewing Twp.

23

17

330 U.S. 1 (1947)

18

Ex parte Arata 52 Cal. App. 380 (1921)

10

19

Ex parte Martin

10

20

83 Cal. App. 2d 164 (1948)

21 Ex parte Milligan

18

22

71 U.S. 2 (1866)

23 First Baptist Church v. Kelly

24

No. 20-1102-JWB, 2020 WL 1910021 (D. Kan. Apr. 18, 2020)

19, 20

25 Fisher v. Univ. of Texas at Austin

8

26

570 U.S. 297 (2013)

27 Flores v. Huppenthal

7

789 F.3d 994 (9th Cir. 2015)

28

iii
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2967 Page 5 of 32

1

TABLE OF AUTHORITIES—Continued

2 Cases:

3 Gon v. First State Ins. Co.

4

871 F.2d 863 (9th Cir. 1989)

5 Hurley v. Irish American GLIB

6

515 U.S. 557 (1995)

7 In re Wong Kim Ark

8

71 F. 382 (N.D. Cal. 1896)

9 Int’l Refugee Assistance Project v. Trump

10

857 F.3d 554 (4th Cir. 2017)

11

Jacobson v. Commonwealth of Massachusetts,

12

197 U.S. 11 (1905)

13

14

Jew Ho v. Williamson 103 F. 10 (C.C. Cal. 1900)

15

16 Joelner v. Vill. of Washington Park 378 F.3d 613 (7th Cir. 2004)
17

18 League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer ---Fed. Appx. ---, 2020 WL 3468281 (6th Cir. 2020)
19

20 Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania

21

140 S. Ct. 2367 (2020)

22 Maryville Baptist Church v. Beshear

23

No. 3:20-cv-278, 2020 WL 1909616 (W.D. Ky. Apr. 18, 2020)

24 McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.

25

545 U.S. 844 (2005)

26 McCullen v. Coakley

27

134 S. Ct. 2518 (2014)

28
iv
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

7 7 20 24 1, 9, 17 19, 20 25 12 24 14 22 15, 16

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2968 Page 6 of 32

1

TABLE OF AUTHORITIES—Continued

2 Cases:

3 Old Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin

7

4

418 U.S. 264 (1974)

5 Our Lady of Guadalupe Sch. v. Morrissey-Berru

6

140 S. Ct. 2049 (2020)

23, 24

7 Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church 23, 24

8

393 U.S. 440 (1969)

9 Reed v. Town of Gilbert, Ariz.

10

576 U.S. 155, 172 (2015)

11

Roberts v. Neace

12

958 F. 3d 409 (6th Cir. 2020)

13

14

S. Bay United Pentecostal Church v. Newsom 140 S. Ct. 1613 (2020)

15

16 S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020)
17

18 Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich 426 U.S. 696 (1976)
19

12 9, 25 13, 18
18 24

20 Soos v. Cuomo

12, 13, 20

21

No. 1:20-cv-651 (GLS/DJS), 2020 WL 3488742 (N.D.N.Y. June 26, 2020)

22 Spell v. Edwards

23

962 F.3d 175 (5th Cir. 2020)

21, 23

24 State v. Trump

7

25

871 F.3d 646 (9th Cir. 2017)

26 Stormans, Inc. v. Wiesman

9

27

794 F.3d 1064 (9th Cir. 2015)

28
v
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2969 Page 7 of 32

1

TABLE OF AUTHORITIES—Continued

2 Cases:

3 Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear

16

4

--- F. Supp. 3d ---, 2020 WL 2305307 (E.D. Ky. 2020)

5 Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly

9

6

309 F.3d 144 (3d Cir. 2002)

7 Trump v. Hawaii

20

8

138 S. Ct. 2392 (2018)

9

U. S. of Am. & Canada v. Milivojevich

24

10

426 U.S. 696 (1976)

11 U.S. ex rel. F.T.C. v. Bus. Recovery Servs. LLC

7

12

488 F. App’x 188 (9th Cir. 2012)

13 United States v. Playboy Entm’t Grp., Inc.

15

14

529 U.S. 803 (2000)

15

16 Other Authorities:

17 Cal. Const. Art. 1, § 1

10

18 District Attorney San Luis Obispo County, SLO County DA Declared a

19

Sanctuary County for Singing in Houses of Worship During COVID,

20

YOUTUBE (Jul. 31, 2020), https://youtu.be/KWjn233gMNM

5

21 Roxana Kopetman, OC Board of Education to sue Newsom as it seeks the full

22

reopening of schools, THE ORANGE COUNTY REGISTER (Jul. 29, 2020),

https://bit.ly/3fytGPr

8

23

24

25

26

27

28
vi
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2970 Page 8 of 32

1

INTRODUCTION

2

The situation has changed dramatically since this Court ruled in early May on

3 Plaintiffs South Bay United Pentecostal Church’s and Bishop Arthur Hodges III’s

4 application for a temporary restraining order and OSC re: preliminary injunction. As

5 Justice Kavanaugh recently made clear, defendants in cases such as these have had

6 more than four months to get their act together, and to be able to convincingly meet

7 their burden of establishing the constitutionality of their actions without recourse to

8 Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). However, for the

9 reasons discussed below, neither California nor San Diego can meet their burden

10 under either regular Free Exercise jurisprudence, or Jacobson jurisprudence, and so

11 this Court should grant Plaintiffs’ request for an injunction.

12

PROCEDURAL HISTORY

13 A. The Stabilization of the Pandemic in California

14

According to Centers for Disease Control and Prevention (CDC), between

15 February 1 and July 15, 2020, there were 1,387,325 deaths in America, with 121,374

16 deaths occurring as a result of COVID-19—or 8.75%. (Dkt. 47, Verified Second

17 Amended Complaint [VSAC], ¶ 105, Ex. 5-1.) The pandemic hit its peak in April, but

18 since then has dropped off dramatically. (VASC, ¶ 105, Ex. 5-2.)

19

Looking to California specifically, it is doing quite well. In comparison to other

20 states, as of July 15, 2020, California’s death rate placed it as only the 30th highest

21 rate among the 50 states. (VSAC, ¶ 107 & n.44.) Its statistics are only improving. (See

22 Cicchetti Decl., ¶¶ 15–20.) California’s death rate has largely stabilized, and its

23 hospitalization rates are in free-fall. (VSAC ¶ 108, Ex. 5-3.)

24

As of July 14, 2020, California had only reported a total of 7,227 deaths from

25 COVID-19. (VSAC, ¶ 106, Ex. 5-3.) With a population of 39,512,223 (Dkt. 13-1, RJN,

26 at 4), this means that as of mid-July, the probability of dying of COVID-19 in

27 California was 18.3 out of 100,000. This, of course, only includes data from the start

28 of the pandemic in mid-March to mid-July. But even if extrapolated out, the data is
1
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2971 Page 9 of 32

1 not overwhelming. Averaging the deaths for the past three months (May, June, and

2 July) shows an average of 2,384 monthly deaths. (Trissell Decl., Ex. Q.) If this rate

3 continues—which seems unlikely as the death rates are falling and a vaccine is

4 forthcoming—then over a twelve-month period, there would be 28,604 coronavirus

5 related deaths in California, which would be a death rate of 72.4 out of 100,000. In

6 comparison, the ten leading causes of death in California have the following rates out

7 of 100,000, according to the CDC: (1) Heart Disease: 139.7; (2) Cancer: 135;

8 (3) Alzheimer’s: 37.1; (4) Stroke: 37; (5) Accidents: 33.7; (6) Chronic Lower

9 Respiratory Diseases: 30.9; (7) Diabetes: 21.4; (8) Influenza/ Pneumonia: 15.6;

10 (9) Drug Overdose: 12.8; (10) Hypertension: 12.3. (VSAC, ¶ 106 & n.43.)

11

Looking to San Diego County specifically, as of July 13, 2020, it had a total of

12 436 coronavirus related deaths. (VSAC, ¶ 109, Ex. 5-4.) With a population of

13 3,338,330 (Dkt. 21-1, RJN, at 16), this means that the probability of dying of COVID-

14 19 in San Diego County was 13 out of 100,000. Again, this only includes data from

15 the start of the pandemic in mid-March to mid-July. But if the data from San Diego’s

16 reporting (VSAC, ¶ 110, Ex. 5-4) is extrapolated out—multiplied by three—then

17 there would be a total of 1,308 deaths, or a rate of only 39 out of 100,000. And of

18 course, this relies on the death rates not decreasing at all, an unlikely proposition. In

19 comparison, below are the leading causes of death in San Diego: (1) Malignant

20 Neoplasms: 158.3; (2) Diseases of the Heart: 140.6; (3) Alzheimer’s Disease: 33.9;

21 (4) Chronic Lower Respiratory Diseases: 32.7; (5) Cerebrovascular Diseases: 30.3;

22 (6) Accidents: 30.5; (7) Diabetes: 20.4; (8) Suicide: 12.8; (9) Chronic Liver Disease:

23 11.0; (10) Hypertension: 9.8. (Dkt. 21-1, RJN, at 20.)

24

Finally, looking to South Bay Pentecostal Church itself, despite regularly

25 testing its staff and volunteers, South Bay has yet to receive a positive test for the

26 coronavirus. The Church has also encouraged its congregants to notify it if they test

27 positive for the coronavirus, and is unaware of any congregant testing positive as a

28 result of its worship services. (VSAC, ¶¶ 83, 179.) And as one of Plaintiffs’ experts
2
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2972 Page 10 of 32

1 makes clear, the Court should look to the Church itself. (Kaufmann Decl., ¶ 14.)

2

Thus, in both California generally, and San Diego specifically—if the official

3 numbers can be trusted (but see Lyons-Weiler Decl., ¶¶ 8–20)—the coronavirus is

4 approximately half as deadly as either heart disease or cancer. In San Diego

5 specifically, even when extrapolated out for the whole year, the death rate stays in the

6 30s, along with Alzheimer’s disease, respiratory disease, strokes and physical

7 accidents. And at South Bay Pentecostal Church, the rate of coronavirus infections,

8 hospitalizations, and deaths resulting from its worship services is an absolute 0.

9 B. The Present Ban on Pentecostal Worship

10

On March 4 and 13, 2020, both President Donald J. Trump and Governor

11 Gavin Newsom proclaimed a State of Emergency as a result of the threat of the

12 emergence of a novel coronavirus, COVID-19. (VSAC, ¶ 18.) Then, in response to

13 these emergency declarations, on March 17, 2020, the County of San Diego issued its

14 “Order of the Health Officer and Emergency Regulations,” which prohibited

15 gatherings of more than 50 people. (VSAC, ¶ 27, Ex. 2-1.)1 Two days later, on March

16 19, 2020, California Governor Newsom issued his executive orders banning all

17 worship (VSAC, ¶¶ 28–29, Exs. 1-1, 1-2), which were re-promulgated by San Diego.

18 (VSAC, ¶¶ 30, Exs. 2-2, 2-3.) This was Stage 1 of Governor Newsom’s 4-Stage

19 “Resilience Roadmap” pandemic plan.

20

After seven weeks of Stage 1, however, Californians had enough—and on May

21 8, 2020, Governor Newsom moved California to Stage 2a of his Resilience Roadmap—

22 opening retail for curbside pickup and manufacturing/warehousing. (VSAC, ¶¶ 31–39,

23 Exs. 1-3, 1-4, 2-4, 2-5; Trissell Decl., Ex. R.) On Wednesday, May 20 (ahead of

24 Memorial Day weekend), California let San Diego move ahead to Stage 2b, including

25 permitting restaurants and malls to reopen. (VSAC, ¶ 42; Trissell Decl., Ex. S.)

26

On Memorial Day—Monday, May 25, 2020—Governor Newsom announced

27
1 Unless noted, all quotations are “cleaned up” by having ellipses, brackets, citations, emphasis,
28 and quotation marks omitted, and all emphasis is added.
3
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2973 Page 11 of 32

1 changes to his Resilience Roadmap with respect to constitutionally protected

2 protesting and worship activities. With respect to both, Governor Newsom permitted

3 individual counties to apply for 21-day licenses during which worship and protest

4 would be permitted so long as the gathering did not exceed 25% of “building

5 capacity” or “the relevant area’s maximum occupancy,” and with a maximum cap of

6 no more than 100 persons. (VSAC, ¶ 44.) However, California remained in “Stage

7 2.” Alongside this change, Governor Newsom published industry guidance for

8 “Places of Worship” (VSAC, Ex. 1-5), and updated the Q&A page on the

9 coronavirus website concerning political protests. (VSAC, Ex. 1-6.)

10

The next day, May 26, 2020, Governor Newsom also announced that hair

11 salons and barbershops could reopen (moving them from “Stage 3” to “Stage 2”).

12 (VSAC, ¶ 45; Trissell Decl., Ex. T.) On May 27, 2020, San Diego received its first

13 21-day worship/protest license, and issued a series of orders granting permission to

14 worship. (VSAC, ¶ 45, Ex. 2-6.) On June 5, 2020, California announced that the

15 remaining Stage 2 industries would be allowed to open within a week, such as

16 “schools and day camps.” Some Stage 3 industries were also allowed to open, such

17 as “bars [and] gyms.” (Dkt. 45-3, LiMandri Decl., Ex. 49.) Ultimately, on June 12,

18 2020, California let gyms, bars, museums, and schools reopen in San Diego—

19 essentially all Stage 3 industries except nail salons, tattoo parlors, and movie theaters.

20 (VSAC, ¶ 47; LiMandri Decl., Ex. 50; Trissell Decl., Ex. U.)

21

That same day, June 12, Governor Newsom changed, without public

22 announcement, the industry guidance for “Places of Worship” and the Q&A page

23 concerning protesting. On that date, Governor Newsom lifted restrictions on them

24 when they occurred outdoors—but continued the 100-person cap or 25% occupancy

25 limit for indoor worship or protesting. (VSAC, ¶ 48, Exs. 1-7, 1-8.) Beginning on June

26 16, San Diego issued orders adopting this change. (VSAC, ¶ 48, Ex. 2-7.)

27

On July 6, 2020, Governor Newsom changed the industry guidance for “Places

28 of Worship” and the Q&A page concerning political protesting. On that date,
4
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2974 Page 12 of 32

1 Governor Newsom banned “indoor singing and chanting activities.” (VSAC, ¶ 49,

2 Exs, 1-9, 1-10.) This led law enforcement in some counties to announce they would not

3 enforce that order.2 Then, on July 13, 2020, Governor Newsom banned 30 counties

4 from conducting many indoor activities, including worship and protest. (VSAC, ¶ 49,

5 Exs. 1-11, 1-12, 1-13.) This included small gatherings of worshippers in homes. (Trissell

6 Decl., Ex. V.) San Diego was one of those counties (VSAC, Ex. 1-11), and it modified

7 its orders to make clear that the ban on indoor activities applied in the County. (VSAC,

8 Ex. 2-8; Trissell Decl., Ex. W.)3 This led to a group of senators to call for President

9 Trump to get involved again, and speak out against this newest worship ban. (Trissell

10 Decl., Ex. X.) Finally, on July 17, 2020, California ordered that the same 30 counties

11 may not reopen their schools. (Trissell Decl., Ex. Y; see also Exs. Z, AA.)

12 C. Plaintiffs Bishop Hodges and South Bay Pentecostal Church

13

During the week following Monday, May 25, 2020, California and San Diego

14 lifted the first ban on all worship services. As a result, the following Sunday, May 31

15 (Pentecost Sunday), South Bay Pentecostal Church held worship services with no

16 more than 100 persons in attendance. (VSAC, ¶ 71.) To attend a Sunday worship

17 service, the Church required its congregants to reserve their place online. Every

18 Sunday, the Church had to turn numerous people away because it met the 100-

19 person cap for each of its services. This is despite the fact that the sanctuary could

20 safely (with social distancing) accommodate well over 100 persons. (VSAC, ¶ 72.)

21

Each worship service required the participation of at least 30 volunteers/staff

22 to be held. Such individuals served as parking lot attendants, members of the

23 COVID-safe intake team, security, cleaners between services, ushers, greeters,

24 2 District Attorney San Luis Obispo County, SLO County DA Declared a Sanctuary County for Singing 25 in Houses of Worship During COVID, YOUTUBE (Jul. 31, 2020), https://youtu.be/KWjn233gMNM.
3 Also closed were indoor and outdoor activities at bars and breweries, and indoor activities at
26 restaurants, wineries and tasting rooms, movie theaters, family entertainment (e.g., bowling alleys,
miniature golf, batting cages, arcades), zoos and museums, cardrooms, fitness centers, protests,
27 non-essential offices, personal care services (e.g., nail salons, body waxing, tattoo parlors), hair
salons and barbershops, and malls. (VSAC, Ex. 2-8.) Not closed were indoor activities at other
28 places, such as essential offices, manufacturing, and either essential or nonessential retail.
5
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2975 Page 13 of 32

1 musicians, singers, and video/audio projection operators. Many of the Church’s

2 volunteers and staff are elderly or high-risk, and so the Church asked them to not

3 participate. This, however, limited its ability to hold multiple services. The Church

4 had been holding, and could not feasibly hold more than, three worship services each

5 Sunday. (VSAC, ¶ 73.)

6

The Church has a complex theology, based on Sacred Scripture, relating to the

7 requirement that “all” of its congregants gather together. California’s regulations

8 continued to burden those religious beliefs, by preventing “all” from gathering.

9 (VSAC, ¶¶ 57–62, citing Hebrews 10:25; Acts 1:8, 2:1, 2:42, 2:46–27.) These religious

10 requirements disfavor multiple worship services, by preferring that the entire

11 congregation meet at once. For example, it would be like holding a family reunion in

12 three sessions, with one-third of the family gathering at each session, but not being

13 allowed to meet the rest of the family gathering in the other sessions. (VSAC, ¶ 80.)

14 The Church’s theology also encourages congregants to attend multiple worship

15 services—which many normally do. Nevertheless, because the interplay of California’s

16 regulations and the nature of its worship services limited the Church to serving a

17 maximum of 300 people each Sunday (at three worship services), it had to limit

18 congregants’ ability to attend more than one service per Sunday. (VSAC, ¶ 81.)

19

On June 12, 2020, after South Bay Pentecostal Church noted in briefing that

20 political protests and worship services were treated the same under California’s

21 regulations—but in practice certain political protests were entirely exempt from

22 those regulations—California modified them. Under the June 12 regulations, there

23 are no restrictions on protest or worship, so long as they occur outdoors, not indoors.

24 But regardless of whether this regulation was motivated by good or bad intent, it does

25 not help South Bay Pentecostal Church. The Church does not have an adequate place

26 where it can meet outdoors. More problematically, the Church’s theology requires

27 approaching the altar at the end of each service and performing baptisms (both with

28 social distancing). The Church’s altar and baptistery is in its sanctuary auditorium,
6
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2976 Page 14 of 32

1 which is indoors. (VSAC, ¶ 69.)

2

On July 6, 2020, in addition to the above restrictions, California published

3 regulations stating that “Places of worship must therefore discontinue indoor singing

4 and chanting activities.” (VSAC, Ex. 1-9.) This restriction is particularly concerning

5 because singing is at the very heart of Pentecostal worship services, and essentially acts

6 as a ban on them. (VSAC, ¶ 70; 2d Supp. Bishop Hodges Decl., ¶¶ 3–23.) Finally, on

7 July 13, 2020, California banned all indoor worship services. (VSAC, ¶ 49.) For the

8 reasons stated above, it has thus again banned Plaintiffs from exercising their faith.

9

LEGAL STANDARD

10

“A district court has inherent authority to modify [an order concerning] a

11 preliminary injunction in consideration of new facts.” A&M Records, Inc. v. Napster,

12 Inc., 284 F.3d 1091, 1098 (9th Cir. 2002). “A party seeking modification of an

13 injunction bears the burden of establishing that a significant change in facts or law

14 warrants revision of the injunction [order].” State v. Trump, 871 F.3d 646, 654 (9th

15 Cir. 2017). Typically, a motion to modify a preliminary injunction order is limited to

16 new facts or law. U.S. ex rel. F.T.C. v. Bus. Recovery Servs. LLC, 488 F. App’x 188,

17 189-90 (9th Cir. 2012). “On the other hand, a modification may be so fundamental to

18 the original injunction, or may otherwise present issues so inextricable from the

19 validity of the original injunction, that review must include the whole package.” Gon

20 v. First State Ins. Co., 871 F.2d 863, 866-67 (9th Cir. 1989). “A court abuses its

21 discretion when it refuses to modify an injunction [order] in light of a significant

22 change either in factual conditions or in law.” Flores v. Huppenthal, 789 F.3d 994,

23 1001 (9th Cir. 2015). When the preliminary injunction order involves constitutional

24 rights, a review of the whole package is also compelled by the constitution. See Old

25 Dominion Branch No. 496, National Ass’n of Letter Carriers v. Austin, 418 U.S. 264,

26 282 (1974); Hurley v. Irish American GLIB, 515 U.S. 557, 567-68 (1995).

27 ///

28 ///

7
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2977 Page 15 of 32

1

ARGUMENT

2 1. South Bay Pentecostal Church Will Likely Succeed on the Merits.

3 1.1. California’s Worship Restrictions Violate Plaintiffs’ Free Exercise Rights.

4

With respect to the State of California, its ban on religious worship triggers the

5 application of strict scrutiny for the reasons discussed in this section.4 With respect

6 to the County of San Diego, any substantial burden on Plaintiffs’ free exercise of

7 religion automatically triggers strict scrutiny. This is because Plaintiffs are asserting

8 against San Diego a claim under the California Constitution’s Free Exercise clause,

9 which automatically applies strict scrutiny. Therefore, with respect to San Diego, the

10 Court may proceed directly to Section 1.2.5

11

1.1.1. California’s worship restrictions are not neutral.

12

If a law classifies on the basis of protected characteristic such as race or

13 religion, it is subject to strict scrutiny. Fisher v. Univ. of Texas at Austin, 570 U.S. 297,

14 309 (2013) (race); Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2255 (2020)

15 (religion). With respect to the latter, a law classifies on the basis of religion and

16 “lacks facial neutrality if it refers to a religious practice” unless it is clear that the

17 words used were intended to have “a secular meaning.” Church of the Lukumi Babalu

18 Aye, Inc. v. City of Hialeah, 508 U.S. 533, 546 (1993).

19

Previously, California instituted a generic ban on all people leaving their homes

20 (VSAC, ¶ 28, Ex. 1-1), and then granted a long series of exemptions which did not

21 include leaving one’s home for the purpose of worship. (VSAC, ¶ 29, Ex. 1-2.) Thus,

22 the parties were required to argue over whether those long series of exemptions made

23 4 In line with its motion for an indicative ruling, South Bay Pentecostal Church tailors its argument to

its Free Exercise claims under the U.S. and California Constitutions. However, the Church is not

24 abandoning its Equal Protection or Due Process claims. Indeed, under modern jurisprudence, a

Federal Free Exercise claim is akin to an Equal Protection claim, and so the analysis largely overlaps.
25 And the Church still believes that a ban on its worship, and an instruction that it worship like some

other groups (via video streaming, outdoor services, or without singing), “shocks the conscience.”
26 5 Cf., e.g., VSAC, ¶ 46 (quoting letter from San Diego to California requesting leave to open more

27

fully because local situation does not justify shutdown); Roxana Kopetman, OC Board of Education to sue Newsom as it seeks the full reopening of schools, THE ORANGE COUNTY REGISTER (Jul. 29, 2020),

28 https://bit.ly/3fytGPr.

8
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2978 Page 16 of 32

1 an otherwise neutral (not facially discriminatory) law not generally applicable. This is

2 no longer the case. Now California is explicitly regulating worship itself. Stated

3 differently, ordering that “worshippers may not gather” is no different than—and

4 equally repugnant as—if in response to the very beginning of the pandemic,

5 California ordered that “Chinese may not gather,” or following the BLM Protest

6 spikes, California ordered that “African-Americans may not gather.” In either case,

7 strict scrutiny is mandated.

8

Even if the government later attempts to identify a purportedly neutral

9 explanation, classifying people based on a protected characteristic is always

10 repugnant, and indeed, trying to come up with an explanation, is equally repugnant as

11 invidious stereotyping. Espinoza, 140 S. Ct. at 2256 (“Status-based discrimination

12 remains status based even if one of its goals or effects is” a valid, neutral goal).

13

1.1.2. California’s worship and protest restrictions are not generally

14

applicable because they have been enforced discriminatorily

15

Even if California’s regulation of worship and protest were neutral, that

16 regulation would not be generally applicable because they have been “enforced in a

17 discriminatory manner.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir.

18 2004). “Faith-based discrimination can come in many forms.” Roberts v. Neace, 958

19 F. 3d 409, 413 (6th Cir. 2020). To not be “enforced in a discriminatory manner,”

20 California must show that it “had enforced it[s regulations] uniformly.” Tenafly Eruv

21 Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 167–68 (3d Cir. 2002); see also

22 Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1083–84 (9th Cir. 2015) (no discriminatory

23 enforcement because no evidence that Washington’s “complaint-driven enforcement

24 of the rules” was not uniform).

25

Previously, although Plaintiffs had evidence that California and San Diego

26 were enforcing their regulations against places of worship, they had little evidence of

27 a conscious refusal to enforce them against other groups. This has now changed, as

28 explained below in section 1.2.2, mandating strict scrutiny.
9
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2979 Page 17 of 32

1 1.2. The Worship Restrictions Fail Strict Scrutiny and Jacobson Scrutiny

2

Because They Are Not Narrowly Tailored.

3

Jacobson dealt with a statute, passed by a duly elected legislature, that infringed

4 on federal constitutional rights. Jacobson v. Commonwealth of Massachusetts, 197 U.S.

5 11, 38 (1905). It has no applicability to Plaintiffs’ religious claims under the California

6 Constitution. Id. Rather, under the California Constitution, the Right of Liberty

7 limits the government’s ability to mandate even secular pandemic restrictions. See

8 Cal. Const. Art. 1, § 1 (“All people are by nature free and independent and have

9 inalienable rights. Among these are enjoying and defending life and liberty”). Relying

10 on this clause, California courts have held that its residents may only be quarantined

11 if “reasonable ground exists to support the belief that the person so held is infected.”

12 Ex parte Martin, 83 Cal. App. 2d 164, 167 (1948); see also Ex parte Arata, 52 Cal. App.

13 380, 385 (1921). In light of the above, Plaintiffs proceed first to an analysis of regular

14 Free Exercise jurisprudence, which applies to their California Constitution Free

15 Exercise claim against San Diego, and then to a Jacobson analysis, which potentially

16 applies to their U.S. Constitution Free Exercise claim against California.

17

1.2.1. The worship restrictions violate the California Constitution

18

Since San Diego’s restrictions on Plaintiffs’ worship burdens Plaintiffs’

19 religious rights, they must satisfy “strict scrutiny.” Catholic Charities of Sacramento,

20 Inc. v. Superior Court, 32 Cal. 4th 527, 562 (2004).6 “That stringent standard is not

21 watered down but really means what it says. To satisfy it, government action must

22 advance interests of the highest order and must be narrowly tailored in pursuit of

23 those interests.” Espinoza, 140 S. Ct. at 2260.

24 6 This Court has previously noted that the California Supreme Court has always simply applied

25

strict scrutiny without explicitly stating whether it is required or not. But in light of this, all lower courts are bound to continue applying strict scrutiny as well, so long as there is a burden to religious

26

rights. See, e.g., Brown v. Smith, 24 Cal. App. 5th 1135, 1145 (2018) (“[A]ssum[ing] that laws requiring vaccination substantially burden the free exercise of religion and therefore merit strict

27

scrutiny”). Here, as explained in the declarations of Bishop Hodges and the Verified Second Amended Complaint, California’s restrictions criminalize activity necessary to Plaintiffs’ faith, and

28 so burden their free exercise of religion.

10
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2980 Page 18 of 32

1

Here, San Diego’s supposed interest of “the highest order” is “in curbing the

2 virus” at the expense of all other interests. (Dkt. 38, TRO Hearing Transcript, at

3 5:10–11.) However, Plaintiffs no longer agree that this is a compelling interest. In light

4 of the flattening of the death and hospitalization rates, regardless of the infection rate,

5 numerous experts have concluded that the worst of the pandemic is absolutely over.

6 (VSAC, Exs. 5-5, 5-6; Bhattacharya Decl., ¶¶ 31–43.) These opinions are particularly

7 important when it is recognized—as it is widely recognized—that the pandemic

8 lockdowns have led to a spike in suicides, and that restricting religious practice is

9 detrimental to psychological health.

10

Due to the heavy-handed quarantine, suicide rates have spiked. (VSAC, Ex. 5-

11 7.) Indeed, “[a]ccording to Robert Redfield, MD, the director of Centers for Disease

12 Control and Prevention (CDC), at this point in the pandemic, both suicides and drug

13 overdose deaths are outnumbering deaths due to the coronavirus, itself.” (Supp.

14 Delgado Decl., ¶ 9.) Indeed, the scientific literature is now speaking about two

15 pandemics, a coronavirus pandemic, and a “COVID-19 suicides pandemic.”

16 (Trissell Decl., Exs. BB, CC, DD.) This is unsurprising since scientific studies have

17 found that “[p]atients highly religious by multiple indicators, particularly those

18 involved in community religious activities, remit faster from depression.” (VSAC,

19 Ex. 5-13.) And contrarily, the stress of being unable to practice one’s faith can lead to

20 negative outcomes throughout the whole body. (VSAC, Ex. 5-10.)

21

Outside the pandemic context, “an increasing number of studies [] have

22 persuasively documented positive relationships between religious involvement and

23 physical and mental health outcomes.” (VSAC, Ex. 5-8.) Studies have shown that

24 “[r]eligious service attendance . . . predicted both objective and subjective physical

25 health and well-being.” (VSAC, Ex. 5-9.) And within the pandemic context, a new

26 “review of the literature published from 1978 to 2019” makes clear that religion is

27 especially needed during the present pandemic. (VSAC, Ex. 5-12.) This has spurred

28 forthcoming additional articles, for example, on “how religious involvement may
11
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2981 Page 19 of 32

1 enhance immune function and resilience against the coronavirus.” (VSAC, Ex. 5-11.)

2 Plaintiffs contest that San Diego has a compelling interest in harming the physical

3 and mental health of all of its residents solely to curb the coronavirus, when the

4 disease death rate is half that of death rates for heart disease and cancer.

5

However, even if San Diego had a compelling interest in harming public health

6 to keep its coronavirus numbers lower than they already are, in the Free Exercise

7 context, “[a] law does not advance ‘an interest of the highest order when it leaves

8 appreciable damage to that supposedly vital interest unprohibited.’” Espinoza, 140 S.

9 Ct. at 2261 (quoting Lukumi, 508 U.S. at 547.) In other words, the fact that any

10 industry is allowed to open and spread the coronavirus—even if it does so to a lesser

11 degree than Plaintiffs supposedly would—means that “appreciable damage” to the

12 “vital interest” is occurring, and so the order fails for “underinclusiveness.” Reed v.

13 Town of Gilbert, Ariz., 576 U.S. 155, 172 (2015); Espinoza, 140 S. Ct. at 2261 (same);

14 see also Soos v. Cuomo, No. 1:20-cv-651 (GLS/DJS), 2020 WL 3488742, at *11

15 (N.D.N.Y. June 26, 2020) (New York’s regulations, which had very similar 25%

16 capacity limits for worship, 50% for select businesses, and no limit for other

17 businesses, were underinclusive).

18

Only if the spread of the coronavirus by all other sectors was “inconsequential”

19 could San Diego refuse Plaintiffs the special protection they merit under the Free

20 Exercise Clause of the California Constitution. Blackhawk, 381 F.3d at 208 (quoting

21 Lukumi, 508 U.S. at 543.) This San Diego undeniably cannot do. There have been

22 numerous coronavirus outbreaks tied to factories. (VSAC, ¶¶ 93–95, 97; LiMandri

23 Decl., Exs. 44, 52–55; Trissell Decl., Ex. EE.) Further, restaurants are coronavirus

24 epicenters (LiMandri Decl., Exs. 47–48), as well as gyms. (LiMandri Decl., Ex. 51;

25 League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, --- Fed.Appx. ---, 2020

26 WL 3468281, at *3 (6th Cir. 2020).) The outbreaks at these places are not

27 “inconsequential.” Calvary Chapel Dayton Valley v. Sisolak, --- S. Ct. ---, 2020 WL

28 4251360, at *4 (2020) (Alito, J., dissenting) (“Having allowed thousands to gather,”
12
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2982 Page 20 of 32

1 “the State cannot claim to have a compelling interest in limiting religious gatherings”).

2

Notably, in a subtle departure from this orthodox analysis, all five Justices have

3 recently applied far more of an equal protection style analysis. All five agree that

4 worship cannot be treated less favorably than other similarly situated activities. See S.

5 Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020); Calvary Chapel

6 Dayton Valley v. Sisolak, --- S. Ct. ---, 2020 WL 4251360 (2020). The issue, then, is

7 what activities are similar.

8

Four of the justices are clear that restaurants/breweries may not have less

9 stringent restrictions than houses of worship. S. Bay, 140 S. Ct. at 1613; Calvary

10 Chapel, 2020 WL 4251360, *2, 3, 6. Justice Roberts was silent on this point, but

11 restaurants are not akin to the industries he found dissimilar, namely retail, banks, and

12 laundromats. S. Bay, 140 S. Ct. at 1613 (contrasting “lectures, concerts, movie

13 showings, spectator sports, and theatrical performances,” with “grocery stores, banks,

14 and laundromats”). Thus, on the merits (as opposed to in an emergency application

15 for an injunction),7 Justice Roberts would likely side with the other four justices who

16 find restaurants too similar to houses of worship to be granted preferential treatment.

17

This makes sense. On average, Americans expect to spend 60.2 minutes dining

18 at a restaurant—essentially the same amount of time as the typical worship service.

19 (LiMandri Decl., Ex. 45.) But of course, diners can take as long as they want to eat

20 their meal. Further, in a busy restaurant, most diners could also be expected to be

21 strangers to those around them, and to speak loudly so as to be heard by their own

22 party without wearing masks. The only difference between restaurants and worship

23 would appear to be the size of the gathering, as some restaurants may be small—but

24 plenty of restaurants can seat 100 guests or more. (LiMandri Decl., Ex. 46.) And

25 7 S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020) (Roberts, J., concurring)

26

(“Applicants seek to enjoin enforcement of the Order. Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply

27

suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts. This power is used where the legal rights at issue are indisputably clear and, even

28 then, sparingly and only in the most critical and exigent circumstances.”).

13
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2983 Page 21 of 32

1 lower courts are in broad agreement that gatherings at restaurants are comparable to

2 those at places of worship. E.g., DiMartile v. Cuomo, No. 1:20-CV-0859 (GTS/CFH),

3 2020 WL 4558711, at *10 (N.D.N.Y. Aug. 7, 2020); Soos v. Cuomo, No. 1:20-cv-651,

4 2020 WL 3488742, at *11 (N.D.N.Y. June 26, 2020); Antietam Battlefield KOA v.

5 Hogan, No. 1:20-cv-01130, 2020 WL 2556496, at *9 (D. Md. May 20, 2020); Calvary

6 Chapel of Bangor v. Mills, No. 1:20-cv-00156, 2020 WL 2310913, at *8 (D. Me. May 9,

7 2020); Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv-00832, 2020 WL 2121111,

8 at *6 (E.D. Cal. May 5, 2020); Maryville Baptist Church v. Beshear, No. 3:20-cv-278,

9 2020 WL 1909616, at *2 (W.D. Ky. Apr. 18, 2020). Here, between May 20 and July

10 13, restaurants were allowed to open without the capacity limits imposed on places of

11 worship. This Court should not allow that to happen again.

12

But most importantly, the above Justices’ views on the likelihood of spreading

13 the coronavirus at stores8 (either the “essential” grocery stores, or the nonessential

14 retail), and in manufacturing and warehousing facilities, were not legal views—but

15 factual views. A better developed record establishes that the coronavirus does spread

16 more easily at stores and manufacturing facilities than in places of worship.

17

It is plain that shopping at supermarkets and retail stores primarily involves

18 strangers, who cannot be told where to go, and who have not pre-registered to attend.

19 Further, the average grocery shopper takes 43 minutes to complete his shopping.

20 (LiMandri Decl., Ex. 34.) The average trip to the mall, for those aged 18–34, is 158.4

21 minutes. (LiMandri Decl., Ex. 35.) The average person makes 1.6 trips to the grocery

22 store every week. (Ex. 36.) And the average woman spends 399 hours shopping a

23 year. (LiMandri Decl., Ex. 37.) This all adds up, with Americans spending a

24 collective 37 billion hours per year waiting in lines. (LiMandri Decl., Ex. 38.) Under

25 California’s current rules, one can take as long as one likes to complete their

26

27

8 Justice Roberts found that houses of worship were dissimilar from stores, but was silent as to their similarity to factories. Justices Thomas, Alito, Gorsuch, and Kavanaugh held that houses of

28 worship were similar to both stores and factories. S. Bay, 140 S. Ct. at 1613–16.

14
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2984 Page 22 of 32

1 shopping. This results, as numerous Twitter videos demonstrate, in large gatherings.

2 (LiMandri Decl., Ex. 39–41.)

3

The only true distinction is that in shopping centers people are milling about,

4 and so may not spend a significant amount of time next to a single person (except

5 when waiting in line). But that is a distinction without a difference. As stated by Dr.

6 Delgado, due to the inability to control where shoppers walk and what they touch, the

7 coronavirus spreads more easily in stores than in houses of worship. (Supp. Delgado

8 Decl., ¶¶ 23–27.) This conclusion is not unique to Dr. Delgado. Rather, the general

9 unsanitariness of stores is widely known. (LiMandri Decl., Exs. 42–43.)

10

Further, under California’s current rules, there is no limit on the number of

11 people, or length of time spent, in factories. For example, Defendant Angell

12 specifically identified that what could open was “manufacturing, which can include

13 things like toys, clothing, other things.” (Dkt. 12-4, at 111.) California is famous for its

14 clothing manufacturing, and pictures of them show that they result in a gathering

15 involving (1) a long period of time (presumably an eight-hour shift); (2) a large

16 number of distinct households; and (3) a shared experience. (LiMandri Decl., Ex.

17 44.) And as further explained by Dr. Delgado, the reason why there have been so

18 many outbreaks related to factories is because they do spread the coronavirus more

19 readily than places of worship. (Supp. Delgado Decl., ¶¶ 34–43.)

20

The First Amendment jurisprudence set forth above requires places of worship

21 to at least be treated equally. And as Justice Kavanaugh made clear, the burden is on

22 the state to justify unequal treatment. Calvary Chapel, 2020 WL 4251360, at *9

23 (“[T]he First Amendment requires that religious organizations be treated equally to

24 the favored or exempt secular organizations, unless the State can sufficiently justify

25 the differentiation.”); see also United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803,

26 816, 818 (2000) (under strict scrutiny, the government “bears the burden of proving

27 the constitutionality of its actions” and does not get “the benefit of the doubt.”).

28

Under this burden, California must demonstrate that it seriously undertook to

15
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2985 Page 23 of 32

1 consider other, less-restrictive alternatives and ruled them out for good reason,

2 meaning that it “considered different methods that other jurisdictions have found

3 effective.” McCullen v. Coakley, 134 S. Ct. 2518, 2539 (2014). Under its burden,

4 California “would have to show either that substantially less-restrictive alternatives

5 were tried and failed, or that the alternatives were closely examined and ruled out for

6 good reason.” Bruni v. City of Pittsburgh, 824 F.3d 353, 370 (3d Cir. 2016).

7

Here, there is no evidence that California engaged in these actions. Notably,

8 the only evidence actually submitted so far by California is one expert declaration.

9 (Dkt. 23-2, Watt Decl., ¶¶ 1–18.) But that declaration merely establishes the

10 undisputed fact that gatherings can lead to COVID-19 outbreaks, and then provides

11 examples of outbreaks connected to “religious services, choir practices, funerals, and

12 parties.” (Watt Decl., ¶ 15.)

13

But that declaration does not answer the real question. There have been plenty

14 of outbreaks related to factories. (LiMandri Decl., Exs. 52–55.) What is California’s

15 compelling interest in restricting churches, but not factories or other industries?

16 “There is ample scientific evidence that COVID-19 is exceptionally contagious. But

17 evidence that the risk of contagion is heightened in a religious setting any more than a

18 secular one is lacking.” Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, ---

19 F. Supp. 3d ---, 2020 WL 2305307, at *5 (E.D. Ky. 2020). Further, examples abound

20 of less restrictive approaches that California has neither tried nor considered:

21

Notably, 15 other Governors trusted the people of their

22

states and exempted religious gatherings from any attendance limitations during this pandemic. The Governor

23

has failed to cite any peer-reviewed study showing that

24

religious interactions in those 15 states have accelerated the spread of COVID-19 in any manner distinguishable from

25

non-religious interactions.

26 Berean Baptist Church v. Cooper, No. 4:20-CV-81-D, 2020 WL 2514313, at *9

27 (E.D.N.C. May 16, 2020) (footnote omitted). Indeed, Illinois’ orders simply adopt

28 California’s guidance and make the standards permissive, not mandatory. (LiMandri
16
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2986 Page 24 of 32

1 Decl., Ex. 56.) California has no evidence that a permissive approach will not be

2 sufficient. And in June, San Diego itself sent a letter to Governor Newsom stating that

3 due to its “positive data results” it “believe[s] that religious facilities could be opened

4 more broadly—beyond the 25% or 100 person cap provided we have another week of

5 positive data.” (LiMandri Decl., Ex. 7.) Further, many states have never had any state-

6 wide shutdown whatsoever. (LiMandri Decl., Ex. 57.) The COVID-19 rates in those

7 states have been largely similar to California’s. (LiMandri Decl., Ex. 58.) Other states

8 have set their caps at 250 persons. (LiMandri Decl., Ex. 61.) Why 100 and not 250? It

9 is not clear, but it appears that California has simply arbitrarily picked a number.

10

South Bay Pentecostal Church’s food distribution and Pentecost worship

11 services met or exceeded the distancing and hygiene requirements California and San

12 Diego deem sufficient for other industries, including currently open factories. As

13 such, there is no justification for restricting Plaintiffs in a manner disparate from

14 those other industries. California’s failure to tailor its Reopening Plan to closely fit

15 the safety ends it espouses, and its failure to try other, less restrictive alternatives that

16 it cannot demonstrate are not working in other jurisdictions across the country,

17 defeats California’s satisfaction of its burden to prove narrow tailoring. “As the

18 Government bears the burden of proof on the ultimate question of . . .

19 constitutionality, [Plaintiffs] must be deemed likely to prevail unless the Government

20 has shown that [its] proposed less restrictive alternatives are less effective than

21 [unduly limiting Plaintiffs’ worship].” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). It

22 has not shown as much.

23

1.2.2.The worship restrictions violate the U.S. Constitution

24

In Jacobson, the Supreme Court explained that legislatures can validly enact

25 restrictions on substantive due process rights to stop the spread of diseases, but they

26 violate the federal constitution if they do so in “an arbitrary, unreasonable manner,”

27 or in a way that “go[es] so far beyond what was reasonably required for the safety of

28 the public.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 28 (1905).
17
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2987 Page 25 of 32

1

As stated previously, Plaintiffs do not believe Jacobson ever could have been

2 applied to a Free Exercise claim.9 It also dealt with a legislature deliberating and

3 passing a statute—not an executive acting unilaterally during an emergency. But

4 perhaps more poignantly, there is little reason why it should continue to apply. As

5 Justice Kavanaugh recently noted,

6

As more medical and scientific evidence becomes available,

7

and as States have time to craft policies in light of that

8

evidence, courts should expect policies that more carefully account for constitutional rights. Governor Sisolak issued

9

the directive in question on May 28, more than two months

10

after declaring a state of emergency on March 12. Now four

months have passed since the original declaration. The

11

problem is no longer one of exigency, but one of considered

12

yet discriminatory treatment of places of worship.

13 Calvary Chapel, 2020 WL 4251360, at *2 (Kavanaugh, J., dissenting). Every day,

14 Plaintiffs’ constitutional rights are being irreparably violated. At least, after four

15 months California should be able to explain, very precisely and without recourse to

16 Jacobson, why that irreparable harm is necessary.

17

If, however, the Court determines that a full-throated application of Jacobson is

18 warranted, then there are two questions the Court must analyze. The first question is

19 whether the law “has no real or substantial relation to those objects” of protecting

20 public health. Jacobson, 197 U.S. at 28. The second question is whether the law is a

21 “palpable invasion of rights secured by the fundamental law.” Id. Here, as explained

22 in section 1.2.1. supra, neither California nor San Diego has convincingly explained

23

24

9 See, e.g., Ex Parte Milligan, 71 U.S. 2, 120 (1866) (express constitutional rights apply with more force, not less, during emergencies); S. Bay United Pentecostal Church v. Newsom, 959 F.3d 938, 939

25 (9th Cir. 2020) (not explicitly applying Jacobson, and dissent arguing against applying it);
Compassion in Dying v. State of Wash., 79 F.3d 790, 799 (9th Cir. 1996) (describing Jacobson as
26 applying to “substantive due process cases”), rev’d, 521 U.S. 702 (1997); S. Bay United Pentecostal

27

Church v Newsom, 140 S. Ct. 1613, 1614 (2020) (Kavanaugh, J., dissenting) (not applying Jacobson); Calvary Chapel Dayton Valley v. Sisolak, --- S. Ct. ---, 2020 WL 4251360, at *5 (2020) (Alito, J.,

28 dissenting) (expressing suspicion over applicability of Jacobson).

18
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2988 Page 26 of 32

1 why letting large numbers of people sit together indoors for eight hours at a factory or

2 a school, but not for one-hour worshipping, provides a “real or substantial” benefit to

3 curbing the pandemic—let along curbing infection numbers justifies the spike in

4 suicides. California has only ever asserted that the novel coronavirus is serious, and

5 needs to be curbed. But that is not a sufficient answer—especially when California

6 lets potential hotbeds for coronavirus outbreaks operate without complying with the

7 restrictions placed on churches. See DiMartile, 2020 WL 4558711, at *10 (permitting

8 a large restaurant to host diners at 50% capacity, but banning a wedding with more

9 than 50 persons, violated Equal Protection clause, even considering Jacobson). But

10 perhaps more importantly, there are three reasons why California’s regulation of

11 worship constitutes a “palpable invasion” of Plaintiffs’ constitutional rights.

12

First, imposing burdens on Plaintiffs because of their religion is per se a

13 “palpable invasion” of their rights. See Jew Ho v. Williamson, 103 F. 10 (C.C. Cal.

14 1900); First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, at *6 (D.

15 Kan. Apr. 18, 2020).

16

In Jew Ho, the San Francisco “board of health” purported to quarantine 12 city

17 blocks, consisting of some 15,000 people, due to fear of a bubonic plague epidemic. Jew

18 Ho, 103 F. at 11–13. But the evidence established that, in practice, only the 10,000

19 Chinese living in those blocks were subject to it. Id. at 23. The court there analyzed

20 whether the quarantine order was “a palpable invasion of rights secured by fundamental

21 law,” id. at 18, and held that in no case could such discrimination be tolerated:

22

The evidence here is clear that this is made to operate

23

against the Chinese population only, and the reason given for it is that the Chinese may communicate the disease

24

from one to the other. That explanation, in the judgment of

25

the court, is not sufficient. It is, in effect, a discrimination.

26 “Therefore the court must hold that this ordinance is invalid and cannot be

27 maintained.” Id. at 23–24. Similarly, in First Baptist Church, the court reviewed

28 Jacobson, and rejected it when applied to the facts because the regulation at issue was
19
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2989 Page 27 of 32

1 facially discriminatory: “Jacobson, and similar cases do not provide the best

2 framework in which to evaluate the Governor’s executive orders because all those

3 cases deal with laws that are facially neutral.” First Baptist Church, 2020 WL

4 1910021, at *6. The same conclusion should be reached here. When a law “is

5 discriminating in its character” it is a palpable violation of fundamental rights. Jew

6 Ho, 103 F. at 26.10 Stated more concretely, if analogized to the situation in Korematsu,

7 the courts should not look to factors such as the length of the Japanese internment, or

8 the conditions of the internment. That is irrelevant. What is relevant is that the

9 government discriminated based on a protected characteristic. See Trump v. Hawaii,

10 138 S. Ct. 2392, 2423 (2018) (“Korematsu was gravely wrong the day it was decided,

11 has been overruled in the court of history, and—to be clear—has no place in law

12 under the Constitution.”); Calvary Chapel, 2020 WL 4251360, at *11 (Kavanaugh, J.,

13 dissenting) (“There are certain constitutional red lines that a State may not cross

14 even in a crisis. Those red lines include racial discrimination, religious

15 discrimination, and content-based suppression of speech.”).

16

Second, courts have held that discriminatory enforcement of the pandemic

17 restrictions results in a palpable violation of fundamental rights. Soos, 2020 WL

18 3488742. “[W]hatever Jacobson’s scope, . . . pandemic regulations must govern

19 ‘evenhandedly,’” for “the principle that freedom for me, but not for thee, has no

20 10 Jew Ho was decided by the U.S. Circuit Court for the District of California. At the time it was

21

decided, the federal courts were in a period of transition. Previously, the district courts essentially served as misdemeanor and admiralty courts, the circuit courts as the regular trial court, and the

22

Supreme Court as the sole appellate court. However, in 1891, the circuit courts of appeals were created as intermediate appellate courts, and the district courts became the regular trial courts. 26

23

Stat. 826. This led to a period of about twenty years when the old circuit courts had attributes of both the district courts and the circuit courts of appeal. On the one hand, the old circuit courts tried

24

in the first instance major federal crimes and diversity actions. On the other hand, appeals from their adjudications of constitutional issues did not go to the circuit courts of appeal—but rather to

25

the Supreme Court. Id. Thus, should San Francisco have decided to appeal in Jew Ho, the appeal would not have gone to the Ninth Circuit, but to the Supreme Court. In 1911, the old circuit courts

26

were abolished, and absorbed by both the district courts and the circuit courts of appeal. 36 Stat. 1087. Most important here, when the old circuit courts decided constitutional issues that were

27

appealable not to the Ninth Circuit but to the Supreme Court, they created binding circuit law. See In re Wong Kim Ark, 71 F. 382, 385 (N.D. Cal. 1896) (citing an old circuit court opinion: “being the

28 law of this circuit, is controlling upon this court”). Thus, Jew Ho should be binding on this Court.

20
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2990 Page 28 of 32

1 place under our Constitution.” Spell v. Edwards, 962 F.3d 175, 180–83 & n.1 (5th Cir.

2 2020) (Ho, J., concurring). “The State defends the Governor on the ground that the

3 protests expressed a viewpoint on important issues, and that is undoubtedly true, but

4 favoring one viewpoint over others is anathema to the First Amendment.” Calvary

5 Chapel, 2020 WL 4251360, at *4 (Alito, J., dissenting); see also VSAC, ¶ 104, Exs. 4-

6 11, 4-12 (press releases and letters from DOJ).

7

Here, starting on May 25, California decided to nominally treat political

8 protests and religious worship exactly the same—imposing a limit on gatherings at

9 25% of “building capacity” or “the relevant area’s maximum occupancy,” along with

10 a maximum cap of 100 persons. (VSAC, ¶ 44, Exs. 1-5, 1-6.) Nevertheless, despite

11 enforcing its restrictions against houses of worship,11 California has steadfastly

12 refused to enforce its restrictions against political protests.

13

The same day that California created that regime—Monday, May 25, 2020—a

14 police officer in Minneapolis, Minnesota killed an African-American man in his

15 custody named George Floyd. The next day, a video-recording of the incident went

16 viral on social media, leading to protests in Minneapolis. The day after that,

17 Wednesday, May 27, protests erupted in cities across the country, including a protest

18 with hundreds of participants in Los Angeles. (VSAC, ¶ 98, Ex. 4-1.) These protests

19 plainly violated Governor Newsom’s ban on political protests exceeding 100 persons.

20

The next day, Saturday, May 30, 2020, the George Floyd protests reached San

21 Diego County. That day, a group of 1,000 protestors blocked the I-8 highway. This

22 protest also violated Governor Newsom’s 100-person cap on political protest. The

23 protests in San Diego continued daily for weeks. (VSAC, ¶ 99, Ex. 4-2.)

24

As stated above, the George Floyd protests in California have plainly violated

25 the Governors’ orders against protest and worship—violating the 100-person cap

26 11 Despite well-publicized statements by Governor Newsom and San Diego officials that no police 27 enforcement would be forthcoming (Dkt. 12-4, Original Trissell Decl., ¶¶ 9–11), government
officials have enforced the restrictions against house of worship throughout the state (Trissell
28 Decl., Exs. FF, GG, HH), and in San Diego specifically. (Trissell Decl., Exs. II, JJ.)
21
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2991 Page 29 of 32

1 through protests numbering in the thousands, but instead of trying to shut down

2 these unlawful gatherings, California encouraged them.

3

In response to the killing of George Floyd, Governor Newsom actively

4 promoted unlawful protests. He“thank[ed]” the protestors for violating his orders

5 (VSAC, ¶ 100, Ex. 4-3), instructed them to “[k]eep doing it” (VSAC, ¶ 100, Ex. 4-

6 4), “express[ed his] deep gratitude” to them (VSAC, ¶ 101, Ex. 4-5), and told them

7 they had a “right” to free speech. (Trissell Decl., Ex. KK.) Later, he even tweeted

8 his support. (Trissell Decl., Ex. LL.) Similarly, San Diego has refused to enforce its

9 orders against the George Floyd protests, telling them they had a “right” to illegally

10 protest (VSAC, ¶ 102, Ex. 4-6), and worked to “facilitate[e]” them. (VSAC, ¶ 102,

11 Ex. 4-7.) This facilitation led to thousands of people protesting, as shown in several

12 videos obtained from Twitter. (VSAC, ¶ 102, Exs. 4-8, 4-9, 4-10.)

13

It is true that on June 12, 2020, California lifted all restrictions on outdoor

14 protest activities—so that by definition anything the protestors did would not be in

15 violation of its orders. And then a month later, on July 13, California forced many

16 other businesses (and worship services) to take their operations outside. But that

17 does not defeat discriminatory enforcement. Courts must not “turn a blind eye to the

18 context in which [a] policy” arises. McCreary Cty., Ky. v. Am. Civil Liberties Union of

19 Ky., 545 U.S. 844, 866 (2005). This is especially the case when the logic underlying

20 the state’s rationale is suspect:

21

The Governor may respond that his order forbids only

22

indoor worship but still allows people of faith to worship outdoors. But whether health experts would endorse that

23

dichotomy—and whether the First Amendment permits

it—is far from obvious. . . . Under his logic, the Governor

24

would allow tens of thousands of LSU fans to assemble this

25

fall under the open sky at Tiger Stadium, while forbidding countless others from cheering on the Saints under the

26

Superdome.

27 Spell v. Edwards, 962 F.3d 175, 182 & n.6 (5th Cir. 2020) (Ho., J., concurring).
28 Indeed, why were the June 12 changes made without any public announcement? 22
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2992 Page 30 of 32

1

Most importantly, the parties are in agreement that the cause of the recent spike

2 in coronavirus infections (even though the spike has caused no spike in hospitalizations

3 and deaths) is California’s and San Diego’s own refusal to enforce their regulations

4 against the protestors. (See Trissell Decl., Ex. MM [Defendant Angell: “We don’t have

5 exact numbers, but we do know from speaking to our counties that it is a contributor.”];

6 Supp. Delgado Decl., ¶ 11 [“Our conclusion, supported by the COVID-19 Decision

7 Model is that the recent increases are related to . . . the tolerance and even

8 encouragement of public protests”].) Making places of worship pay for the sins of

9 protestors is discriminatory enforcement—a palpable violation of Plaintiffs’ rights.

10

Third, under Plaintiffs’ faith, physical, indoor, in-person worship services are

11 required, with singing—not video-recorded or outdoor services. (VSAC, ¶¶ 58–61,

12 67–70, 79–81.) “[S]inging is at the very heart of Pentecostal worship services,” and so

13 a ban on singing “is essentially a ban on Pentecostal worship services.” (VSAC, ¶ 70.)

14 It should seem plain that a ban on Pentecostal worship services is a “palpable

15 invasion” of the rights of Pentecostal Christians. See Everson v. Bd. of Ed. of Ewing

16 Twp., 330 U.S. 1, 15–16 (1947) (“Neither a state nor the Federal Government can . . .

17 force nor influence a person to go to or to remain away from church against his will”).

18

In adjudicating whether it is or not, this Court must also answer that question

19 in a manner that does not violate the religious clauses in other ways. The Supreme

20 Court has made clear that “First Amendment values are plainly jeopardized when

21 litigation is made to turn on the resolution by civil courts of controversies over

22 religious doctrine and practice.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140

23 S. Ct. 2049, 2063 n.10 (2020) (quoting Presbyterian Church in U.S. v. Mary Elizabeth

24 Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969)). Because such values

25 are jeopardized, courts are forbidden from issuing legal opinions that have the effect

26 of “resolving underlying controversies over religious doctrine.” Id. (quoting

27 Presbyterian Church, 393 U.S. at 449). Indeed, “[w]hen the government chooses sides

28 on religious issues, the ‘inevitable result’ is ‘hatred, disrespect and even contempt’
23
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2993 Page 31 of 32

1 towards those who fall on the wrong side of the line.” Int’l Refugee Assistance Project

2 v. Trump, 857 F.3d 554, 604 (4th Cir. 2017), vacated as moot, 138 S. Ct. 353 (2017)

3 (quoting Engel v. Vitale, 370 U.S. 421, 431 (1962)).

4

“In a country with the religious diversity of the United States, judges cannot

5 be expected to have a complete understanding and appreciation of” the requirements

6 of various faiths. Our Lady of Guadalupe Sch., 140 S. Ct. at 2066. “It is not to be

7 supposed that the judges of the civil courts can be as competent in the ecclesiastical

8 law and religious faith of all these bodies as the ablest men in each are in reference to

9 their own.” Id. at 2063 n.10 (quoting Serbian E. Orthodox Diocese for U. S. of Am. &

10 Canada v. Milivojevich, 426 U.S. 696, 715 n.8 (1976)). As a result, “[a] religious

11 institution’s explanation of . . . the life of the religion in question is important.” Id. at

12 2066. And in regular First Amendment jurisprudence, neither the government nor

13 the courts may “tell the plaintiffs that their beliefs are flawed,” but “must accept the

14 sincerely held []objections.” Little Sisters of the Poor Saints Peter & Paul Home v.

15 Pennsylvania, 140 S. Ct. 2367, 2383 (2020).

16

In the pandemic context, courts have made clear that they cannot simply tell the

17 religious objector that they are wrong, that they may worship in a manner not required

18 (or even permitted) by their faith. See Berean Baptist Church v. Cooper, No. 4:20-CV-

19 81-D, 2020 WL 2514313, at *7 (E.D.N.C. May 16, 2020) (“Again, the question

20 becomes: who decides whether a religious organization or group of worshipers

21 correctly determined that their religious beliefs dictated the need to have more than 10

22 people inside to worship? Under EO 138, the answer is [the government]. This court

23 has grave concerns about how that answer comports with the Free Exercise Clause.”).

24 Thus, this Court should accept Plaintiffs’ assertions that California’s and San Diego’s

25 regulations act as a ban on their Free Exercise of Religion.

26 2. The Other Injunction Factors Favor South Bay.

27

The Supreme Court has made clear that “[t]he loss of First Amendment

28 freedoms, for even minimal periods of time, unquestionably constitutes irreparable
24
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-1 Filed 08/10/20 PageID.2994 Page 32 of 32

1 injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). As previously acknowledged by this

2 Court, without an injunction preventing California from further enforcing its worship

3 restrictions, the Church will suffer irreparable harm to its fundamental constitutional

4 rights. (Dkt. 38, 6:3–6.)

5

The balance of hardships also tips overwhelming in favor Plaintiffs because the

6 threatened injury to them is weighty—the loss of constitutional rights and the

7 inability to practice their faith. Coll. Republicans at San Francisco State Univ. v. Reed,

8 523 F. Supp. 2d 1005, 1012 (N.D. Cal. 2007). By contrast, the cost of a temporary

9 restraining order to the Government is negligible. “[T]here can be no harm to [the

10 government] when it is prevented from enforcing an unconstitutional statute.”

11 Joelner v. Vill. of Washington Park, 378 F.3d 613, 620 (7th Cir. 2004).

12

Finally, an injunction is in the public interest. The Ninth Circuit has

13 “consistently recognized” that there is a “significant public interest in upholding First

14 Amendment principles.” Doe v. Harris, 772 F.3d 563, 683 (9th Cir. 2014). And there is

15 an even greater interest here—treating Plaintiffs similarly to the favored protesters—

16 which is necessary to maintain public confidence in the government and the courts.

17 See, e.g., Roberts v. Neace, 958 F.3d 409, 416 (6th Cir. 2020) (“As for the public

18 interest, treatment of similarly situated entities in comparable ways serves public

19 health interests at the same time it preserves bedrock free-exercise guarantees.”).

20

CONCLUSION

21

For the foregoing reasons, Plaintiffs respectfully request that this Court grant

22 their renewed motion for a temporary restraining order / preliminary injunction.

23

24

LiMANDRI & JONNA LLP

25

26 Dated: August 10, 2020

By: ____________________

27

Charles S. LiMandri

Attorneys for Plaintiffs

28

25
Memo. of P&As ISO Renewed Mtn. for TRO / Prelim. Inj.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.2995 Page 1 of 7

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

UNITED STATES DISTRICT COURT

17

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED PENTECOSTAL

20

CHURCH, a California non-profit corporation; and BISHOP ARTHUR

21 HODGES III, an individual,

22

Plaintiffs,

23

v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

Case No. 3:20-cv-865-BAS
Second Supplemental Declaration of Bishop Arthur Hodges III in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction
Judge: Hon. Cynthia Bashant

26

Defendants.

27

28

2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.2996 Page 2 of 7

1

I, Bishop Arthur Hodges III, declare and state as follows:

2

1. I am a plaintiff in this action. I am a resident of San Diego County,

3 California. I serve as Senior Pastor of South Bay United Pentecostal Church, also a

4 plaintiff. I also serve as Superintendent for the SoCal District of the United

5 Pentecostal Church International.

6

2. I submit this second supplemental declaration with respect to Plaintiffs’

7 renewed motion for a temporary restraining order / preliminary injunction. This

8 declaration is meant to supplement my prior declarations dated May 11 and July 9,

9 2020, and the Verified Second Amended Complaint. As a result, I largely do not

10 repeat the matters discussed in those declarations. I have personal knowledge of the

11 matters set forth below, and could and would testify competently to them if called

12 upon to do so.

13

3. To ban singing in Pentecostal worship services has the effect of banning

14 those worship services outright. Based on our reading of Sacred Scripture, singing is

15 at the heart of our worship services, and comprises 25-50% of our typical Pentecostal

16 worship gathering experience at Church.

17

4. The earliest reference to singing in the Bible is in Exodus, the second of

18 the Bible’s sixty-six books, as the children of Israel exuberantly praised God in song

19 upon His delivering them miraculously from Pharaoh and Egypt’s pursuing armies.

20

o Exodus 15:1: “Then sang Moses and the children of Israel this song

21

unto the Lord, and spake, saying, I will sing unto the Lord, for he

22

hath triumphed gloriously: the horse and his rider hath he thrown

23

into the sea.”

24

o Exodus 15:2: “The Lord is my strength and song, and he is become

25

my salvation...”

26 ///

27 ///

28 ///

1
2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.2997 Page 3 of 7

1

5. Ever since, singing has become fairly synonymous with praising God,

2 both in scripture and practice among the people of God.

3

o Psalms 104:33: “I will sing unto the Lord as long as I live: I will sing

4

praise to my God while I have my being.”

5

o Judges 5:3: “Hear, O ye kings; give ear, O ye princes; I, even I, will

6

sing unto the Lord; I will sing praise to the Lord God of Israel.”

7

6. Forty-four verses in the Bible link singing and praise to God, and we are

8 told to sing praises to the Lord. For example: Psalms 47:6: “Sing praises to God, sing

9 praises: sing praises unto our King, sing praises.”

10

7. We are told by the Bible to sing praises to the Lord. Psalms 68:32: “Sing

11 unto God, ye kingdoms of the earth; O sing praises unto the Lord; Selah.”

12

8. Throughout scripture, and even into the last book of the Bible with a

13 scene in Heaven, singing remains integral to praising God. Revelation 15:3 (a scene in

14 Heaven): “And they sing the song of Moses the servant of God, and the song of the

15 Lamb, saying, Great and marvellous are thy works, Lord God Almighty; just and true

16 are thy ways, thou King of saints.”

17

9. Singing is an integral component of praise to God because Sacred

18 Scripture tells us that God dwells in the praises of His people. Psalms 22:3 “But thou

19 art holy, O thou that inhabitest the praises of Israel.”

20

10. In a Pentecostal Church worship service, everyone is instructed and

21 expected to sing praise to God, just as everyone is instructed and expected to pray to

22 God. In our worship services, praying, singing, and praising God is not for spectators,

23 it is for participants. Our Music & Praise teams are instructed to lead the 24 Congregation in Singing, Praise, Worship.

25

11. Singing praise together brings a disparate group of individuals together

26 into “one mind and one accord” (Acts 2:1) as a cohesive unit called a congregation as

27 opposed to just a crowd listening a concert.

28 ///

2
2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.2998 Page 4 of 7

1

12. Singing, in the various forms of the word, appears 232 times in the Bible.

2 For example: Psalms 33:3: “Sing unto him a new song; play skilfully with a loud

3 noise.”

4

13. One entire book of the Bible is devoted to poetic songs: the book of

5 Psalms, and there are 150 of them. The last chapter gives us instructions on what to

6 do with the previous 149. Note that we are to praise God through song and

7 instruments in the sanctuary. The last verse of Psalm 150, and / or the entire book of

8 Psalms, reminds us that praising God with song is expected of everyone!

9

o Psalms 150:1–6: “Praise ye the Lord. Praise God in his sanctuary:

10

praise him in the firmament of his power. Praise him for his mighty

11

acts: praise him according to his excellent greatness. Praise him with

12

the sound of the trumpet: praise him with the psaltery and harp.

13

Praise him with the timbrel and dance: praise him with stringed

14

instruments and organs. Praise him upon the loud cymbals: praise

15

him upon the high sounding cymbals. Let every thing that hath

16

breath praise the Lord. Praise ye the Lord.”

17

14. The Apostle Paul affirms this imperative in the New Testament, that we

18 are to sing praise to God together at Church: Hebrews 2:12 “Saying, I will declare thy

19 name unto my brethren, in the midst of the church will I sing praise unto thee.”

20

15. He further affirms that everyone is to participate: Ephesians 5:19:

21 “Speaking to yourselves in psalms and hymns and spiritual songs, singing and making

22 melody in your heart to the Lord.”

23

16. And that songs are used to teach and reinforce Truth: Colossians 3:16:

24 “Let the word of Christ dwell in you richly in all wisdom; teaching and admonishing

25 one another in psalms and hymns and spiritual songs, singing with grace in your

26 hearts to the Lord.”

27 ///

28 ///

3
2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.2999 Page 5 of 7

1

17. Even Jesus led His disciples in singing:

2

o Matthew 26:30: “And when they had sung an hymn, they went out

3

into the mount of Olives.”

4

o Luke 19:37-40: “And when he was come nigh, even now at the

5

descent of the mount of Olives, the whole multitude of the disciples

6

began to rejoice and praise God with a loud voice for all the mighty

7

works that they had seen; Saying, Blessed be the King that cometh in

8

the name of the Lord: peace in heaven, and glory in the highest. And

9

some of the Pharisees from among the multitude said unto him,

10

Master, rebuke thy disciples. And he answered and said unto them, I

11

tell you that, if these should hold their peace, the stones would

12

immediately cry out.”

13

18. Other verses in the Bible make clear that praising the Lord is an

14 imperative:

15

o Ephesians 5:18-20: “And be not drunk with wine, wherein is excess;

16

but be filled with the Spirit; Speaking to yourselves in psalms and

17

hymns and spiritual songs, singing and making melody in your heart

18

to the Lord; Giving thanks always for all things unto God and the

19

Father in the name of our Lord Jesus Christ.”

20

o Psalms 40:3: To the chief Musician, A Psalm of David: “And he hath

21

put a new song in my mouth, even praise unto our God: many shall

22

see it, and fear, and shall trust in the Lord.”

23

o Psalms 96:1: “O sing unto the Lord a new song: sing unto the Lord,

24

all the earth.”

25

o Psalms 144:9: “I will sing a new song unto thee, O God: upon a

26

psaltery and an instrument of ten strings will I sing praises unto thee.

27

o Psalms 149:1: “Praise ye the Lord. sing unto the Lord a new song,

28

and his praise in the congregation of saints.

4
2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.3000 Page 6 of 7

1

19. There is delivering power in praising God in song: Acts 16:25 (Paul and

2 Silas are in bonds in prison): “And at midnight Paul and Silas prayed, and sang

3 praises unto God: and the prisoners heard them. And suddenly there was a great

4 earthquake, so that the foundations of the prison were shaken: and immediately all

5 the doors were opened, and everyone’s bands were loosed.”

6

20. Even in Heaven, there is singing in praise to God: Revelation 5:9: “And

7 they sung a new song, saying, Thou art worthy to take the book, and to open the seals

8 thereof: for thou wast slain, and hast redeemed us to God by thy blood out of every

9 kindred, and tongue, and people, and nation”

10

21. Singing transcends language. I have been to numerous continents and

11 countries of the world, only to discover believers singing some of the same songs, but

12 in their own languages. I ministered in Turkey on Saturday, August 8 (via Zoom) in 13 two different services to two different language groups, Turkish and Farsi. They both

14 sang songs in their own language that I could sing along with in English because it was

15 the same song. The same happens in my own multi-national congregation, with

16 African immigrants and others.

17

o Revelation 14:3: “And they sung as it were a new song before the

18

throne, and before the four beasts, and the elders: and no man could

19

learn that song but the hundred and forty and four thousand, which

20

were redeemed from the earth.”

21

22. Our primary Pentecostal Hymnal, “Sing Unto The Lord,” published in

22 1978, is one of many song books. It contains 401 songs, hymns, and spiritual songs.

23 On the cover page it has this inscription, which is repeated on the last page of this 24 important song book: Psalms 30:4: “Sing unto the LORD, O ye saints of his, and give

25 thanks at the remembrance of his holiness.”

26 ///

27 ///

28 ///

5
2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-2 Filed 08/10/20 PageID.3001 Page 7 of 7

1

23. And it says, “We give thanks to the Lord Jesus Christ and do gratefully

2 dedicate these messages in song to His Glory.” This is an acknowledgment of the

3 importance and necessity to praising our Lord and Saviour in song.

4

I declare until penalty of perjury under the laws of the United States and the

5 State of California that the foregoing is true and correct. Executed on August 10,

6 2020.

7

8 Bishop Arthur Hodges III
9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6
2D SUPP. BISHOP HODGES DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3002 Page 1 of 255

1 Charles S. LiMandri, SBN 110841

2

Paul M. Jonna, SBN 265389 Jeffrey M. Trissell, SBN 292480

3 LIMANDRI & JONNA LLP P.O. Box 9120
4 Rancho Santa Fe, CA 92067
5 Telephone: (858) 759-9930 Facsimile: (858) 759-9938
6 cslimandri@limandri.com

7 pjonna@limandri.com jtrissell@limandri.com
8

9

Thomas Brejcha, pro hac vice* Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY

11

309 W. Washington St., Ste. 1250 Chicago, IL 60606

12 Tel: (312) 782-1680

13

tbrejcha@thomasmoresociety.org pbreen@thomasmorsociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN: 207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: (415) 433-1700 Facsimile: (415) 520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs 16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED

20

PENTECOSTAL CHURCH, a California nonprofit corporation, and BISHOP

21 ARTHUR HODGES III, an individual,

22

Plaintiffs,

23 v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

Case No.: 20-cv-865-BAS
Supplemental Declaration of Jeffrey M. Trissell, Esq. in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction
Judge: Hon. Cynthia Bashant

27

28

Supp. Trissell Decl.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3003 Page 2 of 255

1

I, Jeffrey M. Trissell, Esq. declare and state as follows:

2

1. I am an attorney at law duly licensed to practice in the State of California

3 and in the Southern District of California, and am counsel for Plaintiffs South Bay

4 United Pentecostal Church and Bishop Arthur Hodges III. As such, I have personal

5 knowledge of the matters set forth below and could and would competently testify

6 thereto if called upon to do so.

7

2. Attached hereto as Exhibit Q is a true and correct copy of California

8 Public Health post series, California COVID-19, By The Numbers, published on

9 TWITTER, dated May 1, 2020, June 1, 2020, July 1, 2020, August 1, 2020 and

10 available at: https://twitter.com/CAPublicHealth/status/1256358692695334912;

11 https://twitter.com/CAPublicHealth/status/1267557726814498816;

12 https://twitter.com/CAPublicHealth/status/1278489569420169216;

13 https://twitter.com/CAPublicHealth/status/1289712952954597376.

14

3. Attached hereto as Exhibit R is a true and correct copy of the California

15 Department of Public Health, Order of the State Public Health Officer, dated May 7,

16 2020, and available at: https://www.cdph.ca.gov/Programs/CID/DCDC/

17 CDPH%20Document%20Library/COVID-19/SHO%20Order%205-7-2020.pdf.

18

4. Attached hereto as Exhibit S is a true and correct copy of the article

19 Some San Diego shopping malls get reopening date, published by FOX5 SAN DIEGO,

20 dated May 21, 2020, and available at: https://fox5sandiego.com/news/local-

21 news/some-san-diego-shopping-malls-get-reopening-date.

22

5. Attached hereto as Exhibit T is a true and correct copy of the article by

23 Noah Higgins-Dunn, California to allow hair salons and barbershops to reopen in

24 majority of state’s counties, Gov. Newsom says, published by CNBC, dated May 26,

25 2020, and available at: https://www.cnbc.com/2020/05/26/california-to-allow-hair-

26 salons-and-barbershops-to-reopen-in-majority-of-states-counties-gov-newsom-

27 says.html.

28
1 Supp. Trissell Decl.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3004 Page 3 of 255

1

6. Attached hereto as Exhibit U is a true and correct copy of the article

2 Gyms, Bars, Museums, Hotels & More Can Reopen Friday, SD County Says, published

3 by NBC7 SAN DIEGO, dated June 8, 2020, and available at:

4 https://www.nbcsandiego.com/news/local/gyms-bars-museums-hotels-more-can-

5 reopen-friday-sd-county-says/2342823/.

6

7. Attached hereto as Exhibit V is a true and correct copy of the article by

7 Alex Swoyer, Church sues California Gov. Gavin Newsom over ban against at-home Bible

8 studies, published by WASHINGTON TIMES, dated July 20, 2020, and available at:

9 https://www.washingtontimes.com/news/2020/jul/20/gavin-newsom-sued-over-

10 ban-against-home-bible-stud/.

11

8. Attached hereto as Exhibit W is a true and correct copy of County of

12 San Diego’s Safe Reopening Supplemental Guide, Faith-Based Organizations and Places

13 of Worship, published July 21, 2020, and available at:

14 https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiol

15 ogy/covid19/Community_Sector_Support/CommunityBased-FaithBased-

16 Organizations/FINAL_FBO%20COVID-19%20Companion%20Guide_7.22.20.pdf.

17

9. Attached hereto as Exhibit X is a true and correct copy of a letter from

18 United States Senators to President Trump regarding COVID-19 and religious

19 freedom, dated July 23, 2020, and available at: https://www.lee.senate.gov/public/

20 _cache/files/4b75b6ae-0fed-4f30-b14f-7cbe289b52fd/ltr-to-president-trump-on-

21 covid.pdf.

22

10. Attached hereto as Exhibit Y is a true and correct copy of the article by

23 Joe Hong, Gov. Newsom Outlines Strict Guidelines for Schools, published by KPBS,

24 dated July 17, 2020, and available at: https://www.kpbs.org/news/2020/jul/17/

25 california-governor-outline-plans-reopening-school/.

26

11. Attached hereto as Exhibit Z is a true and correct copy of County of San

27 Diego, Health and Human Services Agency’s Order of the Health Officer and

28 Emergency Regulations, dated July 20, 2020, effective July 21, 2020.
2 Supp. Trissell Decl.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3005 Page 4 of 255

1

12. Attached hereto as Exhibit AA is a true and correct copy County of San

2 Diego, Health and Human Services Agency’s Order of the Health Officer and

3 Emergency Regulations, dated August 7, 2020, effective August 8, 2020, and available

4 at: https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/

5 Epidemiology/HealthOfficerOrderCOVID19.pdf.

6

13. Attached hereto as Exhibit BB is a true and correct copy of the article

7 by Vikram Thakur and Anu Jain, COVID 2019-suicides: A global psychological

8 pandemic, published in BRAIN, BEHAVIOR, AND IMMUNITY, Volume 88 (August,

9 2020), pages 952-953, and available at: https://www.sciencedirect.com/science/

10 article/pii/S0889159120306437?via%3Dihub

11

14. Attached hereto as Exhibit CC is a true and correct copy the article by

12 Leo Sher, The impact of the COVID-19 pandemic on suicide rates, published in QJM:

13 AN INTERNATIONAL JOURNAL OF MEDICINE, (June 30, 2020), and available at:

14 https://academic.oup.com/qjmed/advance-article/doi/10.1093/qjmed/hcaa202/

15 5857612.

16

15. Attached hereto as Exhibit DD is a true and correct copy of the article

17 by Mark Reger, Ian Stanley, Thomas Joiner, Suicide Mortality and Coronavirus Disease

18 2019–A Perfect Storm?, published by JOURNAL OF AMERICAN MEDICAL ASSOCIATION

19 (April 30, 2020), and available at: https://jamanetwork.com/journals/

20 jamapsychiatry/fullarticle/2764584.

21

16. Attached hereto as Exhibit EE is a true and correct copy the article by

22 Sarah Moon and Jon Passantino, Los Angeles apparel factory ordered closed after over

23 300 coronavirus cases and 4 deaths, published by CNN, dated July 11, 2020, and

24 available at: https://www.cnn.com/2020/07/11/health/coronavirus-los-angeles-

25 apparel-factory-closed/index.html.

26

17. Attached hereto as Exhibit FF is a true and correct copy of the Verified

27 Complaint for Declaratory and Injunctive Relief in Cross Culture Christian Center v.

28
3 Supp. Trissell Decl.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3006 Page 5 of 255

1 Newsom, Case No. 2:20-cv-00832-JAM-CKD (E.D. Cal. Apr. 22, 2020), along with

2 exhibits 4 and 9 thereto.

3

18. Attached hereto as Exhibit GG is a true and correct copy the Order

4 Granting Temporary Restraining Order and Order to Show Cause Re Issuance of

5 Preliminary Injunction in County of Ventura v. Godspeak Calvary Chapel, Ventura

6 Cnty. Case No. 56-2020-00544086-CU-MC-VTA (Aug. 7, 2020).

7

19. Attached hereto as Exhibit HH is a true and correct copy of the article

8 ‘Great Concern’: LA County Warns Churches Could Face Fines for Indoor Services,

9 published by CBS LOS ANGELES, dated July 30, 2020, and available at:

10 https://losangeles.cbslocal.com/2020/07/30/covid-church-religious-indoor-

11 services-coronavirus-la-county/.

12

20. Attached hereto as Exhibit II is a true and correct copy of Verified

13 Complaint for Temporary Restraining Order, Declaratory Relief, Injunctive Relief

14 and Damages in Abiding Place Ministries v. Wooten, Case No 20-CV-0683-BAS (S.D.

15 Cal. April 9, 2020), along with exhibits 3–8 thereto.

16

21. Attached hereto as Exhibit JJ is a true and correct copy of the article by

17 Artie Ojeda, Cease and Desist: County Cracks Down on Churches Holding Indoor

18 Services, published by NBC SAN DIEGO, dated July 28, 2020, and available at:

19 https://www.nbcsandiego.com/news/coronavirus/cease-and-desist-county-cracks-

20 down-on-churches-holding-indoor-services/2373987/.

21

22. Attached hereto as Exhibit KK is a true and correct of the article by

22 Eric Ting, Gavin Newsom asked to reconcile support for protests with new warnings on

23 gatherings, published by SF GATE, dated July 2, 2020, and available at:

24 https://www.sfgate.com/politics/article/Gavin-Newsom-protests-coronavirus-July-

25 Fourth-ask-15383112.php.

26

23. Attached hereto as Exhibit LL is a true and correct copy of Exhibit “E”

27 to Verified Complaint for Declaratory and Injunctive Relief in Calvary Chapel v.

28 Newsom, Case No. Case 2:20-cv-01431-KJM-DMC (E.D. Cal. July 15, 2020), which
4 Supp. Trissell Decl.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3007 Page 6 of 255

1 is a copy of Gavin Newsom’s posts, published on TWITTER, dated May 30, 2020,

2 June 5, 2020, and June 19, 2020.

3

24. Attached hereto as Exhibit MM is a true and correct copy of the article

4 by Cheri Mossburg, Recent protests have contributed to California’s coronavirus case

5 increase, state official says, published by CNN, dated June 26, 2020, and available at:

6 https://www.cnn.com/world/live-news/coronavirus-pandemic-06-26-20-

7 intl/h_b3a9aa753b4c05ea71479065f58bf534.

8

I declare until penalty of perjury under the laws of the United States and the

9 State of California that the foregoing is true and correct. Executed on August 10,

10 2020.

11

12

13

Jeffrey M. Trissell

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
5 Supp. Trissell Decl.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3008 Page 7 of 255
EXHIBIT Q

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3009 Page 8 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3010 Page 9 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3011 Page 10 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3012 Page 11 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3013 Page 12 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3014 Page 13 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3015 Page 14 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3016 Page 15 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3017 Page 16 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3018 Page 17 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3019 Page 18 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3020 Page 19 of 255
EXHIBIT R

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3021 Page 20 of 255
ORDER OF THE STATE PUBLIC HEALTH OFFICER
May 7, 2020
On March 19, 2020, I issued an order directing all individuals living in the State of California to stay at home except as needed to facilitate authorized, necessary activities or to maintain the continuity of operations of critical infrastructure sectors. (See https://covid19.ca.gov/stay-home-except-for-essential-needs/.) I then set out California’s path forward from this “Stay-at-Home” Order in California’s Pandemic Roadmap https://www.gov.ca.gov/wpcontent/uploads/2020/05/5.4.20-Update-on-Californias-PandemicRoadmap.pdf.That Roadmap identifies four stages of the pandemic: safety and preparation (Stage 1), reopening of lower-risk workplaces and other spaces (Stage 2), reopening of higher-risk workplaces and other spaces (Stage 3), and finally an easing of final restrictions leading to the end of the stay at home order (Stage 4). Today, COVID-19 continues to present a significant risk to the health of individuals throughout California. There are confirmed cases of the virus in 54 of the 58 counties across the State, and each day over the past two weeks over one thousand new cases have been confirmed in California and dozens of people have lost their lives due to the virus. However, owing to Californians’ mitigation efforts, statewide data currently demonstrates stable rates of new infections and hospitalizations, the maintenance of surge capacity, and an improved ability to test, contact trace, isolate, and provide support to individuals exposed to COVID-19. As State Public Health Officer, I have determined that the statewide data now supports the gradual movement of the entire state from Stage 1 to Stage 2 of California’s Pandemic Resilience Roadmap.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3022 Page 21 of 255
Gradual movement into Stage 2 is intended to reintroduce activities and sectors in a phased manner and with necessary modifications, in order to protect public health and result in a lower risk for COVID-19 transmission and outbreak in a community. Such deliberate phasing is critical to allowing the State to protect the public, and to mitigate and manage the impact of the re-openings, such that our health care delivery system has the capacity to respond to potential increased demands. Differences across the state in the prevalence of COVID19, as well as testing rates, containment capability, and hospital capacity, have resulted in differences among local health jurisdictions’ ability to safely progress through the various stages. The low and stable data reported by some local health officers in their local health jurisdictions, combined with sufficient COVID19 preparedness, justifies allowance for some variation in the speed with which some local health jurisdictions will be able to move through the phases of Stage 2.
NOW, THEREFORE, I as State Public Health Officer and Director of the California Department of Public Health, order:
1. All local health jurisdictions in the state may begin gradual movement into Stage 2, as set forth in this Order, effective on May 8, 2020; however, a local health jurisdiction may implement or continue more restrictive public health measures if the jurisdiction’s Local Health Officer believes conditions in that jurisdiction warrant it.
2. I will progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications, based on public health and safety needs, and I will add additional sectors, businesses, establishments, or activities at a pace designed to protect public health and safety. Those sectors, businesses, establishments, or activities that are permitted to open will be designated, along with necessary modifications, at https://covid19.ca.gov/roadmap/, as I announce them.
3. To the extent that such sectors are re-opened, Californians may leave their homes to work at, patronize, or otherwise engage with those businesses, establishments, or activities and must, when they do so, continue at all times to practice physical distancing, minimize their time outside of the home, and wash their hands frequently. To prevent further spread of COVID-19 to and within other jurisdictions within the State, Californians should not travel significant distances and should stay close to home. My March 19, 2020, Order otherwise remains in full effect.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3023 Page 22 of 255
4. The California Department of Public Health has set forth criteria to help local health officers assess the capacity of their local health jurisdictions to move through Stage 2. Local health jurisdictions that meet the criteria and follow the process set forth https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID19/COVID-19-County-Variance-Attestation-Memo.aspx will be permitted to move through Stage 2 more quickly than the State as a whole and reopen additional low-risk businesses before the rest of the state, if they choose to do so. A list of the sectors, businesses, establishments, or activities, and any necessary modifications, that such a qualifying jurisdiction may choose to reopen will be available at https://covid19.ca.gov/roadmap-counties/, and may be expanded if I deem it to be in the interest of public health and safety.
Pursuant to the authority under EO N-60-20, and Health and Safety Code sections 120125, 120140, 131080, 120130(c), 120135, 120145, 120175 and 120150, this Order is to go into effect immediately and shall stay in effect until further notice.
This Order is being issued to protect the public health of Californians as we move as expeditiously to minimize risk to the extent possible throughout the Stages of the Pandemic Resilience Roadmap.
Sonia Y Angell, MD, MPH State Public Health Officer & Director California Department of Public Health

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3024 Page 23 of 255
EXHIBIT S

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3025 Page 24 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3026 Page 25 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3027 Page 26 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3028 Page 27 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3029 Page 28 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3030 Page 29 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3031 Page 30 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3032 Page 31 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3033 Page 32 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3034 Page 33 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3035 Page 34 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3036 Page 35 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3037 Page 36 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3038 Page 37 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3039 Page 38 of 255
EXHIBIT T

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3040 Page 39 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3041 Page 40 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3042 Page 41 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3043 Page 42 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3044 Page 43 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3045 Page 44 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3046 Page 45 of 255
EXHIBIT U

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3047 Page 46 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3048 Page 47 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3049 Page 48 of 255

8/7/20C20ase 3:20-cv-00865-BGAymSs-,ABaHrsG, MusDeuomcsu, Hmotelns t& 5M3or-e3CanFRileeopden0F8ri/d1a0y,/S2D0CouPntay gSaeyIsD–.N3B0C570SanPDaieggoe 49 of 255
SPONSORED • WIKIBUY
Wells Fargo Cash Wise Visa®
SPONSORED • WELLS FARGO

$150 Cash Rewards Intro Bonus. Learn More!
SPONSORED • WELLS FARGO
These New Assisted Living Apartments Near Oceanside Are A Dream Come True! Research Senior…
SPONSORED • SENIOR LIVING/ASSISTED LIVING
Spending Too Much At Costco? Here are the Best and…
SPONSORED • BETTERBE

https://www.nbcsandiego.com/news/local/gyms-bars-museums-hotels-more-can-reopen-friday-sd-county-says/2342823/

4/7

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3051 Page 50 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3052 Page 51 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3053 Page 52 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3054 Page 53 of 255
EXHIBIT V

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3055 Page 54 of 255

Gavin Newsom sued over ban against at-home Bible studies - Washingto... https://www.washingtontimes.com/news/2020/jul/20/gavin-newsom-sue...
Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3056 Page 55 of 255

2 of 6

8/8/2020, 12:59 PM

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3057 Page 56 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3058 Page 57 of 255

Gavin Newsom sued over ban against at-home Bible studies - Washingto... https://www.washingtontimes.com/news/2020/jul/20/gavin-newsom-sue...
Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3059 Page 58 of 255

5 of 6

8/8/2020, 12:59 PM

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3060 Page 59 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3061 Page 60 of 255
EXHIBIT W

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3062 Page 61 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3063 Page 62 of 255
TABLE OF CONTENTS
Disclaimer......................................................................................................................................2 Purpose of this Supplemental Guide...........................................................................................3 Safe Reopening Plan....................................................................................................................4   A. Signage..................................................................................................................................5
 Communication............................................................................................................5   B. Measures to Protect Employee Health................................................................................7   C. Measures to Protect Customer Safety...............................................................................10   D. Measures to Keep People Six Feet Apart..........................................................................12   E. Other Measures...................................................................................................................14 Helpful Tip: Assign Roles and Responsibilities..........................................................................16 Resources.....................................................................................................................................17 Definitions....................................................................................................................................18 Contact Us...................................................................................................................................19 Safe Reopening Plan Form........................................................................................................20

DISCLAIMER

The information in this document was last revised on July 21, 2020. To review the most updated information regarding current guidelines and Public Health Order, please visit the following websites: • County of San Diego COVID-19 Website • Faith-Based Organizations Sector • Public Health Order • California Department of Public Health Website

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

2

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3064 Page 63 of 255
PURPOSE OF THIS SUPPLEMENTAL GUIDE
The Faith-Based Organization Sector is offering this supplemental guidance document as an additional resource to assist places of worship with implementation of the Safe Reopening Plan.
The purpose of this guide is to serve as a companion to: • California Department of Public Health (CDPH) Industry Guidance for Places of Worship • County of San Diego Public Order • County of San Diego Safe Reopening Plan
This guide does not obligate places of worship to resume in-person activity. Further, it is strongly recommended that places of worship continue to facilitate remote services and other related activities for those who are vulnerable to Coronavirus Disease 2019 (COVID-19) including older adults and those with co-morbidities.
Places of worship will be able to use this guide in order to: • Assess readiness by specific areas and actions. • Initiate plans to resolve any issues. • Create accountability.
Worship Service Attendance/Capacity effective July 13, 2020 and until further notice: • Indoor Services: Indoor services may not be held at this time, in order to mitigate the
spread of the virus. • Outdoor Services: Outdoor attendance should be limited naturally through
implementation of strict physical distancing measures of a minimum of six feet between attendees from different households, in addition to other relevant protocols within this document.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

3

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3065 Page 64 of 255
SAFE REOPENING PLAN
The County of San Diego Public Health Order, effective June 3, 2020, requires all Faith-Based Organizations reopening to complete and implement a Safe Reopening Plan.
The purpose of the Safe Reopening Plan is to ensure that establishments that host patrons, including houses of worship, have a standardized process and guidelines to minimize risk of COVID-19.
The most recent public health order can be found by visiting San Diego County Public Health Order.
Provided in a checklist format (◯), this guide covers the requirements that support a safe reopening plan to help prevent the spread of COVID-19. Additionally, recommendations are provided throughout this guide (◈) to further support a safe reopening.
SAFE REOPENING PLAN
◯✓ STEPS A THROUGH E: REQUIREMENTS & RECOMMENDATIONS
  A. Signage   B. Measures to Protect Employee Health   C. Measures to Protect Customer Safety   D. Measures to Keep People Six Feet Apart   E. Other Measures
A Safe Reopening Plan is required for indoor and outdoor operations. Each place of worship is unique, and as such, practical applications and guidance actions may need to be tailored to create an appropriate and complete plan.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

4

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3066 Page 65 of 255
A. Signage
Signage is an important part of the reopening plan. Signs reinforcing Physical Distancing, Personal Wellness, and Safe Health Practices are gentle reminders to staff and congregants to keep physically distant, wear facial coverings, and wash hands frequently.
◯ REQUIRED Signage at each public entrance of the facility or outdoor area to inform all employees and customers that they should: • avoid entering the facility if they have a cough or fever; • wear facial coverings; • maintain a minimum six-feet distance from one another; and • not shake hands or engage in any unnecessary physical contact.
◯ REQUIRED Post a copy of the Safe Reopening Plan at each public entrance to the facilities or outdoor areas.
◈ Sample signage • County of San Diego Printable Resources and Materials • Centers for Disease Control and Prevention (CDC) Print Resources Communication is another important way to regularly inform your staff, congregants, and visitors of the steps taken to ensure a safe reopening. Examples include: bulletins, newsletters, websites, e-mails, phone calls, social media, texts, etc.
Suggested communication and messaging:
◈ Create initial announcement focusing on “Welcome/What to Expect” messages and attendance guidelines.
◈ Share the steps which have been taken to create a safe environment. ◈ Share that many procedures and guidelines are in effect not only to protect
ourselves, but to protect one another.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

5

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3067 Page 66 of 255
◈ Emphasize that congregants who are at higher risk for severe illness from COVID-19 (65 years or older, have underlying medical conditions) and all who are experiencing symptoms of the virus, those who are quarantined or isolated are strongly encouraged to refrain from attending services. • Quarantine: Persons are quarantined after being exposed to someone with COVID-19. • Isolation: Persons are isolated after demonstrating symptoms consistent with COVID-19.
◈ Have Faith Leaders create a short video message covering key messages and reopening plans.
◈ Utilize “Live Stream” to share reopening plans. ◈ Consider having a remote or virtual “Town Hall” to allow Faith Leaders to
share reopening plans and answer questions.
◈ Communication Resources: • County of San Diego Printable Materials • CDC Social Media Toolkit • CDC Print Resources
◈ Resources to create your own posters, handouts, and flyers: • Adobe Spark: Create Your Own Physical Distancing Posters • Canva: www.Canva.com

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

6

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3068 Page 67 of 255

B. Measures to Protect Employee Health

Measures to Protect Employee Health can help prevent transmission of COVID-19 in your community. It is important to train and support staff in practicing Personal Wellness, Physical Distancing, and Safe Health Practices. Leading by example will convey to your team that you are prioritizing the health and well-being of your staff, congregants, and visitors.
◯ REQUIRED Teleworking opportunities have been maximized.
◈ On days when there are no worship services, it is encouraged that staff work from home for tasks such as accounting or other administrative duties, when possible.
◈ Schedule staff to report to the office on rotating days, if possible.
◯ REQUIRED All employees must have temperature taken upon reporting to work.
Please note: visitors/congregants do not need temperature checks, but it is highly recommended.
• If 100 degrees or more, they should not be allowed in the workplace.
• If a digital thermometer is not available, employees must be screened for COVID-19 symptoms, which include: • Fever or chills • Cough • Shortness of breath or difficulty breathing • Fatigue • Muscle or body aches • Headache • New loss of taste or smell • Sore throat • Congestion of runny nose • Nausea or vomiting • Diarrhea

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

7

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3069 Page 68 of 255
• To the maximum extent possible, make sure the temperature/symptom screener avoids close contact with those being screened.
• Both screener and staff should wear face coverings for the screening. • Anyone who has a fever or other symptoms should contact their medical provider
for medical advice. If they do not have a healthcare provider or are uninsured, call 2-1-1 for assistance. • For additional control measures and screening information, see page 6 of CDPH Guidance. • For testing information, please visit the County of San Diego Testing Site.
◯ REQUIRED All desks or individual workstations are separated by at least six feet.
◈ If staff are coming in on rotating days and using the same desk space, computers, materials, etc., ensure availability of cleaning supplies and encourage staff to disinfect their space at the beginning and end of their shift.
◈ For office work and worship services, ensure desk space, podiums, seats, musicians, etc. are separated by at least six feet.
◯ REQUIRED Break rooms, bathrooms, and other common areas are being disinfected frequently.
◈ Disinfect microphones and stands, music stands, instruments and other items on pulpits and podiums between each use. Consult equipment manufacturers to determine appropriate disinfection steps, particularly for soft, porous surfaces such as foam mufflers, upholstery, etc.
◈ Consider using disposable seat covers for congregants/visitors, particularly on porous surfaces or where a facility has multiple daily services.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

8

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3070 Page 69 of 255
◈ Create a schedule of cleaning and disinfecting for each commonly used area and any shared items.
◈ Additional Resources: Pages 7-8 of CDPH Guidance County of San Diego Disinfection Guidance CDC Cleaning and Disinfection Guidance EPA Approved Disinfectants for Use Against SARS-CoV-2
◯ REQUIRED Disinfectant and related supplies are available to all employees.
◯ REQUIRED Hand sanitizer effective against COVID-19 is available to all employees.
◯ REQUIRED Soap and water are available to all employees.
◯ REQUIRED Copies of the Reopening Plan have been distributed to all employees.
◈ Ensure all employees understand the disinfection schedule and location of all supplies.
◈ Ensure that sanitary facilities stay operational and stocked at all times. Provide additional soap, paper towels, and hand sanitizer when needed. Consider more frequent cleaning and disinfecting of handwashing facilities that are used more often. Use signage to reinforce handwashing.
◈ Install hand sanitizer dispensers, touchless whenever possible, at entrances and contact areas such as meeting rooms, lobbies, and elevator landings.
◈ See pages 4-5 of CDPH Guidance for additional topics on employee and volunteer training.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

9

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3071 Page 70 of 255
C. Measures to Protect Customer Safety
Measures to Protect Customer Safety are intended to protect congregants and visitors. The implementation of these measures may help prevent transmission of COVID-19. Illustrating that your place of worship has an action plan and is practicing Personal Wellness, Physical Distancing, and Safe Health Practices will convey to congregants and visitors that you are prioritizing their health and well-being, as well as protecting the community at-large.
◯ REQUIRED Reconfigure common areas and limit number of attendees and staff to ensure adherence to at least six foot physical distance requirement.
◯ REQUIRED
Curbside or outdoor service is made available where feasible. Please Note: Outdoor worshop service attendance should be limited naturally through implementation of strict physical distancing measures of a minimum of six feet between attendees from different households, in addition to other relevant protocols within this document.
◈ Shorten services to limit the length of time congregants/visitors spend at facilities whenever possible. This could include limiting speeches, asking congregants/visitors to put on religious garments at home before arrival.
◈ Consider offering additional meeting times (per day or per week) so that fewer guests attend meetings and services at one time. Clean meeting areas between each use as described in this guidance.
◈ Persons from the same household may sit together and do not need to practice physical distancing.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

10

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3072 Page 71 of 255

◈ Consider implementing a reservation system to limit the number of congregants/visitors attending facilities at a time. This can include the use of digital platforms or other types of tools. Examples of online reservation websites are: • Signupgenius.com • Evite.com • Eventbrite.com
If meetings or services are held in-person, continue to offer remote access to protect those 65 an older, those with co-morbidities and those who choose to remain at home.
◈ See pages 9-12 in CDPH Guidance for additional recommendations.
◯ REQUIRED All patrons/visitors must wear facial coverings within six feet of another person.
Please Note: All persons two years of age or older who are present in the county shall have possession of a face covering when they leave their home or place of residence and shall wear the face covering as described in the CDPH Face Covering Guidance issued on June 18, 2020.

◈ Prior to services, remind congregants and visitors of the facial covering requirement and its importance in stopping the spread of COVID-19.

◈ Persons exempt from wearing a facial covering, as stated in the CDC Guidelines include:
• Children under age 2.
• Anyone who has trouble breathing, or is unconscious, incapacitated, or otherwise unable to remove the mask without assistance.

◈ Place staff or volunteers at the entrance to buildings to remind people to wear facial coverings as they enter.

◈ For more information on face coverings, visit Face Coverings: Protect Yourself and Others.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

11

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3073 Page 72 of 255

D. Measures to Keep People Six Feet Apart

Measures to keep people six feet apart will assist in establishing clear guidelines and expectations for staff, congregants, and visitors in your place of worship. Placing signage, using markings, training staff, and using a reservation system can help everyone adhere to physical distancing guidelines and help prevent the transmission of COVID-19.
◯ REQUIRED Placing signs outside the building or outdoor area reminding people to be at least six feet apart, including when in line. Encourage pedestrian traffic to follow one-way migration paths, if appropriate.

◈ Designate several staff members to walk around and give congregants friendly reminders about physical distancing and wearing a facial covering.

◯ REQUIRED Placing tape or other markings at least six feet apart in line areas inside and on sidewalks at public entrances. Direct visitors to use the markings as guides for maintaining physical distancing.

◈ Determine how physical distancing will impact seating for services and the overall seating capacity for the house of worship.

◈ Prepare to accommodate for larger family groups from the same household as well as smaller household units.

◈ Map out areas where it is anticipated that congregants will be waiting in lines or are typically in close proximity. These areas will need monitoring for adherence to the six foot physical distance requirement between household groups.

◈ Areas to consider placing markings include: outside prior to entering place of worship, seating areas, line spacing outside of restrooms.

◈ If applicable, place markings in sitting areas on the ground to ensure six feet physical distancing.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

12

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3074 Page 73 of 255

◯ REQUIRED All employees have been instructed to maintain at least six feet distance from visitors and from each other. Exceptions may include: accepting payment, delivering goods or services, or as otherwise necessary.
◈ Establish a written, workplace-specific COVID-19 prevention plan at every location, perform a comprehensive risk assessment of all work areas, and designate a person at each workplace to implement the plan.
◈ Ensure all categories of staff including temporary, contract, and volunteer workers are also properly trained in COVID-19 prevention policies and have necessary Personal Protective Equipment (PPE) if job duties require it. Discuss these responsibilities ahead of time with organizations supplying temporary, contract, and/or volunteer staff.
◈ Regularly evaluate workplaces for compliance with the plan and document and correct deficiencies identified.
◈ Emphasize the importance of physical distancing, both at work AND off work time (see Physical Distancing section below).
◈ Limit the exchange of commonly used items. This can include items such as cups, garments, ritual objects, etc.
◈ See page 9-12 of CDPH Guidance for additional recommendations on physical distancing.

◯ REQUIRED Appointment system is utilized, when appropriate.
◈ Consider making appointments for counseling services or other in-person meetings to reduce lines or gathering in waiting areas. Examples of online reservations include: • Signupgenius.com • Evite.com • Eventbrite.com

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

13

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3075 Page 74 of 255
E. Other Measures
Other Measures and Recommendations are other activities that are NOT mandatory, but you may want to consider to protect the health and safety of your staff, congregants, and visitors. In this section, you may add additional measures that may be specific to your house of worship, site or building.
Listed below are ideas that may be helpful in creating your Plan:
◈ Flow of Foot Traffic: Mark walking paths between spaces designated for congregants/visitors to sit/kneel so that people do not walk where someone may touch their head to the floor.
See page 8 of CDPH Guidance for additional recommendations.
◈ Ventilation: During meetings and services, introduce fresh outside air, for example, opening doors/windows (weather permitting) and operating ventilation systems.
◈ Air Cleaners: Consider installing portable high-efficiency air cleaners, upgrading the building’s air filters to the highest efficiency possible, and making other modifications to increase the quantity of outside air and ventilation in worship areas, offices, and other spaces.
◈ Food Self-Service/Food and Beverages: Discontinue offering self-service food and beverages. Do not hold potlucks or similar family-style eating and drinking events that increase the risk of cross contamination. If food and beverages must be served, provide items in single-serve, disposable containers whenever possible. Employees or volunteers serving food should wash hands frequently and wear disposable gloves and face coverings.
See pages 11-12 of CDPH Guidance for additional recommendations.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

14

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3076 Page 75 of 255
◈ Singing: As of July 13, indoor singing and recitation must be discontinued. as there is increased likelihood for transmission from contaminated exhaled droplets. This may be done outdoors with facial coverings and physical distancing.
◈ Parking Lots: Reconfigure parking lots to limit congregation points and ensure proper separation (e.g., closing every other space).
If performing drive-in services, ensure vehicle windows and doors are closed if six feet of distance is not possible between vehicles.
Consider volunteers to discourage gatherings among different households in the parking lot.
See pages 11-12 of CDPH Guidance for additional recommendations.
◈ Virtual Services: Continue to support remote services and other related activities to those who are vulnerable to COVID-19 including older adults and those with co-morbidities.
See page 12 of CDPH Guidance for additional recommendations.
◈ Additional Safety Measures: CDPH Guidance.
Additional considerations for Places of Worship: Stay updated on current State and Local guidance regarding ceremonies (weddings, funerals, etc) and other special events by visiting: • www.coronavirus-sd.com • www.sdcounty.ca.gov/covidfaithbased • www.cdph.ca.gov/

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

15

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3077 Page 76 of 255
HELPFUL TIP: ASSIGN ROLES AND RESPONSIBILITIES
The following are potential roles that staff and volunteers can support in order to ensure that all mandatory requirements and suggested guidelines are met:
Senior Leaders: Promote, model and encourage all health and safety measures.
Reopening Lead: Responsible for coordinating all implementation efforts.
Communication Manger: Responsible for monitoring wellness practices, and informing all leaders, staff and volunteers about overall plans, procedures, protocols and roles and responsibilities.
Safe Entry Coordinator: Responsible for ensuring all staff have their temperature taken and are not exhibiting symptoms of COVID-19.
Welcome Staff: Upon entry, reminding people to wear facial coverings, maintain physical distance, provide and encourage the use of hand sanitizer.
Foot Traffic Staff: Responsible for ensuring visitors/congregants follow the foot traffic guidance so that a six-foot distance is kept between all visitors, congregants, staff and volunteers.
Parking Lot Attendants: Responsible for ensuring there is no gathering in the parking lots and that cars and visitors/congregants are following appropriate physical distancing guidance. Responsible for posting signs, cones and taking other necessary measures to assist people in safely entering the building.

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

16

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3078 Page 77 of 255
RESOURCES
If you need help finding social services or medical care, call the San Diego County Information line 2-1-1, which is available 24/7.
• What You Should Know (Infographic) • FAQs, Fact Sheets and Materials (available in several languages) • CDC Guidance for Community and Faith-Based Organizations • Center for Faith and Opportunity Initiatives U.S. Dept of Health and Human Services • How to Cope with Stress (available in several languages) • Handwashing • What If I’m Exposed • Home quarantine guidance for close contacts to COVID-19 • Home care instructions for people with Respiratory Symptoms • What to do if you have symptoms of Coronavirus Disease 2019 • Stay tuned on the Live Well San Diego for videos on how to use technology How-To
YouTube Channel Playlist.
Other reliable sources of information include: • California Department of Public Health (CDPH, State)
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/nCOV2019.aspx • Centers for Disease Control and Prevention (CDC, National)
http://www.cdc.gov/coronavirus/novel-coronavirus-2019.html • World Health Organization (WHO, International)
https://www.who.int/health-topics/coronavirus • National Funeral Directors Association
https://nfda.org/covid-19 • Behavioral Health Service
https://www.sandiegocounty.gov/hhsa/programs/bhs/ • Access and Crisis Line
(888) 724-7240 is available 24/7 for immediate help www.Up2sd.org • Aging and Independence Services https://www.sandiegocounty.gov/content/sdc/hhsa/programs/ais.html • Vital Family Assistance Center https://www.redcross.org/virtual-family-assistance-center.html

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

17

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3079 Page 78 of 255

DEFINITIONS

Physical Distancing: Physical distancing is a practice recommended by public health officials to stop or slow down the spread of a contagious disease. A distance of 6 feet or 2 meters between individuals is recommended for COVID-19, to avoid the spread of respiratory droplets. While in the same location (ex: grocery store), wearing a facial covering and maintaining 6 feet of space between individuals is recommended. Direct and indirect touching of people or objects outside of the household should be avoided. • Direct Touching – Physical contact with another person (handshake, hug, high fives) • Indirect Touching - Sharing the same physical objects. (Examples include, sharing a
glass of water, touching the same piece of paper, sharing a book, passing cell phones back and forth, etc...)
Quarantine: Used to separate and restrict the movement of people who are well, but who may have been exposed to someone with an infectious disease. People are placed in quarantine to wait and see if they will become ill during the incubation period of the disease. For COVID-19, the incubation period is 2-14 days.
Isolation: Used to separate people with symptoms of an infectious disease, even if the symptoms are mild, from people who do not have symptoms. Isolation can be done at home or in a separate facility. A person in isolation should stay away from others even while isolated at home, to avoid spreading the illness.
Facial Covering: Face coverings should cover the nose and mouth and be used when individuals may be around people outside of their household. Face covering should be used in addition to other protective measures (such as physical distancing and washing your hands). Cloth face coverings should: • fit snugly but comfortably against the side of the face • be secured with ties or ear loops • include multiple layers of fabric • allow for breathing without restriction • be able to be laundered and machine dried without damage or change to shape
The cloth face coverings recommended are not surgical masks or N-95 respirators. Those are critical supplies that must continue to be reserved for healthcare workers and other medical first responders, as recommended by current CDC guidance.

For more information visit: County of San Diego Face Coverings Guidance | CDC Facial Coverings Guidance | CDC Cloth Face Coverings Q&A

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

18

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3080 Page 79 of 255
CONTACT US
E-mail: covid-cbo-faith@sdcounty.ca.gov Website: www.sdcounty.ca.gov/covidfaithbased Telebriefings: Join us every second and fourth Wednesdays each month at 1 PM Free presentations available on COVID-19 and other health related topics:
Live Well San Diego Speaker’s Bureau
We appreciate your commitment and dedication to keeping the County of San Diego healthy, safe and thriving!

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

19

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3081 Page 80 of 255

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

20

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3082 Page 81 of 255

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

21

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3083 Page 82 of 255

July 21, 2020

www.Coronavirus-SD.com www.SDcounty.ca.gov/covidfaithbased

22

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3084 Page 83 of 255
EXHIBIT X

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3085 Page 84 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3086 Page 85 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3087 Page 86 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3088 Page 87 of 255
EXHIBIT Y

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3089 Page 88 of 255

8/7/20C20ase 3:20-cv-00865-BAS-AHG DGoocv.uNmewesonmt O5u3tl-in3es SFtriiclteGdui0de8lin/1es0F/o2r0SchoPolasg| KePIBDS.3090 Page 89 of 255

time to get off the monitoring list, she said.

The state's guidance says all school staff and all students in grades three to 12 will be required to wear face coverings. Younger students will be encouraged but not required to wear masks. Osborne was relieved by this new rule.

https://www.kpbs.org/news/2020/jul/17/california-governor-outline-plans-reopening-school/

2/4

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3091 Page 90 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3092 Page 91 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3093 Page 92 of 255
EXHIBIT Z

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3094 Page 93 of 255
HEALTH AND HUMAN SERVICES AGENCY PUBLIC HEALTH SERVICES
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
(Effective July 21, 2020)
Pursuant to California Health and Safety Code sections 101040, 120175, and 120175.5 (b) the Health Officer of the County of San Diego (Health Officer) ORDERS AS FOLLOWS:
Effective 12:00 a.m. on Tuesday, July 21, 2020 and continuing until further notice, the following will be in effect for San Diego County (county): 1. All persons are to remain in their homes or at their place of residence, except for employees
or customers traveling to and from essential businesses, reopened businesses, or essential activities as defined in section 22, below, or to participate in individual or family outdoor activity as allowed by this Order.
2. All public or private “gatherings,” as defined in section 22 below, are prohibited.
3. All businesses not meeting the definition of essential business or reopened business in section 22 below are referred to in this Order as “non-essential businesses” and shall be and remain closed for the duration of this Order. All essential businesses and reopened businesses must comply with the requirements of this Order. Notwithstanding the foregoing, any business may remain open if its employees and owners can provide its services from home, including by telecommuting, without direct contact with the public.
4. All public, charter and private schools shall not hold classes on the school campus, and shall conduct distance learning only as required by COVID-19 an Reopening In-Person Learning Framework for K-12 Schools in California, 2020-2021 School Year issued by the California Department of Health Services on July 17, 2020 availalble at {https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3095 Page 94 of 255

19/Schools%20Reopening%20Recommendations.pdf}. Colleges and Universities shall not hold classes or other school activities where students gather on the school campus, except for research-related activities in colleges and universities and where necessary to train students who will serve as essential workers.

5. Child daycare and child care providers shall operate in compliance with the measures set forth in State COVID-19 Updated Guidance: Child Care Programs and Providers and shall prepare and post a Safe Reopening Plan pursuant to section 11, below.

6. “Non-essential personnel,” as defined in section 22 below, are prohibited from entry into any hospital or long-term care facility. All essential personnel who are COVID-19 positive or show any potential signs or symptoms of COVID-19 are strictly prohibited from entry into hospitals or long-term care facilities. Notwithstanding the foregoing, individuals requiring medical care for COVID-19 or related conditions may be admitted to hospitals or other medical facilities if the hospital or medical facility is appropriate for treating COVID-19 and has adequate precautions in place to protect its patients, medical personnel and staff.

7. Hospitals and healthcare providers, including dentists shall: a. Take measures to preserve and prioritize resources; and, b. May authorize and perform non-emergent or elective surgeries or procedures based on their determination of clinical need and supply capacity, and where consistent with State guidance.
c. Nothing in this Order shall prevent physicians and other healthcare providers from conducting routine preventive care provided it conforms to any applicable State guidance.
d. Nothing in this Order shall prevent dentists or dental hygienists from conducting routine preventive care provided it conforms to any applicable State guidance.

8. Hospitals, healthcare providers, pharmacies and commercial testing laboratories shall report all COVID-19 test results to the Public Health Officer immediately after such results are received.

9. All persons two years of age or older who are present in the county shall have possession of a

face covering when they leave their home or place of residence and shall wear the face

covering as described and required in California Department of Public Health Face Covering

Guidance

issued

on

June

18,

2020,

(available

at:

Page 2 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3096 Page 95 of 255

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID19/Guidance-for-Face-Coverings 06-18-2020.pdf).

10. All essential businesses that allow members of the public to enter a facility must prepare and post a “Social Distancing and Sanitation Protocol” on the form available at: https://www.sandiegocounty .gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/SOCIAL DISTANCING AND SANITATION PROTOCOL 04022020 V1.pdf ), or on a form required by another governmental entity requiring substantially similar information, for each of their facilities open to the public in the county. The Social Distancing and Sanitation Protocol must be posted at or near the entrance of the relevant facility, and shall be easily viewable by the public and employees. A copy of the Social Distancing and Sanitation Protocol must also be provided to each employee performing work at the facility. All essential businesses shall implement the Social Distancing and Sanitation Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand. The Social Distancing and Sanitation Protocol must ensure all required measures are implemented and must identify and require measures necessary to implement social distancing are implemented at each facility that will ensure social distancing and sanitation at that particular facility. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Social Distancing and Sanitation Protocols to ensure proper social distancing and sanitation. Any business that fails to successfully implement social distancing and sanitation may be required to close.

11. All reopened businesses, with the exception of restaurants, bars, wineries, distilleries and

breweries which do not limit services to take-out or delivery, must prepare and post a “Safe

Reopening

Plan”

on

the

form

available

at:https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid

19/Community Sector Support/BusinessesandEmployers/SafeReopeningPlanTemplate.pdf

for each of their facilities in the county. Restaurants bars, wineries, distilleries and breweries

which do not limit services to take-out or delivery, must prepare and post a “COVID-19

Restaurant Operating Protocol” on the form available at

https://www.sandiegocounty.gov/content/dam/sdc/deh/fhd/food/pdf/covid19sdrestaurantoper

atingprotocol en.pdf for each restaurant in the county. The Safe Reopening Plan or COVID-

19 Restaurant Operating Protocol must be posted at or near the entrance of the relevant facility,

and shall be easily viewable by the public and employees. A copy of the Safe Reopening Plan

or COVID-19 Restaurant Operating Protocol must also be provided to each employee

performing work at the facility. All reopened businesses shall implement the Safe Reopening

Page 3 of 11

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3097 Page 96 of 255

Plan or COVID-19 Restaurant Operating Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand. The Safe Reopening Plan or COVID-19 Restaurant Operating Protocol must ensure all required measures are implemented. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Safe Reopening Plan or COVID-19 Restaurant Operating Protocol to ensure proper social distancing and sanitation. Any business that fails to comply with its Safe Reopening Plan or COVID-19 Restaurant Operating Protocol shall immediately close.

12. When the State of California has issued an industry guidance, or any subsequent amendments

thereto, with mandatory and/or suggested measures to be implemented by a particular type of

business or industry, a reopened business must include in its Safe Reopening Plan all of the

industry guidance mandatory measures, including, but not limited to, all of the requirements

and guidance set forth in the Statewide Public Health Officer Order, issued by the California

Department of Health Services on July13, 2020, all portions of which are operative in San

Diego County effective

immediately, and available at

{https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-

19/SHO%20Order%20Dimming%20Entire%20State%207-13-2020.pdf}. The reopened business

shall include all suggested measures necessary to maintain proper sanitation, employee

screening, social distancing and facial coverings. Any mandatory measures required by this

Order must also be included in the Safe Reopening Plan.

13. All brewpubs, breweries, bars and pubs shall close unless they comply with section 14c, below, in which case they shall comply with all other requirements in this section and section 14 below. All other restaurants, bars, wineries, distilleries and breweries shall close indoor service in conformance with the requirements set forth in the Statewide Public Health Officer Order, issued by the California Department of Health Services on July13, 2020, all portions of which are operative in San Diego County effective immediately, and available at {https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID19/SHO%20Order%20Dimming%20Entire%20State%207-13-2020.pdf}, and shall be closed from 10:00 p.m. until 5:00 a.m. every day. Guests already in the facility at 10:00 p.m. may remain in the facility until 11:00 p.m. Only staff needed to close, open or clean shall be in the facility between the hours of 11:00 p.m. and 5:00 a.m.

14. All restaurants, bars, wineries and breweries shall also be required to ensure their customers comply with all of the following measures and shall immediately close if they are not able to Page 4 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3098 Page 97 of 255
do so: a. No food or beverages shall be served to or consumed by a customer who is not seated at a table designated by the restaurant for dining. b. The bar area of a restaurant may be used only for table service of meals. c. Alcoholic drinks shall only be served as part of a meal and must be sold and served in the same transaction as the meal. All meals shall be served by a food operator permitted by the San Diego County Department of Environmental Health. This restriction shall not be applicable to outdoor service of wine at a winery or spirits at a distillery. d. Customers shall not stand in the restaurant, bar, winery, distillery or brewery except in the reception area while waiting for a table or to pick up take-out food. If customers cannot be socially distanced in the reception area they shall wait in their cars or outside of the restaurant in a line with six feet between each customer. e. Discontinue open seating. All members of the party must be present before seating and the host must bring the entire party to the table at one time. The customers allowed at a table are limited to members of a single household or customers who have asked to be seated together at the time a table is requested. f. Discontinue seating customers and/or groups at bar counters, sushi preparation bars, etc. where they cannot maintain at least six feet of distance from employee work areas/stations. Install physical barriers or partitions in areas where maintaining a physical distance of six feet is difficult. g. Customers are not required to wear face coverings while at a table with members of the same household. Customers at a table with non-household members are not required to wear face coverings when eating and drinking. Customers are required to wear face coverings at all other times in conformance with paragraph 9, above. h. Tables designated for dining shall be six feet apart, or separated by barriers or partitions that extend above the heads of customers while seated. Customer shall not be allowed to bring additional chairs to the table that interfere with the six foot separation. i. Self-serve food or drink options, such as buffets, salad bars, and drink stations are not allowed. j. Shared entertainment items such as board games, arcade games and vending machines are prohibited and customers shall not have access to game and entertainment areas such as pool tables or darts. k. Dance floors shall be closed and live performances such as musical or dance acts shall be discontinued. l. Any customer that refuses to comply with this section shall be subject to enforcement per Health and Safety Code section 120295.
Page 5 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3099 Page 98 of 255
15. Places of Worship – Religious services and cultural ceremonial activities (including wedding ceremonies but not receptions) may be conducted in conformance with the State Guidance pursuant to sections 11 and 12, above. Given the high risk of this activity, vulnerable members of the population (over 65 years old, compromised immune system or underlying condition) are strongly encouraged to participate through streaming or some other form of remote technology. Outdoor services and cultural ceremonial activities may be conducted provided all persons practice social distancing as defined in section 22e, below.
16. Each essential business and reopened business shall: a. Require all employees/on-site contractors (hereinafter referred to as employees) to have possession of face coverings and wear them as described in section 9 above when in the business facility; and, b. Shall conduct temperature screening of all employees and prohibit entry to the workplace of employees with a temperature of 100 degrees or more, employees exhibiting COVID-19 symptoms as described by the Centers for Disease Control and Prevention, or employees who have recently been exposed to a person who has tested positive for COVID-19 (either directly or through a breach of Personal Protective Equipment in the case of healthcare workers/first responders).
17. Outdoor Recreation a. Each public park and recreation area or facility, shall operate in compliance with the measures set forth in the State COVID-19 Industry Guidance: Campgrounds, RV Parks and Outdoor Recreation. The operator of the park shall prepare a Safe Reopening Plan pursuant to section 11, above, indicating how the park or recreation facility will implement the required measures. Any park or recreation area/facility at which the Protocol requirements cannot be effectively implemented may be required to close. b. Outdoor recreation instruction and day camps that comply with the State COVID-19 Industry Guidance: Day Camps, may be conducted in park and recreation areas/facilities. c. Swimming pools owned or operated by a Homeowners’ Association, Condominium or Apartment complex may be open provided the owner or operator completes and posts a Safe Reopening Plan that shows conformance with the requirements of this Order and with the swimming pool/aquatic venues requirements of the State COVID-19 Industry Guidance on Fitness Facilities.
18. All essential businesses and reopened businesses that remain in operation in accordance with Page 6 of 11
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3100 Page 99 of 255

the Order shall make every effort to use telecommuting for their workforces.

19. A strong recommendation is made that all persons who are 65 years old or older, have a chronic underlying condition, or have a compromised immune system self-quarantine themselves at home or other suitable location.

20. All persons arriving in the county from international locations identified on the Centers for Disease Control and Prevention (CDC) Warning Level 2 or 3 Travel Advisory (available at: https://wwwnc.cdc.gov/travel/notices) shall be subject to 14-day home or other suitable location quarantine and self-monitoring.

21. Persons who have been diagnosed with COVID-19, or who are likely to have COVID-19, shall

comply with the Order of the Health Officer titled: “Isolation of All Persons with or Likely to

have COVID-19”, or as subsequently amended. Persons who have a close contact with a person

who either has COVID-19, or is likely to have COVID-19, shall comply with the Order of the

Health Officer titled: “Quarantine of Persons Exposed to COVID-19,” or as subsequently

amended.

Both

orders

are

available

at:

https://www.sandiegocounty.gov/content/sdc/hhsa/programs/phs/community epidemiology/d

c/2019-nCoV/health-order.html. If a more specific isolation or quarantine order is issued to a

person, that order shall be followed.

22. For purposes of this Order: a. “Essential business” is any business or activity (or a business/activity that employs/utilizes workers) designated by the State Public Health Officer as “Essential Critical Infrastructure Workers” set forth in: https://covid19.ca.gov/img/Essential CriticalInfrastructureWorkers.pdf) as that list may be updated from time-to-time, and referenced in Executive Order N-33-20 issued by the Governor of the State of California. For the purposes of this Order, the following businesses in the Food and Agriculture Sector are considered “groceries” or “other retail that sells food and beverages”: grocery stores, corner stores and convenience stores, liquor stores that sell food, farmer’s markets, food banks, farm and produce stands, supermarkets, big box stores that sell groceries and essentials, or similar business that sell food so long as the store has a current permit related to the sale of food and/or beverages from the San Diego County Department of Environmental Health. b. “Gathering” is any event or convening that brings together more than one person in a single room or single indoor or outdoor space at the same time. A gathering does not include: Page 7 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3101 Page 100 of 255

i. A gathering consisting only of members of a single family or household.

ii. Operations at airports, public transportation or other spaces where persons in

transit are able to practice social distancing.

iii. Operations at essential businesses as defined in section 22a above and

reopened businesses as defined in 22f below and where the other

requirements set forth in this Order are followed.

c. “Long term care facility” is a facility serving adults that require assistance with

activities of daily living, including a skilled nursing facility, and that is licensed by the

California Department of Community Care and Licensing, or the California Department

of Public Health.

d. “Non-essential personnel” are employees, contractors, or members of the public who

do not perform treatment, maintenance, support, or administrative tasks deemed

essential to the healthcare mission of the long-term care facility or hospital. Non-

essential personnel do not include first responders, nor State, federal, or local officials,

investigators, or medical personnel carrying out lawful duties. Non-essential personnel

do not include visitors to hospitals and long-term care facilities who are granted entry

by the facility’s director, or designee, because they are family or friends who are visiting

a resident in an end of life or similar situation, are parents or guardians visiting a child

who is a patient, or because of any other circumstances deemed appropriate by the

facility director, or designee, and where appropriate precautions by the facility that

follow federal, State, and local public health guidance regarding COVID-19 are

followed.

e. “Social distancing” is maintaining a six-foot separation from all persons except for

household members, first responders and medical providers or employees conducting

temperature screenings.

f. “Reopened business” is a business that is not an essential business as stated in section

22a above, and has reopened in conformance with the State of California’s Resilience

Roadmap (available at: https://covid19.ca.gov/roadmap-counties/) and the Statewide

Public Health Officer Order, issued by the California Department of Health Services

on July13, 2020, all portions of which are operative in San Diego County effective

immediately,

and

available

at

{https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-

19/SHO%20Order%20Dimming%20Entire%20State%207-13-2020.pdf}. A reopened

business may open when the State has posted the applicable COVID-19 INDUSTRY

GUIDANCE, the Public Health Officer has posted an acknowledgement of the

reopened status on the County of San Diego Coronavirus website and the business has

Page 8 of 11

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3102 Page 101 of 255
complied with the requirements of this Order.
23. Hotels and lodging establishments may be open for all guests, including tourists and leisure guests, provided they comply with the State COVID-19 Industry Guidance: Hotels, Lodging and Short Term Rentals and complete and post a Safe Reopening Plan pursuant to section 11, above.
24. This Order is issued as a result of the World Health Organization’s declaration of a worldwide pandemic of COVID-19 disease, also known as “novel coronavirus.”
25. This Order is issued based on scientific evidence regarding the most effective approaches to slow the transmission of communicable diseases generally and COVID-19 specifically, as well as best practices as currently known and available to protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19. The age, condition, and health of a significant portion of the population of the county places it at risk for serious health complications, including death, from COVID-19. Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the public— such as older adults, and those with underlying health conditions—at significant risk.
26. The actions required by this Order are necessary to reduce the number of individuals who will be exposed to COVID-19, and will thereby slow the spread of COVID-19 in the county. By reducing the spread of COVID-19, this Order will help preserve critical and limited healthcare capacity in the county and will save lives.
27. This Order is issued in accordance with, and incorporates by reference: a) the Declaration of Local Health Emergency issued by the Health Officer on February 14, 2020; b) the Proclamation of Local Emergency issued by the County Director of Emergency Services on February 14, 2020; c) the action of the County Board of Supervisors to ratify and continue both the local health emergency and local emergency on February 19, 2020; d) the Proclamation of a State of Emergency issued by the Governor of the State of California on March 4, 2020; e) Executive Order N-25-20 issued by the Governor of the State of California on March 12, 2020 which orders that “All residents are to heed any orders and guidance of state and local health officials, including but not limited to the imposition of social distancing measures, to control COVID-19”; f) Proclamation 9984 regarding COVID-19 issued by the President of the United States on March 11, 2020; g) Executive Order N-33-20 issued by the Governor of the State of California on March 19, 2020; h) the “Interim Additional Guidance Page 9 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3103 Page 102 of 255
for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes” issued by the CDC; i) COVID-19 guidance issued by the California Department of Public Health on including, but not limited to the Face Coverings Guidance issued on April 1, 2020; and j) the State of California’s “Resilience Roadmap.”
28. This Order is issued to prevent circumstances often present in gatherings that may exacerbate the spread of COVID-19, such as: 1) the increased likelihood that gatherings will attract people from a broad geographic area; 2) the prolonged time period in which large numbers of people are in close proximity; 3) the difficulty in tracing exposure when large numbers of people attend a single event or are at a single location; and 4) the inability to ensure that such persons follow adequate hygienic practices.
29. This Order is issued to provide additional opportunities for recreational activities while also requiring additional protections from the spread of COVID-19 to the public who are taking advantage of these opportunities for recreational activities. And providing additional protections for employees of essential businesses or reopened business and their customers/clients by increasing facial covering requirements and health checks and temperature screening.
30. This Order is issued to protect the public health as businesses are allowed to reopen by requiring businesses to implement procedures necessary to ensure their employees and customers comply with social distancing, sanitation and screening practices.
31. This Order comes after the release of substantial guidance from the Health Officer, the California Department of Public Health, the CDC, and other public health officials throughout the United States and around the world.
32. The statement of facts and circumstances set forth as justification for each Guidance issued by the California Department of Health Services that is referenced in this Order are hereby accepted and incorporated by reference into this Order.
33. Pursuant to Health and Safety Code section 120175.5 (b) all governmental entities in the county shall take necessary measures within the governmental entity’s control to ensure compliance with this Order and to disseminate this Order to venues or locations within the entity’s jurisdiction where gatherings may occur.
Page 10 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3104 Page 103 of 255

34. Violation of this Order is subject to fine, imprisonment, or both. (California Health and Safety Code section 120295.)

35. To the extent necessary, this Order may be enforced by the Sheriff or chiefs of police pursuant to Government Code sections 26602 and 41601 and Health and Safety Code section 101029.

36. Once this Order takes effect it shall supersede the Order of the Health Officer and Emergency Regulations dated July 14, 2020.

IT IS SO ORDERED:

Date: July 20 2020

. Public Health Officer County of San Diego

EMERGENCY REGULATIONS
As Director of Emergency Services for the County of San Diego, I am authorized to promulgate regulations for the protection of life and property pursuant to Government Code Section 8634 and San Diego County Code section 31.103. The following shall be in effect for the duration of the Health Officer Order issued above which is incorporated in its entirety by reference:
The Health Officer Order shall be promulgated as a regulation for the protection of life and property. Any person who violates or who refuses or willfully neglects to obey this regulation is subject to fine, imprisonment, or both. (Government Code section 8665.)

Date: July 20, 2020

Helen Robbins-Meyer Chief Administrative Officer Director of Emergency Services County of San Diego

Page 11 of 11 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3105 Page 104 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3106 Page 105 of 255
HEALTH AND HUMAN SERVICES AGENCY PUBLIC HEALTH SERVICES
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS
(Effective August 8, 2020)
Pursuant to California Health and Safety Code sections 101040, 120175, and 120175.5 (b) the Health Officer of the County of San Diego (Health Officer) ORDERS AS FOLLOWS:
Effective 12:00 a.m. on Saturday, August 8, 2020 and continuing until further notice, the following will be in effect for San Diego County (county):
1. All persons are to remain in their homes or at their place of residence, except for employees or customers traveling to and from essential businesses, reopened businesses, or essential activities as defined in section 22, below, or to participate in individual or family outdoor activity as allowed by this Order.
2. All public or private “gatherings,” as defined in section 22 below, are prohibited.
3. All businesses not meeting the definition of essential business or reopened business in section 22 below are referred to in this Order as “non-essential businesses” and shall be and remain closed for the duration of this Order. All essential businesses and reopened businesses must comply with the requirements of this Order. Notwithstanding the foregoing, any business may remain open if its employees and owners can provide its services from home, including by telecommuting, without direct contact with the public.
4. All public, charter and private schools shall not hold classes on the school campus, and shall conduct distance learning only as required by COVID-19 and Reopening In-Person Learning Framework for K-12 Schools in California, 2020-2021 School Year issued by the California Department of Public Health on July 17, 2020 available at {https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID19/Schools%20Reopening%20Recommendations.pdf}. Colleges and Universities shall not

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3107 Page 106 of 255

hold classes or other school activities where students gather on the school campus, except for research-related activities in colleges and universities and where necessary to train students who will serve as essential workers.

5. Child daycare and child care providers shall operate in compliance with the measures set forth in State COVID-19 Updated Guidance: Child Care Programs and Providers and shall prepare and post a Safe Reopening Plan pursuant to section 11, below.

6. “Non-essential personnel,” as defined in section 22 below, are prohibited from entry into any hospital or long-term care facility. All essential personnel who are COVID-19 positive or show any potential signs or symptoms of COVID-19 are strictly prohibited from entry into hospitals or long-term care facilities. Notwithstanding the foregoing, individuals requiring medical care for COVID-19 or related conditions may be admitted to hospitals or other medical facilities if the hospital or medical facility is appropriate for treating COVID-19 and has adequate precautions in place to protect its patients, medical personnel and staff.

7. Hospitals and healthcare providers, including dentists shall: a. Take measures to preserve and prioritize resources; and, b. May authorize and perform non-emergent or elective surgeries or procedures based on their determination of clinical need and supply capacity, and where consistent with State guidance.
c. Nothing in this Order shall prevent physicians and other healthcare providers from conducting routine preventive care provided it conforms to any applicable State guidance.
d. Nothing in this Order shall prevent dentists or dental hygienists from conducting routine preventive care provided it conforms to any applicable State guidance.

8. Hospitals, healthcare providers, pharmacies and commercial testing laboratories shall report all COVID-19 test results to the Public Health Officer immediately after such results are received.

9. All persons two years of age or older who are present in the county shall have possession of a

face covering when they leave their home or place of residence and shall wear the face

covering as described and required in California Department of Public Health Face Covering

Guidance

issued

on

June

18,

2020,

(available

at:

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-

Page 2 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3108 Page 107 of 255

19/Guidance-for-Face-Coverings 06-18-2020.pdf).

10. All essential businesses that allow members of the public to enter a facility must prepare and post a “Social Distancing and Sanitation Protocol” on the form available at: https://www.sandiegocounty .gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid19/SOCIAL DISTANCING AND SANITATION PROTOCOL 04022020 V1.pdf ), or on a form required by another governmental entity requiring substantially similar information, for each of their facilities open to the public in the county. The Social Distancing and Sanitation Protocol must be posted at or near the entrance of the relevant facility, and shall be easily viewable by the public and employees. A copy of the Social Distancing and Sanitation Protocol must also be provided to each employee performing work at the facility. All essential businesses shall implement the Social Distancing and Sanitation Protocol and provide evidence of its implementation to any authority enforcing this Order upon demand. The Social Distancing and Sanitation Protocol must ensure all required measures are implemented and must identify and require measures necessary to implement social distancing are implemented at each facility that will ensure social distancing and sanitation at that particular facility. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Social Distancing and Sanitation Protocols to ensure proper social distancing and sanitation. Any business that fails to successfully implement social distancing and sanitation may be required to close.

11. All reopened businesses, with the exception of restaurants, bars, wineries, distilleries and

breweries which do not limit services to take-out or delivery, must prepare and post a “Safe

Reopening

Plan”

on

the

form

available

at:https://www.sandiegocounty.gov/content/dam/sdc/hhsa/programs/phs/Epidemiology/covid

19/Community Sector Support/BusinessesandEmployers/SafeReopeningPlanTemplate.pdf

for each of their facilities in the county. Restaurants bars, wineries, distilleries and breweries

which do not limit services to take-out or delivery, must prepare and post a “COVID-19

Restaurant Operating Protocol” on the form available at

https://www.sandiegocounty.gov/content/dam/sdc/deh/fhd/food/pdf/covid19sdrestaurantoper

atingprotocol en.pdf for each restaurant in the county. The Safe Reopening Plan or COVID-

19 Restaurant Operating Protocol must be posted at or near the entrance of the relevant facility,

and shall be easily viewable by the public and employees. A copy of the Safe Reopening Plan

or COVID-19 Restaurant Operating Protocol must also be provided to each employee

performing work at the facility. All reopened businesses shall implement the Safe Reopening

Plan or COVID-19 Restaurant Operating Protocol and provide evidence of its implementation

Page 3 of 12

ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3109 Page 108 of 255

to any authority enforcing this Order upon demand. The Safe Reopening Plan or COVID-19 Restaurant Operating Protocol must ensure all required measures are implemented. If the measures identified and implemented are not effective in maintaining proper social distancing and sanitation, the business shall promptly modify its Safe Reopening Plan or COVID-19 Restaurant Operating Protocol to ensure proper social distancing and sanitation. Any business that fails to comply with its Safe Reopening Plan or COVID-19 Restaurant Operating Protocol shall immediately close.

12. When the State of California has issued an industry guidance, or any subsequent amendments

thereto, with mandatory and/or suggested measures to be implemented by a particular type of

business or industry, a reopened business must include in its Safe Reopening Plan all of the

industry guidance mandatory measures, including, but not limited to, all of the requirements

and guidance set forth in the Statewide Public Health Officer Order, issued by the California

Department of Health Services on July 13, 2020, all portions of which are operative in San

Diego County effective

immediately, and available at

{https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-

19/SHO%20Order%20Dimming%20Entire%20State%207-13-2020.pdf}. The reopened business

shall include all suggested measures necessary to maintain proper sanitation, employee

screening, social distancing and facial coverings. Any mandatory measures required by this

Order must also be included in the Safe Reopening Plan.

13. All brewpubs, breweries, bars and pubs shall close unless they comply with section 14c, below, in which case they shall comply with all other requirements in this section and section 14 below. All other restaurants, bars, wineries, distilleries and breweries shall close indoor service in conformance with the requirements set forth in the Statewide Public Health Officer Order, issued by the California Department of Health Services on July13, 2020, all portions of which are operative in San Diego County effective immediately, and available at {https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID19/SHO%20Order%20Dimming%20Entire%20State%207-13-2020.pdf}, and shall be closed from 10:00 p.m. until 5:00 a.m. every day. Guests already in the facility at 10:00 p.m. may remain in the facility until 11:00 p.m. Only staff needed to close, open or clean shall be in the facility between the hours of 11:00 p.m. and 5:00 a.m.

14. All restaurants, bars, wineries and breweries shall also be required to ensure their customers comply with all of the following measures and shall immediately close if they are not able to do so: Page 4 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3110 Page 109 of 255
a. No food or beverages shall be served to or consumed by a customer who is not seated at a table designated by the restaurant for dining.
b. The bar area of a restaurant may be used only for table service of meals. c. Alcoholic drinks shall only be served as part of a meal and must be sold and served in
the same transaction as the meal. All meals shall be served by a food operator permitted by the San Diego County Department of Environmental Health. This restriction shall not be applicable to outdoor service of wine at a winery or spirits at a distillery. d. Customers shall not stand in the restaurant, bar, winery, distillery or brewery except in the reception area while waiting for a table or to pick up take-out food. If customers cannot be socially distanced in the reception area they shall wait in their cars or outside of the restaurant in a line with six feet between each customer. e. Discontinue open seating. All members of the party must be present before seating and the host must bring the entire party to the table at one time. The customers allowed at a table are limited to members of a single household or customers who have asked to be seated together at the time a table is requested. f. Discontinue seating customers and/or groups at bar counters, sushi preparation bars, etc. where they cannot maintain at least six feet of distance from employee work areas/stations. Install physical barriers or partitions in areas where maintaining a physical distance of six feet is difficult. g. Customers are not required to wear face coverings while at a table with members of the same household. Customers at a table with non-household members are not required to wear face coverings when eating and drinking. Customers are required to wear face coverings at all other times in conformance with paragraph 9, above. h. Tables designated for dining shall be six feet apart, or separated by barriers or partitions that extend above the heads of customers while seated. Customer shall not be allowed to bring additional chairs to the table that interfere with the six foot separation. i. Self-serve food or drink options, such as buffets, salad bars, and drink stations are not allowed. j. Shared entertainment items such as board games, arcade games and vending machines are prohibited and customers shall not have access to game and entertainment areas such as pool tables or darts. k. Dance floors shall be closed and live performances such as musical or dance acts shall be discontinued. l. Any customer that refuses to comply with this section shall be subject to enforcement per Health and Safety Code section 120295.
15. Places of Worship – Religious services and cultural ceremonial activities (including wedding Page 5 of 12
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3111 Page 110 of 255
ceremonies but not receptions) may be conducted in conformance with the State Guidance pursuant to sections 11 and 12, above. Given the high risk of this activity, vulnerable members of the population (over 65 years old, compromised immune system or underlying condition) are strongly encouraged to participate through streaming or some other form of remote technology. Outdoor services and cultural ceremonial activities may be conducted provided all persons practice social distancing as defined in section 22e, below.
16. Each essential business and reopened business shall: a. Require all employees/on-site contractors (hereinafter referred to as employees) to have possession of face coverings and wear them as described in section 9 above when in the business facility; and, b. Shall conduct temperature screening of all employees and prohibit entry to the workplace of employees with a temperature of 100 degrees or more, employees exhibiting COVID-19 symptoms as described by the Centers for Disease Control and Prevention, or employees who have recently been exposed to a person who has tested positive for COVID-19 (either directly or through a breach of Personal Protective Equipment in the case of healthcare workers/first responders); and c. Take all of the following actions if an employer becomes aware that an employee is diagnosed with COVID-19: i. Promptly notify the County Department of Public Health that there is an employee diagnosed with COVID-19, together with the name, date of birth, and contact information of the employee. ii. Cooperate with the County Department of Public Health’s COVID-19 response team to identify and provide contact information for any persons exposed by the employee at the workplace. iii. Provide notice of the exposure to any employees, and contractors (who regularly work at the workplace), who may have been exposed to COVID19, as stated in the State’s COVID-19 Employer Playbook for a Safe Reopening, available at {https://files.covid19.ca.gov/pdf/employerplaybook-for-safe-reopening--en.pdf}.
17. Outdoor Recreation a. Each public park and recreation area or facility, shall operate in compliance with the measures set forth in the State COVID-19 Industry Guidance: Campgrounds, RV Parks and Outdoor Recreation. The operator of the park shall prepare a Safe Reopening Plan pursuant to section 11, above, indicating how the park or recreation facility will Page 6 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3112 Page 111 of 255

implement the required measures. Any park or recreation area/facility at which the Protocol requirements cannot be effectively implemented may be required to close. b. Outdoor recreation instruction and day camps that comply with the State COVID-19 Industry Guidance: Day Camps, may be conducted in park and recreation areas/facilities. c. Swimming pools owned or operated by a Homeowners’ Association, Condominium or Apartment complex may be open provided the owner or operator completes and posts a Safe Reopening Plan that shows conformance with the requirements of this Order and with the swimming pool/aquatic venues requirements of the State COVID-19 Industry Guidance on Fitness Facilities.

18. All essential businesses and reopened businesses that remain in operation in accordance with the Order shall make every effort to use telecommuting for their workforces.

19. A strong recommendation is made that all persons who are 65 years old or older, have a chronic underlying condition, or have a compromised immune system self-quarantine themselves at home or other suitable location.

20. All persons arriving in the county from international locations identified on the Centers for Disease Control and Prevention (CDC) Warning Level 2 or 3 Travel Advisory (available at: https://wwwnc.cdc.gov/travel/notices) shall be subject to 14-day home or other suitable location quarantine and self-monitoring.

21. Persons who have been diagnosed with COVID-19, or who are likely to have COVID-19, shall

comply with the Order of the Health Officer titled: “Isolation of All Persons with or Likely to

have COVID-19”, or as subsequently amended. Persons who have a close contact with a person

who either has COVID-19, or is likely to have COVID-19, shall comply with the Order of the

Health Officer titled: “Quarantine of Persons Exposed to COVID-19,” or as subsequently

amended.

Both

orders

are

available

at:

https://www.sandiegocounty.gov/content/sdc/hhsa/programs/phs/community epidemiology/d

c/2019-nCoV/health-order.html. If a more specific isolation or quarantine order is issued to a

person, that order shall be followed.

22. For purposes of this Order: a. “Essential business” is any business or activity (or a business/activity that employs/utilizes workers) designated by the State Public Health Officer as “Essential Critical Infrastructure Workers” set forth in: https://covid19.ca.gov/img/Essential Page 7 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3113 Page 112 of 255
CriticalInfrastructureWorkers.pdf) as that list may be updated from time-to-time, and referenced in Executive Order N-33-20 issued by the Governor of the State of California. For the purposes of this Order, the following businesses in the Food and Agriculture Sector are considered “groceries” or “other retail that sells food and beverages”: grocery stores, corner stores and convenience stores, liquor stores that sell food, farmer’s markets, food banks, farm and produce stands, supermarkets, big box stores that sell groceries and essentials, or similar business that sell food so long as the store has a current permit related to the sale of food and/or beverages from the San Diego County Department of Environmental Health. b. “Gathering” is any event or convening that brings together more than one person in a single room or single indoor or outdoor space at the same time. A gathering does not include:
i. A gathering consisting only of members of a single family or household. ii. Operations at airports, public transportation or other spaces where persons in
transit are able to practice social distancing. iii. Operations at essential businesses as defined in section 22a above and
reopened businesses as defined in 22f below and where the other requirements set forth in this Order are followed. c. “Long term care facility” is a facility serving adults that require assistance with activities of daily living, including a skilled nursing facility, and that is licensed by the California Department of Community Care and Licensing, or the California Department of Public Health. d. “Non-essential personnel” are employees, contractors, or members of the public who do not perform treatment, maintenance, support, or administrative tasks deemed essential to the healthcare mission of the long-term care facility or hospital. Nonessential personnel do not include first responders, nor State, federal, or local officials, investigators, or medical personnel carrying out lawful duties. Non-essential personnel do not include visitors to hospitals and long-term care facilities who are granted entry by the facility’s director, or designee, because they are family or friends who are visiting a resident in an end of life or similar situation, are parents or guardians visiting a child who is a patient, or because of any other circumstances deemed appropriate by the facility director, or designee, and where appropriate precautions by the facility that follow federal, State, and local public health guidance regarding COVID-19 are followed. e. “Social distancing” is maintaining a six-foot separation from all persons except for household members, first responders and medical providers or employees conducting
Page 8 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3114 Page 113 of 255

temperature screenings.

f. “Reopened business” is a business that is not an essential business as stated in section

22a above, and has reopened in conformance with the State of California’s Resilience

Roadmap (available at: https://covid19.ca.gov/roadmap-counties/) and the Statewide

Public Health Officer Order, issued by the California Department of Health Services

on July13, 2020, all portions of which are operative in San Diego County effective

immediately,

and

available

at

{https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-

19/SHO%20Order%20Dimming%20Entire%20State%207-13-2020.pdf}. A reopened

business may open when the State has posted the applicable COVID-19 INDUSTRY

GUIDANCE, the Public Health Officer has posted an acknowledgement of the

reopened status on the County of San Diego Coronavirus website and the business has

complied with the requirements of this Order.

23. Hotels and lodging establishments may be open for all guests, including tourists and leisure guests, provided they comply with the State COVID-19 Industry Guidance: Hotels, Lodging and Short Term Rentals and complete and post a Safe Reopening Plan pursuant to section 11, above.

24. This Order is issued as a result of the World Health Organization’s declaration of a worldwide pandemic of COVID-19 disease, also known as “novel coronavirus.”

25. This Order is issued based on scientific evidence regarding the most effective approaches to slow the transmission of communicable diseases generally and COVID-19 specifically, as well as best practices as currently known and available to protect vulnerable members of the public from avoidable risk of serious illness or death resulting from exposure to COVID-19. The age, condition, and health of a significant portion of the population of the county places it at risk for serious health complications, including death, from COVID-19. Although most individuals who contract COVID-19 do not become seriously ill, persons with mild symptoms and asymptomatic persons with COVID-19 may place other vulnerable members of the public— such as older adults, and those with underlying health conditions—at significant risk.

26. The actions required by this Order are necessary to reduce the number of individuals who will be exposed to COVID-19, and will thereby slow the spread of COVID-19 in the county. By reducing the spread of COVID-19, this Order will help preserve critical and limited healthcare capacity in the county and will save lives.

Page 9 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3115 Page 114 of 255
27. This Order is issued in accordance with, and incorporates by reference: a) the Declaration of Local Health Emergency issued by the Health Officer on February 14, 2020; b) the Proclamation of Local Emergency issued by the County Director of Emergency Services on February 14, 2020; c) the action of the County Board of Supervisors to ratify and continue both the local health emergency and local emergency on February 19, 2020; d) the Proclamation of a State of Emergency issued by the Governor of the State of California on March 4, 2020; e) Executive Order N-25-20 issued by the Governor of the State of California on March 12, 2020 which orders that “All residents are to heed any orders and guidance of state and local health officials, including but not limited to the imposition of social distancing measures, to control COVID-19”; f) Proclamation 9984 regarding COVID-19 issued by the President of the United States on March 11, 2020; g) Executive Order N-33-20 issued by the Governor of the State of California on March 19, 2020; h) the “Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes” issued by the CDC; i) COVID-19 guidance issued by the California Department of Public Health on including, but not limited to the Face Coverings Guidance issued on April 1, 2020; and j) the State of California’s “Resilience Roadmap.”
28. This Order is issued to prevent circumstances often present in gatherings that may exacerbate the spread of COVID-19, such as: 1) the increased likelihood that gatherings will attract people from a broad geographic area; 2) the prolonged time period in which large numbers of people are in close proximity; 3) the difficulty in tracing exposure when large numbers of people attend a single event or are at a single location; and 4) the inability to ensure that such persons follow adequate hygienic practices.
29. This Order is issued to provide additional opportunities for recreational activities while also requiring additional protections from the spread of COVID-19 to the public who are taking advantage of these opportunities for recreational activities. And providing additional protections for employees of essential businesses or reopened business and their customers/clients by increasing facial covering requirements and health checks and temperature screening.
30. This Order is issued to protect the public health as businesses are allowed to reopen by requiring businesses to implement procedures necessary to ensure their employees and customers comply with social distancing, sanitation and screening practices.
31. This Order comes after the release of substantial guidance from the Health Officer, the Page 10 of 12
ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3116 Page 115 of 255
California Department of Public Health, the CDC, and other public health officials throughout the United States and around the world. 32. The statement of facts and circumstances set forth as justification for each Guidance issued by the California Department of Health Services that is referenced in this Order are hereby accepted and incorporated by reference into this Order. 33. Pursuant to Health and Safety Code section 120175.5 (b) all governmental entities in the county shall take necessary measures within the governmental entity’s control to ensure compliance with this Order and to disseminate this Order to venues or locations within the entity’s jurisdiction where gatherings may occur. 34. Violation of this Order is subject to fine, imprisonment, or both. (California Health and Safety Code section 120295.) 35. To the extent necessary, this Order may be enforced by the Sheriff or chiefs of police pursuant to Government Code sections 26602 and 41601 and Health and Safety Code section 101029.
Page 11 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3117 Page 116 of 255

36. Once this Order takes effect it shall supersede the Order of the Health Officer and Emergency Regulations dated July 29, 2020.

IT IS SO ORDERED:

Date: August 7, 2020

_

Public Health Officer County of San Diego

EMERGENCY REGULATIONS
As Director of Emergency Services for the County of San Diego, I am authorized to promulgate regulations for the protection of life and property pursuant to Government Code Section 8634 and San Diego County Code section 31.103. The following shall be in effect for the duration of the Health Officer Order issued above which is incorporated in its entirety by reference:
The Health Officer Order shall be promulgated as a regulation for the protection of life and property. Any person who violates or who refuses or willfully neglects to obey this regulation is subject to fine, imprisonment, or both. (Government Code section 8665.)

Date: August 7, 2020

_
Chief Administrative Officer Director of Emergency Services County of San Diego

Page 12 of 12 ORDER OF THE HEALTH OFFICER AND EMERGENCY REGULATIONS

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3118 Page 117 of 255
EXHIBIT BB

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3119 Page 118 of 255
Since January 2020 Elsevier has created a COVID-19 resource centre with free information in English and Mandarin on the novel coronavirus COVID-
19. The COVID-19 resource centre is hosted on Elsevier Connect, the company's public news and information website.
Elsevier hereby grants permission to make all its COVID-19-related research that is available on the COVID-19 resource centre - including this
research content - immediately available in PubMed Central and other publicly funded repositories, such as the WHO COVID database with rights for unrestricted research re-use and analyses in any form or by any means
with acknowledgement of the original source. These permissions are granted for free by Elsevier for as long as the COVID-19 resource centre
remains active.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3120 Page 119 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3121 Page 120 of
255
Brain, Behavior, and Immunity 88 (2020) 952–953

Table 1 Representative cases showing psycological conditions and underlying predictors leading to COVID-19 suicides.
Factors and predictors for COVID-19 suicides Social Isolation/distancing

SN Case History

Predictors

Reference

1. Santosh Kaur, a 65- year-old woman,

Person was depressed, had anxiety over COVID-19 and

committed suicide over the fear of the

was alone. Her fear was just an illusion and there was no

COVID-19. (India)

one to counsel or to console her.

2. Chinese student living in the kingdom of Quarantined on suspicion of being infected with the

Saudi Arabia had committed suicide by

coronavirus.

jumping from the 3rd floor of a hospital.

(Saudi Arabia)

3. 19-year-old Emily Owen, youngest suicide Fear of isolation was created just by the announcement

victim(Britain)

of the country lockdown

Worldwide lockdown creating economic recession

4. Finance Minister Thomas Schaefer, 54-

Could not able to bear and cope with the stress about

year-old economist. (Germany)

the economic fallout of COVID-19. Turned him hopeless

that he could not able to manage citizen’s expectations

for financial aid.

Stress, anxiety and pressure in medical healthcare professionals

5. 49-year-old nurse (S.L.) of Jesolo hospital Lived alone and distressed

committed suicide by jumping into Piave

river (Italy)

6. Daniela Trezzi, a 34-year-old nurse of the Deeply traumatized, compassion fatigue, emotional

San Gerardo hospital (Italy)

burnout, hopelessness, and fear of contracting and

spreading the disease to others.

Social boycott and discrimination 7. Mustaffa, a 35-year-old male and
Mohammad Dilshad, a 37-year-old male committed suicide. (India)

Both were facing social boycott and religious discrimination from their neighbours in the suspicion of positive COVID-19 report. Resulted in isolation, stigma and finally depression.

https://www.tribuneindia.com/news/punjab/anxiety-over-covid19-leads-to-phagwara womans-suicide-66466 (Accessed on 7 April 2020) https://www.middleeastmonitor.com/20200217-chinese-studentcommits-suicide-in-saudi-after-being-quarantined-for-coronavirus/ (Accessed on 15 April 2020)
https://blogs.scientificamerican.com/observations/covid-19-islikely-to-lead-to-an-increase-in-suicides/ (Accessed on 8 April 2020)
https://www.todayonline.com/world/covid-19-german-ministercommits-suicide-after-virus-crisis-worries (Accessed on 8 April 2020)
https://www.wsws.org/en/articles/2020/03/31/trez-m31.html (Accessed on 9 April 2020)
https://www.wsws.org/en/articles/2020/03/31/trez-m31.html (Accessed on 9 April 2020)
https://timesofindia.indiatimes.com/city/madurai/stigma-overcovid-testing-blamed-for-mans-suicide/articleshow/74939681.cms (Accessed on 8 April 2020) https://www.livemint.com/news/india/ facing-social-boycott-covid-19-negative-man-commits-suicide-inhimachal-s-una-11586090515081.html (Accessed on 9 April 2020)

clues need to be noticed with great care, where people often say ‘I’m tired of life’, ‘no one loves me’, ‘leave me alone’ and so on. On suspecting such behaviour in person, we can pull together the people struggling with suicidal ideation to make them feel loved and protective.
Socio-psychology needs and interventions for mental rehabilitation should be designed. Tele-counselling along with, 24x7 crisis response service for emotional, mental and behavioural support need to be implemented. However, majority of the countries are already practicing and implementing these measures. Health care policies and the perception for the COVI-19 health care professionals need to be strengthening as reported from Chinese studies (Li et al., 2020; Kang et al., 2020). Government recommendations to work from home, and travel less advisories restricted our social life, but, we can spend time indoor with our families, connect to friends on social media, and engage in mindfulness activities, till we all win this battle.
Financial disclosure
None.
Declaration of Competing Interest
The authors declare that they have no known competing financial interests or personal relationships that could have appeared to influence the work reported in this paper.
Acknowledgements
None.

References
Montemurro, N., 2020. The emotional impact of COVID-19: From medical staff to common people. Brai, Behav. Immunity. https://doi.org/10.1016/j.bbi.2020.03.032.
https://www.worldometers.info/coronavirus/ (Accessed on 21 April 2020). Goyal, K., Chauhan, P., Chhikara, K., Gupta, P., Singh, M.P., 2020. Fear of COVID 2019:
first suicidal case in India!. Asian J. Psychiatry 49, 101989. https://doi.org/10.1016/ j.ajp.2020.101989. https://economictimes.indiatimes.com/news/politics-and-nation/man-suspected-ofcovid-19-commits-suicide/articleshow/74700431.cms?from=mdr (Accessed on 9 April 2020). https://abcnews.go.com/US/wireStory/authorities-mans-covid-19-worries-promptmurder-suicide-69997314 (Accessed on 9 April 2020). Reger, M.A., Stanley, I.H., Joiner, T.E., 2020. Suicide mortality and coronavirus disease 2019- A perfect storm? JAMA. Psychiatry. https://doi.org/10.1001/jamapsychiatry. 2020.1060. https://www.todayonline.com/world/covid-19-german-minister-commits-suicide-aftervirus-crisis-worries (Accessed on 8 April 2020). https://www.wzzm13.com/article/news/local/morning-features/suicide-risks-growduring-pandemic/69-05657859-d404-44ad-bf87-c70dad3c6671 (Accessed on 9 April 2020). Mamun, M.A., Griffths, M.D., 2020. First COVID-19 case in Bangladesh due to fear of COVID-19 and xenophobia: possible suicide prevention strategies. Asian J. Psychiatry 51, 102073. Li, Z., Ge, J., Yang, M., Feng, J., Qiao, M., Jiang, R., et al., 2020. Vicarious traumatization in the general public, member, and non-members of medical teams aiding in COVID19 control. Brain Behav. Immunity. https://doi.org/10.1016/j.bbi.2020.03.007. Kang, L., Ma, S., Chen, M., Yang, J., Wang, Y., Li, R., et al., 2020. Impact on mental health and perceptions of psychological care among medical and nursing staff in Wuhan during the 2019 novel coronavirus disease outbreak: a cross-sectional study. Brain Behav. Immunity. https://doi.org/10.1016/j.bbi.2020.03.028.
Vikram Thakura,⁎, Anu Jainb a Department of Virology, Postgraduate Institute of Medical Education and
Research, PGIMER, Chandigarh 160012, India b Department of Biochemistry, Postgraduate Institute of Medical Education
and Research, PGIMER, Chandigarh 160012, India
E-mail address: vik5atif@gmail.com (V. Thakur).

⁎ Corresponding author at: Department of Virology, Postgraduate Institute of Medical Education and Research, PGIMER, Chandigarh, Sector-12, Pin-160012, India. 953

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3122 Page 121 of 255
EXHIBIT CC

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3123 Page 122 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3124 Page 123 of 2 | QJM: An International Journal of Medicine, 2020, Vol. 0, N2o.505

Downloaded from https://academic.oup.com/qjmed/advance-article/doi/10.1093/qjmed/hcaa202/5857612 by guest on 07 August 2020

prevalence of psychiatric disorders and suicide rates during and after the pandemic.
Previous epidemics and suicide
Nothing in our lifetimes can be compared with the magnitude of the COVID 19 disaster. The last comparable crisis was the pandemic of Spanish Flu in 1918 19 caused by H1N1 viruses with genes of avian origin.3 About 500 million people or one third of the world’s population were infected with the Spanish Flu viruses and at least 50 million people perished around the world including about 675 000 in the USA.3 The Spanish Flu epi demic was associated with an increase in death by suicide.4 It has been proposed that a decrease in social integration and interaction during the epidemic and the fears caused by the epi demic likely increased suicide.4 It is important to note that so cial isolation and fears are common during the current COVID 19 epidemic.2
There was a significant increase in suicide deaths among people aged 65 and over during the 2003 severe acute respira tory syndrome (SARS) outbreak in Hong Kong.5 Research indi cates that this increase in suicides can be attributed to fears of contracting the illness, fears of being a burden to the family, general anxiety, social isolation and psychological distress.
The psychological impact of COVID-19
A number of studies have been performed to examine the effect of the COVID 19 crisis on the mental health of the general popu lation, health care professionals and individuals with psychi atric disorders.6–16 Wang et al.6 examined psychological responses during the initial stage of the COVID 19 epidemic in the general population in China. The authors found that 53.8% of 1210 respondents rated the psychological impact of the out break as moderate or severe, 16.5% reported moderate to severe depressive symptoms and 28.8% reported moderate to severe anxiety symptoms. Qiu et al.7 performed a countrywide survey that included 52 730 people in China during the COVID 19 epi demic and found that about 35% of the participants had psycho logical distress. This is consistent with the results of a recent Kaiser Family Foundation survey indicating that 45% of adults in the USA report that their mental health has been negatively impacted due to worry and stress over the coronavirus.8
Li et al.9 analyzed online posts made by 17 865 Chinese social media customers before and after the declaration of COVID 19 in China on 20 January 2020. The authors observed that negative emotions including anxiety, depression and anger rose, where as the positive emotions and life satisfaction diminished. Xiao et al.10 studied a relationship between social capital as meas ured by the Personal Social Capital Scale 16 and sleep character istics in person who were isolated during the COVID 19 epidemic. Researchers observed that anxiety was associated with stress and reduced sleep quality, and the combination of anxiety and stress reduced the positive effects of social capital on sleep quality. Xiao et al.10 wrote that ‘anxiety and stress of isolated individuals were at high levels, whereas the sleep qual ity was low.’
Ahmed et al.11 did an online survey of 1074 Chinese people and found elevated rates of anxiety, depression, harmful alco hol use and decrease in mental wellbeing.11 Rates of anxiety and depression were higher among young people aged 21 40 years in comparison to other age groups. Huang and Zhao12 conducted a web based survey of 7236 individuals in China. The overall prevalence of generalized anxiety disorder, depressive

symptoms and sleep abnormalities were 35.1%, 20.1% and 18.2%, respectively. This study also showed that health care professionals were more likely to have poor sleep quality in comparison to other occupational groups.
Lai et al.13 examined a state of mental health of 1257 health care professionals in China. 50.4% of study participants reported depression, 44.6% anxiety, 34.0% insomnia and 71.5% distress. Frontline health care professionals who were taking care of patients with COVID had a higher risk of having symptoms of depression, anxiety, insomnia and distress in comparison to other medical professionals. In March 2020, Ahmed et al.14 did an online study to examine anxiety and fear of getting infected among dentists. The authors received responses from 669 den tists from 30 countries. An overwhelming majority of study par ticipants reported anxiety and fear of contagion. Some dentists closed their practices for an indefinite period of time.
Hao et al.15 compared the psychological impact of the COVID 19 epidemic on individuals with or without mood and anxiety disorders. Worries about their physical health, anger, impulsivity and suicidal ideation were significantly higher in psychiatric patients than in healthy controls.
Probably, alcohol consumption increases during the COVID 19 crisis.2,16 According to a market research firm Nielsen, US sales of alcoholic beverages rose 55% in the week ending 21 March 2020 compared with the same period last year.16 Online alcohol sales jumped 243%.
Multiple cases of COVID 19 related suicides in the USA, UK, Italy, Germany, Bangladesh, India and other countries have been reported in mass media and psychiatric literature.17–22 For example, a 19 year old waitress in England died in a hospital after a suicide attempt because of fears of the ‘mental health impacts’ of isolation.17 A 66 year old man with throat cancer hanged himself in a New York City hospital after testing posi tive for the coronavirus.18 A man in Illinois who feared that he and his girlfriend contracted the coronavirus fatally shot his girlfriend and then killed himself.19 They tested negative for the coronavirus. A 36 year old Bangladeshi man killed himself be cause he and people in his village thought that he was infected with COVID 19 because he had fever and cold symptoms.20 A postmortem examination showed that he did not have COVID 19. The 49 year old head of the Emergency Department in a New York City hospital died by suicide after telling her family about the tremendous suffering and death she witnessed while taking care of coronavirus patients.21 Also, there is a huge in crease of calls to suicide prevention hotlines in the USA during the current COVID 19 epidemic.22
In summary, studies indicate that the COVID 19 pandemic is associated with distress, anxiety, fear of contagion, depression and insomnia in the general population. Health care professio nals are especially distressed.
Suicidal behavior in the COVID-19 era
Social isolation, anxiety, fear of contagion, uncertainty, chronic stress and economic difficulties may lead to the development or exacerbation of stress related disorders and suicidality in vul nerable populations including individuals with pre existing psychiatric disorders, low resilient persons, individuals who reside in high COVID 19 prevalence areas and people who have a family member or a friend who has died of COVID 19 (Figure 1).23,24 Individuals with pre existing psychiatric disor ders include not only patients who are treated by mental health professionals but also a very large number of people with psy chiatric conditions who do not receive psychiatric

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3125 Page 124 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3126 Page 125 of 4 | QJM: An International Journal of Medicine, 2020, Vol. 0, N2o.505

Downloaded from https://academic.oup.com/qjmed/advance-article/doi/10.1093/qjmed/hcaa202/5857612 by guest on 07 August 2020

depression, alcohol and other substance use disorders and sui cide deaths.36 Both perceived job insecurity and unemployment constitute significant risks of increased depressive symptoms in prospective observational studies.37 In the USA, suicides increased during the Great Depression.38 Suicide mortality peaked with unemployment, in the most recessionary years, 1921, 1932 and 1938.38 Suicide rates also increased in other countries during the Great Depression. For example, Varnik39 reported a rise in suicide death in Estonia in the early 1930s. Reeves et al.40 observed that almost all European countries have experienced rising suicide rates during the 2008 10 recession. The authors estimated that, in total, there were at least 10 000 more economic suicides during the recession in the European Union, Canada and the USA than would have been expected. Economic decline during and after the COVID 19 pandemic will probably have a powerful and harmful effect on mental health and result in an increase in the prevalence of psychiatric disor ders and suicidal behavior. It is important to note that financial problems may reduce access to psychiatric treatment.
There is a high probability that the COVID 19 survivors espe cially survivors who had severe COVID 19 are at elevated sui cide risk.41 Stressful experiences such as learning about the diagnosis of COVID 19, fear of infecting others, symptoms of the illness, hospitalization, especially admission to an intensive care unit, and loss of income may lead to the development of anxiety, depressive and post traumatic stress disorder.41,42 A re cent study in China indicated that 96.2% of recovering COVID 19 patients had significant posttraumatic stress symptoms.43 Around 50% of recovered patients remained anxious after the 2003 SARS epidemic in Hong Kong.44 COVID 19 infection is asso ciated with neurological conditions including acute ischemic stroke, headache, dizziness, ataxia and seizures.45 A recent re view of the impact of the COVID on the brain show that neuro logical conditions are present in about 25% of the COVID 19 patients.45 Many recovering COVID patients have physical symptoms including pain for a long time.46 Neurological disor ders such as ischemic stroke, headache and seizures are associ ated with suicidal behavior.47 Physical symptoms, especially pain also increase suicide risk.24,48
Psychiatric conditions including mood, anxiety, sleep and substance use disorders are associated with suicidal behavior.24 Studies in the USA suggest that >90% of suicide victims have a psychiatric disorder.24,49 For example, depression is a major risk factor for suicide, accounting for up to 60% of suicide deaths.49 Mental health consequences of the COVID 19 crisis including suicidal behavior are likely to be present for a long time and peak later than the actual pandemic.
There is a high probability that suicide rates will increase in many countries of the world. This problem may be especially dif ficult in the US. Suicide rates have been steadily growing in the USA over the last two decades.50 From 1999 through 2017, the age adjusted suicide rate in the USA grew 33% from 10.5 to 14.0 per 100 000.50 For women, the rate grew 53% from 4.0 in 1999 to 6.1 in 2017. For men, the rate grew 26% from 17.8 in 1999 to 22.4 in 2017. If suicide rates increase in the USA, it will add to the trend of rising national rates of suicide. An increase in suicide rates may become a significant public health issue in other countries.
Suicide prevention in the COVID-19 era
In 1994, the Institute of Medicine (now the National Academy of Medicine) Committee on Prevention of Mental Disorders sug gested that prevention of psychiatric conditions should be div ided into three categories: universal preventive interventions,

selective preventive interventions and indicated preventive interventions.51,52 Suicide prevention efforts during the COVID 19 crisis can also classified as either universal, selective or indicated.
A universal approach is designed for everyone in the general population regardless of their risk for suicide.52 To reduce suicides during the COVID 19 crisis it is imperative to decrease stress, anx iety, fears and loneliness in the general population. There should be traditional and social media campaigns to promote mental health and reduce distress. People need to be encouraged to stay connected and maintain relationships by telephone or video, get enough sleep, eat healthy food and exercise. It is vital to deliver community support for those living alone and to encourage fami lies and friends to check in. Screenings for anxiety, depression and suicidal feelings ought to be employed. Transparent, timely and responsible media reporting is absolutely necessary. Community or organizational gatekeepers including clergy, first responders, pharmacists, geriatric caregivers and school employees may have an opportunity to identify individuals at risk for suicide and direct them to proper evaluation and treatment. Suicide prevention help lines should be available and may be very useful in preventing sui cides. Integration of basic mental health services into outpatient primary care may help to minimize the harmful psychological effects of the COVID 19 crisis. Whenever possible, governments and non governmental organizations should provide financial support for people in needs. This may include direct cash pay ments, postponement of loan repayments, tax credits etc.
A selective approach is for subgroups at increased risk for suicide, for example, for individuals with a history of psychiatric disorders, persons with symptoms of significant emotional dis tress, COVID 19 survivors, frontline health care professionals and elderly people.52 Active outreach is necessary, especially for people with a history of psychiatric disorders, COVID 19 survi vors and older adults. People with psychiatric disorders should be advised to continue their treatment regimens and to stay in touch with their mental health professionals. Some psychiatric patients may need adjustments in their treatment and increased frequency of contact with their mental health clinicians. Telemedicine can improve accessibility of mental health care. Also, vulnerable individuals should be advised to limit watching, reading or listening to traditional and social media news stories.
An indicated approach is designed for individuals who have a risk factor or condition that puts them at very high risk for sui cide, e.g. a recent suicide attempt.52 Individuals in suicidal cri ses need special attention. Some suicidal persons might not seek help because of fear that attending face to face appoint ments with a health care professional might put them at risk of contracting COVID 19 or because of other reasons. Therefore, individuals with a recent suicide attempt history need a follow up. Clinicians should have well defined guidelines on how to deal with suicidal individuals.
Suicide prevention in the COVID 19 era is an important and difficult issue. Research studies are needed of how mental health consequences can be mitigated during and after the COVID 19 pandemic. It is to be hoped that the efforts of clini cians, researchers and policy makers will reduce COVID 19 related suicides.
Conflict of interest. None declared.
References
1. Cascella M, Rajnik M, Cuomo A, Dulebohn SC, DiNapoli R. Features, evaluation and treatment coronavirus (COVID 19)

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3127 Page 126 of

255

L. Sher | 5

Downloaded from https://academic.oup.com/qjmed/advance-article/doi/10.1093/qjmed/hcaa202/5857612 by guest on 07 August 2020

[Updated 2020 Apr 6]. In: StatPearls [Internet]. Treasure Island, FL: StatPearls Publishing, 2020. https://www.ncbi.nlm.nih. gov/books/NBK554776/. 2. Ornell F, Schuch JB, Sordi AO, Kessler F. “Pandemic fear” and COVID 19: mental health burden and strategies. Braz J Psychiatry 2020; 42:232 35. [Epub ahead of print]. 3. Centers for Disease Control and Prevention. 1918 Pandemic (H1N1 Virus). https://www.cdc.gov/ﬂu/pandemic resources/ 1918 pandemic h1n1.html (10 May 2020, date last accessed). 4. Wasserman IM. The impact of epidemic, war, prohibition and media on suicide: United States, 1910 1920. Suicide Life Threat Behav 1992; 22:240 54. 5. Yip PS, Cheung YT, Chau PH, Law YW. The impact of epidem ic outbreak: the case of severe acute respiratory syndrome (SARS) and suicide among older adults in Hong Kong. Crisis 2010; 31:86 92. 6. Wang C, Pan R, Wan X, Tan Y, Xu L, Ho CS, et al. Immediate psychological responses and associated factors during the initial stage of the 2019 Coronavirus Disease (COVID 19) epi demic among the general population in China. Int J Environ Res Public Health 2020; 17:1729. 7. Qiu J, Shen B, Zhao M, Wang Z, Xie B, Xu Y. A nationwide sur vey of psychological distress among Chinese people in the COVID 19 epidemic: implications and policy recommenda tions. Gen Psychiatr 2020; 33:e100213. 8. Panchal N, Kamal R, Orgera K, Cox C, Garﬁeld R, Hamel L, et al. The Implications of COVID 19 for Mental Health and Substance Use. Kaiser Family Foundation. 21 April 2020. https://www. kff.org/coronavirus covid 19/issue brief/the implications of covid 19 for mental health and substance use/ (14 May 2020, date last accessed). 9. Li S, Wang Y, Xue J, Zhao N, Zhu T. The impact of COVID 19 epidemic declaration on psychological consequences: a study on active Weibo users. Int J Environ Res Public Health 2020; 17: 2032. 10. Xiao H, Zhang Y, Kong D, Li S, Yang N. Social capital and sleep quality in individuals who self Isolated for 14 days during the Coronavirus Disease 2019 (COVID 19) outbreak in January 2020 in China. Med Sci Monit 2020; 26:e923921. 11. Ahmed MZ, Ahmed O, Aibao Z, Hanbin S, Siyu L, Ahmad A. Epidemic of COVID 19 in China and associated psychological problems. Asian J Psychiatr 2020; 51:102092.[Epub ahead of print]. 12. Huang Y, Zhao N. Generalized anxiety disorder, depressive symptoms and sleep quality during COVID 19 outbreak in China: a web based cross sectional survey. Psychiatry Res 2020; 288:112954. [Epub 12 April 2020]. 13. Lai J, Ma S, Wang Y, Cai Z, Hu J, Wei N, et al. Factors associated with mental health outcomes among health care workers exposed to Coronavirus Disease 2019. JAMA Netw Open 2020; 3:e203976. 14. Ahmed MA, Jouhar R, Ahmed N, Adnan S, Aftab M, Zafar MS, et al. Fear and practice modiﬁcations among dentists to com bat novel Coronavirus Disease (COVID 19) outbreak. Int J Environ Res Public Health 2020; 17:2821. 15. Hao F, Tan W, Jiang L, Zhang L, Zhao X, Zou Y, et al. Do psychi atric patients experience more psychiatric symptoms during COVID 19 pandemic and lockdown? A case control study with service and research implications for immunopsychia try. Brain Behav Immun 2020;S0889 1591:30626 7. [Epub ahead of print]. 16. Associated Press. Booze Buying Surges; Senators Push Airlines for Cash Refunds. 31 March 2020. https://apnews.com/c407ecb931 c6c528b4cceb0ecc216f0c (7 May 2020, date last accessed).

17. Miller JR. British teen dies after suicide attempt due to cor

onavirus fears. New York Post, 25 March 2020. https://nypost.

com/2020/03/25/british teen dies after suicide attempt due

to coronavirus fears/.

18. Moore T, Bensimon O. Man with cancer commits suicide at

NYC hospital after getting coronavirus. New York Post, 27

March 2020. https://nypost.com/2020/03/27/man with can

cer commits suicide at nyc hospital after getting corona

virus/.

19. Garger K. Illinois couple dead in murder suicide after man

feared they had coronavirus. New York Post, 7 April 2020.

https://nypost.com/2020/04/07/illinois couple dead after

man feared they had covid 19/.

20. Mamun MA, Grifﬁths MD. First COVID 19 suicide case in

Bangladesh due to fear of COVID 19 and xenophobia: possible

suicide prevention strategies [published online ahead of

print, 2020 Apr 7]. Asian J Psychiatr 2020; 51:102073.

21. Rosner E, Sheehy K. Top Manhattan ER doc commits suicide,

shaken by coronavirus onslaught. New York Post, 27 April

2020.

https://nypost.com/2020/04/27/manhattan er doc

lorna breen commits suicide shaken by coronavirus/.

22. Dunmore R. Coronavirus related suicides surface amid

increased anxiety. Newsone, April 2020. https://www.google.

com/amp/s/newsone.com/3921332/coronavirus related sui

cides amid anxiety/amp/.

23. Lieberman JA, Olfson M. Meeting the Mental Health

Challenge of the COVID 19 Pandemic. Psychiatric Times, 24

April 2020. https://www.psychiatrictimes.com/coronavirus/

meeting mental health challenge covid 19 pandemic.

24. Sher L. Resilience as a focus of suicide research and preven

tion. Acta Psychiatr Scand 2019; 140:169 80. [Epub 20 June

2019].

25. Kohn R, Saxena S, Levav I, Saraceno B. The treatment gap in

mental health care. Bull World Health Organ 2004; 82:858 66.

[Epub 14 December 2004].

26. Kessler RC, Merikangas KR, Wang PS. Prevalence, comorbid

ity, and service utilization for mood disorders in the United

States at the beginning of the twenty ﬁrst century. Annu Rev

Clin Psychol 2007; 3:137 58.

27. Durkheim E. Suicide. A study in Sociology. California: Snowball

Publ., 2012, pp. 297 325.

28. Dome` nech Abella J, Mundo´ J, Haro JM, Rubio Valera M.

Anxiety, depression, loneliness and social network in the eld

erly: longitudinal associations from The Irish Longitudinal

Study on Ageing (TILDA). J Affect Disord 2019; 246:82 8. [Epub

17 December 2018].

29. Calati R, Ferrari C, Brittner M, Oasi O, Olie´ E, Carvalho AF, et al.

Suicidal thoughts and behaviors and social isolation: a narra

tive review of the literature. J Affect Disord 2019; 245:653 67.

[Epub 7 November 2018].

30. Stravynski A, Boyer R. Loneliness in relation to suicide idea

tion and parasuicide: a population wide study. Suicide Life

Threat Behav 2001; 31:32 40.

31. Mason EC, Harvey AG. Insomnia before and after treatment

for anxiety and depression. J Affect Disord 2014; 168:

415 21.

32. Bernert RA, Nadorff MR. Sleep disturbances and suicide risk.

Sleep Med Clin 2015; 10:35 9.

33. Ahn S, Lee J, Chu SH, Sohn YH. Uncertainty and depression in

people with Parkinson’s disease: a cross sectional study.

Nurs Health Sci 2017; 19:220 7. [Epub 29 March 2017].

34. Vandoros S, Avendano M, Kawachi I. The association be

tween economic uncertainty and suicide in the short run. Soc

Sci Med 2019; 220:403 10.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3128 Page 127 of 6 | QJM: An International Journal of Medicine, 2020, Vol. 0, N2o.505

Downloaded from https://academic.oup.com/qjmed/advance-article/doi/10.1093/qjmed/hcaa202/5857612 by guest on 07 August 2020

35. de Berker AO, Rutledge RB, Mathys C, Marshall L, Cross GF, Dolan RJ, et al. Computations of uncertainty mediate acute stress responses in humans. Nat Commun 2016; 7:10996.
36. Martin Carrasco M, Evans Lacko S, Dom G, Christodoulou NG, Samochowiec J, Gonza´ lez Fraile E, et al. EPA guidance on mental health and economic crises in Europe. Eur Arch Psychiatry Clin Neurosci 2016; 266:89 124.
37. Kim TJ, von dem Knesebeck O. Perceived job insecurity, un employment and depressive symptoms: a systematic review and meta analysis of prospective observational studies. Int Arch Occup Environ Health 2016; 89:561 73.
38. Tapia Granados JA, Diez Roux AV. Life and death during the Great Depression. Proc Natl Acad Sci USA 2009; 106:17290 5.
39. Va¨ rnik A. Suicide in Estonia. Acta Psychiatr Scand 1991; 84: 229 32.
40. Reeves A, McKee M, Stuckler D. Economic suicides in the Great Recession in Europe and North America. Br J Psychiatry 2014; 205:246 7.
41. Sher L. Are COVID 19 survivors at increased risk for suicide? Acta Neuropsychiatr 2020; 1. doi: 10.1017/neu.2020.21. [Online ahead of print].
42. McGifﬁn JN, Galatzer Levy IR, Bonanno GI. the intensive care unit traumatic? What we know and don’t know about the in tensive care unit and posttraumatic stress responses. Rehabil Psychol 2016; 61:120 31.
43. Bo HX, Li W, Yang Y, Wang Y, Zhang Q, Cheung T, et al. Posttraumatic stress symptoms and attitude toward crisis

mental health services among clinically stable patients with COVID 19 in China. Psychol Med 2020. doi: 10.1017/S0033291720000999. [Epub ahead of print] 44. Tsang HW, Scudds RJ, Chan EY. Psychosocial impact of SARS. Emerg Infect Dis 2004; 10:1326 27. 45. Asadi Pooya AA, Simani L. Central nervous system manifes tations of COVID 19: a systematic review. J Neurol Sci 2020; 413:116832. [Epub ahead of print]. 46. D’Ambrosio A. COVID 19 sequelae can linger for weeks. MedPage Today, 13 May 2020. https://www.medpagetoday. com/infectiousdisease/covid19/86482. 47. Hudzik TJ, Marek GJ. (2014) Neurological disease and suicidal behavior. In: Cannon KE, Hudzik TJ, eds. Suicide: Phenomenology and Neurobiology. Springer International Publishing, Cham, Switzerland. 48. Ahmedani BK, Peterson EL, Hu Y, Rossom RC, Lynch F, Lu CY, et al. Major physical health conditions and risk of suicide. Am J Prev Med 2017; 53:308 15. [Epub 12 June 2017]. 49. Mann JJ, Apter A, Bertolote J, Beautrais A, Currier D, Haas A, et al. Suicide prevention strategies: a systematic review. JAMA 2005; 294:2064 74. 50. Hedegaard H, Curtin SC, Warner M. Suicide mortality in the United States, 1999 2017. NCHS Data Brief 2018; 330:1 8. 51. Mun~oz RF, Mrazek PJ, Haggerty RJ. Institute of Medicine Report on Prevention of Mental Disorders. Summary and Commentary. Am Psychologist 1996; 51:1116 22. 52. Sher L. Preventing suicide. QJM 2004; 97:677 80.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3129 Page 128 of 255
EXHIBIT DD

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3130 Page 129 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3131 Page 130 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3132 Page 131 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3133 Page 132 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3134 Page 133 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3135 Page 134 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3136 Page 135 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3137 Page 136 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3138 Page 137 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3139 Page 138 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3140 Page 139 of 255
EXHIBIT EE

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3141 Page 140 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3142 Page 141 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3143 Page 142 of 255
EXHIBIT FF

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3144 Page 143 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 1 of 51

1 Dean R. Broyles, Esq., CA Bar No. 179535

2

dbroyles@nclplaw.org NATIONAL CENTER FOR LAW & POLICY

3 539 West Grand Avenue

4 Escondido, California 92025 Tel: (760) 747-4529
5 Fax: (760) 747-4505

6

7 Robert H. Tyler, Esq., CA Bar No. 179572

8

rtyler@tylerbursch.com Nada N. Higuera, Esq. CA Bar No. 299819

9 nhiguera@tylerbursch.com

10 ADVOCATES FOR FAITH & FREEDOM 25026 Las Brisas Road
11 Murrieta, California 92562

12 Tel: (951) 600-2733

13 Fax: (951) 600-4996

14 Attorneys for Plaintiffs

15

UNITED STATES DISTRICT COURT

16

FOR THE EASTERN DISTRICT OF CALIFORNIA

17

SACREAMENTO DIVISION

18

19 CROSS CULTURE CHRISTIAN

20 CENTER, a California Non-Profit

21

Corporation; PASTOR JONATHAN DUNCAN, an individual

22

23

Plaintiffs,

Case No.:
VERIFIED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

24

vs.

25

26

GAVIN NEWSOM, in his official capacity as Governor of California; XAVIER

27 BECERRA, in his official capacity as the

28 Attorney General of California; SONIA ANGELL, in her official capacity as

1 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3145 Page 144 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 2 of 51

1 California Public Health Officer; MAGGIE

2

PARK, in her official capacity as Public Health Officer, San Joaquin County;

3 MARCIA CUNNINGHAM, in her official

4 capacity as Director of Emergency Services, San Joaquin County; CITY OF
5 LODI; TOD PATTERSON, in his official

6 capacity as Chief of Police of Lodi,

7

California, Defendants.

8

9

PRELIMINARY STATEMENT

10

1. Civil rights are not suspended by a virus. Fundamental and unalienable

11 rights are, by their very nature, “essential.” Yet the State of California has, in a

12 sweeping abuse of its power, criminalized all religious assembly and communal

13 religious worship while allowing citizens to gather at a liquor store, pot-dispensary,

14 Planned Parenthood, Walmart, CVS, Costco, Home Depot, and many other locations

15 which are deemed “essential.” This is not a hypothetical situation from an Orwellian

16 novel describing a bleak future—this is the current and very real nightmare endured by

17 millions of religious citizens who maintain the conviction that the faithful practice of

18 regularly gathering together is absolutely “essential.” The state’s flagrant abuse of

19 authority violates Plaintiffs’ and other citizens’ fundamental and unalienable civil

20 rights, including the free exercise of religion, right to assemble, freedom of speech, and

21 equal protection of the law, in violation of the U.S. and California constitutions. The

22 mass criminalization of religious gatherings was dismissively and causally

23 accomplished by the state and local government’s abuse of its discretion in issuing

24 orders relating to COVID-19. The state fails to articulate or support the implicit

25 assertion that the complete prohibition of religious gatherings due to their “non-

26 essential’ status is the least restrictive means to accomplish its compelling interests. In

27 contrast, many other establishments are permitted to continue operations if they

28 carefully follow Centers for Disease Control and Prevention (“CDC”) social distancing

2 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3146 Page 145 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 3 of 51

1 guidelines. Simultaneously, the state maintains a near endless list of commercial

2 establishments as “essential” wherein people have been freely gathering and where

3 social distancing is impracticable or impossible. At the least, churches, similar to Cross

4 Culture Christian Center, should be permitted to gather so long as they abide by the

5 CDC’s social distancing guidelines.

6

2. The state does not have the authority to disregard well-established religious

7 tenets relating to gatherings and method of worship. Despite the absence of authority,

8 California has limited all religious institutions to one mode of worship only: live

9 streaming services on the internet. Plaintiff Cross Culture Christian Center’s (the

10 “Church”) protected First Amendment activity-the gathering together of a religious

11 congregation- has been criminalized in spite of the Church carefully following the

12 social distancing guidelines promulgated by the CDC. “The principle that government,

13 in pursuit of legitimate interests, cannot in a selective manner impose burdens only on

14 conduct motivated by religious belief is essential to the protection of the rights

15 guaranteed by the Free Exercise Clause.” Church of the Lukumi Balalu Aye, Inc. v. City

16 of Hialeah, 508 U.S. 520, 531 (1990). The state’s ban is openly targeted at religious

17 gatherings while permitting similar gatherings for “essential” entities.

18

3. On or about April 3, 2020, San Joaquin County issued a specific stay-at-

19 home order targeting the Church. The order completely prohibited “non-essential” uses

20 of the Church building as well as the entire parking lot. At the same time, a purportedly

21 “essential” day care center on the same Church property is able to continue to operate

22 on-site. The Church is therefore banned even from making video recordings for church

23 services streamed over the internet. If the Church wanted to have a “drive-in service,”

24 which is also permissible under Governor Gavin Newsom’s stay-at-home Executive

25 Order N-33-20 dated March 19, 2020 (“State Order), it is prohibited from doing so by

26 the April 3, 2020 County Order. This absolute government ban on any and all of the

27 Church’s religious worship activity is “‘beyond all reason’ unconstitutional.” On Fire

28

3 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3147 Page 146 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 4 of 51

1 Christian Center, Inc. v. Fischer, No. 3:20-cv-264-JRW at *3 (W.D. Ky. Apr. 11,

2 2020), quoting Jacobson v. Massachusetts, 197 U.S. 11, 31 (1905).

3

4. The seeds of this litigation were sewn by the emergence and spread of

4 COVID-19, otherwise commonly referred to a coronavirus. This lawsuit germinated

5 because of Governor Gavin Newsom’s sweeping stay at home State Order with no end

6 date, and the four subsequent “stay at home” orders of the Public Health Officer and

7 Director of Emergency Services of San Joaquin County (“County Orders”) dated March

8 21, 2020 and March 26, 2020, April 3, 2020, and April 14, 2020. These State and

9 County Orders have declared that all religious assemblies are “non-essential,” even

10 churches that are carefully following CDC “social distancing” guidelines.

11 Simultaneously the State and County Orders declare similarly situated commercial

12 business assemblies as “essential,” permitting virtually unlimited parking and human

13 assembly. This lawsuit became full grown as of the April 3, 2020 San Joaquin County

14 Order which specifically targeted the Church and resulted in the Church being

15 completely locked out of their leased building and parking lot. The City of Lodi Police

16 Department aggressively enforced the religiously intolerant and discriminatory State

17 Order and County Orders (collectively, the “Orders”), further necessitating this lawsuit.

18

5. On Wednesday, March 25, 2020, the City of Lodi, acting on the tip of an

19 informant, sent two uniformed police officers to disrupt the Church’s lightly attended

20 midweek service. The police officers told Plaintiff JONATHAN DUNCAN (“Pastor

21 Duncan”) the meeting was in violation of the Orders and warned that further

22 enforcement actions would likely follow. A few days later, on April 1, 2020, the City

23 of Lodi sent three police officers to post a notice on the Church building, warning that

24 the Church’s “non-essential” use of the building was a “public nuisance” in violation of

25 the State and County Orders and that the Church would be criminally prosecuted if they

26 continued to meet. On April 3, 2020, San Joaquin County issued an Order specifically

27 targeting the Church, declaring the Church “non-essential” and completely barring it

28 from using the Church building or parking lot. On Palm Sunday morning, April 5,

4 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3148 Page 147 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 5 of 51

1 2020, more than five Lodi uniformed police officers told Pastor Duncan that a county

2 order barred him from using the Church building and parking lot, and that the landlord

3 had changed the locks on the Church. The landlord did not have a judicial order to

4 change the locks, nor had any unlawful detainer proceedings been initiated. The officers

5 warned Pastor Duncan that they would cite him if he tried to access the Church

6 property, despite the valid lease that was still in effect.

7

6. For more than four hundred years, people have come to America in a quest

8 for religious freedom. Our shores were populated with many, like the Puritans, who

9 were fleeing religious persecution in Europe. They understood that “[n]o place, not

10 even the unknown, is worse than any place whose state forbids the exercise of your

11 sincerely held religious beliefs.” On Fire Christian Center, Inc., supra, at *4.

12 Stretching back to the formation of colonies like Pennsylvania and Rhode Island, where

13 citizens could practice religion in a way that would not be impeded by the government,

14 this basic freedom that was sought by so many colonists was subsequently enshrined in

15 the constitutions of the states and, most importantly, in the First Amendment to the

16 United States Constitution. “Congress shall make no law respecting the establishment

17 of religion or prohibiting the free exercise thereof.” U.S. Const. amend i.

18

7. The First Amendment’s guarantee of religious liberty was perhaps its

19 boldest and most audacious promise. Indeed, history is dominated by a long list of

20 tyrants and tyrannies. Until America, freedom was not the historical norm. For

21 centuries European kings and rulers had spent considerable treasure and blood

22 attempting to coercively impose differing religious beliefs and practices on others.

23 America would be different, precisely because of our firm commitment to religious

24 freedom and tolerance. As de Tocqueville wrote, “religion…must be considered as the

25 first of their political institutions; for if it does not give them the taste for liberty, it

26 singularly facilitates use of it.” Justice Anthony Kennedy recently echoed de

27 Tocqueville’s sentiments, “Among the reasons the United States is so open, so tolerant,

28 and so free is that no person may be restricted or demeaned by government in

5 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3149 Page 148 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 6 of 51

1 exercising his or her religion.” Burwell v. Hobby Lobby, 573 U.S. 682, 739 (2014)

2 (Kennedy, J., concurring).

3

8. Yet in the days leading up to one of the holiest days on the Christian

4 calendar, Easter, Defendants Gavin Newsom, the San Joaquin County Officials, and

5 officers of the Lodi Police Department (collectively, “Defendants”), announced and

6 enforced what would previously have been unthinkable in a nation like the United

7 States—that they were prohibiting all church worship gatherings in the state of

8 California, limiting all religious assembly and worship only to video streamed over the

9 internet. On April 3, 2020, San Joaquin County doubled down the threat to the Church,

10 targeting the Church with an order prohibiting its use of the Church’s leased buildings

11 and parking lot. This ban is backed by Orwellian threats of potential criminal penalties,

12 including citations, fines, and arrest.

13

9. Due to the unprecedented nature of COVID-19 and the indisputable

14 tragedy the disease has wrought on our great Republic, there are those who may find it

15 tempting to hold that First Amendment rights should acquiesce to claims of public

16 health and safety in this instance. However, state regulations, even during a public

17 health crisis do not supersede constitutional rights: “[N]o rule proscribed by a state, nor

18 any regulation adopted by a local government agency acting under the sanction of state

19 legislation, shall contravene the Constitution of the United States, nor infringe on any

20 right granted or secured by that instrument…. Local…regulation…must always yield

21 in case of conflict with…the Constitution, or any right which that instrument gives or

22 secures.” Jacobson v. Commonwealth of Mass., 197 U.S. 11, 25 (1905) (emphasis

23 added).

24

10. The justification for this astounding government overreach is the COVID-

25 19 pandemic, truly a national and international tragedy. The coronavirus outbreak has

26 turned our world upside-down, causing profound damage to our lives and to our

27 economy. And it is understood that the rules of constitutional interpretation are not as

28 rigidly fixed in a time of national emergency. Jacobson v. Massachusetts, 197 U.S. 11

6 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3150 Page 149 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 7 of 51

1 (1905). “But even under Jacobson, constitutional rights still exist. Among them is the

2 freedom to worship as we choose.” On Fire Christian Center, Inc., supra, at *4 (citing

3 Jacobson at 31).

4

11. In full understanding of the public and private danger posed by COVID-19,

5 the Church has conducted itself and intends to continue to conduct its religious

6 assemblies and worship services in a manner that adheres to CDC and California

7 guidelines on social distancing and safe gatherings. The Church merely contends that, at

8 least for its congregants, its assemblies are an “essential service” and should therefore,

9 because of fundamental First Amendment Protections, be treated at least as equally as

10 businesses which have which been declared “essential,” including the commercial retail

11 stores or the daycare center that meets at the Church site. Defendants’ targeting of

12 religious adherents and total ban from religious assembly, even in a manner consistent

13 with governmental social distancing guidelines, while permitting similar (and at times

14 even more intimate) social interaction to continue unabated in retail and commercial

15 establishments, flies in the face of the First Amendment of the U.S. Constitution,

16 Article I, Sections 2, 3 and 4 of the California Constitution, and the Religious Land Use

17 and Institutionalized Persons Act.

18

12. Recognizing that times of crisis would arise, that such times might lead

19 governments to seek to repress unalienable fundamental freedoms, and that the

20 Republic’s survival depended upon defeating such repressive instincts, the genius of our

21 founding document is that it placed explicit protections into the text of the Bill of

22 Rights. And, importantly, “[o]ur Bill of Rights placed our survival on firmer ground—

23 that of freedom, not repression.” Konigsberg v. State Bar of California, 366 U.S. 36, 79

24 (1961) (Black, J., dissenting).

25

13. During times of national crisis attended by widespread fear and panic, such

26 as the current uncertainty arising from COVID-19, “the fog of public excitement

27 obscures the ancient landmarks set up in our Bill of Rights.” American Communist

28 Ass’n, C.I.O. v. Douds, 339 U.S. 382, 453 (1950) (Black, J., dissenting). But, where the

7 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3151 Page 150 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 8 of 51

1 fog of public excitement is at its apex, “the more imperative is the need to preserve

2 inviolate the constitutional rights of free speech, free press and free assembly.” De

3 Jonge v. Oregon, 299 U.S. 353, 365 (1937).

4

14. Our commitment to our founding principles is most tested and best

5 calculated during times of crisis and uncertainty. Our willingness to reaffirm our

6 staunch commitment to our fundamental freedoms is imperative to the very survival of

7 the American experiment. For, “[h]istory reveals that the initial steps in the erosion of

8 individual rights are usually excused on the basis of an ‘emergency’ or threat to the

9 public. But the ultimate strength of our constitutional guarantees lies in the

10 unhesitating application in times of crisis and tranquility alike.” United States v.

11 Bell, 464 F.2d 667, 676 (2d Cir. 1972) (Mansfield, J., concurring) (emphasis added).

12

15. In the instant matter, Plaintiff brings this case to highlight the troubling

13 erosion of fundamental and cherished liberties wrought by the imposition of the State

14 Order and the County Orders and their unconstitutional enforcement by the Lodi Police

15 Department. Plaintiffs seek not to discredit or discard the government’s unquestionable

16 interest in doing that task for which it was instituted – protecting the citizenry. But, as is

17 often true in times of crisis and fear, Plaintiffs respectfully submit that in an effort to

18 uphold their sworn duties, Defendants have – perhaps unwittingly – stepped over a line

19 the Constitution does not permit. Therefore, Plaintiffs bring this action to ensure that

20 this Court safeguard the cherished liberties for which millions have fought, bled, and

21 died. For, “[i]f the provisions of the Constitution be not upheld when they pinch as

22 well as when they comfort, they may as well be discarded.” Home Bldg. & Loan

23 Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting) (emphasis

24 added). As John Adams opined in 1765, “Liberty must at all hazards be supported. We

25 have a right to it, derived from our Maker. But if we had not, our fathers have earned

26 and bought it for us, at the expense of their ease, their estates, their pleasure, and their

27 blood.”

28 ///

8 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3152 Page 151 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5 ent 1 Filed 04/22/20 Page 9 of 51

1

16. Plaintiffs pray unto the Court that it not permit their unalienable and

2 fundamental liberties enshrined in the Constitution to be another tragic casualty of

3 COVID-19.

4

PARTIES – PLAINTIFFS

5

17. Plaintiff CROSS CULTURE CHRISTIAN CHURCH (the “Church”) is a

6 domestic non-profit corporation Christian church organized exclusively for religious

7 purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. The

8 Church is located in the City of Lodi, San Joaquin County, California.

9

18. Plaintiff JONATHAN DUNCAN (“Pastor Duncan”) serves as the lead

10 pastor of the Church. He is 43 years old.

11

PARTIES – DEFENDANTS

12

19. Defendant GAVIN NEWSOM is the Governor of the State of California,

13 and is sued in his official capacity. The California Constitution vests the “supreme

14 executive power of the State” in the Governor, who “shall see that the law is faithfully

15 executed.” Cal. Const. Art. V, §1. Governor Newsom signed the State Order.

16

20. Defendant XAVIER BECERRA is the Attorney General of California, and

17 is sued in his official capacity. Under California law, the Attorney General is the chief

18 law enforcement officer with supervision over all sheriffs in the state. Cal. Const. Art.

19 V, §13.

20

21. Defendant SONIA ANGELL is the California Public Health Officer. She is

21 sued in her official capacity only. Under the authority of the State Order, the State

22 Public Health Officer created California’s “Essential Critical Infrastructure Workers,”

23 discussed below.

24

22. Defendant MAGGIE PARK is the Public Health Officer, San Joaquin

25 County, California. She is sued in his official capacity only. She signed the San

26 Joaquin County “Stay at Home” Orders dated March 21, 2020 and March 26, 2020,

27 April 3, 2020, and April 14, 2020.

28 ///

9 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3153 Page 152 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 10 of 51

1

23. Defendant MARCIA CUNNINGHAM is the Director of Emergency

2 Services, San Joaquin County, California. She is sued in her official capacity only. She

3 signed the San Joaquin County “Stay at Home” Orders dated March 21, 2020, March

4 26, 2020, and April 14, 2020.

5

24. Defendant CITY OF LODI is a municipality organized under the laws of

6 the State of California. The City of Lodi is subject to suit under 42 U.S.C. 1983 and

7 common law. Defendant TOD PATTERSON is the Chief of Police of the City of Lodi.

8 He is sued in his official capacity only. He is responsible for enforcing and has directed

9 the enforcement of the State Orders and the County Orders against religious institutions

10 including the Church.

11

JURISDICTION AND VENUE

12

25. This civil rights action raises federal questions under the United States

13 Constitution, specifically the First and Fourteenth Amendments, and under federal law,

14 particularly 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons

15 Act, 42 U.S.C. § 2000cc, et seq.

16

26. This Court has subject matter jurisdiction over the federal claims pursuant

17 to 28 U.S.C. §§ 1331 and 1343.

18

27. This action also arises under Article I, §§ 2, 3 and 4 of the California

19 Constitution (freedom of speech, right of assembly, and religious free exercise).

20

28. This Court has supplemental jurisdiction over the state claims pursuant to

21 28 U.S.C. § 1367.

22

29. This Court has authority to grant the requested declaratory relief under the

23 Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, implemented through Rule 57

24 of the Federal Rules of Civil Procedure. This Court is also authorized to grant injunctive

25 relief and damages under 28 U.S.C. § 1343, pursuant to Rule 65 of the Federal Rules of

26 Civil Procedure, and reasonable attorney’s fees and costs under 42 U.S.C. § 1988.

27 ///

28 ///

10 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3154 Page 153 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 11 of 51

1

30. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1)–(2) because

2 Defendants are situated in this judicial district, and a substantial part of the events or

3 omissions giving rise to Plaintiffs’ claims occurred in this district.

4

FACTUAL BACKGROUND

5

A. Executive and Administrative Response to COVID-19.

6

31. On March 4, 2020, California Governor Gavin Newsom declared a state of

7 emergency for the entire State of California in response to COVID-19. On March 11,

8 2020, the World Health Organization (WHO) declared COVID-19 a pandemic. On

9 March 13, 2020, President Donald J. Trump declared COVID-19 a national emergency.

10 On March 16, 2020, President Trump and the CDC issued “15 Days to Slow the

11 Spread” guidance advising individuals, in part, to avoid social gatherings in groups of

12 more than 10 people. On March 19, 2020, Governor Newsom issued the State Order,

13 Executive Order N-33-20, a statewide stay at home order with exceptions for “critical

14 infrastructure.” On March 21, 2020, San Joaquin County issued its own stay at home

15 order. On March 26, 2020, San Joaquin County issued a revised “stay at home” order.

16 On April 3, 2020 San Joaquin County issued a targeted Order, specifically naming the

17 Church and declaring its ongoing use of the leased property in violation of the State and

18 County Orders. This April 3 targeted Order declared the Church a “non-essential”

19 entity and ordered it to cease all occupation and use of the leased buildings and the

20 parking lot, while at the same time permitting a preschool to continue to meet on the

21 property. On April 14, 2020, San Juaquin County issued another amended order

22 allowing “non-essential businesses” to conduct “minimum basic operations.”

23 B. Governor Newsom’s Executive Order

24

32. On March 4, 2020, Governor Gavin Newsom proclaimed a State

25 Emergency as a result of the threat of COVID-19.1 Governor Newsom’s “stay at home”

26 State Order included a multitude of exceptions for “critical infrastructure.” A true and

27

28
1 As of the date of this filing, the Proclamation of a State of Emergency can be found online at: https://www.gov.ca.gov/wpcontent/uploads/2020/03/3.4.20-Coronavirus-SOE-Proclamation.pdf

11 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3155 Page 154 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 12 of 51

1 correct copy of this State Order is attached hereto as Exhibit 1. The State Order

2 provides, in pertinent part:

3

“[A]ll residents are directed to immediately heed the current State public

4

health directives, which I ordered the Department of Public Health to develop for the current statewide status of COVID-19.”

5

6

“To protect public health, I as State Public Health Officer and Director of

the California Department of Public Health order all individuals living in

7

the State of California to stay home or at their place of residence except

8

as needed to maintain continuity of operations of the federal critical

9

infrastructure sectors, as outlined at https://www.cisa.gov/identifyingcritical-infrastructure-during-covid-19. In addition, and in consultation with

10

the Director of the Governor's Office of Emergency Services, I may

11

designate additional sectors as critical in order to protect the health and

well-being of all Californians….this order is to go into effect immediately

12

and shall stay in effect until further notice.”

13 Exhibit 1 at Paragraph 1 (emphasis added).

14

33. Although the State Order references the “federal critical infrastructure

15 sectors,” on or about March 22, 2020, the California Public Health Officer published its 16 own list of “Essential Critical Infrastructure Workers” (“ECIW”)2, discussed in detail

17 below. A true and correct copy of the ECIW is attached as Exhibit 6. When compared

18 to the federal list, the ECIW is significantly more restrictive of the religious clergy, only

19 allowing them to participate in “faith-based services that are provided through

20 streaming or other technology.” Exhibit 6. Accordingly, California prohibits all

21 religious leaders from conducting in-person and out-of-home religious services,

22 regardless of the “social distancing” measures taken to reduce or eliminate the risk of

23 spreading the virus.

24

34. Meanwhile, the ECIW list deems the continuity of services provided by

25 coffee baristas, burger flippers, laundromat technicians, pot dispensary operators, and

26 liquor store employees to be so “essential” for society that these activities are permitted

27

28
2 As of the date of this filing, the list of Essential Critical Infrastructure Workers (“ECIW”) can be found online at https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf

12 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3156 Page 155 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 13 of 51

1 to continue under the State Order, despite the existence of the very same risk

2 Defendants rely on to stymie the Plaintiffs’ exercise of fundamental rights.

3

35. Furthermore, the State Order delegates to the State Public Health Officer

4 and Director of the California Department of Public Health the authority to “designate

5 additional sectors as critical...” Exhibit 1 at paragraph 1 (emphasis added). Finally,

6 the State Order has no expiration date, as it “shall stay in effect until further notice.”

7 Exhibit 1 at paragraph 1.

8

C. First San Joaquin County Order Prohibiting All Non-Essential

9 Gatherings

10

36. On March 21, 2020, San Joaquin County issued its own stay at home order,

11 a true and correct copy of which is attached hereto as Exhibit 2. This county order

12 provides, in pertinent part, mandated that:

13

“ALL INDIVIDUALS LIVING IN THE COUNTY TO STAY AT

14

HOME OR AT THEIR PLACE OF RESIDENCE EXCEPT THAT THEY MAY LEAVE TO PROVIDE OR RECEIVE CERTAIN

15

ESSENTIAL SERVICES OR ENGAGE IN CERTAIN ESSENTIAL

16

ACTIVITIES AND WORK FOR ESSENTIAL BUSINESSES AND

GOVERNMENTAL SERVICES; EXEMPTING INDIVIDUALS

17

EXPERIENCING HOMELESSNESS FROM THIS ORDER BUT

18

URGING THEM TO FIND SHELTER AND GOVERNMENT

19

AGENCIES TO PROVIDE IT; DIRECTING ALL BUSINESSES AND GOVERNMENTAL AGENCIES TO CEASE NON-ESSENTIAL

20

OPERATIONS AT PHYSICAL LOCATIONS IN THE COUNTY;

21

PROHIBITING ALL NON-ESSENTIAL GATHERINGS OF ANY

NUMBER OF INDIVIDUALS; AND ORDERING CESSATION OF

22

ALL NON-ESSENTIAL TRAVEL.”

23 24 Exhibit 2 at p. 1 (emphasis added).

25

37. The county’s stay at home order prohibited all non-essential gatherings of

26 any number of individuals.” Exhibit 2 at paragraph 6. However, there was an

27 exemption for those providing or receiving “essential services” or those engaging in

28 “essential activities” or working for “essential businesses and governmental services.”

13 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3157 Page 156 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 14 of 51

1 Exhibit 2 at paragraph 11. The order allowed individuals the unlimited ability to leave

2 their residence to “engage in activities or perform tasks essential to their health and

3 safety,” and perform “essential activities” including the following: “obtaining medical

4 supplies and medication, visiting a health care professional, obtaining supplies they

5 need to work from home…to obtain necessary services or supplies [including food or

6 consumer products]….to engage in outdoor activities….to perform work as an Essential

7 Critical Infrastructure worker….to care for a family member in or pet in another

8 household…to attend private gatherings of not more than six relatives.” Exhibit 2 at

9 paragraph 11. Individuals or businesses were warned of criminal penalties for not

10 obeying the order. The order warned that “Violation of or failure to comply with this

11 Order is a misdemeanor punishable by fine, imprisonment, or both. (California Health

12 and Safety Code § 120295, et seq.)” Exhibit 2 at p. 1.

13

D. Second San Joaquin County Order Prohibiting All Non-Essential

14 Gatherings

15

38. On March 26, 2020, San Joaquin County issued a revised “stay at home”

16 order, a true and correct copy of which is attached hereto as Exhibit 3. Similar to the

17 prior county order, it exempted those providing or receiving “essential services” or

18 those engaging in “essential activities” or working for “essential businesses and

19 governmental services” and “prohibiting all non-essential gatherings of any number

20 of individuals.” Exhibit 3 at p. 1 (emphasis added).

21

39. The order, in pertinent part, directed:

22

“ALL INDIVIDUALS LIVING IN THE COUNTY TO STAY AT

23

HOME OR AT THEIR PLACE OF RESIDENCE EXCEPT THAT THEY MAY LEAVE TO PROVIDE OR RECEIVE CERTAIN

24

ESSENTIAL SERVICES OR ENGAGE IN CERTAIN ESSENTIAL

25

ACTIVITIES AND WORK FOR ESSENTIAL BUSINESSES AND

GOVERNMENTAL SERVICES; EXEMPTING INDIVIDUALS

26

EXPERIENCING HOMELESSNESS FROM THIS ORDER BUT

27

URGING THEM TO FIND SHELTER AND GOVERNMENT

28

AGENCIES TO PROVIDE IT; DIRECTING ALL BUSINESSES AND GOVERNMENTAL AGENCIES TO CEASE NON-ESSENTIAL

14 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3158 Page 157 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 15 of 51

1

OPERATIONS AT PHYSICAL LOCATIONS IN THE COUNTY;

2

PROHIBITING ALL NON-ESSENTIAL GATHERINGS OF ANY NUMBER OF INDIVIDUALS; AND ORDERING CESSATION OF ALL

3

NON-ESSENTIAL TRAVEL.”

4

5 Exhibit 3 at p. 1 (emphasis added).

6

40. This new order emphasized the need for “social distancing” when, for any

7 reason, people left their homes. Social distancing was defined in the new order as

8 “maintaining at least six-foot social distancing from other individuals, washing hands

9 with soap and water for at least twenty seconds as frequently as possible or using hand

10 sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly

11 cleaning high touch surfaces, and not shaking hands.” Exhibit 3 at paragraph 11(f).

12

41. Just as before, the new county order allowed individuals the unlimited

13 ability to leave their residence to “engage in activities or perform tasks essential to their

14 health and safety,” including to “perform “essential activities” including, “obtaining

15 medical supplies and medication, visiting a health care professional, obtaining supplies

16 they need to work from home…to obtain necessary services or supplies [including food

17 or consumer products]….to engage in outdoor activities….to perform work as an

18 Essential Critical Infrastructure worker….to care for a family member in or pet in

19 another household.” Exhibit 3 at paragraph 11(a). Under the terms of County Order,

20 any [grocery, convenience, warehouse, or “big box”] store may operate without any

21 limit on the number of employees or customers present, as long as it insures social

22 distancing (6 feet) and other health practices for its employees, and otherwise promotes

23 social distancing (about 6 feet) and other best practices for non-employees.

24

42. However, the option “to attend private gatherings of not more than six

25 nonrelatives in a home or place of residence” was removed from the list of permitted

26 activities. Also, similar to the prior order, individuals and businesses were warned of

27 criminal penalties for not obeying the order. “Violation of or failure to comply with this

28

15 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3159 Page 158 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 16 of 51

1 Order is a misdemeanor punishable by fine, imprisonment, or both. (California Health

2 and Safety Code § 120295, et seq.)” Exhibit 3 at p. 1.

3

D. The April 3 Targeted County “Order Prohibiting Public Assembly” at

4 Cross Culture Christian Center

5

43. On April 3, 2020, San Joaquin County Public Health Officer, Maggie Park,

6 M.D. issued an “Order Prohibiting Public Assembly,” a true and correct copy of which

7 is attached hereto as Exhibit 4. This order specifically referenced Plaintiff Cross

8 Culture Christian Center’s lease and ongoing use of the facility owned by their landlord,

9 Bethel Open Bible Church located at 760 S Ham Ln, in Lodi, California. The order

10 states, in pertinent part:

11

“You are hereby ordered to close your facility located at 760 South Ham

12

Lane, Lodi, California, and prevent future use of the facility, including the parking lot, for public assembly due to the outbreak of COVID-19 in

13

the state of California and County of San Joaquin.

14

On March 19, 2020, the Governor of California issued an executive order

15

N-33-20 (the "Order") mandating all individuals living in the state of

16

California to stay home or at their place of residence except as needed to

17

maintain continuity of operations of the 16 federal critical infrastructure sectors. On March 26, 2020, the San Joaquin County

18

Public Health Officer issued an order prohibiting public assemblies of

19

any size that are not essential for life and safety.

20

On March 29, 2020, the City of Lodi reported to the County Public

21

Health Officer that your tenant, Cross Culture Community Church

22

was continuing to use your facility for public assembly, and that Cross Culture Community Church was aware of the County Order and

23

intended to continue to meet in violation of the Order. As a facility for

24

public assembly neither the building or the parking lot is part of the essential critical infrastructure as defined by State and Federal

25

agencies. Continued operation, in violation of the Order, will hamper the

26

County's ability to slow transmission of the disease and increase the risk to

the public from COVID-19. 27

28

Any person who refuses or willfully neglects to comply with this

emergency order is guilty of a misdemeanor, punishable by fine and/or

16 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3160 Page 159 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 17 of 51

1

imprisonment. (Government Code section 8665; Health and Safety Code

2

section 120275.) In addition, there are civil and administrative penalties that can be imposed upon you as a result of continued operation.”

3

4

The ability of Bethel Open Bible Church to operate a child-care

facility consistent with the order of the State Public Health Officer issued

5

March 22, 2020 is unaffected by this Order.”

6 7 Exhibit 4 (emphasis added).

8

44. The order targeted at the Church’s lawful use of Bethel Open Bible

9 Church’s facilities and threatening criminal and civil penalties against was signed by

10 Maggie Park, M.D., San Joaquin County Public Health Officer.

11

E. Most Recent San Joaquin County Order Prohibiting All Non-Essential

12 Gatherings

13

45. On April 14, 2020, San Joaquin County issued a revised “stay at home”

14 order, a true and correct copy of which is attached hereto as Exhibit 5. Similar to the

15 prior county orders, it exempted those providing or receiving “essential services” or

16 those engaging in “essential activities” or working for “essential businesses and

17 governmental services” and “prohibiting all non-essential gatherings of any number

18 of individuals”. Exhibit 5 at paragraph 5 (emphasis added).

19

46. This April 14, 2020 County Order allows “non-essential businesses” to

20 conduct “minimum basic operations,” but not be open to the public. Exhibit 5 at

21 paragraph 11(b) (emphasis added).

22

F. California’s Definition of “Essential Critical Infrastructure” Workers

23

47. On March 22, 2020, the State Public Health Officer created a list

24 designating those persons who were “Essential Critical Infrastructure Workers,” a true

25 and correct copy of which is attached hereto as Exhibit 6 (“State ECIW List”). The

26 purpose of the State ECIW List was to “help state, local, tribal, and industry partners as

27 they work to protect communities, while ensuring continuity of functions critical to

28 public health and safety, as well as economic and national security” Exhibit 5 at p. 2.

17 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3161 Page 160 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 18 of 51

1

48. The fourteen-page State ECIW List is largely modeled on the Federal

2 ECIW List of recommended sector and jobs, which the government has deemed are

3 important for the continuity of operations during times of crisis and which may remain

4 open. The State CIW exempts thirteen sectors of workers from the State and County

5 “stay at home” orders: Healthcare/Public Health; Emergency Services Sector; Food and

6 Agriculture; Energy; Water and Wastewater; Transportation and Logistics;

7 Communications and Information Technology; Critical Manufacturing; Hazardous

8 Materials; Financial Services; Chemical; Defense Industrial Base and Other

9 Community-Based Government Operations. Exhibit 6 at pp. 1-14. This State ECIW

10 list is incorporated into the State and County Orders discussed above. See Exhibits 1-5.

11

49. The “Other Community-Based Government Operations” sector allowed to

12 remain open and whose workers are exempt from the “stay at home” orders includes a

13 wide variety of commercial retail stores: “Commercial Retail Stores, that supply

14 essential sectors, including convenience stores, pet supply stores, auto supplies and

15 repair, hardware and home improvement, and home appliance retailers.” Exhibit 6 at p.

16 11 (emphasis added).

17

50. The U.S. Department of Homeland Security Cybersecurity and

18 Infrastructure Agency updated guidance document, Essential Critical Infrastructure

19 Workforce: Ensuring Community and National Resilience In COVID-19 Response, Ver.

20 3.0 (April 17, 2020) (“CISA Guidance 3.0”) is incorporated by reference into the State

21 and County Orders (Exhibits 1-5). A true and correct copy of this CISA Guidance 3.0 is

22 attached hereto as Exhibit 7. It specifies “Clergy for essential support” as “essential

23 critical infrastructure workers” who are “needed to maintain the services and functions

24 Americans depend on daily and that need to be able to operate resiliently during the

25 COVID-19 pandemic response,” and whose ability “to continue to work during periods

26 of community restriction, access management, social distancing, or closure

27 orders/directives is crucial to community resilience and continuity of essential

28 functions.” Exhibit 7. The State ECIW also references faith-based organizations, but

18 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3162 Page 161 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 19 of 51

1 the State of California strictly limits their activities only to online worship services:

2 “Faith based services that are provided through streaming or other technology” Exhibit

3 6 at p. 11.

4

51. The introduction to the State ECIW List acknowledges that Governor

5 Newsom’s State Order (Exhibit 1) has delegated to the “State Public Health Officer” the

6 discretion to designate “additional sectors…as critical to protect [sic] health and well-

7 being of aall [sic] Californians.” Exhibit 6 at p. 1. More than eleven states have

8 declared houses of worship as “essential services” or have otherwise exempted religious

9 services from the stay at home orders.3

10

52. Governor Gavin Newsom was asked to include houses of worship in

11 California as part of the State ECIW or as exempted from the “stay at home” orders, but

12 he has ignored this request and has thus far declined to do so. A true and correct copy of

13 the letter written to Governor Newsom from Plaintiffs’ counsel is attached hereto as

14 Exhibit 8.

15

53. Therefore, both the state of California and San Joaquin County have,

16 through their sweeping stay at home orders incorporating the State ECIW List have, on

17 their face and as applied, permitted virtually unrestricted public assembly with social

18 distancing at a multitude of commercial retail stores by deeming it as “essential.” At the

19 same time, the orders forbid any and all public assembly at houses or worship with

20 social distancing, simply by discretionarily deeming religious assembly as “non-

21 essential” and not including it on the State ECIW List. In California, a broad array of

22 commercial assembly is currently deemed lawful while, at the same time, any and all

23 religious assembly, even if social distancing is employed, is classified as a criminal

24 activity. It is this discretionary determination by State Officials which Plaintiffs

25 contend violates multiple provisions of the U.S. Constitution and similar provisions of

26 the Constitution of the State of California, as is discussed further below.

27

28 3 https://abcnews.go.com/Health/states-crack-gatherings-due-coronavirus-exemptions-religious-
groups/story?id=69847021

19 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3163 Page 162 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 20 of 51

1

G. The Religious Beliefs and Practices of the Church

2

54. The Church is led by Pastor Duncan and a church board of directors. The

3 Church started as a home Bible study meeting in Pastor Duncan’s home approximately

4 twelve years ago.

5

55. In 2009, the growing group incorporated as a California non-profit

6 religious corporation. From 2015 to 2019, the Church rented its own facility in an

7 industrial area of Lodi, California. In March of 2019, the Church entered into a three-

8 year lease and started renting space from Bethel Open Bible Church in Lodi, California.

9

56. Currently, the Church has approximately 27 adult attendees during its

10 Sunday service, and even less attendees during its midweek Wednesday night service.

11 The leased sanctuary where the Church meets can hold up to 400 people.

12

57. The Church describes itself as “a Community of the Rescued. Our heart is

13 to truly be The Cross Culture, making the Love of God our priority. We as a

14 Community are working through our struggles so we will better reflect Christ in our

15 lives, home and world. Our desire is to love as Jesus loved, teach as Jesus taught, and

16 give as Jesus gave.”

17

58. The Church has a sincerely and deeply held religious belief that it is

18 essential for them as Christians to assemble and regularly gather together in person for

19 the teaching of God’s Word, prayer, worship, baptism, communion and fellowship. This

20 is based on scriptures from the Bible, including Hebrews 10:25, Acts 2:40-47, and Acts

21 5:40-42. These activities are primarily fulfilled in the gathering together of the Church

22 body for Sunday worship services and Wednesday night worship services.

23

59. The Church believes that based on the Bible, they are eternal beings in this

24 temporary world, and God’s Word (the Bible) is even more essential than food based on

25 the following scripture in Matthew 4:4: “[Jesus] answered, ‘It is written, “Man shall not

26 live by bread alone, but by every word that comes from the mouth of God.”’” Indeed,

27 the joyful duty to assemble together, in person, for worship services is a central tenet of

28 the Christian faith, both believed and practiced by the Church according to the Bible, a

20 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3164 Page 163 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 21 of 51

1 tenet that is especially important to maintain during times of turmoil and trouble in the

2 world: “And let us consider how to stir up one another to love and good works, not

3 neglecting to meet together, as is the habit of some, but encouraging one another,

4 and all the more as you see the Day drawing near.” Hebrews 10:24–25.

5

60. The joyful duty to love their neighbors is likewise a central tenet of the

6 Christian faith believed and practiced by the Church. They believe this is done first

7 through sharing the Gospel of Jesus Christ—that Jesus died for the forgiveness of our

8 sins, that He rose again to secure for us eternal life with God the Father, and that

9 whoever believes in Jesus Christ will share in that eternal life—and second through

10 good works, such as caring for the sick and hungry. And the Church believes, still

11 according to the Bible, that it is the very practice of regularly assembling together to

12 worship God through the preaching and teaching of God’s Word that inspires and

13 equips Christians to love their neighbors and perform such good works, as shown in the

14 passage quoted above (“let us consider how to stir up one another to love and good

15 works”), and also: “All Scripture is breathed out by God and profitable for teaching, for

16 reproof, for correction, and for training in righteousness, that the man of God may be

17 complete, equipped for every good work.” 2 Tim. 3:16–17.

18

61. Pastor Duncan was a police officer with the Stockton Police Department

19 before he was medically discharged due to a physical injury. As a public servant,

20 Pastor Duncan took the following oath:

21

“I, Jonathan Duncan, do solemnly swear (or affirm) that I will support and defend

22

the Constitution of the United States and the Constitution of the State of

23

California against all enemies, foreign and domestic; that I will bear true faith and

24

allegiance to the Constitution of the United States and the Constitution of the State

25

of California; that I take this obligation freely, without any mental reservation or

26

purpose of evasion; and that I will well and faithfully discharge the duties upon

27

which I am about to enter.”

28

21 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3165 Page 164 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 22 of 51

1

62. The Church’s congregation is multi-racial and represents a cross-section of

2 society, from rich to poor and of all ages. The Church’s congregation also includes

3 members and visitors running the gamut of essential workers. These essential workers

4 and service providers receive spiritual support, comfort, guidance, and shelter from the

5 ministry of the Church’s personnel, including Pastor Duncan.

6

H. The Church’s Worship Services Following State and County Executive

7 Orders and Enforcement Against the Church by the Lodi Police Department

8

63. Even before the State and County “stay at home orders” went into effect,

9 the Church was already following CDC and state recommended “social distancing”

10 guidelines. Among other actions, Pastor Duncan counselled individuals to follow their

11 doctor’s instructions, adhere to the CDC guidelines, and act in the best interest of

12 community health and safety.

13

64. After the State and County Orders were issued, in accordance with its

14 sincerely held religious beliefs and its practices consistent to those beliefs, the Church

15 elected to continue to conduct worship services on March 22, March 25, and March 29,

16 2020, while at the same time continuing to follow CDC and state recommended “social

17 distancing” guidelines. In addition to the CDC guidelines, the Church is willing to limit

18 the number of congregants in the sanctuary at the same time to 50 persons or less and

19 have multiple personnel present to ensure proper spacing between persons and orderly

20 compliance with all CDC guidelines.

21

65. On Wednesday March 25, 2020, two Lodi Police Officers disrupted The

22 Church’s midweek service. On information and belief, their visit was triggered by

23 someone acting on behalf of Bethel Church (the landlord/lessor) who had informed

24 Lodi Police Department that the Church would be meeting that night, purportedly in

25 violation of the County Orders. Lodi Police Corporal Bradley and Officer Silva entered

26 the foyer of the building where the Church meets at approximately 7:30 p.m. Due to

27 their presence, Pastor Duncan was forced to communicate with them for an extended

28

22 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3166 Page 165 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 23 of 51

1 period of time and was therefore prohibited from performing his regular pastoral duties

2 of leading the Church worship service that evening.

3

66. During the conversation, Corporal Bradley advised Pastor Duncan that he

4 was there to “educate” the Church about the San Joaquin County Order. However,

5 Corporal Bradley proceeded to warn Pastor Duncan about the steps the Police

6 Department was prepared to take against the Church following this initial “education”

7 procedure, including posting a written cease and desist notice on the building for non-

8 compliance. Bradley continued, that, if this were not heeded, the Lodi Police would

9 likely follow up with an enforcement action, purportedly for “disturbing the peace.”

10 Based on the totality of this conversation, it was Pastor Duncan’s understanding, who is

11 a retired law enforcement officer, that these Lodi Police officers had been dispatched

12 with orders to shut down the Church’s assembly and order them to vacate the building.

13

67. On March 27, 2020, counsel for Plaintiffs submitted a cease and desist

14 letter to the Lodi Police department and other city officials. The letter demanded that

15 government officials cease all enforcement actions and agree to honor and respect the

16 Church’s First Amendment rights to peaceably assemble, freedom of speech, and free

17 exercise of religion. The City of Lodi did not immediately respond to Plaintiffs’

18 counsel, but waited more than a week to reply.

19

68. On March 29, 2020, the Church met for its regular Sunday services.

20 Before the services started, the building was prepared to accommodate social

21 distancing.

22

69. Signs were posted on the Church doors and in the entry area advising

23 Church members of the following:

24

“COVID-19 Precautions: Please abide by the following, just as you would

25

at the grocery store- 1. Wash hands upon entry. 2. Social distancing 6 feet or more. 3. Sit together as a household, with your children. 4. If you are

26

sick or at risk, please know that you are loved, but we request that you

27

resort to isolation for your safety and the safety of others. We will be live

on the church’s Facebook and hope you tune in.”

28

23 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3167 Page 166 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 24 of 51

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

70. Hand sanitizer and sanitizing wipes were placed in the foyer near the signs

21 (See photo above).

22

71. The drinking fountain was blocked off and covered.

23 ///

24 ///

25 ///

26 ///

27 ///

28 ///

24 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3168 Page 167 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 25 of 51

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

72. The rows of chairs in the sanctuary were separated from each other by

24 more than six (6) feet (See pictures below).

25 ///

26 ///

27 ///

28 ///

25 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3169 Page 168 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 26 of 51

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

73. On April 1, 2020, Lodi Police officers posted a “public nuisance” notice on

19 the building leased by the Church. A true and correct copy of this notice is attached as

20 Exhibit 9. Printed on the City of Lodi’s letterhead, the notice stated that “the business

21 activities conducted on these premises are illegal.” Exhibit 9. Referencing California

22 Health and Safety Codes §§ 120130 and 12025, California Penal Code §373a, the State

23 Order, and the County Order, the notice declared that “This posting constitutes written

24 legal notice to discontinue non-essential business activities and maintenance of a

25 public nuisance upon these premises.” Exhibit 9 (emphasis added). The notice listed

26 the business name targeted as, “Cross Culture Church” [sic]. Exhibit 9. The notice

27 threatened that “failure to discontinue non-essential business activities is a

28 misdemeanor… that each violation was a “separate and distinct offence” the may be

“prosecuted until the nuisance is abated.” Exhibit 9 (emphasis added). It was signed

26 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3170 Page 169 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 27 of 51

1 by Sgt. Fritz, Sgt. Ambriz and Officer Stillman, of the Lodi Police Department, badge

2 numbers 56, 32, and 34.

3

74. Less than two days later, on April 3, 2020, San Joaquin County issued its

4 “Order Prohibiting Public Assembly” Exhibit 4 (discussed in detail above), which

5 specifically targeted the Church and forbade any use of the buildings or parking lot for

6 any reason, except for daycare.

7

75. On Sunday, April 5, 2020 when Pastor Duncan arrived at the Church to

8 open up for Palm Sunday services, he was greeted by a half dozen law enforcement

9 officers who informed him that the locks had been changed on the church building by

10 the landlord. They also advised him that if he were to access the parking lot and/or

11 church building that they would cite him for violating the public health orders, but

12 would not arrest him. The Church’s lease for the subject property is still in effect, it has

13 not expired, and no unlawful detainer proceedings have been filed to prevent the

14 Church’s legal occupancy and possession pursuant to the terms of the lease agreement.

15 The landlord changed the locks without a judicial order to do so.

16 CONSTITUTIONAL CLAIMS
17

18

COUNT I

19

THE ORDERS VIOLATE PLAINTIFFS’ RIGHT TO FREE EXERCISE OF

20

RELIGION UNDER THE FIRST AMENDMENT

21

22

76. Plaintiffs incorporate by reference the allegations in the preceding

23 paragraphs, as if fully set forth herein.

24

77. The Free Exercise Clause of the First Amendment to the United States

25 Constitution, as applied to the states by the Fourteenth Amendment, prohibits

26 Defendants from abridging Plaintiffs’ right to free exercise of religion.

27

78. Plaintiffs have sincerely held religious beliefs that the Bible is the

28 infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its

teachings.

27 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3171 Page 170 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 28 of 51

1

79. Plaintiffs have sincerely held religious beliefs, rooted in the Bible, that

2 followers of Jesus Christ are not to forsake the assembling of themselves together, and

3 that they are to do so even more in times of peril and crisis.

4

80. The State Order and the County Orders, on their face and as applied,

5 prohibit all faith-based assemblies and gatherings in Plaintiffs’ leased Church, including

6 the use of the leased parking lot, even if Plaintiffs follow CDC and state “social

7 distancing guidelines, which is a violation of Plaintiffs’ right to the free exercise of

8 religion.

9

81. The State Order and the County Orders, on their face and as applied, target

10 Plaintiffs’ sincerely held religious beliefs and practices by prohibiting all faith-based

11 gatherings.

12

82. The State Order and the County Orders, on their face and as applied,

13 impermissibly burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to

14 either change those beliefs or to act in contradiction to them, and force Plaintiffs to

15 choose between the teachings and requirements of its sincerely held religious beliefs or

16 Defendants’ imposed value system.

17

83. The State Order and the County Orders, on their face and as applied, place

18 Plaintiffs in an irresolvable conflict between compliance with the orders and

19 compliance with their sincerely held religious beliefs.

20

84. The State Order and the County Orders, on their face and as applied, put

21 substantial pressure on Plaintiffs to violate their sincerely held religious beliefs by

22 ignoring the fundamental teachings and tenets of the Bible concerning the assembling

23 together of the Church.

24

85. The State Order and the County Orders, on their face and as applied, are

25 neither neutral nor generally applicable, but rather specifically and discriminatorily

26 target the religious beliefs, speech, assembly, and viewpoint of Plaintiffs.

27

86. The State Order and the County Orders, on their face and as applied,

28 constitute a substantial burden on Plaintiffs’ sincerely held religious beliefs.

28 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3172 Page 171 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 29 of 51

1

87. Defendants lack a compelling, legitimate, or rational interest in the State

2 Order and County Orders’ application of differential standards for churches and faith-

3 based gatherings than those applicable to other so-called “essential” businesses or

4 services, such as the preschool which continues to meet at the Church location and other

5 commercial establishments where people assemble and congregate.

6

88. Even if the State Order and the County Orders’ restriction on faith-based

7 gatherings were supported by a compelling interest, which they are not, they do not

8 employ the least restrictive means to accomplish the government’s purported interest.

9

89. The State Order and the County Orders fail to accommodate Plaintiffs’

10 sincerely held religious beliefs.

11

90. The State Order and the County Orders, specifically target Plaintiffs’

12 sincerely held religious beliefs, and the Orders set up a system of individualized

13 exemptions that permit certain other similarly situated businesses or services to

14 continue operations under certain guidelines while prohibiting faith-based gatherings,

15 such as Plaintiffs’, from operating under similar guidelines.

16

91. The State Order and the County Orders, on their face and as applied,

17 constitute a religious gerrymander.

18

92. The State Order and the County Orders, on their face and as applied, have

19 caused, are causing, and will continue to cause Plaintiffs’ immediate and irreparable

20 harm, and actual and undue hardship.

21

93. Plaintiffs have no adequate remedy at law to correct the continuing

22 deprivation of their constitutional rights.

23

94. WHEREFORE, Plaintiffs respectfully pray for the relief against

24 Defendants as hereinafter set forth in the prayer for relief.

25 ///

26 ///

27 ///

28 ///

29 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3173 Page 172 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 30 of 51

1

COUNT II

2

THE ORDERS VIOLATE PLAINTIFFS’ RIGHT TO FREEDOM OF

3

ASSEMBLY UNDER THE FIRST AMENDMENT

4

95. Plaintiffs incorporate by reference the allegations in the preceding

5 paragraphs, as if fully set forth herein.

6

96. The First Amendment to the United States Constitution, as applied to the

7 states by the Fourteenth Amendment, prohibits Defendants from abridging the right of

8 the people peaceably to assemble.

9

97. The State Order and the County Orders, on their face and as applied,

10 prohibit all faith-based assemblies and gatherings in the Church, including Plaintiffs’

11 use of the leased parking lot, even if Plaintiffs follow CDC and state “social distancing

12 guidelines, which is a violation of Plaintiffs’ right to peaceably assemble.

13

98. The State Order and the County Orders, on their face and as applied, are an

14 unconstitutional prior restraint on Plaintiffs’ right to assemble.

15

99. The State Order and the County Orders, on their face and as applied,

16 unconstitutionally discriminate on the basis of viewpoint.

17

100. The State Order and the County Orders, on their face and as applied

18 unconstitutionally discriminate on the basis of content.

19

101. Defendants lack a compelling, legitimate, or rational interest in the State

20 Order and County Orders’ application of differential standards for churches and faith-

21 based gatherings than those applicable to other so-called “essential” businesses or

22 services, such as the preschool with continues to meet at the Church location and other

23 commercial establishments where people assemble and congregate.

24

102. The State Order and the County Orders, on their face and as applied, are

25 not the least restrictive means to accomplish any permissible government purpose

26 sought to be served by the Orders.

27

103. The State Order and the County Orders, on their face and as applied, are

28 not narrowly tailored to serve the government’s purported interest.

30 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3174 Page 173 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 31 of 51

1

104. The State Order and the County Orders, on their face and as applied, do not

2 leave open ample alternative channels of communication for Plaintiffs.

3

105. The State Order and the County Orders, on their face and as applied, are

4 irrational and unreasonable and impose unjustifiable and unreasonable restrictions on

5 Plaintiffs’ constitutionally protected right to assembly.

6

106. The State Order and the County Orders, on their face and as applied,

7 impermissibly vest unbridled discretion in the hands of government officials, including

8 Defendants, to apply or not apply the orders in a manner to restrict free assembly.

9

107. The State Order and the County Orders, on their face and as applied, are

10 under-inclusive by limiting their prohibitions to only certain entities, organizations, or

11 businesses deemed non-essential.

12

108. The State Order and the County Orders, on their face and as applied, are

13 unconstitutionally vague and overbroad as they chill and abridge the free assembly

14 rights of Plaintiffs.

15

109. On their face and as applied, the State Order and the County Orders are a

16 violation of Plaintiffs’ right to free assembly and have caused, are causing, and will

17 continue to cause Plaintiff to suffer immediate and irreparable injury and undue and

18 actual hardship.

19

110. Plaintiffs have no other adequate remedy at law to correct the continuing

20 deprivation of its constitutional rights.

21

111. WHEREFORE, Plaintiffs respectfully pray for the relief against

22 Defendants as hereinafter set forth in the prayer for relief.

23

COUNT III

24

THE ORDERS VIOLATE

25

PLAINTIFFS’ RIGHT TO FREEDOM OF SPEECH UNDER

26

THE FIRST AMENDMENT

27

112. Plaintiffs incorporate by reference the allegations in the preceding

28 paragraphs, as if fully set forth herein.

31 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3175 Page 174 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 32 of 51

1

113. The Free Speech Clause of the First Amendment to the United States

2 Constitution, as applied to the states by the Fourteenth Amendment, prohibits

3 Defendants from abridging Plaintiffs’ freedom of speech.

4

114. The State Order and the County Orders, on their face and as applied,

5 prohibit all faith-based assemblies, gatherings, and religious speech in Plaintiffs’ leased

6 Church, including Plaintiffs’ use of the leased parking lot for expressive activities, even

7 if Plaintiffs follow CDC and state social distancing guidelines, which is a violation of

8 Plaintiffs’ right to the freedom of speech.

9

115. The State Order and the County Orders, on their face and as applied, are an

10 unconstitutional prior restraint on Plaintiffs’ speech.

11

116. The State Order and the County Orders, on their face and as applied,

12 unconstitutionally discriminate on the basis of viewpoint.

13

117. The State Order and the County Orders, on their face and as applied,

14 unconstitutionally discriminate on the basis of content.

15

118. Defendants lack a compelling, legitimate, or rational interest in the State

16 Order and County Orders’ application of differential standards for churches and faith-

17 based gatherings than those applicable to other so-called “essential” businesses or

18 services, such as the preschool with continues to meet at the Church location, and other

19 commercial establishments where people assemble and congregate.

20

119. The State Order and the County Orders, on their face and as applied, are

21 not the least restrictive means to accomplish any permissible government purpose

22 sought to be served by the Orders.

23

120. The State Order and the County Orders, on their face and as applied, are

24 not narrowly tailored to serve the government’s purported interest.

25

121. The State Order and the County Orders, on their face and as applied, do not

26 leave open ample alternative channels of communication for Plaintiffs.

27

122. The State Order and the County Orders, on their face and as applied, are

28 irrational and unreasonable and imposes unjustifiable and unreasonable restrictions on

32 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3176 Page 175 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 33 of 51

1 Plaintiffs’ constitutionally protected speech.

2

123. The State Order and the County Orders, on their face and as applied,

3 impermissibly vest unbridled discretion in the hands of government officials, including

4 Defendants, to apply or not apply the Orders in a manner to restrict free speech.

5

124. The State Order and the County Orders, on their face and as applied, are

6 under-inclusive by limiting their prohibitions to only certain entities, organizations, or

7 businesses deemed “non-essential.”

8

125. The State Order and the County Orders, on their face and as applied, are

9 unconstitutionally overbroad as they chill and abridge the free speech rights of

10 Plaintiffs.

11

126. On their face and as applied, the State Order and County Orders violation

12 of Plaintiffs’ right to free speech has caused, is causing, and will continue to cause

13 Plaintiffs to suffer immediate and irreparable injury and undue and actual hardship.

14

127. Plaintiffs have no other adequate remedy at law to correct the continuing

15 deprivation of their constitutional rights.

16

128. WHEREFORE, Plaintiffs respectfully pray for the relief against

17 Defendants as hereinafter set forth in the prayer for relief.

18

COUNT IV

19

THE ORDERS VIOLATE

20

THE ESTABLISHMENT CLAUSE OF THE FIRST AMENDMENT

21

129. Plaintiffs incorporate by reference the allegations in the preceding

22 paragraphs, as if fully set forth herein.

23

130. The Establishment Clause of the First Amendment to the United States

24 Constitution, as applied to the states by the Fourteenth Amendment, prohibits the

25 government from establishing a religion.

26

131. The Establishment Clause also prohibits excessive government

27 entanglement with religion.

28

33 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3177 Page 176 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 34 of 51

1

132. The Establishment Clause also prohibits the government from showing

2 hostility toward religion and prohibits showing favoritism towards one religious sect

3 over another or towards non-religion and religion.

4

133. The State Order and the County Orders, on their face and as applied,

5 permit Defendants to display impermissible hostility towards religious or faith-based

6 gatherings.

7

134. The State Order and the County Orders, on their face and as applied,

8 impermissibly show favoritism toward certain non-religious gatherings over religious or

9 faith-based gatherings.

10

135. The State Order and the County Orders, on their face and as applied,

11 violate the Establishment Clause because they excessively entangle the government

12 with religion.

13

136. The State Order and the County Orders, on their face and as applied, have

14 caused, are causing, and will continue to cause Plaintiffs immediate and irreparable

15 harm, and actual and undue hardship.

16

137. Plaintiffs have no adequate remedy at law to correct the continuing

17 deprivation of their cherished constitutional liberties.

18

138. WHEREFORE, Plaintiffs respectfully pray for the relief against

19 Defendants as hereinafter set forth in the prayer for relief.

20

COUNT V

21

THE ORDERS VIOLATEPLAINTIFFS’ RIGHT TO EQUAL

22

PROTECTION UNER THE FOURTEENTH AMENDMENT

23

139. Plaintiffs incorporate by reference the allegations in the preceding

24 paragraphs, as if fully set forth herein.

25

140. The Fourteenth Amendment to the United States Constitution guarantees

26 Plaintiffs the right to equal protection under the law.

27

141. The State Order and County Orders, on their face and as applied, are an

28 unconstitutional abridgement of Plaintiffs’ right to equal protection under the law, are

34 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3178 Page 177 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 35 of 51

1 not neutral, and specifically target Plaintiffs and other faith-based gatherings for

2 unequal treatment.

3

142. The State Order and County Orders, on their face and as applied, are an

4 unconstitutional abridgment of Plaintiffs’ right to equal protection because they permit

5 Defendants to treat Plaintiffs differently from other similarly situated businesses and

6 organizations on the basis of content and viewpoint of Plaintiffs’ gatherings.

7

143. The State Order and County Orders, on their face and as applied,

8 impermissibly discriminate between certain non-religious gatherings and religious or

9 faith-based gatherings.

10

144. Defendants lack a compelling, legitimate, or rational interest in the State

11 Order and County Orders’ application of differential standards for churches and faith-

12 based gatherings than those applicable to other so-called “essential” businesses or

13 services, including the preschool that continues to meet at the Church site and other

14 commercial business where people assemble and congregate.

15

145. The State Order and County Orders, on their face and as applied, are not

16 the least restrictive means to accomplish any permissible government purpose sought to

17 be served.

18

146. The State Order and County Orders, on their face and as applied, do not

19 have a rational basis.

20

147. The State Order and County Orders, on their face and as applied, are

21 irrational and unjustifiable and impose irrational and unjustifiable restrictions on

22 Plaintiffs’ religious and faith-based gatherings.

23

148. The State Order and County Orders, on their face and as applied, have

24 caused, are causing, and will continue to cause Plaintiffs immediate and irreparable

25 harm, and actual and undue hardship.

26

149. Plaintiffs have no other adequate remedy at law to correct the continuing

27 deprivation of their constitutional rights.

28

35 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3179 Page 178 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 36 of 51

1

150. WHEREFORE, Plaintiffs respectfully pray for relief against Defendants as

2 hereinafter set forth in the prayer for relief.

3

COUNT VI

4

THE ORDERS VIOLATE

5

PLAINTIFFS’ RIGHT TO ASSEMBLE UNDER ARTICLE I, §3 OF THE

6

CALIFORNIA CONSTITUTION

7

151. Plaintiffs incorporate by reference the allegations in the preceding

8 paragraphs, as if fully set forth herein.

9

152. Article I, Section 3 of the Constitution of the State of California states that

10 “[t]he people have the right…to assemble freely to consult for the common good.”

11

153. The State Order and County Orders, on their face and as applied,

12 completely bar Plaintiffs’ religious gatherings even if Plaintiffs fully comply with the

13 CDC and state social distancing guidelines.

14

154. The State Order and County Orders, on their face and as applied, are an

15 unconstitutional prior restraint on Plaintiffs’ right to assemble.

16

155. The State Order and County Orders, on their face and as applied,

17 unconstitutionally discriminate on the basis of viewpoint.

18

156. The State Order and County Orders, on their face and as applied,

19 unconstitutionally discriminate on the basis of content.

20

157. Defendants lack a compelling, legitimate, or rational interest in the State

21 Order and the County Orders’ application of differential standards for churches and

22 faith-based gatherings than those applicable to other so-called “essential” businesses or

23 services.

24

158. The State Order and County Orders, on their face and as applied, are not

25 the least restrictive means to accomplish any permissible government purpose sought to

26 be served by the Orders.

27

159. The State Order and County Orders, on their face and as applied, are not

28 narrowly tailored to serve the government’s purported interest.

36 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3180 Page 179 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 37 of 51

1

160. The State Order and County Orders, on their face and as applied, do not

2 leave open ample alternative channels of communication for Plaintiffs.

3

161. The State Order and County Orders, on their face and as applied, are

4 irrational and unreasonable and impose unjustifiable and unreasonable restrictions on

5 Plaintiffs’ constitutionally protected right to assembly.

6

162. The State Order and County Orders, on their face and as applied,

7 impermissibly vest unbridled discretion in the hands of government officials, including

8 Defendants, to apply or not apply the Orders in a manner to restrict free assembly.

9

163. The State Order and County Orders, on their face and as applied, are

10 under-inclusive by limiting their prohibitions to only certain entities, organizations, or

11 businesses deemed “non-essential.”

12

164. The State Order and County Orders, on their face and as applied, are

13 unconstitutionally vague and overbroad as they chill and abridge the free assembly

14 rights of Plaintiffs.

15

165. The State Order and County Orders’ violation of Plaintiffs’ right to free

16 assembly have caused, are causing, and will continue to cause Plaintiffs to suffer

17 immediate and irreparable injury and undue and actual hardship.

18

166. Plaintiffs have no other adequate remedy at law to correct the continuing

19 deprivation of their constitutional rights.

20

167. WHEREFORE, Plaintiffs respectfully pray for the relief against

21 Defendants as hereinafter set forth in the prayer for relief.

22

COUNT VII

23

THE ORDERS VIOLATE PLAINTIFFS’ RIGHT TO LIBERTY UNDER

24

ARTICLE 1, § 1 OF THE CALIFORNIA CONSTITUTION

25

168. Plaintiffs incorporate by reference the allegations in the preceding

26 paragraphs, as if fully set forth herein.

27

169. In California, “[a]ll people are by nature free and independent and have

28 inalienable rights. Among these are enjoying and defending life and liberty, acquiring,

37 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3181 Page 180 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 38 of 51

1 possessing, and protecting property, and pursuing and obtaining safety, happiness, and

2 privacy. Cal. Const. Art. 1, §1.

3

170. California courts have held that Public Health Officials’ authority over the

4 rights of personal liberty is limited. Before exercising their full powers to quarantine,

5 there must be “reasonable grounds [] to support the belief that the person so held is

6 infected.” Ex parte Martin, 83 Cal. App. 2d 164 (1948). Public Health Officials must be

7 able to show “probable cause to believe the person so held has an infectious disease ...”

8 Id.

9

171. California courts found that Public Health Officials could not quarantine

10 twelve (12) blocks of San Francisco Chinatown because of nine (9) deaths due to

11 bubonic plague. See Jew Ho v. Williamson, 103 F. 10 (C.C. Cal. 1900), and Wong Wai

12 v. Williamson, 103 F. 1 (C.C. Cal. 1900). The court found it “purely arbitrary,

13 unreasonable, unwarranted, wrongful, and oppressive interference with the personal

14 liberty of complainant” who had “never had or contracted said bubonic plague; that he

15 has never been at any time exposed to the danger of contracting it, and has never been

16 in any locality where said bubonic plague, or any germs of bacteria thereof, has or have

17 existed”. Jew Ho, 103 F. 10 (C.C. Cal. 1900).

18

172. California courts have found that “a mere suspicion [of a contagious

19 disease], unsupported by facts giving rise to reasonable or probable cause, will afford

20 no justification at all for depriving persons of their liberty and subjecting them to virtual

21 imprisonment under a purported order of quarantine.” Ex parte Arata, 52 Cal. App. 380,

22 383 (1921) (emphasis added).

23

173. In Jew Ho v. Williamson,103 F. 10 (C.C. Cal. 1900), and Wong Wai v.

24 Williamson, 103 F. 1 (CC Cal. 1900), the California courts found that there were more

25 than 15,000 people living in the twelve blocks of San Francisco Chinatown who were to

26 be quarantined. The courts found it unreasonable to shut down the ability of over

27 15,000 people to make a living because of nine deaths. This was one death for every

28 1,666 inhabitants of Chinatown.

38 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3182 Page 181 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 39 of 51

1

174. Plaintiffs have never had or contracted said coronavirus; they have never

2 been at any time exposed to the danger of contracting it, and have never been in any

3 locality where said coronavirus or any germs of bacteria thereof, has or have existed.

4

175. Requiring Plaintiffs to abstain from all religious gatherings, despite

5 substantial modifications to satisfy the public health interests at stake, violates their

6 California Constitutional liberty rights.

7

176. Plaintiffs have no adequate remedy at law and will suffer serious and

8 irreparable harm to their constitutional rights unless Defendants are enjoined from

9 implementing and enforcing the Orders.

10

177. Plaintiffs have found it necessary to engage the services of private counsel

11 to vindicate their rights under the law. Plaintiffs are therefore entitled to an award of

12 attorney fees and costs pursuant to California Code of Civil Procedure Section 1021.5.

13

COUNT VIII

14

THE GATHERING ORDER VIOLATES PLAINTIFFS’ RIGHT TO

15 FREEDOM OF SPEECH UNDER ARTICLE 1, § 2 OF THE CALIFORNIA

16

CONSTITUTION

17

178. Plaintiffs incorporate by reference the allegations in the preceding

18 paragraphs, as if fully set forth herein.

19

179. Article I, Section 2 of the Constitution of the State of California states,

20 “Every person may freely speak, write and publish his or her sentiments on all subjects,

21 being responsible for the abuse of this right. A law may not restrain or abridge liberty of

22 speech or press.”

23

180. The State Order and County Orders, on their face and as applied,

24 completely bar religious speech at religious gatherings, even if Plaintiffs fully comply

25 with the CDC and state social distancing guidelines. This violates Plaintiffs’ right to the

26 freedom of speech.

27

181. The State Order and County Orders, on their face and as applied, are an

28 unconstitutional prior restraint on Plaintiffs’ speech.

39 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3183 Page 182 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 40 of 51

1

182. The State Order and County Orders, on their face and as applied,

2 unconstitutionally discriminate on the basis of viewpoint.

3

183. The State Order and County Orders, on their face and as applied,

4 unconstitutionally discriminate on the basis of content.

5

184. Defendants lack a compelling, legitimate, or rational interest in the State

6 Order and County Orders’ application of differential standards for churches and faith-

7 based gatherings than those applicable to other so-called “essential” businesses or

8 services, including the preschool that continues to meet at the Church site and other

9 commercial business where people assemble and congregate.

10

185. The State Order and County Orders, on their face and as applied, are not

11 the least restrictive means to accomplish any permissible government purpose sought to

12 be served by the Orders.

13

186. The State Order and County Orders, on their face and as applied, are not

14 narrowly tailored to serve the government’s purported interest.

15

187. The State Order and County Orders, on their face and as applied, do not

16 leave open ample alternative channels of communication for Plaintiffs.

17

188. The State Order and County Orders, on their face and as applied, are

18 irrational and unreasonable and impose unjustifiable and unreasonable restrictions on

19 Plaintiffs’ constitutionally protected speech.

20

189. The State Order and County Orders, on their face and as applied,

21 impermissibly vest unbridled discretion in the hands of government officials, including

22 Defendants, to apply or not apply the Orders in a manner to restrict free speech.

23

190. The State Order and County Orders, on their face and as applied, are

24 under-inclusive by limiting their prohibitions to only certain entities, organizations, or

25 businesses deemed non-essential.

26

191. The State Order and County Orders, on their face and as applied, are

27 unconstitutionally overbroad as they chill and abridge the free speech rights of

28 Plaintiffs.

40 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3184 Page 183 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 41 of 51

1

192. On their face and as applied, the State Order and County Orders have

2 caused, are causing, and will continue to cause Plaintiffs to suffer immediate and

3 irreparable injury and undue and actual hardship.

4

193. Plaintiffs have no other adequate remedy at law to correct the continuing

5 deprivation of its constitutional rights.

6

194.

WHEREFORE, Plaintiffs respectfully pray for the relief against

7 Defendants as hereinafter set forth in the prayer for relief.

8

COUNT IX

9

THE ORDERS VIOLATE PLAINTIFFS’ RIGHT TO FREE EXERCISE

10

AND ENJOYMENT OF RELIGION UNDER ARTICLE I, §4 OF THE

11

CALIFORNIA CONSTITUTION

12

195. Plaintiffs incorporate by reference the allegations in the preceding

13 paragraphs, as if fully set forth herein.

14

196. Article I, § 4 of the Constitution of the State of California states, “Free

15 exercise and enjoyment of religion without discrimination or preference are

16 guaranteed.”

17

197. “[T]he religion clauses of the California Constitution are read more

18 broadly than their counterparts in the federal Constitution.” Carpenter v. City and

19 County of San Francisco, 93 F.3d 627, 629 (1996).

20

198. Plaintiffs have sincerely held religious beliefs that the Bible is the

21 infallible, inerrant word of the Lord Jesus Christ, and that they are to follow its

22 teachings.

23

199. Plaintiffs have sincerely held religious beliefs, rooted in the Bible’s

24 commands, that followers of Jesus Christ are not to forsake the assembling of

25 themselves together, and that they are to do so even more in times of peril and crisis.

26

200. The State Order and County Orders, on their face and as applied,

27 completely bar Plaintiffs’ faith-based religious gatherings and use of their parking lot,

28

41 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3185 Page 184 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 42 of 51

1 even if Plaintiffs fully comply with the CDC and state social distancing guidelines, in

2 violation of Plaintiffs’ right to the free exercise of religion.

3

201. The State Order and County Orders, on their face and as applied, target

4 Plaintiffs’ sincerely held religious beliefs by prohibiting faith-based assemblies of any

5 number of people and the even the use of the Church parking lot, whether or not

6 Plaintiffs follows CDC social distancing guidelines.

7

202. The State Order and County Orders, on their face and as applied,

8 impermissibly burden Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to

9 either change those beliefs or to act in contradiction to them, and force Plaintiffs to

10 choose between the requirements of their sincerely held religious beliefs or Defendants’

11 imposed value system, which deems religious assembly as non-essential.

12

203. The State Order and County Orders, on their face and as applied, place

13 Plaintiffs in an irresolvable conflict between compliance with the Orders and their

14 sincerely held religious beliefs.

15

204. The State Order and County Orders, on their face and as applied, put

16 substantial pressure on Plaintiffs to violate their sincerely held religious beliefs by

17 ignoring the fundamental teachings of Christianity concerning the assembling of church

18 members.

19

205. The State Order and County Orders, on their face and as applied, are

20 neither neutral nor generally applicable, but rather specifically and discriminatorily

21 target the religious beliefs, speech, assembly, and viewpoint of Plaintiffs.

22

206. The State Order and County Orders, on their face and as applied, constitute

23 a substantial burden on Plaintiffs’ sincerely held religious beliefs.

24

207. Defendants lack a compelling, legitimate, or rational interest in the State

25 Order and County Orders’ application of differential standards for churches and faith-

26 based gatherings than those applicable to other so-called “essential” businesses or

27 services, including the preschool that continues to meet at the Church site and other

28 commercial business where people assemble and congregate.

42 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3186 Page 185 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 43 of 51

1

208. Even if the State Order and County Orders’ restriction on faith-based

2 gatherings were supported by a compelling interest, which they are not, they are not the

3 least restrictive means to accomplish the government’s purported interest.

4

209. The State Order and County Orders, on their face and as applied, fail to

5 accommodate Plaintiffs’ sincerely held religious beliefs.

6

210. The State Order and County Orders, on their face and as applied,

7 specifically target Plaintiffs’ sincerely held religious beliefs and set up a system of

8 individualized exemptions that permit certain other similarly situated businesses or

9 services to continue operations under certain guidelines while prohibiting faith-based

10 gatherings from operating with similar guidelines.

11

211. The State Order and County Orders, on their face and as applied, constitute

12 a religious gerrymander.

13

212. The State Order and County Orders, on their face and as applied, have

14 caused, are causing, and will continue to cause Plaintiffs immediate and irreparable

15 harm, and actual and undue hardship.

16

213. Plaintiffs have no adequate remedy at law to correct the continuing

17 deprivation of their Constitutional and statutory rights unless Defendants are enjoined

18 from implementing and enforcing the State Order and County Orders.

19

214. WHEREFORE, Plaintiffs respectfully pray for the relief against

20 Defendants as hereinafter set forth in their prayer for relief.

21

STATUTORY CLAIMS

22

COUNT X

23

THE GATHERING ORDER VIOLATES THE CHURCH’S RIGHTS

24 UNDER THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS

25

ACT, 42 U.S.C. § 2000 et. Seq.

26

215. Plaintiffs incorporate by reference the allegations in the preceding

27 paragraphs, as if fully set forth herein.

28

43 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3187 Page 186 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 44 of 51

1

216. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)

2 states that “[n]o government shall impose or implement a land use regulation in a

3 manner that imposes a substantial burden on the religious exercise of a person,

4 including a religious assembly or institution.” 42 U.S.C. § 2000cc(a)(1). If the

5 government does impose such a restriction, it must then demonstrate that such a burden

6 on the religious assembly is supported by a compelling interest and is the least

7 restrictive means to further that alleged interest.

8

217. RLUIPA further mandates that no government “impose or implement a

9 land use regulation in a manner that treats a religious assembly or institution on less

10 than equal terms with a nonreligious assembly or institution.” 42 U.S.C. §2000cc(b)(1).

11

218. RLUIPA further states that “[n]o government shall impose or implement a

12 land use regulation that (A) totally excludes religious assemblies from a jurisdiction; or

13 (B) unreasonably limits religious assemblies, institutions, or structures within a

14 jurisdiction.” 42 U.S.C. §2000cc(b)(3).

15

219. The State Order and County Orders, on their face and as applied, bar

16 Plaintiff Church from assembling for worship in its leased facility and even from using

17 the parking lot, thereby imposing a land use regulation in a manner that imposes a

18 substantial burden on the religious exercise of the Church, a religious assembly or

19 institution, in violation of 42 U.S.C. § 2000cc(a)(1).

20

220. The State Order and County Orders, on their face and as applied, impose or

21 implement a land use regulation in a manner that treats a religious assembly or

22 institution on less than equal terms with a nonreligious assembly or institution, in

23 violation of 42 U.S.C. §2000cc(b)(1).

24

221. The State Order and County Orders, on their face and as applied, impose or

25 implement a land use regulation that totally excludes religious assemblies from a

26 jurisdiction or unreasonably limits religious assemblies, institutions, or structures within

27 a jurisdiction, in violation of 42 U.S.C. §2000cc(b)(3).

28

44 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3188 Page 187 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 45 of 51

1

222. The Church has sincerely held religious beliefs that the Bible is the

2 infallible, inerrant word of the Lord Jesus Christ, and that Church members are to

3 follow its teachings.

4

223. Plaintiff Church has sincerely held religious beliefs, rooted in the Bible,

5 that followers of Jesus Christ are not to forsake the assembling of themselves together,

6 and that they are to do so even more in times of peril and crisis.

7

224. The State Order and County Orders, on their face and as applied, target the

8 Church’s sincerely held religious beliefs by prohibiting faith-based gatherings of any

9 size, even if they follow CDC “social distancing” guidelines.

10

225. The State Order and County Orders, on their face and as applied,

11 impermissibly and substantially burdens the Church’s sincerely held religious beliefs.

12

226. The State Order and County Orders, on their face and as applied, constitute

13 a substantial burden on the Church’s sincerely held religious beliefs and religious

14 practice of regular assembly.

15

227. Defendants lack a compelling, legitimate, or rational interest in the State

16 Order and County Orders’ application of differential standards for churches and faith-

17 based gatherings than those applicable to other so-called “essential” businesses or

18 services, including the preschool that continues to meet at the Church site and other

19 commercial business where people assemble and congregate.

20

228. Even if the State Order and County Orders’ restriction on faith-based

21 gatherings were supported by a compelling interest, which they are not, the State Order

22 and County Orders do not employ the least restrictive means to accomplish the

23 government’s purported interest.

24

229. The State Order and County Orders, on their face and as applied, have

25 caused, are causing, and will continue to cause the Church immediate and irreparable

26 harm, and actual and undue hardship, as they completely bar the Church’s religious

27 assembly and worship.

28

45 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3189 Page 188 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 46 of 51

1

230. The Church has no adequate remedy at law to correct the continuing

2 deprivation of its Constitutional and statutory rights, unless Defendants are enjoined

3 from implementing and enforcing the State Order and County Orders.

4

231. As the Church has found it necessary to engage the services of counsel to

5 vindicate its rights under the law, the Church is therefore entitled to an award of

6 attorney fees and costs pursuant to California Code of Civil Procedure Section 1021.5.

7

232.

WHEREFORE, the Church respectfully prays for the relief against

8 Defendants as hereinafter set forth in its prayer for relief.

9

PRAYER FOR RELIEF

10

WHEREFORE, Plaintiffs pray for relief as follows:

11

A. That this Court issue a Preliminary Injunction enjoining Defendants,

12 Defendants’ officers, agents, employees, attorneys, and all other persons acting in active

13 concert or participation with them, from enforcing the State Order and County Orders

14 so that:

15

i. Defendants will not apply the State Order and County Orders in any

16 manner as to infringe Plaintiffs’ constitutional and statutory rights by discriminating

17 against their right to assembly, speech, free exercise of religion, equal protection, and

18 all other constitutional and statutory rights outlined herein;

19

ii. Defendants will apply the State Order and County Orders in a manner that

20 treats Plaintiffs’ faith-based gathering on equal terms and in an equal manner with that

21 afforded other non-faith-based gatherings;

22

iii. Defendants will permit faith-based gatherings to continue to meet so long

23 as they comply with the same social distancing and reasonable limitations Defendants

24 have placed on similar non-faith-based assemblies in the State Order and County

25 Orders; and

26

iv. Defendants will permit Plaintiffs the opportunity to comport their behavior

27 to any further limitations or restrictions that Defendants may impose in any future

28

46 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3190 Page 189 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 47 of 51

1 modification, revision, or amendment of State Order and County Orders or similar

2 directive, instruction, ordinance, or other legally operative mechanisms.

3

B. That this Court issue a Permanent Injunction enjoining Defendants,

4 Defendants’ officers, agents, employees, attorneys, and all other persons acting in active

5 concert or participation with them, from enforcing the State Order and County Orders

6 so that:

7

i. Defendants will not apply State Order and County Orders in any manner as

8 to infringe Plaintiffs’ constitutional and statutory rights by discriminating against their

9 right to assembly, speech, free exercise of religion, equal protection, and all other

10 constitutional and statutory rights outlined herein;

11

ii. Defendants will apply the State Order and County Orders in a manner that

12 treats Plaintiffs’ faith-based gatherings on equal terms and in an equal manner with that

13 afforded other non-faith-based gatherings;

14

iii. Defendants will permit faith-based gatherings to continue to meet so long

15 as they comply with the same social distancing, precautionary, and reasonably

16 limitations Defendants have placed on similar non-faith-based assemblies; and

17

iv. Defendants will permit Plaintiffs the opportunity to comport their behavior

18 to any further limitations or restrictions that Defendants may impose in any future

19 modification, revision, or amendment of the State Order and County Orders or similar

20 directive, instruction, ordinance, or other legally operative mechanisms.

21

C. That this Court render a Declaratory Judgment declaring that the State

22 Order and County Orders both on their face and as applied by Defendants are

23 unconstitutional under the United States Constitution and California Constitution, and

24 declaring that:

25

i. Defendants have violated Plaintiffs’ right to free exercise of religion by

26 impermissibly prohibiting faith-based gatherings, substantially burdening their sincerely

27 held religious beliefs and applying criteria that are neither neutral nor generally

28 applicable to religious and non-religious gatherings;

47 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3191 Page 190 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 48 of 51

1

ii. Defendants have violated Plaintiffs’ right to freedom of assembly by

2 impermissibly prohibiting faith-based gatherings;

3

iii. Defendants have violated Plaintiffs’ right to freedom of speech by

4 impermissibly prohibiting faith-based gatherings of more than ten people;

5

iv. Defendants have violated Plaintiffs’ right to equal protection of the laws by

6 impermissibly prohibiting faith-based gatherings and applying criteria that treats faith-

7 based gatherings in a discriminatory and dissimilar manner than that applied to various

8 non-religious gatherings;

9

v. Defendants have violated the Establishment Clause by impermissibly

10 demonstrating hostility towards faith- based gatherings and by impermissibly showing

11 favoritism to certain non-religious gatherings;

12

vii. Defendants have violated the Religious Land Use and Institutionalized

13 Persons Act by substantially and impermissibly burdening the Church’s sincerely held

14 religious beliefs and treating it in an unequal manner to other non-religious assemblies

15 or institutions, by imposing a substantial burden on the Church’s sincerely held

16 religious beliefs without a compelling government interest, and without deploying the

17 least restrictive means to achieve any permissible government interest; and

18

D. That this Court award Plaintiffs nominal damages for the violation of

19 Plaintiffs’ constitutional rights.

20

E. That this Court adjudge, decree, and declare the rights and other legal

21 relations within the subject matter here in controversy so that such declaration shall

22 have the full force and effect of final judgment.

23

F. That this Court retain jurisdiction over the matter for the purposes of

24 enforcing this Court’s order.

25

G. That this Court declare Plaintiffs are a prevailing party and award Plaintiffs

26 the reasonable costs and expenses of this action, including a reasonably attorney’s fees

27 in accordance with 42 U.S.C. §1988.

28 ///

48 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3192 Page 191 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 49 of 51

1

H. That this Court grant such other and further relief as this Court deems

2 equitable and just under the circumstances.

3

Respectfully submitted,

4

5

NATIONAL CENTER FOR LAW &

6

POLICY

7 Dated: April 22, 2020 8 9 10 11

/s/ Dean R. Broyles, Esq. Dean R. Broyles Attorneys for Plaintiffs, Cross Culture Christian Center and Pastor Jonathan Duncan

12

ADVOCATES FOR FAITH & FREEDOM

13

14 Dated: April 22, 2020 15 16 17

/s/ Robert H. Tyler, Esq. Robert H. Tyler Attorneys for Plaintiffs, Cross Culture Christian Center and Pastor Jonathan Duncan

18

19

20

21

22

23

24

25

26

27

28

49 VERIFIED COMPLAINT

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3193 Page 192 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 50 of 51

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3194 Page 193 of Case 2:20-cv-00832-JAM-CKD Doc2u5m5ent 1 Filed 04/22/20 Page 51 of 51

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3195 Page 194 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3196 Page 195 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3197 Page 196 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3198 Page 197 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3199 Page 198 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3200 Page 199 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3201 Page 200 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3202 Page 201 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3203 Page 202 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3204 Page 203 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3205 Page 204 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3206 Page 205 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3207 Page 206 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3208 Page 207 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.1 Page 1 of 12

;O\OWSK5R# 8\KRKW
42 3K\ >Y#(&('%+ ! &&.*+3O\XK\NY@VKd5K\#! @WL'%.+-
" BKX5SOQY4!2 .'&'C6<6@9?>6/ +&.#+((#*&&%
# 72B4:=:<6/ +&.#((%#)*,.

$

%

      

    

&

'

23:5:>8 @<246 =:>:BCA:6B! K4R_\MR0
(
@VKSX^SPP!

42B6 >?# '20CV0683 BAS AHG

Ȁ

!  

`#

#  

#   !

! F:<=2 ;# F??C6>! @_LVS9MOKV^?RPPSMO\   

PY\BKX5SOQY4Y_X^c!SXRO\YPPSMMSKKVZKMS^c0 " ^RO4?D>CG ?7 B2> 5:68?0 KXN5?6B &

# ^R\Y_QR&%%S!XMV_]S`O!

$

5OPOXNKX^]#

%

&

'



(

@VKSX2^LSPSPNSX@Q VKM=SOXS]^\SOȀ]^ROg4R_\MRhL\SXQ^]RS]7\OO6bO\MS]MO K]OKQKSX]^

!Ȁ Ȁ&FSVWK;# FYY^OXS!XRO\YPPSMMSKKVZKMKS]^^cRO@_LVS9MOKV^R?PPSMOY\PBKX5SOQY4Y_X^c0

! Ȁ' CRO4Y_X^cYPBKX5SOQYK0XNȀ! ( 5?6B &^R\Y_QR&%%S!XM]VS`_O!KXNKVVOQKO]P]YVVYa]/

!!

 

!"

&# 2LSNSX@Q VKM=SOXS]^\SOL]\SXQ^] RS]]_S^^YMRKVVO^XRQOgO?\NO\ YP^RO9OKV^R

!# ?PPSMOK\ XN6WO\QOXMAcOQ_VK^SYZX\]YhW_VQK^LOcN ^RO5OPOXNK] XY^X 2Z\SV-! '%'%

!$ ȀRO\OSXKP^R^OOg\!?\NO\!hK^^KMRKO]N6bRSLS&^ !aRSMRL\SXQK] ]aOOZSXLQKXYX2]]OWLVcK! XN

!% O]ZOMSKAVOVVcSQSY2]_]]OWLVc^!RKS^]_XMYX]^S^_^SYYXX"KSV^P]K" MKOXNK]KZZVSOLNO!MK_]SO^S]

!& XY^XK\\YaVc^KSVY\KOXNNNYO]XY^ZO\WSV^ O]]\O]^\SM^SW`OOK]X^YKMRSO^`OROQY`O\XWOX^j]

!' SX^O\Oa]S^^RY_L^_\NOXSX^RQO@VKSX^S4PYPX]j]^S^_^SYAXSKQVR]#^

)))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3209 Page 208 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.2 Page 2 of 12

'# CROMRKVVOXYQ\NOON\]ZOMSPSMZK\VYVRSc LS\^O] VSQSYQ_K] ^RO\S]XaQRSVOKVVYaSXQ

! ObMOZ^SYPXY]\WY\O^RKXYXOR_XN\ONȀ&%%L\YKNMK^OQY\YSOPX] YX"\OVSQSLY_]_S]XO]]OK] XN

" KM^S`S^aSSO^]RY_^KXcVSWS^K^SSYXXM]!V_NSKXVQVYaSQXKQ^ROQ\S]XYPaY\UO\] KXNM_]^YWOY\]P

# ^RY]OL_]SXO]]OK]XNKM^S`S^SO]#

$

(# CRO?\NO\ S] XY^K XO_^\KVVKaYPQOXO\KKVZZVSMKLSLVOSM^Kc _]SO^^K\QO^K]

% 4YX]^S^_^SYXKZ\VYV^Oc M^KOMN^S`SȀ^c2]]OWLVca!RSVO]SQXSPXSM^VKLc _\NOXSX^QRO7\OO6bO\MS]O

& YPAOVSQSYKX!NZ\Y`SNSXLQ\YKNObOWZ^SYPXY]\WKXcKM^S`S^S^ROK] ^K\OXY^MYX]^S^_^SYXKVVc

' Z\Y^OM^ON#
(

   ! 

Ȁ

)# CRO4Y_\^RK]Y\SQSXTK_V\S]NSM^YSY`OX\@VKSX^S7POPNj]O\K4VKSW_XNOD\ B4YX]^#!

2\^#:::! BOM'! KXN_XNO'\- D#B#4#ee &((&KXN&()( ȀK Ȁ(L!OMK_]^ORS]MVKSKW\S]OY] _^YP^RO

! 7S\]^2WOXNWO^XY^^RODXS^OBN^K^O4]YX]^S^_^SYX#

"

*# CRO4Y_\^RK]]_ZZVOWOXT^_K\SV]NSM^YSY`OX\@VKSX^S]^PKPj^]OVKaMVKS_WXNO'\-

# D#B#4#e &(+, LOMK_]^ORO]^K^OVKaMVKSSW] ]Y \OVK^O^YN^ROMVKSYW`O\aRSMR^RO4Y_\^ RK]

$ Y\SQSXTK_V\S]NSM^^SRYKXS^^PY\W]ZK\^YP^RO]KWOMK]OY\ MYX^\Y`O\]c_XNO2\ \^SMV::O: YP^RO

% DXS^OBN^K^O4]YX]^S^_^SYX#

&

+# CRO4Y_\^WKcKaK\NNKWKQZO_]\]_KX^Y)' D#B#4#e &.-(#

'

,# EOX_OS]Z\YZOS\ X^RST] _NSMNSKS]V^\SM_X^NO'-\ D#B#4e# &(. &ȀLK! ]KVNVOPOXNKX^]

( \O]SNOSX^ROT_NSMNSKS]V^\SMK^X! NK\O\O]SNOXY^]P^ROB^K^YOP4KVSPY\XKSXKN^ROO`OX^^]RKQ^ K`O

!Ȁ \S]O^Y^RS]KM^SYXMM_\\OaSN^RSX^RS]NS]^\SM^#

!

-# CRO4Y_\^ RK]ZO\]YXKTV_\S]NSM^YSY`OX\KVXVKWO5NOPOXNKXLO^]MK_]^OROcK\O

!! KV\VO]SNOXY^]P^RO4Y_X^cYPBKX5SOQYK! XN^ROB^K^YOP4KVPSY\XSK!XN^RO?\NO\ ^RKS^]LOSXQ

!" MRKVVOXS]QTO_N\S]NSM^SYXVKSWVVSc^^OYN^RS]T_NSMNSKS]V^\S^M#

!#



!$

.# @VKSX^2SLPSPNSXQ@VKM=SOXS]^\SOS]] K *%&ȀM ȀM(Y\ZY\K^SPYYX\WONKXNN_Vc

!% YZO\K^SKX]QK4R_\MR_XNO^\RO<Ka] YP^ROB^K^YOP4KVSPY\#X9SOK\OSXKP^OO`\O! \c\OPO\OXM^YO

!& ^RO4R_\MRSXMV_NSO^]W] OWLO\]#

!' $$$

! )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3210 Page 209 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.3 Page 3 of 12

&%# @VKSXS^S] SPXPPY\WOKNXNLOVSO`OK]X! N^RO\OYKXVVOQ^OR]K! 5^ OPOXNKFXSV^ WK;#

! FYY^OXS] ^RO@_LVS9MOKV^?RPPSMOP\Y\BKX5SOQY4Y_X^cȀ9O\OXSKP^O^\R! Og@_LVS9MOKV^R

" ?PPSMO\hK!XN\O]ZYX]SLPVYO\^ROZ\YW_VQK^YSYP^XRO?\NO\#

#

&&# @VKSX^SS] PSPXPY\WOKNXNLOVSO`OK]X! N^RO\OYKXVVOQ^OR]K! ^RO4Y_X^cYPBKX

$ 5SOQYS] KZ_LVSOMX^S^Nc_VcPY\WONKXNY\QKXSdO_XNNO^\ ROVaK] YP^ROB^K^OYP4KVSPY\XSK

% Ȁ9O\OSXKP^^ROO\g!4Y_X^ch !KXN^RKS^^S]\O]ZYX]SLPVYO\Z\YW_VQK^SSXXQ^!O\Z\O^SKXXQNOXPY\MSXQ

& ^RO?\NO\#

'

"# @VKSXS^S] _PXPKaK\O70 ;2/ ;9</ 6+5/: +6. -+8+-3;3/: 70 %/0/6.+6;: %'&* " ;297<12

( "!!Ȁ 36-4<:3=/Ȁ+6. ;2/9/079/ :</: ;2/5 ,@ 03-;3;37<6: +5/: (4+36;30>0344+5/6. ;23: $ 7584+36;;7 :27>

Ȁ ;2/ ;9</ 6+5/: +6. -+8+-3;3/: 70 ;2/:/ %/0/6.+6;: 76-/ ;2/@ +9/ . 3:-7=/9/. ( 4+36;3030: 360795/. +6.

,/43/=/: +6. ;2/9/76 +44/1/:;2+;/+-2 70;2/:/ %/0/6.+6;: +9/9/:876:3,4/ 36 :75/ 5 +66/9079;2/ >97610<4

! +-;: +44/1/. 36;23: $7584+36; >3;2 9/:8/-; ;7 +-;376: 3609366113 76 (4+36;300A$7: 6:;3;<;376+4)312;: Ȁ+6.

" 897?35+;/4@-+<:/. (4+36;300A.+:5+1/:

#

&(# DXVO]]ZOMSPSMSKXVNVScMKY^^ORNO\aS]O\O! PO\OX^MYO^RO@_LVMS9OKV^?RPPSMOK\XN

$ ^RO4Y_X^cSXMV_NLOc ]\OPO\OX5M?O6 NOPOXNK&X^^R]\Y_QR&%%C#RO@_LVS9OMKV^?RPPSMO^\R! O

% 4Y_X^cKXN5?6B &^R\Y_QR&%%K\ORO\OSXKP]^SOX\Q_VK\VOcPOO\\ N^YK]g5676>52>Ch KXN

& MYVVOM^KS]`gO5V6c76>52>CB#h

'

(

   

!Ȁ


 



!

&)# 2LSNSX@QVKM=SOXS]^\SOS]]K4R_\MR^RKa^K] PY_XNOSNXBKX5SOQY4Y_X^c!KXN

!! YPPSMSKSXVMVcY\ZY\KK^O]KN4R_\MRYX7OL\_K\c'&! &.-+#

!"

&*# 6`O\c B_XNKc]S! XM^ORKN^K^O2L! SNSX@QVK=MSOXS]^\SOR]K]K]]OWLVOKN]K4R_\MR

!# SXBKX5SOQY4Y_X^c#

!$

&+# 2LSNSX@Q VKM=SOXS]^\SOK]!XNS^]WOWLO\]a!RY ^YQO^RWO\KUO_Z ^RO4R_\MR!

!% LOVSO^`ORK^K ZRc]SMKKV]]OWLVScXYXOZVKMYOX^RO<Y\Nj] NKcS] KXO]]OX^SZKKV\^YP^ROS\

!& aY\]RSZ!]_MR^RKP^KSV_^\YOK]]OWLVSO]KX_XMYX]MSYX`KSYLVVKO^SYXP8YNj] MYWWKXN]#

!'

" )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3211 Page 210 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.4 Page 4 of 12

&,# CRO4R_\MRS]K]WKVMVYXQ\OQK^XSY\XW!KVRVKc`SXVQO]^] RKXYXOR_XN\OȀN&%%

! ZO\]YXK] ^S^]B_XNKWc OO^SXQ#

"

&-# CRO4R_\MRMYXQ\OQKM^SYYXX]SNOS^\]]OV^YPLOPKWSVKcX! NKVSV^]WOWLOa\]Y\U]

# SXMVY]ZO\YbSWS^acS^RKVYV^ROW\ OWLO\N] _\SXQ^ROaOOU!LOSQXOWZVYcOSXNO]]OX^S]KOVM^Y\]

$ YX^ROSW\ S]]SYLXK]OKXNK\Y_XN^RO4Y_X^c#

%


 

&

&.# :X KXK^^OWZ^Y^ g]VYa^RO^\KX]WS]]SYYXPh4?E:5"&.! g^YZ\Y^MO ^`_VXO\KLVO

' WOWLO\Y] P^ROZ_LVSMg!^hY\ON_M^OROX_WLOY\ PSXNS`SN_KaRVY] aSVVLOObZY]O^NY4?E:5"

( &.!hKXN^YgZ\O]O\`OM\S^SMKKXVNVSWS^ROONKV^RMMKK\OZKMSSX^^cROMY_X^c^!hRO5676>52>CB

Ȁ RK`OZ\YW_VQK^KOXNN]Y_QR^YOXPY\M^ROO?\NO\ KQKSX^]R^O4R_\MR#

'%# CRO?\NO\ S] KXKNWSXS]^\K^YS\`NOO\!WKNOLc ^RO@_LVS9MOKVR^?PPSMOK\!XN

! ]^K^O^]RKK^ `SYVK^SYYPX^RO?\NO\ S]]_LTOM^Y^PSXOS!WZ\SY]XWOXY^\LY^R#

"

'&# CRO?\NO\ S]Z\YW_VQK^_OXNNO9\ OKV^KRXNBKPO^4cYNOee &%&%!)&%'%&,*KXN

# &'%&,*#*ȀLaR! SMRKVVY^aRO@_LVS9MOKV^?RPPSMO^Y\ ^KUOXOM]]OK\c Z\O`OX^K^SW`OOK]_\OȀS#O#

$ KLK^OWOMXY^!\\OM^S\YOXW!Y`KVY!\ Y^ROZ\ \Y^OM^S]^`OZKQKS^XK]XKM^_KZ_VLVSRMOKVR^RKdK\N !

% KXNS]]_OY\NO\]^YY^ROQ\ Y`O\XWOXO^KXV^S^SO]#

&

''# CRO?\NO\ S]NS\OM^^OYNO`O\cZO\]YXSXBKX5SOQY4Y_X^cKXNNS\OMK^]VZVO\]YX]

' g^Y\OWKSXSX^ROSR\ YWO]Y\ K^^ROSZ\ VKMOY]P\O]SNOXMȀO]h_LTOM^^YL\YKNMK^OQY\SYOP]

( ObOWZ^SYKXX] NZ\YRSLSK^]VgVZ_LVSYM\Z\S`K^OiQK^RO\SXKQ]]Nj OPSXOSNX^hRO?\NO\#

!Ȁ

'(# 8K^RO\SXQK]\ONOPSXKO]NgKXcO`OXY^ \MYX`OXS^XRQKL^\SXQ^]YQO^RWO\Y\O^RKX

! YXOZO\]YXSXK]SXQV\YOYWY\]SXQVSOXNYYY\\Y_^NYY]Z\ KMKO^^RO]KWO^SWOS!XMV_NZSOXYQZVO

!! SXW_V^SZ`VOORSMVSOXY] XOVYMK^SYX#h

!"

')# gH6IWZVYcOYO\M] _]^YWO^\\]K`OVVS^XYYQ\P\YWO]]OX^SLK_V]SXO]]O]Y\KM^S`S^SO]h

!# K]NOPSXSOXN^RO?\NO\!K\OObMOZ^PO\NYW^RO?\NO\#

!$

'*# 7_\^RO\WY\OP!KWSVQcK^RO\SXQQ]K! ^RO\SXKQ^]KS\ZY\^]Q! K^ROX\QS] YX Z_LVSM

!% ^\KX]ZY\^K^SKYXXNQ! K^RO\SXKQ^g]O]]OX^SLK_V]SXO]]Kh ]NOPSOXNSX^RO?\NO\! K\OObOWZ^OPN\YW

!& ^ROZ\YRSLS^SYYXXgQK^RO\SXQ]#h

!' $$$

# )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3212 Page 211 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.5 Page 5 of 12

'+# CRO?\NO\ NOPSXOO]]]OX^SLK_V]SXO]]OY]\KM^S`S^KSO]g]KXcL_]SXO]Y] \KM^S`S^cf

! NO]SQXK^LOcN^ROB^K^@O _LVS9MOKV^?RPPSMOK\]g6]]OX^SK4V\S^SMK:XVP\K]^\_M^_F\OY\UO\]h]O^

" PY\^RSXh^RONYM_WOKX^^^KMRKO]N6bRSLS'#^

#

',# 6bRSLS^' SXMV_NWOY] \O^RKXYXO"R_XN\ON"KXNȀ"P&S*P%^cL\YKNMK^OQY\SMKV

$ ObOWZ^SYPXY]\L_]SXO]K] M^S`S^^SROK] K^ \OMYX]SNO^\OYNLOO]]OX^SKSVX!MV_NSLX_Q^X! Y^VSWS^ON

% ^Y/ MKXXKL\SO]^KSVOQ\]!\YMO\c]^Y\O]!ZRK\WKMSO]_]Z! O\WK\U]O! ^LSQLYb ]^Y\O]!LKXU]!

& MYX`OXSOX]^MYO\O]!ZO^]_ZZVc]^Y\O]!K_^Y]_ZZVcKXN\OZKS]\RYZ]!RK\NaK\OKXNRYWO

' SWZ\Y`OWO]X^Y^\O]R! YWOKZZVSKX\OM^KOSVO^R\]!OOX^O\^KSXWSXONX_^]^\c]!^_NSY]O!]^KLVS]RWOX^]

( \OVK^O^YN^ROOX^O\^KSXWSXONX_^]^\cV!K_XN\YWKQ^Y]`!O\XWOPXK^MSVS^^OSOV]O! `S]S]Y^KX^SYX\K]!NSY

Ȁ ]^K^SYX^]R!OZ\O]]!WOX^KRVOKVP^KRMSVSK^SXONZ]!]cMRSK^P\SKMMSVS^SO]#

'-# :X KNNS^SY^YX^ROWY\O^RKXYXO"R_XN\ON"KXNȀ"P&S*P%^cL\YKNMK^OQY\SMKV

! ObOWZ^SYNXO]]SQXK^LOc N^ROB^K^@O _LVS9OMKV^?RPPSMO^\R! O? \NO\KV]Y\OPO\^]YL_]SXO]]OK]XN

" KM^S`S^\SOOP]O\OXMSOX6NbOM_^S`?O\NO\ >"(("'%! aRSMR\OPO\OMXO]Sb^OOLX\YKNKXN_XNOPSXON

# gPONO\KMV\S^SMSKXVP\K]^\_M^_]O\OM^Y\]ShNOX^SPLSOc N^RO5OZK\^WOXY^P9YWOVKXBNOM_\S^c!

$ SXMV_NKSXg4QYWWO\MS7KKVMSVS^BSOOM] ^Ya\hRSMR^RO5OZK\^WOXY^P9YWOVKXBNOM_\S^]^cK^O]

% MYX]S]Y^]POSQRȀ^- ]_L]OM^Y\S]!XMV_NSgX?_Q^/NYY\6`OX^]ȀO#Q#^ROWKOXNKW_]OWOZXK^ \U]!

& PKS\]M! KWZQ\Y_XZNK]!\KNO] Kh XNgZ_LVSKM]]OWLVȀcO#QK#\OXK! ]^KNS_WK]![_K\S_W]d! YY]!

' W_]O_W]!MYX`OX^SMYOXX^O\] K!hVYXaQS^R gOX^O\^KSXWKOXXN^WONSK!hgQKWSXQg!\hO^KSV!h

( g]ZY\^]VOKQ_OK]!Xh N^aY Y^ROL\\YKNMK^OQY\SO]#

!Ȁ

'.# FRSVOObOWZ^SX^RQO]OK! XNY^ROg\O]]OX^SLK_V]SXO]]hP\YW^RO\_VOZ\YRSLS^SXQ

! QK^RO\SXKQX] N\O[_S\SXQO`O\cYXO^Y]^Kc"K^"RYW^ORS! ]NOPSXSYS^XZVKMKO]VSWSY^X^RO7\OO

!! 6bO\MS]OYPAOVSQS^YRXK^S] XY^ZVKMOYNXKXcY^ROK\ M^S`S^YcX! VcObOWZ^SXgHQPIKSL^RK]ON

!" ]O\`SMO]ShP^ROcgK\OZ\Y`SNO^NR\Y_QR]^\OKWSXYQ\Y^RO^\OMXRYVYQc#h

!#

(%# CRS]VSWS^K^SS]Y`KXQ_OKXN\O[_S\O]]YWOObZVKXK^SaRYSXM! Ra K]Z\Y`SNOSNXK

!$ VO^^PO\\YW^RO@_LVS9MOKV^?RPPSMO^Y\ ^RO@K]^YY\P^RO4R_\MRa!RSMRS]K^^KMRKO]N6bRSLS-^

!% KXN]^K^Og]fcY_ KXNcY_\ OWZVYcOaORY] K\OO]]OX^SPKYV\^ROYZO\K^SYYXPO[_SZWOX^OMO]]K\c

!& ^Y]_ZZY\^^RO]^\OKWSXYQPcY_\ ]O\`SMOW] Kc^\K`OV^YcY_\ PKMSVS9^Yc#aO`O\! WOWLOY\]PcY_\

!' MYXQ\OQKK^S\OYXXY^KVVYaO^YN^\K`OV^YcY_\ ]S^OC#RS]aY_VNLOKX_XVKaP_QVK^RO\SXOQ`O! XSP

$ )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3213 Page 212 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.6 Page 6 of 12

^ROc\OWKSSXX^ROS`\ORSMVKO]]^ROcNSNVK]B^_XNKcf :P ^ROWOWLO\Y] PcY_\ MYXQ\OQK^NSYYX

! XY^KLSNWOc ?\NO\!^ROBRO\SPaPSVV^KUOKM^SYXXO] MO]]K^\YcOXPY\M^ROO?\NO\#h

"

(&# CRO?\NO\ KVVYaQ]K^RO\SXPQY]\KW_V^S^_YNPOL_]SXO]]OK]XNKM^S`S^S^OR]KK^ \O

# XY^MYX]^S^_^SYXZK\YV^VOcM^OYNX!Vc\O[_S\SXQ^ROW^YOXKM]Y^MSKNVS]^KXMSKXXQNSXM\OK]ON

$ ]KXS^K^S]Y^KXXNK\N9]Y# aO`O\! S^NYO]XY^KVVYKa 4R_\MR!aRSMR S] Z\Y^OM^OLcN^RO7S\]^

% 2WOXNWOYXP^^RO4YX]^S^_^SY^YXQ!K^ROO\!`OXSPS^OXKM^^R]O]^\SM^OZ]Y^ ]]SLV]YOMSKNVS]^KXMSXQ

& KXN^RORSQROZ]^Y]]SLV]KOXS^K^S]^YKXXNK\N]#

'


 

  

(

('# CRO4R_\MRRK]]Y_QR^YaY\U aS^R4Y_X^cYPPSMSSKXVM]!V_N^SRXOQ@_LVS9OMKV^R

Ȁ ?PPSMOK\!XN^RO4Y_X^cBRO\SP^PY! PSXNKaKc ^YK]]OWLVaORSVOKN`KXMS^XRQO8Y`O\XWOX^j]

SX^O\O]^S]X! MV_NOSXQKM^S]YXMQSKNVS]^KXMKSXXQNSXM\OK]]OKNXS^K^S]^YKXXNK\N]#

!

((# CRO4R_\MRRK]WKNO^R\OO]ZOMSPZS\MYZY]KVSX] a\S^^OXPY\W!KXNKX_WLOY\ P

" KXMSVVZK\Y\cZY]KVS]X! MV_NOSXQPY\MS]YXMQ SKNVS]^KXMKSX^S^Q]]O\`SMO\]O! [_S\SXMQ YXQ\OQK^XY^]

# aOK\Z\Y^OM^SQ`OOKȀ\ SXMV_NRSKXdQWK]_^S^] !K]]OWLVSSXXQ`ORSMVKO]]!OWLVSLXcQPKWSV_Xc S^]

$ ]Z\OKNY_^Y`O\KVK\QKO\OKKXNXY^ZO\WS^^O^YNSX^O\KaMS^RKXcY^ROP\KWSV_Xc S^]C#RO^R\OO

% ]ZOMSPZS\MYZY]KVK]\OK^^KMRKO]N6bRSLS^(]! ) KXN*#

&

()# <O^^O\O] bMRKXQLOON^aOO^XRO4R_\MRKXN5676>52>CB \OVK^^OYN^RO]OPPY\^]

' K\OK^^KMRKO]N6bRSLS^+]! , KXN-#

(

(*# CRO4R_\MRRK]KV]YYPPO\O^NYK]]OWLVVOSWS^LOcNKXcQ_SNKXYM\O\O]^\SM^SYX]

!Ȁ SWZY]OLNc 4Y_X^cYPPSMSKV]#

!

(+# CRO5676>52>CB RK`OSXPY\WO^RNO4R_\MR^RKS^P^ROcK]]OWLVXOY! WK^^O\

!! aRK^Z\OMK_^SY^RXO] c^KUO^!ROcaSVVLOSX`SYVK^SYYPX^RO?\ NO\!KXN^RO?\NO\ aSVVLOOXPY\MON

!" KQKSX^]R^OWS!XMV_NWSXSQ]NOWOKMXYR\K\QOK]X! NZY]]SLVKO\\O^]!PSXKOXNSWZ\S]YXWOX^#

!#

(,# ?X 2Z\SV-! '%'%! 4Y_X]OVPY\^RO4R_\MRK]UONSP^RO5676>52>C B aY_VNLO

!$ aSVVSX^YQWOOa^S^R^RO4R_\MR^YNS]M_]K] V^O\XK^SK`OX]N!^RO5676>52>CB \OP_]ON^YWOO^

!% aS^R^RO4R_\MR#

!& $$$

!' $$$

% )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3214 Page 213 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.7 Page 7 of 12

 

!

,234 $/' 0524((/4+ .(/'.(/4 ; 2(( 8(2&,3(

"

(-# @VKSXR^SOP\POLcKVVOQKOX]NSXMY\ZY\KL^cO\]OPO\OXMOKOMKRXNO`O\cKVVOQK^SYX

# MYX^KSXSXOZNK\KQ\KZ&R^R\Y_QR(, YP^RS]4YWZVKSKX]^RY_QPR_VV]Oc ^PY\^RRO\OSX#

$

(.# CRO7S\]^2WOXNWOYXP^^RODXS^OBN^K^O4]YX]^S^_^SZY\XY`SNO^]RKg^4YXQ\O]]

% ]RKVVWKUOXY VKaf Z\YRSLS^SX^RQOP\OOObO\MS]HOYP\OVSQSYhXDI#XNO\^RO7Y_\^OOX^R

& 2WOXNWOX^^R!S]Z\YRSLS^O]`O\c VO`OYVP]^K^OKXNVYMKQVY`O\WX OX^P\YWWKUSXKQVKa

' Z\YRSLS^S^XRQOP\OOObO\MSY]OP\OVSQSYX#

(

)%# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7S\]^2WOXNWXO^7\OO6bO\MS]O

Ȁ 4VK_]OLOMK_S]O^MYX]^S^_K^OXY] `O\L\YK\NO]^\SM^SYYXX^RO7\OO6bO\MS]YOPAOVSQSKYXXNYX^RO

MY\YVV7KS\\c]^2WOXNWO\XS^QR^YK]]OWLVc#

!

)&# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_]SO^

" SWZO\WS]]SLZVVcKMOW]Y\O]^\SXQOX\O^]^\SM^SYYXX]^RO4R_\MR^RKXK\OZVKMOYNX]OM_VK\

# L_]SXO]]O]#

$

)'# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_]SO^

% KVVYKa]VK\QXO_WLOY\ P]OM_VQKK\ ^RO\SXaQR]S!VOZ\YRSLS^S\OXVQSQSYQ_K]^RO\SXQ]#

&

)(# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_S]O^S]

' XY^XK\\YaVc^KSVY\OKNX!NS^S] XY^^ROVOK]\^O]^\SM^SW`OOK]X^YKMMYWZVKSM]RYWZOVVSXQ

( QY`O\XWOXS^XK^VO\O]^#

!Ȁ

))# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_]SO^

! MYX]^S^_K^OZ\]SY\O]^\KSXY^X^ROObO\MSY]OP^RO4R_\MRj]7\OO6bO\MS]\OSQR^]#

!!

)*# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_]SO^

!" ObOWZ^K] VK\QXO_WLOY\ PL_]SXO]]OK] XNKM^S`S^^SROK] K^ \OXY^ Z\Y^OM^LOcN^RO4YX]^S^_^SYX!

!# aRSVOXY^Z\Y`SNSXKQ]_PPSMSOXO^[V_Sc`KVOOXb^OWZ^SPYYX\Z\Y^OM^O7SN\]^2WOXNWOKXM^ ^S`S^c#

!$

)+# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_]SO^

!% Z\YRSLS^R] O7\OO6bO\MS]OYPAOVSQSYKX!NKL\SNQO^R] O\SQR^YK]]OWLVKc!XNNOZ\S`O^]RO

!& 4R_\MRK! XNS^]WOWLO\Y]!PVSLO\^acS!^RY_N^ _OZ\YMO]Y]PVK#a

!'

& )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3215 Page 214 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.8 Page 8 of 12

),# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_]SO^

! L_\NOX^]RO7\OO6bO\MS]YOPAOVSQSKYXXNS]`KQ_OKXNY`O\L\YNK#

"

)-# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_S]O^S]

# XY^XO_^\KZV_!\ZY\^SX^QY^\OK\^OVSQSYK_M] ^S`SN^ScPPO\OX^^RVKcXO`O\cY^ROM\ K^OQYY\PcKM^S`S^c#

$

).# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O7\OO6bO\MS]4OVK_]OLOMK_S]O^S]

% XY^QOXO\KVKVZcZVSMKZL\VYOR!SLS^S\OXVQSQSY]O_]\`SMOa]RSVOObOWZ^SX]_QL]^KX^SMKVYWZK\KLVO

& MYXN_^MR^KS^]XY^\OVSQSY_W]VYc^S`K^ON#

'

 

(

,234 $/' 0524((/4+ .(/'.(/4 $-,)02/,$ 0/34 24,&-(  : $ ; 33(.%-9

Ȁ

*%# @VKSXR^SOP\POLcKVVOQKOX]NSXMY\ZY\KL^cO\]OPO\OXMOKOMKRXNO`O\cKVVOQK^SYX

MYX^KSXSXOZNK\KQ\KZ&R^R\Y_QR). YP^RS]4YWZVKSKX]^RY_QPR_VV]Oc ^PY\^RRO\OSX#

!

*&# CRO7S\]^2WOXNWOYXP^^RODXS^OBN^K^O4]YX]^S^_^SZY\XY`SNO^]RKg^4YXQ\O]]

" ]RKVWVKUOXYVKaf KL\SNQSXQ^Rf O\SQRY^ P^ROZOYZVZOOKMOK^LYVKc]]OWLVO#

#

*'# 2\^SMV:!OBOM^S(YȀXK YP^RO4KVSPY\X4SYKX]^S^_^SZY\XY`SNO/ ]gCROZOYZVROK`O

$ ^RO\SQR^Yf K]]OWLVPc\OOV^cYMYX]_PVY^\^ROMYWWYQXYYN#h

%

*(# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\YZO\K^OK]K]aOOZSXKQLS\ NQOWOYXP^^RO\SQR^

& YP^ROZOYZVZOOKMOK^LYVKc]]OWLVLOK!XXSXKQVgVQK^RO\SX^QR]Kh^K\OXY^ObOWZ^OLNc ^RO?\NO\#

'

*)# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O2]]OWLVcMVK]O_LOMK_]SO^NYO]

( XY^VOK`YOZOX]_PPSMSOKXV^O\XK^MSR`OKXXOPYV\^] RO4R_\MR^YObO\MSS]O^]\SQR^Y2]]OWLVO#

!Ȁ

**# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O2]]OWLVcMVK]O_LOMK_S]O^^\OK^]

! ]YWOK]]OWLVSKO]]WY\OO]]OX^S^KRVKXY^RO\L] K]ONYXK\LS^\Kc \OK]YX]#

!!

*+# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O2]]OWLVcMVK]O_LOMK_S]O^^\OK^]

!" KaSNO`K\SO^Yc P]OM_VQKK\ ^RO\SX^QRK] K^ \OXY^Y^RO\aS]ZO\Y^OM^OLcN^RO4YX]^S^_^SKY]XWY\O

!# O]]OX^S^KRVKXKQK^RO\SSXXQObO\MSY]OP^RO4R_\MRj]7\OO6bO\MS]O\SQR^#

!$

*,# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O2]]OWLVcMVK]O_LOMK_S]O^S]XY^

!% MYX^OXXO^_^\KV#

!& $$$

!' $$$

' )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3216 Page 215 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.9 Page 9 of 12

*-# ?X S^]PKMYO\K]KZZVSO^RNO!?\NO\ `SYVK^^OR]O2]]OWLVcMVK]O_LOMK_S]O^S]XY^

! XK\\YaV^cKSVY\KOXNNS]XY^ROVOK\]O^ ]^\SM^SW`OOKX^]YKMYMWZVSK]RMYWZOVVQSYX`OQ\XWOX^KV

" SX^O\O]^#

#

*.# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^O^R] O2]]OWLVcMVK]O_ LOMK_]SO^

$ P_XM^SYKX]K] Z\SY\O]^\KSXY^P^RO4R_\MRj]\SQR^Y2]]OWLVOYXS^]YaXZ\YZO\^c#

%

+%# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^O^R]O2]]OWLVcMVK]O_! LOMK_]SO^

& KL\SNQO^R] O\SQR^Y2]]OWLVcaS^RY_K^ ]RYaSXQYPMVOKKX\ NZ\O]OXN^ KXQOS\X! ^O\PO\OXaSM^RO

' Z_LVSZM\YZO\^Yc \Y^ROS\WWONSK^R^\OOK^^YZ_LVS]MKPO^Yc \Y\NO\#

(

+&# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^O^R] O2]]OWLVcMVK]O_ LOMK_]SO^

Ȁ Z\Y`SNOX] YT_]^SPSMK^PSYY\aXRc S^^\OK^]YWO2]]OWLVSOK]] O]]OX^SKKVX!NY^RO\]K] XYX"

O]]OX^SKV#

!

+'# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^^OR]O2]]OWLVcMVK]O_LOMK_]SO^S]

" `KQ_OKXNY`O\L\YKN#
#

 

$

,)4+ .(/'.(/4 ; 5( 20&(33

%

+(# @VKSXR^SOP\POLcKVVOQKOX]NSXMY\ZY\KL^cO\]OPO\OXMOKOMKRXNO`O\cKVVOQK^SYX

& MYX^KSXSXOZNK\KQ\KZ&R^R\Y_QR+' YP^RS]4YWZVKSKX]^RY_QPR_VV]Oc ^PY\^RRO\OSX#

'

+)# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^^OR]O5_O @\YMO4]]VK_]OLOMK_]SO^

( NOZ\S`O^]RO4R_\MRK! XNS^]WOWLO\Y]!P^ROVSLO\^YcK]]OWLOVKXNP\OOVOcbO\MS^]ROOS\O\ VSQSYX

!Ȁ aS^RY_P^S\]^Z\Y`SNSX^QROWKXYZZY\^_XS^^YcLOROK\N#

!

+*# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^^OR]O5_O @\YMO4]]VK_]OLOMK_]SO^

!! NOZ\S`O^]RO4R_\MR!KXNS^]WOWLO\]Y!P^RO_]O KXNOXTYcWOYXP^ROSZ\\YZO\^cPY\KVKaP_V

!" Z_\ZY]OaS^RY_P^S\]^Z\Y`SNSX^QROWKXYZZY\^_XS^^YcLOROK\#N

!#

++# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^^OR]O5_O @\YMO4]]VK_]OLOMK_]SO^

!$ `SYVK^4OY]X]^S^_^SY]XOKZVK\K^SYXPZYaO\Z\SXMSZVLOO]S!XZQ\YW_VQK^KOXNNOXPY\MLOcN^RO

!% ]KWOQY`O\XWOYXP^PSMSKV#

!& $$$

!' $$$

( )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3217 Page 216 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.10 Page 10 of 12

+,# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O5_O @\YMO4]]VK_]OLOMK_]SO^]

! Z\YW_VQK^S`SYYXVK^O4YNX]^S^_^SYXXKYVX"NOVOQKZ^\SYXXMSZVLOO]!SXQKXObO\MS]YOPL\YKN

" VKaWKUSKX_Q^RY\SL^c KXObOM_^SY`OPPSMSKV#

#

+-# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ `SYVK^^OR]O5_O @\YMO4]]VK_]OLOMK_]SO^

$ NOZ\S`O^]RO4R_\MRK! XNS^]WOWLO\Y]!P^ROS\S\ QR^YO[_KVZ\Y^OM^S_YXXNO^\ROVKa!]_LTOM^SXQ

% ^ROSK\ M^S`S^^YcROSQR^OX\OO]N^\SM^SYXXY]^KPPY\NO^YNY^RO]\OM_VKM\ ^S`S^SO]#

&

+.# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O]_L]^KX^S`OOVOWOXY^P]^RO5_O

' @\YMO4]]VK_]OLOMK_]SO^NOZ\S`O^]RO4R_\MR!KXNS^]WOWLO\]Y! P^ROS\\SQR^Y7\OONYWYP

( =Y`OWOXK^ XN2]]YMSK^SYX#

Ȁ

,%# ?X S^]PKMYO\ K]KZZVSO^NRO!?\NO\ `SYVK^^OR]O]_L]^KX^S`OOVOWOXY^P]^RO5_O

@\YMO4]V] K_]OLOMK_S]O^NOZ\S`O^]RO4R_\MRYPS^]Z\S`SVOQKOX]NSWW_XS^S_OX]NO^\RODXS^ON

! B^K^O4]YX]^S^_^SYX#
"

  

#

 /-$7)5- 2'(2 ; 2%,42$29 /2($30/$%-( $/' 112(33,6(

$

,&# @VKSXR^SOP\POLcKVVOQKOX]NSXMY\ZY\KL^cO\]OPO\OXMOKOMKRXNO`O\cKVVOQK^SYX

% MYX^KSXSXOZNK\KQ\KZ&R^R\Y_QR,% YP^RS]4YWZVKSKX]^RY_QPR_VV]Oc ^PY\^RRO\OSX#

&

,'# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ S] K\LS^\K\c_!X\OK]YXKLKVXONYZZ\O]]S`O

' LOMK_S]O^KZZVS^OY]`K]^X_WLO\Y] PZO\]YXa]RY RK`ORKNXYObZY]_\O^Y^RONS]OK]KO^KVV#

(

,(# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ S] K\LS^\K\c_!X\OK]YXKLKVXONYZZ\O]]S`O

!Ȁ LOMK_S]O^QYOL] OcYXaNRK^S]\OK]YXKL\VOc[_S\ON^Y]KPOQ_K^\NROZ_LVSM#

!

,)# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ S] K\LS^\K\c_!X\OK]YXKLKVXONYZZ\O]]S`O

!! LOMK_S]O^VOKN^Y] SXT_]^SMYZOZ! \O]]SYKXXNKL]_\NMYX]O[_OOX]M#

!"

,*# ?X S^]PKMYO\ K] KZZVSO^NR!O?\NO\ S] K\LS^\K\c_!X\OK]YXKLKVXONYZZ\O]]S`O!

!# LOMK_S]O^NS]M\SWSXK^QOK]SX\O]^VSQSYK_M] ^S`S^c#

!$

 

!%

 /-$7)5- 2'(2 ; 8&(('3 4$454029 54+02,49

!&

,+# @VKSXR^SOP\POLcKVVOQKOX]NSXMY\ZY\KL^cO\]OPO\OXMOKOMKRXNO`O\cKVVOQK^SYX

!' MYX^KSXSXOZNK\KQ\KZ&R^R\Y_QR,* YP^RS]4YWZVKSKX]^RY_QPR_VV]Oc ^PY\^RRO\OSX#

Ȁ )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3218 Page 217 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.11 Page 11 of 12

,,# CRO?\NO\S]WKNZO_\]_KX^Y4KVSPY\X9OSKKV^KRXNBKPO^4cYNO]OM^SY&X%] &%)%!

! &'%&,*!KXN&'%&,*#*ȀLX!YXOYPaRSMRK_^RY\SdKO]aOOZSXKQLS\ NQOWOYXP^^RO\SQR^^]YP\OOVc

" KXNZOKMOKKL]V]Oc WLVYc!\^YP\OOObO\MSY]OP\OVSQSYX#

#

,-# CRO?\NO\ ObMOON^R] OK_^RY\S^Zc\Y`SNONLc ^Y^RO@_LVS9MOKVR^?PPSMOL\c

$ B^K^_^OLO! MK_]SO^S]XY^KXOMO]]KZ\c\O`OX^K^SW`OOK]_\OȀSO##KLK^OWOMXY^!\\OM^S\YOXW!Y`KV!

% Y\ Y^ROZ\\Y^OM^S]^`OZKQKSXK]^XKM^_KZ_VLVSRMOKVR^RKdK\N! KXN^RS]S]KXY\NOS\ ]]_ON^Y^RO

& QOXO\KZ_VLVSKMXNXY^YY^ROQ\ Y`O\XWOXO^KXV^S^SKO]]KVVYNaOLc ]^K^_^O#

'

,.# DXNO4\KVSPY\X9OSKKV^KRXNBKPO^4cYNOe &'%&,*#*ȀL^R! O@_LSVM9OKV^?RPPSMO\

( YXVRc K]K_^RY\S^Yc Z\YW_VQKY^\ONO\]NS\OM^^OYNgY^ROQ\ Y`O\XWOX^OKXV^S^SOK]!XhNXY^^Y^RO

Ȁ QOXO\KZ_VLVSM#

-%# CRO4KVSPY\X9OSKKV^KRXNBKPO^4cYNOK! XN^ROVKa]YP^ROB^KO^YP4KVSPY\XKSXKN

! YP^RODXS^OBN^K^OZ]!\Y`SNO]]ZOMSPSSXM]^KXMKOX]NZ\YMON_] \POY\S]YVK^SKYXXN[_K\KX^SX^OR!K^

" RK`OXY^LOOXPYVVYaSOXN^ROZ\YW_VQK^YSYP^XRS]Y\NO\#

#

" 

$

(12,6$4,0/ 0) ,*+43 ;   : 


%

-&# @VKSXR^SOP\POLcKVVOQKOX]NSXMY\ZY\KL^cO\]OPO\OXMOKOMKRXNO`O\cKVVOQK^SYX

& MYX^KSXSXOZNK\KQ\KZ&R^R\Y_QR-%YP^RS]4YWZVKSKX]^RY_QPR_VV]Oc ^PY\^RRO\OSX#

'

-'# CRO5676>52>CB RK`O!_XNOM\ YVY\P^RO?\NO\! KXNY\ Y^ROK\ _R^ Y\SdK^SYX!

( ]_LTOM^^ORNO4R_\MR^YNOZ\S`K^SYYPX\SQR^]#

!Ȁ

-(# CRO5676>52>CB RK`ONOZ\S`O^NRO4R_\MRYPS^]\SQR^Y7\OO6b O\MS]YOP

! AOVSQSSY^X]\S! QR^Y_XKL\SNQZOONKMOKP_]]VOWLVSc^!]\SQR^YK]]OWLVPO\OOV^cYMYX]_PVY^\^RO

!! MYWWYQXYYNK!XNS^]N_OZ\YMO]\S] QR^]K! ]]O^PY\^RSX^RS]4 YWZVKSX^#

!" $$$

!# $$$

!$ $$$

!% $$$

!& $$$

!' $$$

)))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3219 Page 218 of 255
Case 3:20-cv-00683-BAS-AHG Document 1 Filed 04/09/20 PageID.12 Page 12 of 12

#  

!

F96A67?A6! @VKSX\^OS]PZPOM^P_\VOV[_cO]^]^RO4Y_\^^YOX^OT\_NQWOKXQ^SKX]^

" 5OPOXNKKX]^PYVVYa]/

#

&# 8\KX^SX^QRO@VKSX^SMPYPjX] M_\\OXP^SVVcOWNY^SYPXY\K^OWZYK\c\O]^\KSXSYX\QNO\0

$

'# 5OMVK\SOXXQPY\MOWYOPX^R^O?\NO\ KQKSX^]R^O4R_\MR^YLO_XVKaP_VKXN$YK\

%

`SYVK^SYYPX^RO4R_\MRj]\SQR^]0

&

(# 8\KX^SXKQXY\NOZ\ \OVSWSXKK\SXVNc^!RO\OKP^ZOO\!\WKXOXO^VXTcYSXSXQ

'

5676>52>CB KXN5676>52>CBj YPPSMOK\Q]!OX^K]!PPSVSK]O^O\`]K! X^]!

(

]_MMO]]YO\]!WZVYcOKOX]!NKXcY^ROZ\O\]YXa]RY K\OSXKM^SM`OYXMYO\^

Ȁ

ZK\^SMSZKa^SS^YRXKXcYP^ROPY\OQYSZXOQ\]YXP] \YWOXPY\MS^XRQO?\NO\ KQKSX]^

@VKSX^SPP0

!

)# 6X^\cYPT_NQWOPXY^\@VKSXK^SXPNKP QKSX5]O^POXNKXPY^]\NOZS\`K^SYYXP\SQR^]!

"

SXMV_NKSXKQaK\NYPNKWKQSOX]KXKWY_X^^YLONO^O\WSXLOcN^RO4Y_\^0

#

*# 2aK\NSXQZ_XS^S`NOKWKQKOQ] KSXK]^Xc5OPOXNKPXY^_XNXY^YLOKM^SXSXQKX

$

YPPSMMSKKVZKMaSR^Oc XNOZ\S`SX^QRO@VKSXY^SPRPPO\\SQR^]0

%

+# 2aK\NSXQ@VKSX^SMPYPj]]^K] XNK^^Y\XOcP]Oj OK] ]K_^RY\SdOLcN7ON#A#4S`#@#*)! )'

&

D#B#4#e &.--! KXN$YK\XcY^ROK\ ZZVSMKVLKVaO#

'

,# 2aK\NSXQ]_MRP_\^RO\\OVSOKP]^RO4Y_\^NOOWT]_]^KXNZ\YZO#\

(

!Ȁ

 !  

!

!! 52C65/ )$.$'% !" BKX5SOQY4!2
!# !$ !% !& !'

JJJJJJJJJJJJJJJJJJJJJJJJJ (2(.,$+ 2$+$.
&&.*+3O\XK\NY@VKd5K\#! @WL'%.+-
BKX5SOQY4!2 .'&'-
C/ Ȁ+&. +(("*&&%
TO\OWSKRNQ\KRKW1QWKSV#MYW !      
    

! )))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

))))))))))))))))))

           
     

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3220 Page 219 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-5 Filed 04/09/20 PageID.35 Page 1 of 1
ABIDING PLACE MINISTRIES Plan for Assembly
WHEREAS on March 19, 2020, Gavin Newsom, the Governor of California, issued an executive order, styled Executive Order N-33-20, directing the citizens of California to heed the current State public health directives, and to “stay-at-home.” 

WHEREAS on March 27, 2020, Wilma J. Wooten, the Public Health Oﬃcer for the County of San Diego, issued an order prohibiting gatherings of more than ten (10) people. 

WHEREAS the Abiding Place Ministries, and its Pastor, and all members, believe that they must comply with the command of God “not to forsake the assembling of yourselves together,” and that the assembly must take place in “one place” on the “Lord’s Day” as directed by the Holy Scriptures. 

WHEREAS the Abiding Place Ministries, and its Pastor believe they must do everything possible to obey Law Enforcement Oﬃcers, as long as their orders do not conﬂict with the commandments of God.
WHERAS the Abiding Place Ministries is a small congregation, and ordinarily has less than one-hundred (100) members in attendance at its meetings, and no household of more than ten (10) people. 

ABIDING PLACE MINISTRIES PROPOSES: 

(1) We will assemble as a congregation on our 427 Acre Mission Base, located at 2155 N. Campo Truck Trl., Campo, CA 91906.
(2) We will assemble by household, each household comprised of only individuals who share a residential address, and each household comprising no more than ten (10) people (hereinafter “Family Unit”).
(3) We will strictly enforce social distancing guidelines between each Family Unit, requiring each Family Unit to stay ten (10) feet apart from each other Family Unit during the service.
(4) We have a tent that is 5400 square feet, with less than four-hundred (400) square feet reserved for the platform. With each Family Unit placed at the center of a one-hundred square feet area, each family unit will be approximately ten (10) feet from each other Family Unit, which is a greater distance than required by current social distancing guidelines.
(5) If there are more than ﬁfty (50) family units, any additional Family Unit will be required to participate in the assembly from outside of the tent, and to maintain the same social distancing as each Family Unit in the tent.
(6) Our members will be instructed by the Pastor to return to their home after the Assembly has ended, without stopping on the way, and to fully heed and follow the orders of the Governor and the County. 


Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3221 Page 220 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-6 Filed 04/09/20 PageID.36 Page 1 of 5
ABIDING PLACE MINISTRIES Proposed Plan for Assembly
WHEREAS on March 19, 2020, Gavin Newsom, the Governor of California, issued an executive order, styled Executive Order N-33-20, directing the citizens of California to heed the current State public health directives, and to “stay-at-home.” 
 WHEREAS on March 27, 2020, Wilma J. Wooten, the Public Health Oﬃcer for the County of San Diego, issued an order prohibiting gatherings of more than ten (10) people. 

WHEREAS the Abiding Place Ministries, and its Pastor, and all members, believe that they must comply with the command of God “not to forsake the assembling of yourselves together,” and that the assembly must take place in “one place” on the “Lord’s Day” as directed by the Holy Scriptures. 

WHEREAS the Abiding Place Ministries, and its Pastor believe they must do everything possible to obey Law Enforcement Oﬃcers, as long as their orders do not conﬂict with the commandments of God.
WHEREAS the Abiding Place Ministries, and its Pastor, have been working with the San Diego County Sheriﬀ’s Oﬃce to ﬁnd the least restrictive means to achieve their objectives, while avoiding arrest or criminal charges for obeying the Holy Scriptures. 

ABIDING PLACE MINISTRIES PROPOSES: 

(1) We will assemble as a congregation on our 427 Acre Mission Base, located at 2155 N. Campo Truck Trl., Campo, CA 91906 (hereinafter “Mission Base”).
(2) We will assemble by household, each household comprised of only individuals who share a residential address, and each household comprising no more than ten (10) people (hereinafter “Family Unit”).
(3) We will strictly enforce social distancing guidelines between each Family Unit, requiring each Family Unit to stay ten (10) feet apart from each other Family Unit during the service.
(4) This social distancing will be accomplished by arranging chairs, or marking areas, in such a way that each Family Unit has an area that is at least ten (10) feet away from each other Family Unit.
(5) There are multiple large ﬁelds on the Mission Base, and we are proposing to use the ﬁeld marked in Exhibit A.
(6) From that ﬁeld, we are proposing to set up the service in the area marked in Exhibit B. (7) Our members will be instructed by the Pastor to maintain social distancing, and return to
their home after the Assembly has ended, without stopping on the way, and to fully heed and follow the orders of the Governor and the County. 


Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3222 Page 221 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-6 Filed 04/09/20 PageID.37 Page 2 of 5
EXHIBIT A

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3223 Page 222 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3224 Page 223 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-6 Filed 04/09/20 PageID.39 Page 4 of 5
EXHIBIT B

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3225 Page 224 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3226 Page 225 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-7 Filed 04/09/20 PageID.41 Page 1 of 1
ABIDING PLACE MINISTRIES Proposed Plan for Assembly in Vehicles
WHEREAS on March 19, 2020, Gavin Newsom, the Governor of California, issued an executive order, styled Executive Order N-33-20, directing the citizens of California to heed the current State public health directives, and to “stay-at-home.” 

WHEREAS on March 27, 2020, Wilma J. Wooten, the Public Health Oﬃcer for the County of San Diego, issued an order prohibiting gatherings of more than ten (10) people. 

WHEREAS the Abiding Place Ministries, and its Pastor, and all members, believe that they must comply with the command of God “not to forsake the assembling of yourselves together,” and “to assemble all the more” in light of the coming day of the Lord, and that the assembly must take place in “one place” on the “Lord’s Day” as directed by the Holy Scriptures. 

WHEREAS the Abiding Place Ministries, and its Pastor believe they must do everything possible to obey Law Enforcement Oﬃcers, as long as their orders do not conﬂict with the commandments of God.
WHEREAS the Abiding Place Ministries, and its Pastor, have been working with the San Diego County Sheriﬀ’s Oﬃce to ﬁnd the least restrictive means to achieve the Church’s objectives, while complying with the Orders of the Health Oﬃce. 

ABIDING PLACE MINISTRIES PROPOSES: 

(1) We expect approximately thirty (30) vehicles to attend our one service, which will be held at 11:00 a.m. on Sunday.
(2) We will assemble as a congregation on our 427 Acre Mission Base, located at 2155 N. Campo Truck Trl., Campo, CA 91906 (hereinafter “Mission Base”).
(3) We will assemble by vehicle, each vehicle to be parked and arranged in such a way that resembles a drive-in movie theater, each member of the Church to attend the service from inside their vehicle.
(4) We will maintain adequate spacing between cars to ensure the safety of the passengers, and otherwise maintain as much space as may be suggested by authorities when granting this proposal.
(5) Our members will be instructed to remain in their cars during the service, and not to leave their cars after the service has ended.
(6) The service will be broadcast to each vehicle by radio, or internet, and any ampliﬁed sound will be done at reduced levels that are signiﬁcantly below any local sound ordinance, to avoid creating a nuisance for our neighbors.
(7) Our members will be instructed by the Pastor to maintain social distancing, and return to their home after the Assembly has ended, without stopping on the way, and to fully heed and follow the orders of the Governor and the County.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3227 Page 226 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3228 Page 227 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3229 Page 228 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-9 Filed 04/09/20 PageID.44 Page 1 of 5
ABIDING PLACE MINISTRIES
Dr. Wilma J. Wooten, M.D., M.P.H.
 Public Health Oﬃcer Health and Human Services Agency
 for the County of San Diego 
 3851 ROSECRANS STREET, MAIL STOP P-578
 SAN DIEGO, CA 92110-3134
 (619) 531-5800

VIA REGULAR MAIL AND E-MAIL
Re: Our Requests for Permission to Assemble in Light of Covid-19
Dear Dr. Wooten - 

Thank you for your letter dated April 4, 2020, and for taking the time to respond to our inquiries about complying with all government directions, and still being able to assemble. I have forwarded it to Pastor Mark, who also wants to thank you for taking the time to reach out to him. First oﬀ, I want to assure you that we are taking the pandemic seriously, and do not want to do anything that will jeopardize the County. 

Our congregation has been instructed by Pastor Mark to stay-at-home and fully heed and follow your Countywide Order, and the Governor’s Order, both of which we have reviewed extensively. In fact, we understand the importance of doing everything we can to stop the spread of COVID-19, and have been taking precautionary measures to that eﬀect since we ﬁrst became aware of the disease in January. While those measures include all the things you would expect, including proper hygiene, social distancing, self-isolation, and all the best practices described on Covid19.ca.gov; above all of those things (which we began to teach and enforce in a heightened manner starting in January), our congregation depends on and values two things: (1) the Assembly, commonly referred to as “Church,” and (2) Prayer. We have learned that those two things do more than all the other precautionary methods combined. 

Our Pastor is actually a former full-time clinical scientist who worked at Eli Lilly and Company for fourteen years and has extensive experience studying infectious diseases. That is part of the reason why he became aware of this disease in January, and immediately began instructing the congregation in the best practices for avoiding it. We also knew about the severity of the disease, because God revealed it to us as a congregation, in the Assembly, in January, and we immediately began to take precautionary measures as a congregation under the direction of our Pastors. In fact, in January we were instructed to cease going to restaurants, limit trips outside our home and community and to entirely avoid spreading our germs even if we felt healthy. 

As a congregation, we also practice divine healing and dependency on God for our health, and that is the most essential part of the maintenance of our health and well-being as a community. It is so important and essential because we have learned that the Assembly is the best preventative against disease. This is not just our opinion and experience, it is supported by the entirety of human history, including extensive coverage in the Holy Scriptures. 

Not only is our Assembly the best cure and preventative for disease, it is an absolutely essential part of our interaction with God, and cannot be replaced by technology. I do not think it is necessary to lay out all the scriptural proofs of our faith for you, but suﬃce it to say that

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3230 Page 229 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-9 Filed 04/09/20 PageID.45 Page 2 of 5
every time the word “Church” is used in the New Testament, it is actually a translation of the Greek word for “Assembly” or “Gathering,” and it is deﬁned in “one place” and cannot be forsaken for any reason, and must be done all the more in the face of “pestilences.” 

Not only are we a Church, we are also an organization dedicated to serving endangered people groups throughout the world. My family and I are actually missionaries to Kashmir, and many of our members have participated in assemblies in conﬂict regions of the world, under threat of death. We are faced, then and now, with the same question that has faced those of like precious faith for millennia, “is it better to obey man, or to obey God?” 

We believe it is our duty to obey and comply with your orders as much as we possibly can, but cannot, under any circumstance, forsake the assembling of ourselves together, even if it means ﬁne, imprisonment or death. However, we think that there is a less-restrictive means, and that is conducting our Assemblies in a manner that complies with all the required social distancing guidance, and more. We are willing to meet in our vehicles (as we did this past Sunday), or in Hazmat Suits, if that is the only way we can be permitted to meet. 

To that end, we have made three speciﬁc proposals to the County Sheriﬀ’s Oﬃce (all of which I have attached here, and the third being the one we followed this past Sunday), and we know that they have been in communication with your oﬃce to try to ﬁnd a way in which we would be permitted to obey God without ﬁne or imprisonment. We are willing to consider any precautionary methods your oﬃce recommends, or allows - only, we must be permitted to meet on the Lord’s Day, especially this coming Sunday, which is the most important celebration of the year and a time we come together to rededicate our lives to God. 

Both Pastor Mark Spitsbergen and I are willing to speak with you this week, and try to reach some kind of arrangement. We are not interested in setting a precedent for the rest of the County, even though we desire for all men to come to know the saving and healing work of Christ Jesus that has so blessed our lives. We are simply looking for a way to serve God freely. 

Respectfully yours,

Jeremiah Graham

Abiding Place Ministries
 2155 N. Campo Truck Trl.,
 Campo, CA 91906

(619) 633-5110

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3231 Page 230 of 255

Case 3:20-cv-00683-BAS-AHG Document 1-9 Filed 04/09/20 PageID.46 Page 3 of 5

THIRD PORPOSAL

ABIDING PLACE MINISTRIES Proposed Plan for Assembly in Vehicles

WHEREAS on March 19, 2020, Gavin Newsom, the Governor of California, issued an executive order, styled Executive Order N-33-20, directing the citizens of California to heed the current State public health directives, and to “stay-at-home.” 

WHEREAS on March 27, 2020, Wilma J. Wooten, the Public Health Oﬃcer for the County of San Diego, issued an order prohibiting gatherings of more than ten (10) people. 

WHEREAS the Abiding Place Ministries, and its Pastor, and all members, believe that they must comply with the command of God “not to forsake the assembling of yourselves together,” and “to assemble all the more” in light of the coming day of the Lord, and that the assembly must take place in “one place” on the “Lord’s Day” as directed by the Holy Scriptures. 

WHEREAS the Abiding Place Ministries, and its Pastor believe they must do everything possible to obey Law Enforcement Oﬃcers, as long as their orders do not conﬂict with the commandments of God.
WHEREAS the Abiding Place Ministries, and its Pastor, have been working with the San Diego County Sheriﬀ’s Oﬃce to ﬁnd the least restrictive means to achieve the Church’s objectives, while complying with the Orders of the Health Oﬃce. 


ABIDING PLACE MINISTRIES PROPOSES: 


(1) We expect approximately thirty (30) vehicles to attend our one service, which will be held at 11:00 a.m. on Sunday.
(2) We will assemble as a congregation on our 427 Acre Mission Base, located at 2155 N. Campo Truck Trl., Campo, CA 91906 (hereinafter “Mission Base”).
(3) We will assemble by vehicle, each vehicle to be parked and arranged in such a way that resembles a drive-in movie theater, each member of the Church to attend the service from inside their vehicle.
(4) We will maintain adequate spacing between cars to ensure the safety of the passengers, and otherwise maintain as much space as may be suggested by authorities when granting this proposal.
(5) Our members will be instructed to remain in their cars during the service, and not to leave their cars after the service has ended.
(6) The service will be broadcast to each vehicle by radio, or internet, and any ampliﬁed sound will be done at reduced levels that are signiﬁcantly below any local sound ordinance, to avoid creating a nuisance for our neighbors.
(7) Our members will be instructed by the Pastor to maintain social distancing, and return to their home after the Assembly has ended, without stopping on the way, and to fully heed and follow the orders of the Governor and the County.

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3232 Page 231 of 255
Case 3:20-cv-00683-BAS-AHG Document 1-9 Filed 04/09/20 PageID.47 Page 4 of 5 SECOND PORPOSAL
ABIDING PLACE MINISTRIES Proposed Plan for Assembly
WHEREAS on March 19, 2020, Gavin Newsom, the Governor of California, issued an executive order, styled Executive Order N-33-20, directing the citizens of California to heed the current State public health directives, and to “stay-at-home.” 

WHEREAS on March 27, 2020, Wilma J. Wooten, the Public Health Oﬃcer for the County of San Diego, issued an order prohibiting gatherings of more than ten (10) people. 

WHEREAS the Abiding Place Ministries, and its Pastor, and all members, believe that they must comply with the command of God “not to forsake the assembling of yourselves together,” and that the assembly must take place in “one place” on the “Lord’s Day” as directed by the Holy Scriptures. 

WHEREAS the Abiding Place Ministries, and its Pastor believe they must do everything possible to obey Law Enforcement Oﬃcers, as long as their orders do not conﬂict with the commandments of God.
WHEREAS the Abiding Place Ministries, and its Pastor, have been working with the San Diego County Sheriﬀ’s Oﬃce to ﬁnd the least restrictive means to achieve their objectives, while avoiding arrest or criminal charges for obeying the Holy Scriptures. 

ABIDING PLACE MINISTRIES PROPOSES: 

(1) We will assemble as a congregation on our 427 Acre Mission Base, located at 2155 N. Campo Truck Trl., Campo, CA 91906 (hereinafter “Mission Base”).
(2) We will assemble by household, each household comprised of only individuals who share a residential address, and each household comprising no more than ten (10) people (hereinafter “Family Unit”).
(3) We will strictly enforce social distancing guidelines between each Family Unit, requiring each Family Unit to stay ten (10) feet apart from each other Family Unit during the service.
(4) This social distancing will be accomplished by arranging chairs, or marking areas, in such a way that each Family Unit has an area that is at least ten (10) feet away from each other Family Unit.
(5) There are multiple large ﬁelds on the Mission Base, and we are proposing to use the ﬁeld marked in Exhibit A.
(6) From that ﬁeld, we are proposing to set up the service in the area marked in Exhibit B.
(7) Our members will be instructed by the Pastor to maintain social distancing, and return to their home after the Assembly has ended, without stopping on the way, and to fully heed and follow the orders of the Governor and the County. 


Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3233 Page 232 of 255

Case 3:20-cv-00683-BAS-AHG Document 1-9 Filed 04/09/20 PageID.48 Page 5 of 5

FIRST PORPOSAL

ABIDING PLACE MINISTRIES Plan for Assembly

WHEREAS on March 19, 2020, Gavin Newsom, the Governor of California, issued an executive order, styled Executive Order N-33-20, directing the citizens of California to heed the current State public health directives, and to “stay-at-home.” 

WHEREAS on March 27, 2020, Wilma J. Wooten, the Public Health Oﬃcer for the County of San Diego, issued an order prohibiting gatherings of more than ten (10) people. 

WHEREAS the Abiding Place Ministries, and its Pastor, and all members, believe that they must comply with the command of God “not to forsake the assembling of yourselves together,” and that the assembly must take place in “one place” on the “Lord’s Day” as directed by the Holy Scriptures. 

WHEREAS the Abiding Place Ministries, and its Pastor believe they must do everything possible to obey Law Enforcement Oﬃcers, as long as their orders do not conﬂict with the commandments of God.
WHERAS the Abiding Place Ministries is a small congregation, and ordinarily has less than one-hundred (100) members in attendance at its meetings, and no household of more than ten (10) people. 

ABIDING PLACE MINISTRIES PROPOSES: 

(1) We will assemble as a congregation on our 427 Acre Mission Base, located at 2155 N. Campo Truck Trl., Campo, CA 91906.
(2) We will assemble by household, each household comprised of only individuals who share a residential address, and each household comprising no more than ten (10) people (hereinafter “Family Unit”).
(3) We will strictly enforce social distancing guidelines between each Family Unit, requiring each Family Unit to stay ten (10) feet apart from each other Family Unit during the service.
(4) We have a tent that is 5400 square feet, with less than four-hundred (400) square feet reserved for the platform. With each Family Unit placed at the center of a one-hundred square feet area, each family unit will be approximately ten (10) feet from each other Family Unit, which is a greater distance than required by current social distancing guidelines.
(5) If there are more than ﬁfty (50) family units, any additional Family Unit will be required to participate in the assembly from outside of the tent, and to maintain the same social distancing as each Family Unit in the tent.
(6) Our members will be instructed by the Pastor to return to their home after the Assembly has ended, without stopping on the way, and to fully heed and follow the orders of the Governor and the County. 


Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3234 Page 233 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3235 Page 234 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3236 Page 235 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3237 Page 236 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3238 Page 237 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3239 Page 238 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3240 Page 239 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3241 Page 240 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3242 Page 241 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3243 Page 242 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3244 Page 243 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3245 Page 244 of 255

Gavin Newsom asked to reconcile support for protests with new warnings on gatherings - ... Page 2 of 5 Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3246 Page 245 of
255
In this photo taken Friday, June 26, 2020, Gov. Gavin Newsom speaks about the coronavirus pandemic as he gives an update on the state's response to it at a news conference in Rancho Cordova, Calif.
During his Thursday press conference, California Gov. Gavin Newsom was asked why Californians should heed his new warnings against gatherings for Fourth of July weekend when he was previously supportive of protests against police brutality, where officials did not enforce mask-wearing or social-distancing. Over the past week, Newsom has told residents not to gather with individuals outside their households and to avoid large crowds for any Fourth of July parades or demonstrations, while adding the state will "mitigate" any large crowds.
https://www.sfgate.com/politics/article/Gavin-Newsom-protests-coronavirus-July-Fourth-as... 8/7/2020

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3247 Page 246 of 255

Gavin Newsom asked to reconcile support for protests with new warnings on gatherings - ... Page 4 of 5 Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3248 Page 247 of
255 The governor then stated that no one will be cracking down on social gatherings in backyards before returning to commenting on the protests. "I maybe was unique in my household but I don't think I was, I think it was universally taught: Just because someone else is doing it, doesn't mean you should," Newsom said. "People know what the right thing to do is. I encourage them to do the right thing. And people also understand that we have a Constitution, we have a right to free speech and we are all dealing with a moment in our nation's history that is profound and pronounced... but I recognize the dichotomy and to the extent the dialectic between those examples and all I can offer is this consideration: Do what you think is best not only for you but for the health of the people you love."
It is unclear to what extent the protests contributed to the spread of the virus. An Associated Press investigation found little evidence the demonstrations are primarily responsible for recent upticks, but Los Angeles County public health director Barbara Ferrer has stated it is "highly likely" the protests led to an increase in positive cases. When the protests first started, Newsom told the demonstrators, "You’ve lost patience, so have I. You are right to feel wronged. You are right to feel the way you are feeling" and retweeted images of protests in praise. After police used rubber bullets and tear gas to disperse crowds, he tweeted, "Protesters have the right to protest peacefully — not be harassed."
MORE CORONAVIRUS COVERAGE:
https://www.sfgate.com/politics/article/Gavin-Newsom-protests-coronavirus-July-Fourth-as... 8/7/2020

Gavin Newsom asked to reconcile support for protests with new warnings on gatherings - ... Page 5 of 5 Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3249 Page 248 of
255 Sign up for 'The Daily' newsletter for the latest on coronavirus here. — Newsom announces new restrictions in 19 California counties — The virus didn't stop a socialite from throwing a backyard soiree. Then tests came back positive. — These metrics suggest the coronavirus is indeed back on the upswing in the Bay Area — Why coronavirus cases in California are suddenly surging — Gavin Newsom: Californians should 'reconsider' July 4th plans, state will 'mitigate' big gatherings Eric Ting is an SFGATE digital reporter. Email: eric.ting@sfgate.com | Twitter:@_ericting
© 2020 Hearst Communications, Inc.
https://www.sfgate.com/politics/article/Gavin-Newsom-protests-coronavirus-July-Fourth-as... 8/7/2020

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3250 Page 249 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3251 Page 250 of Case 2:20-cv-01431-KJM-DMC Doc2u5m5ent 1-5 Filed 07/15/20 Page 2 of 3

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3252 Page 251 of Case 2:20-cv-01431-KJM-DMC Doc2u5m5ent 1-5 Filed 07/15/20 Page 3 of 3

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3253 Page 252 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3254 Page 253 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3255 Page 254 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-3 Filed 08/10/20 PageID.3256 Page 255 of 255

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3257 Page 1 of 15

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED PENTECOSTAL

20

CHURCH, a California non-profit corporation; and BISHOP ARTHUR

21 HODGES III, an individual,

22

Plaintiffs,

23

v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

Case No. 3:20-cv-865-BAS
Supplemental Declaration of George Delgado, M.D. in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction
Judge: Hon. Cynthia Bashant

28

SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3258 Page 2 of 15

1

I, George Delgado, M.D., declare and state as follows:

2

1. I am a physician, licensed by the Medical Board of the State of California

3 since 1989. I submit this declaration in support of Plaintiffs’ Renewed Motion for a

4 Temporary Restraining Order / Preliminary Injunction. I have personal knowledge of

5 the matters set forth below, and could and would testify competently to them if called

6 upon to do so.

7

Professional Background

8

2. I graduated from St. Mary’s College of California with a Bachelor of

9 Science degree, summa cum laude and received my Doctor of Medicine degree from

10 the University of California, Davis. I completed my family residency at Santa Monica

11 Hospital/UCLA and I am board certified in family medicine and hospice and

12 palliative medicine.

13

3. Currently, I serve as a Medical Analyst for COVID Planning Tools, a

14 multi-disciplinary group offering analysis of the COVID-19 pandemic as well as

15 rational solutions and strategies for managing our public health response. Our group

16 has developed a Monte Carlo COVID Decision Model that has proven to be more

17 accurate than models more commonly being used to predict the pandemic.

18

4. Since 2005, I have been the medical director of a family medical group.

19 Additionally, I am the chief medical officer of a large hospice.

20

5. Post-residency I have practiced medicine in the State of California for 29

21 years. During that time, I have treated many people with infectious diseases including

22 viral illnesses such as influenza which tend to occur in epidemics. I have been

23 intimately involved in planning for the current coronavirus disease 2019 (COVID-19) 24 pandemic, caused by the severe acute respiratory syndrome coronavirus 2 (SARS-

25 CoV-2) for my family medical group and hospice.

26

6. I have also provided expert advice in multiple litigations involving the

27 COVID-19 pandemic. I provided an expert declaration in the action Soos v. Cuomo,

28 No. 1:20-cv-651 (GLS/DJS) (N.D.N.Y. June 10, 2020) (injunction granted).

1
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3259 Page 3 of 15

1

The Flattening of the Curve and the Recent Upticks

2

7. It is clear that due to early mitigation measures carried out throughout

3 California, the trajectory of the COVID-19 pandemic was altered; the “curve was

4 flattened.” Mitigation measures, like any medical treatment, have untoward

5 consequences, some foreseeable, some not. When they are imprecise they can lead to

6 civil liberty infringements. Furthermore, the “treatment” that got us to where we are

7 now, is not the “treatment” that is indicated for us now.

8

8. In the clinical practice of medicine, we acknowledge that people have

9 spiritual, psychological and physical dimensions. We know that spiritual and

10 psychological stress and trauma can lead to physical problems, including immune

11 system dysfunction. Arbitrarily declaring religious services to be “non-essential,”

12 besides being unconstitutional, also carries with it certain profound spiritual and

13 psychological risks that, ironically, could actually lead to an increase in mortality from

14 COVID-19 by negatively impacting immune function and by destabilizing the support

15 systems of vulnerable people.

16

9. According to Robert Redfield, MD, the director of Centers for Disease

17 Control and Prevention (CDC), at this point in the pandemic, both suicides and drug 18 overdose deaths are outnumbering deaths due to the coronavirus, itself.1 The social

19 side effects of mitigation measures are rearing their ugly head.

20

10. The Reproduction measure (R) gives an indication of how many

21 additional persons an infected person can infect during an epidemic. When R drops

22 below one, an outbreak loses steam and begins to subside. According to Rt Live, R is

23 currently 0.88 in California, which is in agreement with the model of my COVID 24 planning group.2

25
1 Transcript of COVID Webinar Series interview of Robert Redfield, MD, BUCK INSTITUTE (Jul. 14,
26 2020), https://www.buckinstitute.org/covid-webinar-series-transcript-robert-redfield-md/ 27 (accessed Aug. 5, 2020).
2 Rt COVID-19, RT LIVE (as of Aug. 7, 2020), https://rt.live/.
28

2
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3260 Page 4 of 15

1

11. In California, cases and hospitalizations have increased since about

2 June 1, but the median age of those infected and hospitalized has decreased. Our

3 conclusion, supported by the COVID-19 Decision Model is that the recent increases

4 are related to two distinct but related phenomena. One was the tolerance and even

5 encouragement of public protests whereby participants often did not wear masks and

6 clearly did not respect social distancing. The other is what I have termed “mitigation

7 fatigue.” Members of the age 20–50 demographic have stopped heeding the calls of

8 the governor and other government officials to decrease mobility and contacts. They

9 have resumed socializing without social distancing and wear masks only when

10 required. They intuitively recognize that imprecise, arbitrary COVID-19 mitigation

11 measures are inappropriate and disproportionate.

12

12. The figure below, obtained from CDC website, uses CDC data to

13 explain how the early COVID-19 mitigation measures led to an approximate 40–50%

14 decrease in mobility of California’s residents in the transit, workplace, retail and

15 recreation spheres. Over the ensuing weeks, mobility gradually increased to a level of

16 about 60–80% of baseline (20–40% decrease from baseline). New restrictions were

17 instituted by Governor Newsom on July 1 and July 13. The CDC data does not show

18 any change in the mobility curves, nor was the cumulative death curve affected. This

19 suggests that the measures were not followed by the populace, in my opinion due to

20 mitigation fatigue.

21

13. Not only are the current mitigation efforts futile, they are directed

22 against the wrong activities and gatherings. The most likely drivers of the current

23 increase in California cases are the 20–50 year old group that has resumed

24 socializing—not worshippers attending church. Furthermore, most of the California

25 and US church-related outbreaks occurred before June or in congregations that failed

26 to follow commonsense recommendations, such as the ones I list below.

27 ///

28 ///

3
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3261 Page 5 of 15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

Indoor Worship Services with Singing

17

14. I am confident that a resumption of religious services can take place,

18 with singing and indoors, in a manner that does not jeopardize public health. In fact, I 19 feel that going to one’s church, synagogue or mosque should be much safer than 20 going to the grocery store, participating in a prote st, or working at a 21 manufacturing facility.

22

15. The CDC released interim guidelines in May advising faith communities

23 on how to best hold services while minimizing the risk of spreading COVID-19. It is 24 important to note that the statement includes the following: “CDC offers these 25 suggestions for faith communities to consider and accept, reject, or modify, 26 consistent with their own faith traditions, in the course of preparing to reconvene for

27 in-person gatherings while still working to prevent the spread of COVID-19.” Thus,

28 in no way are the guidelines to be taken as requiring an infringement on First

4
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3262 Page 6 of 15

1 Amendment-protected rights.3

2

16. Many have expressed concern that worship services could become

3 hotbeds of COVID-19 contagion, mostly because of the well-publicized case in

4 Washington State last March where, out of 61 attendees, up to 53 people became ill

5 after a two and a half hour choir practice where they were exposed to a person who

6 was ill but did not realize he had COVID-19. Thirty three of those who were ill had 7 tests confirming they were infected with SARS-CoV-2.4 The participants were in a

8 relatively small room with poor ventilation. Much of the time, they were only seated

9 6–10 inches apart. They practiced for two and a half hours and shared food,

10 afterwards. Patient zero knew he was sick.

11

17. Fortunately, since that fateful day in March, we have learned much

12 about the virus and how it spreads. The lessons learned will allow Californians to

13 safely worship indoors while singing. Certainly, things would have turned out very

14 differently in Washington and in other locales if our current recommendations (listed

15 below) were implemented.

16

18. Singing does present some challenges, but none of them are

17 insurmountable. A comprehensive report produced by a collaboration between a

18 university and three music institutes in Germany, titled “Risk Assessment of a 19 Coronavirus Infection in the Field of Music” was updated in July.5 Citing research

20 conducted by them and others, the medical, engineering and vocal experts concluded

21

22

3 Considerations for Communities of Faith, CDC (May 23, 2020), https://www.cdc.gov/coronavirus/ 2019-ncov/community/faith-based.html (accessed Aug. 7, 2020).

23 4 Lea Hamner, MPH, et al., High SARS-CoV-2 Attack Rate Following Exposure at a Choir Practice —

24

Skagit County, Washington, March 2020, CDC (May 15, 2020), https://www.cdc.gov/mmwr/ volumes/69/wr/mm6919e6.htm (accessed Aug. 6, 2020).

25 5 Claudia Spahn, Ph.D., M.D. & Bernhard Richter, M.D., Risk Assessment of a Coronavirus Infection

26

in the Field of Music, UNIVERSITY OF FREIBURG (Jul. 17, 2020 update), https://www.mhfreiburg.de/fileadmin/Downloads/Allgemeines/RisikoabschaetzungCoronaMusikSpahnRichter17.

27 7.2020Englisch.pdf (translated by Kirk D. Moss, Ph.D. & Scott S. Swope, D.M.A) (accessed Aug.

6, 2020).
28

5
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3263 Page 7 of 15

1 that singing only slightly increases the dispersion of respiratory droplets. It can,

2 however, increase the production of aerosol particles, which are smaller (<5

3 microns). The group concludes that singing can safely take place in houses of

4 worship, provided that singers are spaced about two meters apart (close to our

5 standard of six feet), that masks are worn, and that ventilation is adequate.

6

19. Both the German group and an article by Naunheim, et al. in the Journal

7 of Voice emphasize that as spacing increases and the amount of time spent singing 8 decreases, the risk of spread of the virus diminishes.6 Worship services generally have

9 songs interspersed with sermons and prayers. The breaks in the singing action allow

10 droplets to fall to the ground and aerosols to be dispersed and diluted.

11

20. A May webinar sponsored by the National Association of Teachers of

12 Singing and other groups left viewers with the unequivocal message that singing with

13 others could not safely resume until a SARS-CoV-2 vaccine or effective therapeutics 14 were available.7 As Naunheim, et al. make clear, this fear-based conclusion is not 15 based on any scientific evidence.8

16

21. Ventilation is an important component in any plan to decrease the risk of

17 viral transmission in an indoor venue with singing. Modern heating, ventilation and

18 air conditioning (HVAC) can be very helpful. Another fear-based rumor is that

19 HVAC systems can actually spread viral transmission, not diminish it. This is not the

20 case with modern HVAC systems. There was a case in China of viral spread through

21 a ventilation system, but it had more to do with the poor design of the system than

22
23 6 Matthew R. Naunheim, et al., Safer Singing During the SARS-CoV-2 Pandemic: What We Know and
What We Don’t, J. OF VOICE (Jul. 1, 2020), https://www.jvoice.org/action/showPdf?pii=S0892-
24 1997%2820%2930245-9 (accessed Aug. 6, 2020).
25 7 A Conversation: What Do Science and Data Say About the Near Term Future of Singing May 5, 2020
Webinar, NAT’L ASS. OF TEACHERS OF SINGING, INC. (May 5, 2020),
26 https://www.nats.org/cgi/page.cgi/_article.html/Featured_Stories_/NATS_COVID_Resources 27 _Page (accessed Aug. 6, 2020).
8 Naunheim, et al., supra n. 6.
28

6
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3264 Page 8 of 15

1 with HVAC systems in general, according to HVAC experts9 and a second scientific

2 article that corrected some of the misinterpretation of data in the original article 3 reporting on the transmission.10

4

22. Having as many windows and doors open as possible, as well as running

5 the ventilation will effectively dilute aerosols containing viral particles. CDC suggests

6 running the HVAC at the highest level (with air intake from outside) for two hours 7 before and two hours after occupied times.11 Industry experts recommend that, if

8 possible, HVAC filters be minimum efficiency reporting values (MERV) 13 or better, 9 which would remove most of the aerosol particles that could carry the coronavirus.12

10

Comparison with Grocery Store

11

23. One could easily compare an average grocery store, which serves 1,000

12 customers per day, to a house of worship, in terms of risk of contagion. Even with

13 planned flow of foot traffic, the movement of people in the grocery store is relatively

14 uncontrolled. The aisles are not designed to allow six-foot social distancing. People

15 touch merchandise that they never buy. By the time a person puts an item in his or

16 her cart, it may have been touched by several, if not hundreds of people in the three

17 previous days (the coronavirus may survive up to three days on smooth surfaces).

18 The cart, may have had its handle sanitized but the carriage itself likely was not.

19 Next, the items are placed on the conveyer belt which has contacted hundreds of

20
21 9 Joanna R. Turpin, Can HVAC Systems Spread COVID-19?, ACHR NEWS (May 31, 2020),
https://www.achrnews.com/articles/143255-can-hvac-systems-spread-the-covid-19-virus
22 (accessed Aug. 6, 2020).
23 10 Yuguo Li, Ph.D., et al., Aerosol transmission of SARS-CoV-2: Evidence for probable aerosol
transmission of SARS-CoV-2 in a poorly ventilated restaurant , MEDRXIV (Apr. 22, 2020),
24 https://www.medrxiv.org/content/10.1101/2020.04.16.20067728v1.full.pdf (accessed Aug. 6, 25 2020).
11 COVID-19 Employer Information for Office Buildings, CDC (Jul. 9, 2020 update),
26 https://www.cdc.gov/coronavirus/2019-ncov/community/office-buildings.html (accessed Aug. 6, 27 2020).
12 Turpin, supra n. 9.
28

7
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3265 Page 9 of 15

1 items that others have touched. The clerk wears gloves but does not change gloves 2 between customers. He touches nearly every item as well as money.

3

24. The house of worship, on the other hand will likely have far fewer than

4 1,000 attendees and windows and doors can be open. The participants will be

5 stationary for all or most of their services and their movements can be very

6 controlled, planned and prescribed, as opposed to the uncontrolled movements in the

7 grocery stores. Worshipers will not be touching multiple items. There will be time

8 after each service to thoroughly clean the chairs or pews that they do touch.

9

25. We can calculate the risk of contagion at the house of worship, if the

10 guidelines listed below are followed, compared to a grocery store. A relative value

11 greater than 1 makes the house of worship riskier, while a relative risk less than 1

12 makes the house of worship safer.

13

o Being in the same building with others at any one time: relative risk is 2

14

(100 in the house of worship; 50 in grocery store).

15

o People touching multiple objects: relative risk is 0.25. People touch far

16

fewer objects in the house of worship; 1,000 people per day touch many

17

things in the grocery store. Chairs and pews can be sanitized after each

18

service. It is impracticable, if not impossible, to sanitize all items in a

19

store.

20

o Close contact with others: relative risk is 0.25. Worshipers are stationary

21

and socially distanced. They enter and exit in a controlled, spaced

22

manner. Shoppers move about as they wish, even if flow is one way.

23

26. The calculation is: Risk in House of Worship = Risk in Grocery Store x

24 2 x 0.25 x 0.25 = 0.125, which is less than 1.

25

27. Therefore, the calculated risk of contracting COVID-19 at the house

26 of worship is 0.125 or 12.5% the risk at the grocery store.

27 ///

28 ///

8
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3266 Page 10 of 15

1

Comparison with Public Protests

2

28. Public protests have abounded in California since George Floyd was

3 killed by a Minneapolis police officer. The protests have been allowed and/or

4 tolerated by public officials. We can compare the risk of spreading the coronavirus in

5 a house of worship and at a public protest. Social distancing has not been maintained

6 at public protests. Many of the protestors may be wearing masks, however, they likely

7 are not observing directives that all should be wearing masks in public. Many photos

8 of protestors show them to be of different ages, however the main demographic

9 represented is the age group of 20–50.

10

29. On the other hand, indoor religious services can (and have been

11 conducted in California and other states) with great care and control. Social

12 distancing can be maintained, all participants wear masks and movement of people

13 can be directed carefully.

14

30. Religious service congregants will generally all be facing in the same

15 direction, while public protestors may be looking around and sometimes facing or

16 walking in different directions. A droplet released by an unknowingly infected

17 worshipper is most likely to hit the back of the person seated in front of him or her,

18 and will be unlikely to infect that person. Alternatively, in a protest situation, a

19 droplet released by an unknowingly infected person is more likely to be inhaled by

20 another facing the infected protestor.

21

31. We can calculate the risk of contagion at the house of worship, if the

22 guidelines listed below are followed, compared to a public protest. A relative value

23 greater than 1 makes the house of worship riskier, while a relative risk less than 1

24 makes the house of worship safer.

25

o Being in the same area with others at any one time: relative risk is 0.01

26

(100 in the house of worship; 10,000 at a public protest).

27

o Being in a well-ventilated house of worship compared to outside: relative

28

risk is 4.

9
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3267 Page 11 of 15

1

o People touching multiple objects: relative risk is 1. People touch pews

2

and chairs in the house of worship compared to people at the protest

3

touching railings, poles, signs, etc. The pews and chairs can be sanitized.

4

o Close contact with others: relative risk is 0.5. Worshipers are stationary

5

and socially distanced. They enter and exit in a controlled, spaced

6

manner. Protesters are close to one another and even rubbing against

7

each other. They move at different rates which exposes them to more

8

people.

9

o Yelling: relative risk is 0.5. Protestors and leaders yell full-throated

10

slogans. Worship leaders use electronic amplification and evidence-

11

based strategies that decrease the risks of singing.

12

32. The calculation is: Risk in House of Worship = Risk in public protest x

13 1 x 0.01 x 4 x 1 x 0.5 x 0.5 = 0.01, which is far less than 1.

14

33. Therefore, the calculated risk of contracting COVID-19 at the house

15 of worship is 0.01 or 1% the risk at public protests that have been allowed and or

16 tolerated by public officials.

17

Comparison with Manufacturing Facilities

18

34. Some manufacturing facilities were deemed “essential” and remained

19 open in California; others have opened as mitigation measures were relaxed. One

20 could easily compare an average manufacturing plant to a house of worship, in terms

21 of risk of contagion. Even with planned flow of foot traffic, the movement of people

22 in the manufacturing plant is dependent on immediate needs and therefore sub-

23 optimally controlled. The walkways are not designed to allow six-foot social

24 distancing. Workers have to touch equipment and products as part of the normal

25 workflow. By the time an item reaches the end of a production line, it may have been

26 touched by several, if not hundreds of people.

27

35. In a production facility, employees must sometimes work in close

28 proximity to one another, often at a distance of less than six feet and often facing each

10
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3268 Page 12 of 15

1 other. Although wearing masks decreases risks of contagion, it does not change the 2 fact that members of different households are clustered together for long periods of

3 time. Furthermore, the job may require that employees move about, potentially

4 contacting other employees.

5

36. Manufacturing facilities may have large and very expensive equipment.

6 Modifying or moving such equipment in order to create social distancing

7 opportunities may be prohibitively expensive, impractical or impossible.

8

37. Workers spend 8-12 hours per day at manufacturing plants. Obviously,

9 they need to move about to use the restrooms, eat and rest. The movement and visits

10 to places away from their work stations create opportunities for spread of the virus.

11

38. Suppliers and contractors must visit manufacturing facilities in order to

12 keep those facilities running efficiently and effectively. Visitors may not be familiar

13 with a particular facility’s procedures and protocols for minimizing exposure to the

14 coronavirus. Unfamiliar visitors may increase the risk of transmission.

15

39. Religious services can be held in well ventilated buildings, while

16 factories may not have that luxury. The participants at the house of worship will be

17 stationary for all or most of their services and their movements can be very

18 controlled, planned and prescribed, as opposed to the less controlled movements in

19 manufacturing facilities.

20

40. Religious service congregants will generally all be facing in the same

21 direction, while manufacturing workers may be face-to-face by necessity of the work.

22 Worshipers will not be touching multiple items as they might in manufacturing

23 plants. There will be ample time after each service to thoroughly clean the chairs or

24 pews that they do touch.

25

41. We can calculate the risk of contagion at the house of worship, if the

26 guidelines listed below are followed, compared to a manufacturing facility. A relative

27 value greater than 1 makes the house of worship riskier, while a relative risk less than

28 1 makes the house of worship safer.

11
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3269 Page 13 of 15

1

o Being in the same building or part of a building with others at any one

2

time: relative risk is 1 (100 in the house of worship; 100 in facility).

3

o People touching multiple objects: relative risk is 0.5. People touch fewer

4

things in the house of worship.

5

o Close contact with others: relative risk is 0.5. Worshipers are stationary

6

and socially distanced. They enter and exit in a controlled, spaced

7

manner. Manufacturing workers move about as their jobs demand. Some

8

jobs require workers to be closer than six feet, some workers must face

9

each other, and some work stations cannot be modified to allow social

10

distancing.

11

42. The calculation is: Risk in House of Worship = Risk in manufacturing

12 facility x 1 x 0.5 x 0.5 = 0.25, which is less than 1.

13

43. Therefore, the calculated risk of contracting COVID-19 at the house

14 of worship is 0.25 or 25% the risk at the manufacturing facility and manufacturing

15 facilities are open in California.

16

Recommendations

17

44. The following commonsense recommendations will allow a safe return

18 to meaningful, spiritually rich religious services, with singing, for the millions of

19 Californians who cherish their religion and do not deem it unessential.

20

a. Have a questionnaire that the attendees self-administer before entering.

21

Any who have symptoms of COVID-19 or contact with someone

22

infected should be told to not enter.

23

b. Check temperatures of all who enter. A temperature of 100 degrees

24

Fahrenheit (37.8 Celsius) should preclude admission.

25

c. All who enter the house of worship should sanitize their hands.

26

d. More services should be offered to allow limiting congregation sizes.

27

There should be no arbitrary limit on congregation size, however, as

28

long as six-foot social distancing can be maintained.

12
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3270 Page 14 of 15

1

e. Shorter sermons and shorter services will allow clergy to offer more

2

services while maintaining their spiritual and physical stamina.

3

f. Houses of worship should be well ventilated, with many doors and

4

windows open. HVAC systems should be run as high as comfortably

5

possible during services, and as high as possible two hours before and

6

after services to “flush” and dilute the air. There is less chance of

7

contagion in well ventilated areas.

8

g. If possible, filters should be upgraded to MERV 13 or higher. An HVAC

9

professional should be consulted since higher rated filters may increase

10

the load for fan motors.

11

h. During services, people should sit together as families, with six feet

12

between families. Only allow seating in every other pew or row, leading

13

to six-foot spacing.

14

i. Choir members, cantors and clergy should use amplification, if possible,

15

in order to allow the use of less than full-throated singing.

16

j. Choir members should be as far as possible from the general

17

congregation.

18

k. Face coverings or face masks should be worn by attendees and choir

19

members. The clergy person, being at greater than six-feet away, need

20

not wear a face covering, unless he or she is talking in a loud voice

21

without amplification, or is singing.

22

l. No hugging, kiss of peace, hand holding or hand shaking should be

23

allowed.

24

m. Where communion is offered, lines can be spaced with families at six-

25

foot intervals.

26

n. The minister who distributes communion should sanitize his or her

27

hands, and take great care not to touch any recipient’s mouth or hand. If

28

an inadvertent contact occurs, the minister should re-sanitize his or her

13
SUPP. GEORGE DELGADO, M.D. DECL.

Case 3:20-cv-00865-BAS-AHG Document 53-4 Filed 08/10/20 PageID.3271 Page 15 of 15

1

hands, immediately.

2

o. Worship aids and prayers should be projected, if possible. R .usable

3

prayer books should be removed from the building.

4

p. Foot traffic entering and exiting the worship area should be desigJ d as a

5

one-way flow loop.

6

q. Egress after the service should be row by row, commencing wi h row

7

closest to the door.

8

r. After each service, chairs, benches and pews should be sanitized.

9

45. Like the CDC guidelines, these guidelines should be followed to the

10 extent which the demands of any particular faith allow. They should j ot be

11 deemed-like California's requirements-as a prerequisite to the exercise o one's

12 constitutional right to engage in worship.

13

I declare until penalty of perjury under the laws of the United States and the

Au~st 14 State of California that the foregoing is true and correct. Executed on

8,

15 2020.

16

17

George Delgado, M.D.

18

19

20

21

22

23

24

25

26

27

28

14

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3272 Page 1 of 64

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED PENTECOSTAL

20

CHURCH, a California non-profit corporation; and BISHOP ARTHUR

21 HODGES III, an individual,

22

Plaintiffs,

23

v.

Case No. 3:20-cv-865-BAS
Declaration of Charles Cicchetti in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction

24 GAVIN NEWSOM, in his official capacity Judge: Hon. Cynthia Bashant 25 as the Governor of California, et al.,

26

Defendants.

27

28

DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3273 Page 2 of 64

1

I, Charles J. Cicchetti, declare and state as follows:

2

1. I am a resident of the State of California. I am a Managing Director at

3 Berkeley Research Group, Inc. The views are my own and do not reflect the views of

4 any entities with which I am affiliated. I submit this declaration in support of

5 Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary

6 Injunction. I have personal knowledge of the matters set forth below, and could and

7 would testify competently to them if called upon to do so.

8

2. I am an economist with a BA from Colorado College (1965) and a Ph.D.

9 from Rutgers University (1969), and three years of Post Graduate Research at

10 Resources for the Future (RFF). I was formally trained in statistics and econometrics 11 and accepted as an expert witness in statistics and econometrics in federal court.1 In

12 the course of my work I regularly use epidemiology models and advanced statistical

13 techniques. I have written expert reports analyzing toxic chemical and health effects,

14 including three reports used in settlements related to the health and cancer risks

15 related to TCP in drinking water. I have written three monographs in support of

16 litigation related to federal regulations based on morbidity and mortality risks from air

17 pollution: Why EPA’s Mercury and Air Toxics Rule is Good for the Economy and

18 America’s Workforce, July 2011; Expensive Neighbors: The Hidden Cost of Harmful

19 Pollution to Downwind Employers and Businesses, January 2011; The True Cost of 20 Harmful Pollution to Downwind Families and Business, November 2010.2 In much of

21 my work I design surveys, draw random samples and test the data for statistically

22 1 For example, I analyzed the American Cancer Society’s million-person health data 23 and a Meta study of the combined health risks of smoking and asbestos exposure for a 24 deposition in California Court in Raybestos-Manhattan of Whiteley v. Raybestos-
Manhattan, Case No. 303184, November 30, 1999. More recently, I provided an 25 expert report in San Diego Unified Port District v. Monsanto, No. 3:15-CV-0578 (S.D. 26 Cal. Apr. 5, 2019).
27 2 The last two monographs were prepared for Exelon in response to EPA’s proposed Transport Rule under the Clean Air Act.
28

1
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3274 Page 3 of 64

1 significant differences. I also have been asked to evaluate the work of other experts

2 and to opine on the data used to draw conclusions and the significance of omitted

3 variables and ignored facts.

4

3. I testified as an expert hundreds of times since my first testimony in 1967

5 before regulators, arbitration panels, state and federal courts in Canada and the

6 United States. Much of my work involves data analysis and interpretation, sampling

7 and survey design.

8

4. I commenced my professional career after completing my academic and

9 post-doctoral studies and eventually became a tenured Professor of Economics and

10 Environmental Studies at the University of Wisconsin from 1972 to 1985. For the

11 first three years I also served as the first economist for the Environmental Defense

12 Fund (EDF). From 1975 through 1976, I served as the Director of the Wisconsin

13 Energy Office and as Special Energy Counselor for the Governor. In 1977, I was

14 appointed by the Governor as Chair of the Public Service Commission of Wisconsin

15 (“PSCW”) and held that position until 1979 and served as a Commissioner until

16 1980.

17

5. I am a consultant and expert witness. During much of my career I taught

18 economics and public policy. From 1987 until 1990, I served as Deputy Director of

19 the Energy and Environmental Policy Center at the John F. Kennedy School of

20 Government at Harvard University. After teaching part time, in 1998, I accepted the

21 Jeffrey J. Miller Chair in Government, Business and the Economy at the University

22 of Southern California, which I held until 2006. I returned to a part time role at USC,

23 where I currently meet with students who study lectures that I pre-recorded. I served

24 on the California Governor’s Market Advisory Group responding to the California

25 Energy Crisis in 2000. I joined Berkeley Research Group as Managing Director in

26 2016. A true and correct copy of my c.v. is attached as Exhibit 1.

27

6. The purpose of my Declaration is to explain California’s regulations that

28 place certain counties on a “monitoring list,” and if so placed, require restrictions on

2
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3275 Page 4 of 64

1 how houses of worship may operate. I show that California’s exclusive reliance on the

2 number of COVID-19 “cases” to quantify health risks is too narrow a focus. Very

3 importantly the number of cases tracks the level of testing, which has been ramped-

4 up. This quantum omits other measures of morbidity and mortality that are better

5 indicators of health risks and provide much more accurate measures of changes in

6 health risks over time.

7

7. California’s recent actions seem predicated partially on a belief that

8 California is experiencing a worsening in COVID-19 related health conditions. The

9 primary data used to support the conclusion that things are worse in California is the

10 dramatic rise in positive cases reported daily. More recently, even this data is

11 trending down in California. No death or serious illness should be ignored. California

12 has its share of both. That said, trade-offs are mostly necessary to achieve the Public

13 Interest reflecting a sober balance of benefits and costs. Very importantly, other data

14 related to testing and health must be considered. I teach my students and testify

15 routinely explaining that “omitting variables” biases conclusions. Facts ignored

16 result in flawed public policy.

17

8. In practical terms, concentrating on a single measure of health risk to

18 determine the best response omits a great deal, which leads to biased conclusions and

19 can result in faulty policy choices. California relies heavily, if not exclusively on

20 COVID-19 case counts (cases), to determine the stage or phase of recovery, if various

21 counties should slow down, accelerate or reverse opening businesses, gathering

22 places and more. More specifically, the California Department of Public Health

23 (CDPH) issued “Guidance on Closure of Sectors in Response to COVID-19” on July

24 1, 2020. The state monitors counties to determine what can open, remain shuttered,

25 and closed after reopening.

26

9. The current Guidance continues the May 7, 2020 Order of the State

27 Public Health Officer that relies on confirmed cases requiring “stable rates of

28 infections”, based on new infections, hospitalizations, surge capacity, improved

3
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3276 Page 5 of 64

1 ability to test, contract trace, isolate and provide support to individuals exposed. Two

2 refer to medical matters directly. “Cases” mean people who test positive for a

3 COVID-19 infection. “Hospitalizations” refers to available capacity including

4 standard non-Covid-19 patients, current Covid-19 patients in hospital care and

5 potential surges in patients needing hospital care. The description of hospitalizations

6 anticipates that some treatments and surgeries can be postponed. This makes the

7 potential supply of beds, ICU and ventilator resources somewhat elastic because it is

8 reasonable to free-up resources if an “acute care surge” in COVID-19 patients were

9 to hit California’s hospitals. (I explain below that California counties mostly satisfy

10 the standards based on maintaining hospital capacity.)

11

10. The CDPH formulates its “opening” or the more pessimistic

12 “shuttering” criteria for counties and sub-political units with a variance form,

13 “Covid-19 County Variance Attestation Form”. This provides a roadmap that allows

14 political sub-divisions to seek to alter the state’s rules on what can open in either

15 direction.

16

11. The CDPH publishes its data that monitors its “opening” criteria daily.

17 As of July 23, 2020. Only 6 of 58 counties exceeded the 3-day criteria for increased

18 hospitalizations for COVID-19 and other patients by more than 10%. Two of the six

19 were 10.5% or less. None of the counties had less than the 25% of stand-by ventilator

20 capacity criteria. Only 12 of the 58 counties missed the stand-by ICU bed availability

21 criteria of 20%. Based on hospital resource availability criteria, virtually all counties in

22 California could re-open.

23

12. The number of new cases being reported is the criteria that drives

24 county closures in California. Most counties are performing the required number of

25 tests. Four counties had fewer than the CDPH criteria of 150 tests performed per

26

27

28

4
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3277 Page 6 of 64

1 100,000 people based on a 7-day average with a 7-day lag. Nevertheless, three3

2 passed at least one of the “Case Rate” criteria based on less than 100 per 100,000

3 over 14 days, or less than a 25 case rate and positivity less than 8%. The other 54

4 counties exceeded the number of tests per day criteria, but could not satisfy the case

5 level criteria for re-opening. There were 23 counties with case rates that exceeded

6 both the CDPH threshold elevated case rate criteria. There were another 14 counties

7 that did not CDPH’s case rate per 100,000 (14 day) criteria. These 37 counties could

8 not seek a variance. Others would need to file a variance to re-open.

9

13. It is logical to expect that the number of tests performed and cases

10 reported would be highly correlated. Put simply more testing will yield more positive

11 cases being reported. The only exceptions would reflect differences in demographic

12 and medical conditions in the additional people being tested. In the early days of

13 covid-19 most testing was done at hospitals where people who were very sick were

14 omitted and for first responders and medical-care providers. The former were almost

15 certainly infected. The first responders were often healthy and relatively younger

16 than the senior citizens who were very prone to being infected and becoming sick.

17

14. By mid-April testing was ramping up. Prior testing samples were not

18 random. The initial expanded testing involved self-selecting and this skewed early

19 results, but the initial bias was reduced. By mid-May there were 10 million tests

20 performed and a month later in mid-June the total number of tests doubled. In July

21 total testing nationwide approaches 50 million. Testing remains mostly self-selection.

22 Nevertheless, with the number of tests approximating 15% of the population the “law

23 of large numbers” results in the sample mean moving closer to the average of the

24 whole population. For this reason, with more testing the underlying statistics related

25 to infection rates and deaths become more stable. Nationally, the 7-day average

26 27 3 Glenn county with a population of about 28,000 did not satisfy the state’s number
of testing and case level criteria. 28

5
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3278 Page 7 of 64

1 infection rate per test using the Johns Hopkins University (JHU) data is 8.5%. The

2 current national death rate across all demographic groups is about 43 people per

3 100,000. The deaths per infected case nationwide average 3.7%.

4

15. California is a state with about 40 million people. The number tested is

5 about 6.7 million, or nearly 17%. California has a lower corresponding infection rate of

6 about 7.6% than the national average. Current deaths for all demographic groups are

7 19.9 people per 100,000 or less than half the national rate. In California the deaths

8 per infected case averages less than 2.0%.

9

16. The JHU and CDC data show that between mid-May through late July

10 that as testing was ramped up cases reported and thus infections 100,000 increased

11 proportionally. The CDPH criteria for seeking a variance to open businesses and

12 houses of worship is based on the cases reported at a county level. With high and

13 growing levels of testing this effectively means shuttering businesses and houses of

14 worship.

15

17. Other states have not implemented what is in effect a statewide ban on

16 religious worship. This is despite the fact that California has not suffered as much as 17 the rest of the nation and other large states. See the following table4. Further, since

18 early July confirmed new cases and deaths have stabilized in California based on

19 moving average data.

20 Politico Summary top five states (July 22, 2020)

21

Deaths Pos Cases Tests

Population

22 NY (all) 25,506 407,326

5,164,812 19 million

23 CA

7,694 391,538

6,414,321 40 million

24 FL

5,183 360,394 3,052,106 21 million

25 TX

4,020 332,434

2,984,554 29 million

26 NJ

15,715 176,963

1,802,874 8.9 million

27 4 Politico data is used because CDC data separate New York and New York City.
28

6
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3279 Page 8 of 64

1

18. At the end of July, California had less mortality and morbidity relative to

2 its population size compared to national data and the other large states shown except

3 for Texas with respect to deaths relative to population. California’s infection rate of

4 positive cases divided by the number of tests using the Politico data is 6.1%.

5 Nationwide there are about 4.17 million positive cases with about 4.86 million cases

6 for an infection rate nationally of 8.6%. California has less than half the national

7 mortality rate and lower infection rates.

8

19. Things are improving in California. On August 9, 2020 the tracking data

9 published in the New York Times shows a 33% drop in cases for the past week

10 compared to the average reported two earlier weeks despite more testing. CDPH data

11 show declining positivity or infection rates, as well as a downward trend in reported

12 deaths.

13

20. While health statistics are improving across the reported metrics, there

14 is no scientific evidence that supports California continuing to restrict religious

15 worship. At the very least, California should begin to ease the ban on the 25% of space

16 occupancy and 100 persons attending religious gatherings. Regardless, easing

17 restrictions is simply a cautious step. In reality, there is insufficient evidence or facts

18 to justify the exceptional decision to continue to shutter houses of worship unless

19 they can take their services outdoors. The use of the number of cases to drive this

20 policy obfuscates matters and yields a flawed statistic and a costly policy choice all

21 things considered.

22

21. California effectively bans houses of worship from reopening because it

23 adopted a nearly impossible to achieve “variance” application process. Virtually

24 every county could pass the hospitalization and critical medical resource availability

25 criteria the CDPH adopted for reopening. However, a relatively constant and now

26 improving infection rate, regardless of having lower infection rates than other states,

27 means that maintaining daily testing levels will yield more cases. Expanding testing as

28 planned in some counties will actually further increase the number of reported cases.

7
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3280 Page 9 of 64

1 Headlines will proclaim a growing health threat and mostly ignore the stubborn fact

2 that the more people tested the more cases will be detected. Worse, the CDPH

3 criteria will make it impossible with expanded testing for variances to be granted. Just

4 as important testing that reveals cases without symptoms is a form of natural

5 vaccination. Yet, the media and public officials do not report this information, despite

6 the fact that hospitals are not being over-run while cases increase. Now, we also find

7 the new cases are declining sharply, which suggests less risk of hospitals, ICUs and

8 resources being over-run.

9

22. Medical treatments are reportedly showing improvements in recovery

10 and reducing the time COVID-19 patients need to be hospitalized and given extensive

11 treatment. This is good news and deaths in California are also stabilizing since early

12 July. Such successes are mostly good news. Nevertheless, they mask some important

13 data that should affect the reasonableness of shuttering houses of worship.

14

I declare until penalty of perjury under the laws of the United States and the

15 State of California that the foregoing is true and correct. Executed on August 10,

16 2020.

17

18

Charles Cicchetti

19

20

21

22

23

24

25

26

27

28

8
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3281 Page 10 of 64
EXHIBIT 1

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3282 Page 11 of 64
Curriculum Vitae

Charles J. Cicchetti BERKELEY RESEARCH GROUP, LLC
Emeryville | California | 94608
Direct: 626.577.9551 ccicchetti@thinkbrg.com
ccicchetti@mac.com

SUMMARY
Charles J. Cicchetti, Ph.D. is a Managing Director at Berkeley Research Group. Dr. Cicchetti is an economist and former Chair of the Wisconsin Public Service Commission (PSCW). He was a tenured Full Professor of Economics and Environmental Studies at the University of Wisconsin, Madison, Deputy Director of the Energy and Environmental Policy Center at the John F. Kennedy School at Harvard University, and The Miller Chair of Government, Business and the Economy at The University of Southern California (USC). He currently lectures graduate students in the Electricity Engineering Department at the University of Southern California.
He testified extensively and written a number of books and articles on electricity economics. He coauthored Perspective on Power and the Marginal Cost and Pricing of Electricity, which is widely referenced worldwide. He also authored Restructuring Electricity Markets, discusses market economic principles developed for the World Bank, and The California Electricity Crisis, that expanded his discussion of electricity market liberalization and things to avoid. His most recent books are Going Green and Getting Regulation Right (2009), and Climate Change and Regulation (2019).
Dr. Cicchetti has served as an expert advisor in complex litigation and arbitration related to wholesale markets in Canada and the United States. He was the sole author of an Amicus Curiae Brief for the US Supreme Court on expanding wholesale markets to include demand-side management. Much of his work throughout his career includes valuing benefits and costs and estimating damages related to environmental preservation and injury and preservation.

EDUCATION
Ph.D., Economics B.A.

Rutgers University, 1969 Colorado College, 1965 US Air Force Academy, 1961 to 1964

PRESENT EMPLOYMENT
Managing Director and Member, Berkeley Research Group (BRG) 2017 Adjunct Instructor, Department of Electrical Engineering, USC Viterbi School of Engineering 2016 to present

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3283 Page 12 of 64

PREVIOUS ACADEMIC POSITIONS

2009- Present 1991-2008 1998-2006
1987-1990
1979-1986
1974-1979
1972-1974
1972 1969-1972 1968-1969

Instructor in Electric Engineering, University of Southern California
Adjunct Professor, University of Southern California
Jeffrey J. Miller Professor in Government, Business, and the Economy, University of Southern California
Deputy Director, Energy and Environmental Policy Center, John F. Kennedy School of Government, Harvard University
Tenured Professor of Economics and Environmental Studies, University of WisconsinMadison
Associate Professor, Economics and Environmental Studies, University of WisconsinMadison
Visiting Associate Professor, Economics and Environmental Studies, University of Wisconsin-Madison
Associate Lecturer, School of Natural Resources of the University of Michigan
Post-Doctoral Research Resources for the Future, Washington, D.C.
Instructor, Rutgers University

PROFESSIONAL AWARDS, RECOGNITION, AND PRIZES
1965 Leo Mohl Award for Best Senior Thesis in Economics, Colorado College 1965 Kaye Prize for Outstanding Student in Economics, Colorado College
EXTERNAL GRANTS
1966 to 1969 US Department of the Interior (DOI), Bureau of Outdoor Recreation, financed PhD Thesis. 1972 to 1975 Environmental Defense Fund (EDF) 1972 to 1975 National Science Foundation and Upper Great Lakes Regional Commission 1973 to 1974 Ford Foundation Energy Policy Project and Public Interest Economic Foundation 1975 to 1977 National Science Foundation and Planning and Conservation Foundation
PROFESSIONAL AFFILIATIONS
PRIOR EDITORIAL BOARDS
2

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3284 Page 13 of 64

Journal of Environmental Economics and Management, Former Member; Energy Systems and Policy, Former Member Land Economics, Former Editor

BUSINESS AND NOT-FOR-PROFIT AFFILIATIONS

2013-Present 1996-2016 2008-2016 1992-1996 1991-1992 1988-1991 1984-1987 1980-1984 1977-1979
1975-1976

Co-Founder and Board Member, Sally’s Rescue Inc., dog rescue 501 3(c) Foundation Co-Founder, Pacific Economics Group, a California LLC Senior Advisor to Navigant Consulting, Inc. Managing Director, Arthur Andersen Economic Consulting Co-Chairman, Putnam, Hayes & Bartlett, Inc. Managing Director, Putnam, Hayes & Bartlett, Inc. Senior Vice President, National Economic Research Associates Co-Founder and Partner, Madison Consulting Group Chairman, Public Service Commission of Wisconsin, Appointed by Governor Patrick J. Lucey (member until 1980) Director, Wisconsin Energy Office and Special Energy Counselor for Governor Patrick J. Lucey, State of Wisconsin

PUBLICATIONS BOOKS AND MONOGRAPHS

Climate Change and Regulation: Going Green II. Vienna, Virginia: Public Utilities Report, Inc. 2019.
Amicus Curiae Brief of Charles J. Cicchetti (sole author) before the Supreme Court of the United States related to including Demand Side Bidding in wholesale electricity markets on behalf of Petitioners in Federal Energy Regulatory Commission v. Elec. Power Supply Association, 135 S. Ct. 2049 (2015).
Why EPA’s Mercury and Air Toxics Rule is Good for the Economy and America’s Workforce, July 2011.
The Results in Context: A Peer Review of EEI’s “Potential Impacts of Environmental Regulation in the U.S. Generation Fleet,” with Susan Tierney, PhD, May 11, 2011.
Expensive Neighbors: The Hidden Cost of Harmful Pollution to Downwind Employers and Businesses, prepared for Exelon in response to EPA’s proposed Transport Rule under the Clean Air Act, January 2011.
The True Cost of Harmful Pollution to Downwind Families and Business, prepared for Exelon in response to EPA’s proposed Transport Rule under the Clean Air Act, November 2010.
3

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3285 Page 14 of 64
Economic Regulation and the Development of Integrated Energy Systems, with Mike Cleland & Sean Conway, ICES Literary Series, Vol. 1, September 2012.
Going Green and Getting Regulation Right: A Primer for Energy Efficiency. Vienna, Virginia: Public Utilities Report, Inc. 2009.
Natural Gas: The Other California Energy Crisis, Pacific Economics Group Working Paper, with Colin M. Long, February 2007.
The California Electricity Crisis: What, Why, and What's Next, with Jeffrey A. Dubin & Colin M. Long, 2004.
A Tarnished Golden State: Why California Needs a Public/Private Partnership for its Electric Supply System, with Colin M. Long, August 2003.
Restructuring Electricity Markets: A World Perspective Post-California and Enron, with Colin M. Long & Kristina M. Sepetys, 2003.
Energy Deregulation: The Benefits of Competition Were Undermined by Structural Flaws in the Market, Unsuccessful Oversight, and Uncontrollable Competitive Forces, 2001.
Restructuring Electricity Markets: A World Perspective, with Kristina M. Sepetys, 1996. The Economic Consequence of Independent Film Making, with W.B. Peale, Stefan Boedeker, Jeffrey Dubin &
Jeff Truitt, 1995. The Application of U.S. Regulatory Techniques to Spain's Electric Power Industry, Energy and Environmental
Policy Center, Harvard University, with Irwin M. Stelzer, March 1988.
The Economic Theory of Enhanced Natural Gas Service to the Industrial Sector: An Applied Approach, Vol. II, with L.D. Kirsch, 1982 (prepared for the Gas Research Institute, Contract No. 5080-380-0349)
The Economic Theory of Enhanced Natural Gas Service to the Industrial Sector: An Applied Approach, Vol. I, with L.D. Kirsch, 1981 (prepared for the Gas Research Institute, Contract No. 5080-380-0349).
The Economic Effects of Deregulating Natural Gas, with R.H. Haveman, M. Lowry, M. Post & R. Schmidt, for the Northeast Coalition for Energy Equity, 1981.
The Marginal Cost and Pricing of Electricity: An Applied Approach, with W. Gillen & P. Smolensky, Cambridge: Ballinger Publishing Company, 1977.
The Costs of Congestion: An Econometric Analysis of Wilderness Recreation, with V.K. Smith, Cambridge: Ballinger Publishing Company, 1976.
Energy System Forecasting, Planning and Pricing, ed. with W. Foell for the National Science Foundation, Madison: University of Wisconsin Monograph, 1975.
Studies in Electric Utility Regulation, ed. with J. Jurewitz for the Ford Foundation Energy Policy Project, Cambridge: Ballinger Publishing Company, 1975.
Perspective on Power: A Study of the Regulation and Pricing of Electric Power, with E. Berlin & W. Gillen for the Ford Foundation Energy Policy Project, Cambridge: Ballinger Publishing Company, 1974.
4

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3286 Page 15 of 64
A Primer for Environmental Preservation: The Economics of Wild Rivers and Other Natural Wonders, New York: MSS Modular Publication, 1973.
Forecasting Recreation in the United States: An Economic Review of Methods and Applications to Plan for the Required Environmental Resources, Lexington: Lexington Books, June 1973.
Alaskan Oil: Alternative Routes and Markets, for Resources for the Future, Baltimore: Johns Hopkins University Press, December 1972.
The Demand and Supply of Outdoor Recreation: An Econometric Analysis, Ph.D. Thesis: Rutgers University, 1969. Also, with J.J. Seneca & P. Davidson, Washington, D.C.: U.S. Department of Interior, Bureau of Outdoor Recreation, Contract No. 7-14-07-4, 1969.
The Impact of Mine Drainage on Recreation (Appendix E,AppalachianRegionalCommission, 1969). Consultant to RobertR.NathanAssociates, State of New York: an analysis recreation participation to develop the recreational attributes of Finger Lakes (1969). (Assisted John Carson of RRNA.)
Visitor Industry and Hawaii’s Economy: A Benefit Cost Analysis, MATHEMATICA, Inc., Princeton, NJ 1969. Consultant to Mathematica Inc. (Princeton, NJ) assisted William Baumol to estimate an econometric model for the visitor industry in Hawaii to design state tax and tourist policy.
The Demand for Water Oriented Recreation, assisted Paul Davidson and Joseph Seneca of the Wharton School of Finance, RFF Mimeo, 1967.
A Neo Keynesian Equilibrium Analysis For an Open Economy, A.B. Thesis, Colorado College, Colorado, Springs, Colorado, May 1965.
ARTICLES
“Why Regulators Should Replace Electric Utility Rate Base: Challenging Choices,” Public Utilities Fortnightly, May 2018.
“Why Are We Still Arguing About NEM: Competitive Markets Will Take Care of Next Burning Issue,” Public Utilities Fortnightly, March 2017.
“Residential Demand Charges: A Bad Choice,” Public Utilities Fortnightly, December 2016. “Response to Brown Re: Net Metering,” Public Utilities Fortnightly, April 2016. “Order 745: Challenges Plain Old Electricity Markets,” Public Utilities Fortnightly, April 2016. “The Policy Aspects of Benefit-Cost Analyses for Distributed Solar Generation and Net Metering,” Electricity
Policy, Electricity Daily, January 2016.
5

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3287 Page 16 of 64
“Solar Battle Lines,” with Jon B. Wellinghof, Public Utilities Fortnightly, December 2015. “Inflated Numbers; Erroneous Conclusions: The Navigant Wind Jobs Report,” American Energy Alliance, The
National Center for Public Policy Research, March 2013. “Technology for the Masses: The Consumer-Centric Smart Grid and Its Challenge for Regulators,” with Philip
Mause, Public Utilities Fortnightly, October 2011. “Duke’s Fifth Fuel,” Public Utilities Fortnightly, January 2008. “Public Service Commission of Wisconsin, 1977-1980,” The NRRI Journal of Applied Regulation, Vol. 4,
December 2006. “A Brief History of Rate Base: Necessary Foundation of Regulatory Misfit,” with Colin M. Long, Public Utilities
Fortnightly, July 2006. “ISOs and Transcos: What’s at Stake?” with Gary D. Bachman & Colin M. Long, The Electricity Journal,
December 2000. “Politics as Usual: A Roadmap to Backlash, Backtracking and Re-regulation,” with Colin M. Long, Public
Utilities Fortnightly, October 2000. “Transmission Products and Pricing: Hidden Agendas in the ISO/Transco Debate,” with Colin M. Long, Public
Utilities Fortnightly, June 1999. “Mergers and the Convergence of the Electric and Natural Gas Industries,” Natural Gas, March 1997. “Been There, Done That: Sunk Costs, Access Charges and the Transmission Pricing Debate,” Energy, Vol. XXI,
No. 4, September 1996. “Regulating Competition: Transition or Travesty?” with Kristina M. Sepetys, The Electricity Journal, May 1996. “California Model Sets the Standard for Other States,” with Kristina M. Sepetys, World Power Yearbook, 1996. “Measuring the Effects of Natural Resource Damage and Environmental Stigma on Property Value,”
Environmental Law, September/October 1995. “The Route Not Taken: The Decision to Build the Trans-Alaska Pipeline and the Aftermath,” The American
Enterprise, Vol. 4, No. 5, September/October 1993. “A Micro-Econometric Analysis of Risk-Aversion and the Decision to Self-Insure,” with Jeffrey Dubin, Journal
of Political Economy, Revised, July 1993. (Vol. 102, No. 1, February 1994.) “Energy Utilities, Conservation, Efficiency,” with Vinayak Bhattacharjee & William Rankin, Contemporary
Policy Issues, Vol. XI, No. 1, January 1993. “Uniqueness, Irreversibility, and the Theory of Nonuse Values,” with Louis L. Wilde, American Agricultural
Economics Association, December 1992.
6

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3288 Page 17 of 64
“Utility Energy Services,” with Ellen K. Moran, Regulatory Incentives for Demand-Side Management, Ch. 9, American Council for an Energy-Efficient Economy, December 1992.
“A Micro-Econometric Analysis of Risk Aversion and the Decision to Self-Insure,” with Jeffrey A. Dubin, California Institute of Technology, January 1992.
“The Use and Misuse of Surveys in Economic Analysis: Natural Resource Damage Assessment Under CERCLA,” with Jeffrey Dubin & Louis Wilde, California Institute of Technology, July 1991.
“The Federal Energy Regulatory Commission’s Proposed Policy Statement on Gas Inventory Charges (PL-89-11000),” Energy and Environmental Policy Center, Harvard University, Discussion Paper E-89-11, July 1989.
“Incentive Regulation: Some Conceptual and Policy Thoughts,” Energy and Environmental Policy Center, Harvard University, Discussion Paper E-89-09, June 1989.
“Including Unbundled Demand-Side Options in Electricity Utility Bidding Programs,” with William Hogan, Public Utilities Fortnightly, June 1989. (Also a Discussion Paper E-88-07).
“Assessing Natural Resource Damages Under Superfund: The Case Against the Use of Contingent Value Survey Methods,” with Neil Peck, Natural Resources & Environment, Vol. 4, No. 1, Spring 1989.
“Pareto Optimality Through Non-Collusive Bilateral Monopoly with Cost-of-Service Regulation (or: Economic Efficiency in Strange Places),” with Jeff D. Makholm, Energy and Environmental Policy Center, Harvard University, Working Paper, 1988.
“The FERC's Discounted Cash Flow: A Compromise in the Wrong Direction,” with Jeff Makholm, Public Utilities Fortnightly, July 9, 1987.
“Conservation Subsidies: The Economist’s Perspective,” with Suellen Curkendall, Electric Potential, Vol. 2, No. 3, May/June 1986.
“Our Nation's Gas and Electric Utilities: Time to Decide,” with R. Shaughnessy, Public Utilities Fortnightly, December 3, 1981.
“Is There a Free Lunch in the Northwest? (Utility-Sponsored Energy Conservation Programs),” with R. Shaughnessy, Public Utilities Fortnightly, December 1980.
“Opportunities for Canadian Energy Policy,” with M. Reinbergs, Journal of Business Administration, Vol. 10, Fall 1978/Spring 1979.
“Energy Regulation: When Federal and State Regulatory Commissions Meet,” with J. Williams, American University Law Review, 1978.
“The End-User Pricing of Natural Gas,” with Don Wiener, Public Utilities Fortnightly, March 1978.
“An Econometric Evaluation of a Generalized Consumer Surplus Measure: The Mineral King Controversy,” with V.K. Smith & A.C. Fisher, Econometrica, Vol. 44, No. 6, 1976.
7

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3289 Page 18 of 64
“Alternative Price Measures and the Residential Demand for Electricity: A Specification Analysis,” with V.K. Smith, Regional Science and Urban Economics, 1975.
“An Economic Analysis of Water Resource Investments and Regional Economic Growth,” with V.K. Smith & J. Carston, Water Resources Research, Vol. 12, No. 1, 1975.
“A Note on Fitting Log Linear Regressions with Some Zero Observations for the Regressand,” with V.K. Smith, Metroeconomica, Vol. 26, 1975.
“The Design of Electricity Tariffs,” Public Utilities Fortnightly, August 28, 1975.
“The Economics of Environmental Preservations: Further Discussion,” with A.C. Fisher & J.V. Krutilla, American Economic Review, Vol. 64, No. 6, December 1974.
“Electricity Price Regulation: Critical Crossroads or New Group Participation Sport,” Public Utilities Fortnightly, August 29, 1974.
“Interdependent Consumer Decisions: A Production Function Approach,” with V.K. Smith, Australian Economic Papers, December 1973.
“Economic Models and Planning Outdoor Recreation,” with A.C. Fisher & V.K. Smith, Operations Research, Vol. 21, No. 5, September/October 1973.
“Evaluating Federal Water Projects: A Critique of Proposed Standards,” with R.K. Davis, S.H. Hanke, & R.H. Haveman, Science, Vol. 181, August 1973.
“The Mandatory Oil Import Quota Program: A Consideration of Economic Efficiency and Equity,” with W. Gillen, Natural Resources Journal, Vol. 13, No. 3, July 1973.
“Congestion, Quality Deterioration and Optimal Use: Wilderness Recreation in the Spanish Peaks Primitive Area,” with V.K. Smith, Social Sciences Research, Vol. 2, March 1973 (reprinted July 1973).
“The Economics of Environmental Preservation: A Theoretical and Empirical Analysis,” with A.C. Fisher & J.V. Krutilla, American Economic Review, Vol. 62, No. 4, September 1972.
“Recreation Benefit Estimation and Forecasting: Implications of the Identification Problem,” with V.K. Smith, J.L. Knetsch, & R. Patton, Water Resources Research, Vol. 8, No. 4, August 1972.
“Evaluating Benefits of Environmental Resources with Special Application to the Hells Canyon,” with J.V.Krutilla, Natural Resources Journal, Vol. 12, No. 1, January 1972. (Also published in Benefit-Cost and Policy Analysis, 1972.)
“On the Economics of Mass Demonstrations: A Case Study of the November 1969 March on Washington,” with A.M. Freeman, R.H. Haveman, & J.L. Knetsch, American Economic Review, Vol. 61, No. 4, September 1971.
“Option Demand and Consumer Surplus: Further Comment,” with A.M. Freeman III, Quarterly Journal of Economics, Vol. 85, August 1971.
“Some Economic Issues Involved in Planning Urban Recreation Facilities,” Land Economics, February 1971.
8

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3290 Page 19 of 64
“A Note on Jointly Supplied Mixed Goods,” with V.K. Smith, Quarterly Review of Economics and Business, Vol. 10, No. 3, Autumn 1970.
“A Gravity Model Analysis of the Demand for Public Communication,” with J.J. Seneca, Journal of Regional Science, Vol. 9, No. 3, Winter 1969.
Articles Appearing in Other Volumes
“Including Unbundled Demand-Side Options in Electric Utility Bidding Programs,” in Competition in Electricity: New Markets & New Structures, with William Hogan and edited by James L. Plummer & Susan Troppmann, Public Utilities Reports and QED Research Inc.: Arlington, Virginia, March 1990.
“Meeting the Nation’s Future Electricity Needs: Cogeneration, Competition and Conservation,” in 1989 Electricity Yearbook, New York: Executive Enterprises, 1989.
“Environmental Litigation and Economic Efficiency: Two Case Studies,” with R. Haveman in Environmental Resources and Applied Welfare Economics: Essays in Honor of John F. Krutilla, V.K. Smith ed., Washington, DC: Resources for the Future, 1988.
“Electricity and Natural Gas Rate Issues,” with M. Reinbergs, in The Annual Energy Review, Palo Alto: Annual Reviews Inc., Vol. 4, 1979.
“Die Erhaltund der Naturlichen Umwelt: Eine Theoretische und Empirische Untersuching” with A. Fisher & John Krutilla, Sonderdruck aus Umivelt und Wirtschaftliche Entwicklung, Sieten 249-279, 1979.
“The Measurement of Individual Congestion Costs: An Econometric Application to Wilderness Recreation,” with V.K. Smith, in Theory and Measurement of Economic Externalities, ed. S.A. Lin, New York: Academic Press, 1976.
“Implementing Diurnal Electricity Pricing in the U.S.: A Pragmatic Approach,” in Energy System Forecasting, Planning and Pricing, ed. C.J. Cicchetti & W. Foell, Madison: University of Wisconsin Press, February 1975.
“Measuring the Price Elasticity of Demand for Electricity: The U.S. Experience,” with V.K. Smith, in Energy System Forecasting, Planning and Pricing, ed. C.J. Cicchetti & W. Foell, Madison: University of Wisconsin Press, 1975.
“Public Utility Pricing: A Synthesis of Marginal Cost, Regulatory Constraints, Averch-Johnson Bias, Peak Load and Block Pricing,” with J. Jurewitz, in Studies in Electric Utility Regulation, ed. C.J. Cicchetti & J. Jurewitz, Cambridge: Ballinger Publishing Company, 1975.
“Congestion, Optimal Use and Benefit Estimation: A Case Study of Wilderness Recreation,” with V.K. Smith, in Social Experiments and Social Program Evaluation, ed. J.G. Albert & M. Kamrass, Cambridge: Ballinger Publishing Company, 1974.
“Electricity Growth: Economic Incentives and Environmental Quality,” with W. Gillen, in Energy: Demand, Conservation and Institutional Problems, ed. M. Macrakis, Cambridge: MIT Press, 1974.
9

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3291 Page 20 of 64
“Some Institutional and Conceptual Thoughts on the Measurement of Indirect and Intangible Benefits and Costs,” with John Bishop, in Cost-Benefit Analysis and Water Pollution Policy, ed. H. Peskin & E. Seskin, Washington, D.C.: Urban Institute, 1974.
“The Trans-Alaska Pipeline: An Economic Analysis of Alternatives,” with A.M. Freeman III, in Pollution, Resources and the Environment, ed. A.C. Enthoven & A.M. Freeman III, New York: W.W. Norton and Co., 1973.
“Alternative Uses of Natural Environments: The Economics of Environmental Modification,” with A.C. Fisher and J.V. Krutilla, in Natural Environments: Studies in Theoretical and Applied Analysis, ed. J.V. Krutilla, Baltimore: Johns Hopkins University Press, 1972.
“A Multivariate Statistical Analysis of Wilderness Users in the United States,” in Natural Environments: Studies in Theoretical and Applied Analysis, ed. J.V. Krutilla, Baltimore: Johns Hopkins University press, 1972.
“Benefits or Costs? An Assessment of the Water Resources Council's Proposed Principles in Standards,” with R.K. Davis, S.H. Hanke, R.H. Haveman & L. Knetsch, in Benefit-Cost and Policy Analysis, ed. W. Nishkanen, et al, Chicago: Aldine Publishing Company, 1972.
“Observations on the Economics of Irreplaceable Assets: Theory and Method in the Social Sciences,” with J.V. Krutilla, A.M. Freeman III & C. Russell, in Environmental Quality Analysis, ed. A Kneese and B.T. Bower, Baltimore: Johns Hopkins University Press, 1972.
“Outdoor Recreation and Congestion in the United States,” in Population, Resources and the Environment, ed. R. Ridker, Washington, D.C.: U.S. Government Printing Office, 1972.
“Benefit-Cost Analysis and Technologically Induced Relative Price Changes: The Case of Environmental Irreversibilities,” with J.V. Krutilla, Natural Resources Journal, 1972.
Less Technical Articles
“Still the Wrong Route,” Environment, Vol. 19, No. 1, January/February 1977. “National Energy Policy Plans: A Critique,” Transportation Journal, Winter 1976. “The Mandatory Oil Import Program: A Consideration of Economic Efficiency and Equity,” with W. Gillen,
Joint Economic Committee of the U.S. Congress, 1974. “The Political Economy of the Energy Crisis,” with R. Haveman, Carrol Business Review, Winter 1974. “The Wrong Route,” Environment, Vol. 15, No. 5, June 1973. “A Review of the Empirical Analyses that Have Been Based Upon the National Recreation Surveys,” Journal of
Leisure Research, Vol. 4, Spring 1972.
10

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3292 Page 21 of 64
“How the War in Indochina is Being Paid for by the American Public: An Economic Comparison of the Periods Before and After Escalation,” Public Forum, July 1970, (reprinted in the Congressional Record, August 13, 1970).
“User Response in Outdoor Recreation: A Reply,” with J.J. Seneca, Journal of Leisure Research, Vol. 2, No. 2, Spring 1970.
“User Response in Outdoor Recreation: A Production Analysis,” with J.J. Seneca, Journal of Leisure Research, Vol. 1, No. 3, Summer 1969.
“We Must Increase Access to Alaska’s Resources,” Op-Ed in the Washington Examiner, August 4, 2015.
“Competitive Battlefield: A View from the Trenches,” Northeast Utilities 1987 Annual Report, Competition: A Matter of Choices, 1987.
Speeches and Papers Presented Since 1971
“California: Going Green and Getting Regulation Right,” Law Seminars International 11th Annual Conference on Energy in California, San Francisco, CA, September 15, 2009.
“The Business Case For Energy Efficiency,” CS Week Conference, Washington, D.C., May 21, 2009.
“Back to The Future: Energy Planning and Lessons for the 1970’s,” Third Annual Nelson Institute Earth Day Conference, Madison, WI, April 22, 2009.
“Energy Efficiency and Regulatory Incentives,” EUEC 11th Annual Energy and Environment Conference, Tucson, AZ, January 27-30, 2008.
“Conservation Reconsidered: A First Row Seat,” Reconsidering “Conservation Reconsidered”: A 40-Year Legacy, Resources for the Future, October 3, 2007.
“Market Issues: Power Procurement & Contracts,” Law Seminars International, San Francisco, CA, September 17-18, 2007.
“Economists as Appraisers, Threats or Compliments?” Appraisal Institute Seminar, Los Angeles, CA, March 26, 2007.
“The Economic Health of California’s Energy Markets,” An Economist’s Perspective on the Electronic Health of CA Energy Markets, San Francisco, CA, September 26, 2006.
“California’s Electricity Supply and Demand: Reality Check 2006,” Electricity Policy Roundtable, San Francisco, CA, February 17, 2004.
“Solving California’s energy Problems: A Pragmatic Approach,” University of Southern California, Los Angeles, CA, September 12, 2003.
“Lessons from California to Russia,” Edison Electric Institute’s US/Russia Electricity Markets Conference, Washington, D.C., February 25, 2003.
11

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3293 Page 22 of 64
“Measuring the Effects of Natural Resource Damage and Environmental Stigma on Property Value and Health,” April 30, 2002.
“State Regulation Is Here to Stay: Financing the Future,” NARUC 113th Annual Convention, Philadelphia, PA, November, 2001.
“Deregulation Revisited: The Power Crisis in California,” New York University’s Energy Forum, New York, NY, February 26, 2001.
“The Changing Face of Utilities,” Arthur Andersen 21st Annual Energy Symposium, Houston, TX, November 28-29, 2000.
“Lessons for Bangladesh: Thinking Globally While Acting Locally,” The World Bank’s Bangladesh Power Sector Reforms Workshop, Dhaka, Bangladesh, October 1, 2000.
“Some Global Insights on Power Sector Reform in Bangladesh,” The World Bank’s Bangladesh Power Sector Reforms Workshop, Dhaka, Bangladesh, October 1, 2000.
“Diversification and Shareholder Value,” The Energy Daily’s 27th Annual Conference: Lighting the World, Williamsburg, VA, December 2, 1999.
“Challenges for Government-Owned Utilities,” The Bond Buyer Public Power Conference, Santa Monica, CA, October 7, 1999.
“Restructuring America’s Electricity Industry and Public Power or Customer Owned Utilities,” APPA’s CEO Roundtable, Scottsdale, AZ, March 3, 1998.
“Electricity Restructuring: The Future Role of Regulation (Woulda, Shoulda, Coulda),” American Bar Association’s Annual Electricity Conference, Denver, CO, February 13, 1998.
“Mergers in the Utility Industry,” Arthur Anderson’s 18th Annual Energy Symposium, Houston, TX, December 9, 1997.
“Convergence, Competition, Mergers and Marketing: Are You Getting Ready for the Millennium?” California Foundation on the Environment and the Economy, Santa Cruz, CA, December 4, 1997.
“Electric Utility Strategy: Regulation, Restructuring and Competition,” The Fourth Annual Power Industry Forum: “A View Toward the New Energy Corporation,” San Diego, CA, March 7, 1997.
“Restructuring Energy Markets: A World Perspective,” The Energy Daily’s 22nd Annual Conference: The OneStop Energy Stop, Williamsburg, VA, December 12, 1996.
“Mergers in the Utility Industry,” Arthur Anderson’s Energy Symposium, Houston, TX, December 10, 1996.
“Political, Economic, and Regulatory Challenges when Transforming Privately-Owned Utilities to Competitive Enterprises,” Presentation at the Economist Conferences, Bilbao, Spain, November 12, 1996.
“Transmission, Divestiture, and the Future,” Panelist at the EEI Strategic Planning Conference, Seattle, WA, October 14, 1996.
12

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3294 Page 23 of 64
“Merger Mania,” Utilities AIS Conference, St. Charles, IL. October 1-2, 1996. “Cost-of-Service Regulation: The Old Dog Won’t Hunt, and Recently, It Wasn’t Very Good,” Presentation to the
Board of Wisconsin Electric Power Company, Belize, Central America, April 3, 1996. “Primary Mergers: An Insider’s Guide,” Electric Utility Week Conference, March 15, 1996. “Merger Policy Issues—When is a Proposed Electric Utility Merger in the Public Interest?” Panelist at the 3rd
Annual DOE-NARUC National Electricity Forum, December 5, 1995. “Measuring the Effects of Natural Resources Damage and Environmental Stigma on Property Value,” Presented
to Morgan, Lewis & Bockius, November 29, 1995. “Strategy for a Natural Gas Distributor: Competition, Consolidation, Cost Cutting,” Washington Gas Light,
October 23, 1995. “Strategic Issues Facing the Electric Utility Industry,” AIS Symposium, St. Charles, IL, October 9, 1995. “Worldwide Electricity Restructuring: Regulation, Competition or Both?” presented at the 4th World Economic
Development Congress, Washington, D.C., October 6, 1995. “Competition, Consolidation, Restructuring: A Program for Expanding Utility Consulting,” Western Region
Utility Presentation, September 28, 1995. “North/South Estimated Savings Compared to Recent Merger Claimed Savings,” for PSCo information only, July
28, 1995. “California PUC Plans for Restructuring the Electric Industry,” Utilities Overheads, July 3, 1995. “Public Utility Holding Company Act (PUHCA) Current Issues,” Utilities Overheads, July 3, 1995. “Power Industry Restructuring: Competition and Deregulation are Not Synonyms,” Utilities Overheads, July 3,
1995. “The FERC’s Role in Electric Utility Industry Restructuring,” Utilities Overheads July 3, 1995. “Where to Regulation? Slice and Dice Supplants Command and Control,” HARC Presentation, August 8, 1995. “Strategic Issues Facing the Electric Utility Industry,” US West Presentation, August 1, 1995. “Proposal to Provide Consulting Services to Assist with An Alternative Ratemaking Proposal,” Boston Gas
Presentation, July 27, 1995. “Strategic Issues Facing the Electric Utility Industry,” ConEd Presentation, July 26, 1995. (Also “Power
Thinking”) “Strategic Issues Facing the Electric Utility Industry,” NU Board of Trustee Presentation, July 25, 1995. “Public Utility Holding Company Act (PUHCA),” Presentation to Southwest Gas Corporation, June 19, 1995.
13

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3295 Page 24 of 64
“FERC Activity-Gas Industry Update,” Presentation to Southwest Gas Corporation, June 19, 1995. “Electric Industry Restructuring Recent FERC and CPUC Developments,” Presentation to Southwest Gas
Corporation, June 19, 1995. “Power Marketing and Bulk Power Markets: Power Marketing and its Impact on the Electric Power Industry,”
Infocast’s Power Marketing and Bulk Power Markets, June 8, 1995. “Energy Industry in Transition,” Yankee Energy Systems presentation, May 23, 1995. “State Regulation in an Era of Regulated Competition,” American Enterprise Energy Policy Forum, May 16,
1995. “Natural Resource Damages Latest Developments and Future Focus,” The CVM Controversy. Executive
Enterprises NRDA Conference, May 5, 1995, San Francisco, CA. “Restructuring the Electric Industry,” Prepared for Georgia Power Company, March 28, 1995. “Electric, Gas and Telephone Industry Insights and Outlooks,” Prepared for Peoples Energy Corporation Officers’
Planning Retreat, March 12, 1995. “The Driving Forces Reshaping the Electric Power Industry,” Presentation to Northeast Utilities Management,
February 27, 1995. “Electricity Markets: Yesterday, Today, and Tomorrow,” and “The Driving Forces Reshaping the Electric Power
Industry,” Presentation to General Electric, February 13, 1995. “Power Marketing and Its Role in the Competitive Energy Industry: Projecting Future and International Power
Needs,” EEI Conference, January 27, 1995. “Evolution or Revolution: Whoever Gets the Customers Wins!” Energy Daily Conference, December 1, 1994. “Natural Resource Damages Latest Developments and Trends: CVM Controversy,” Executive Enterprise’s
NRDA Conference, November 15, 1994. “The Current Natural Gas Transportation Issues that Affect the North American Market,” IGUA/ACIG Natural
Gas Conference, November 15, 1994. “Power Marketing and Its Role in the Competitive Energy Industry: Projecting Future and International Power
Needs,” Infocast-New York, October 28, 1994. “FERC and State Regulatory Incentives: Restructuring the Electric Utility Industry,” Arthur Andersen’s Financial
Symposium, September 27, 1994. “Restructuring the Electric Utility Industry,” Arthur Andersen’s Financial Symposium, September 27, 1994. “What Do We Want to Get Out of the CPUC Restructuring Process,” Aspen Institute Presentation Materials, July
6, 1994.
14

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3296 Page 25 of 64
“The Debate over Retail Competition in California: A Prescriptive Suggestion,” Aspen Institute Presentation Materials, July 6, 1994.
“A Review and Critique of Internal Revenue Service Economist Report Regarding Electricity Conservation Program Expenditures and Related Tax Deductions,” EEI Taxation Committee Meeting, June 14, 1994.
“Environmental Law, Liability & Litigation,” Director’s Roundtable, May 18, 1994. “Arthur Andersen Group Presentation to The Gas Company: Customer Values Initiative,” Los Angeles,
California, 1994. “NRDA and Property Valuation Analysis,” presented to Fennemore Craig, P.C., February 28, 1994. “Commentary on the Future of Regulation: Pro or Kahn? (To Regulate or Not to Regulate: That is the Question,”
NARUC/DOE presentation, February 15, 1994. “Latin America Assertion of Membership in Pacific Basin,” Aspen Institute, Pac Rim Workshop, January 31,
1994. “Utility Rate Regulation in the 1990s and Beyond,” 1993 Utilities Financial Symposium, September 14, 1993. “Natural Resource Damages: An Economic Critique,” Presented to Beveridge & Diamond (with J. Dubin),
September 8, 1993. “Understanding Economic Damage Valuations Under NRDA,” Presented to Occidental USA, (with L. Wilde),
August 17, 1993. “Allocating Costs in Superfund Cases,” Presented to Waste Management, July 1993. “Understanding Economic Damage Valuations Under NRDA,” Presented to Sidley & Austin, June 29, 1993. “Allocating Cost in Superfund Cases,” Presented to Keck, Mahin & Cate, June 23, 1993. “Draft RCRA Corrective Action Regulatory Impact Analysis (RIA),” Presented to Beveridge & Diamond, June
18, 1993. Chicago Energy Economic Association Speech, (CJC used notes/speech from UC Berkeley/RFF speech of May
10, 1993), June 10, 1993. “Understanding Economic Damage Valuations Under NRDA,” AAEC Corporate Counsel Symposium Series
(Dallas & Houston), May 18-19, 1993. “The Regulatory Triad for the 90s: Integrated Resource Planning, Incentive, Regulation and Social Costing,” UC
Berkeley/RFF Briefing, May 10, 1993. “Understanding Economic Damage Valuation Under NRDA,” AA/Perkins Coie Presentation, May 4, 1993. “DSM & Shareholder Incentive,” 1993 Rate Symposium, April 25-27, 1993.
15

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3297 Page 26 of 64
“Twenty Years Since Earth-Day I: What Have We Learned?” USC Economic Honor Society Omicron, Delta Epsilon, April 15, 1993.
“The Clinton Economic Plan,” USC Panel Discussion, February 26, 1993. “Incorporating Externalities in Utility Least-Cost Planning,” Edison Electric Institute, February 10, 1993. “Incorporating Externalities in Utility Least-Cost Planning,” A Presentation to the ABA Mid-Year Meeting,
February 7, 1993. “Understanding Economic Damage Valuations Under NRDA,” Presented at “OPA-On the Gulf Coast,” Seminar,
sponsored by Haight, Gardner, Poor & Havens, January 27, 1993. “DSM and Shareholders Incentives,” Prepared for Southern California Edison, January 1993. “DSM and Shareholders Incentives,” Prepared for the Allied Social Science Association 1993 Annual Meetings,
January 5, 1993. “Social Cost of Electricity,” Panel Discussant, Anaheim, CA, January 5 & 6, 1993. “Environmental Externalities: Are There Any Left?” American Bar Association’s Winter Meeting. Boston, MA,
February 7, 1993. “Incorporating Externalities in Utility Least-Cost Planning,” Edison Electric Institute Energy and Environmental
Committee, San Francisco, CA, February 10, 1993. “Environmental Policy: The Good, The Bad, The Ugly,” University of Southern California - Los Angeles, CA,
February 25, 1993. “Incorporating Environmental Strategies into Your Corporation’s Overall Strategy to Improve the Bottom Line,”
moderator, Arthur Andersen & Co. 1993 Energy Expo, Pittsburgh, PA, March 2-3, 1993. “Resource Planning, Incentives, and Pricing for Electric, Natural Gas, and Telecommunications Services: New
Products and Regulations,” University of Missouri’ 1993 Rate Symposium, Kansas City, MO, April 26, 1993. “An Economist’s View of Demand Side Management,” Chicago Energy Economists Association, Chicago, IL,
June 10, 1993. “Presentation to the Board of Southwest Gas,” Las Vegas, NV, June 14, 1993. “Draft RCRA Corrective Action Regulatory Impact Analysis (RIA),” Beveridge & Diamond, June 18, 1993. “Where Do We Go From Here: Bush or Clinton?” Presented at the Corporate Recovery Conference sponsored by
Arthur Andersen & Co., Scottsdale, AZ, September 17, 1992. “The Economic Effect of the Clean Air Act on the U.S. Economy: Tradable Emissions Allowances,” National
Clean Air Conference, Houston, TX, May 20, 1992. “Electric Utility Industry Through 2000,” Fluor Daniel Power Sector Meeting, San Diego, CA, January 28, 1992.
16

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3298 Page 27 of 64
“Valuation of Natural Resource Damages: Evolution of a Process,” Executive Enterprises, Inc. Conference Natural Resource Damages Claims and Litigation “Problems in Valuation,” November 7, 1991.
“The Evolution of the Electric Utility Sponsored Conservation Movement in North America: Remembrance of Things Past,” Demand Side Management: A Current and Future Resource Conference Sponsored by the Commission of the European Communities and the International Energy Agency; Copenhagen, Denmark, October 23, 1991.
“Are There Any Economic Efficiency Arguments for Embracing Utility-Sponsored Conservation Programs?” WEA International Conference, Seattle, WA, June 29, 1991.
“National Resource Damages: What Does the Proposed Final DOI Rule Mean?” Presented at the Workshop on Natural Resource Damages, Washington, D.C., May 30, 1991.
When Green Turns Mean: Pollution as a Crime,” Emerging Environmental Policies and Business Conference, University of North Carolina State University, April 18, 1991.
“When Green Turns Mean: Pollution as a Crime,” Presented at the Third Annual Law and Economics Seminar of Putnam, Hayes & Bartlett, Inc., The Arizona Biltmore Hotel, Phoenix, AZ, November 7-11, 1990.
“The Legal and Economic Consequences of 1992,” Presented at the Second Workshop on Post Keynesian Economics, Knoxville, TN, July 3, 1990.
“Environment: A Green Gimmick or a New Game Plan?” Presented at Pacific Gas & Electric Company’s Managers Meeting, San Francisco, CA, May 31, 1990.
“Energy Firms and Global Environmental Policy,” 1990 PacRim Workshop, Seoul, Korea, May 16, 1990.
“Can the Gas Business Fulfill Its New Promise?” Presented at “Inside F.E.R.C,” San Francisco, CA, April 20, 1990.
“Energy Firms and Global Environmental Policy,” Presented at Pacific Gas & Electric’s Management Committee Retreat, Santa Cruz, CA, March 17-26, 1990.
“Can Economic Efficiency and Demand Side Bidding Co-Exist?” Bidding for Electricity Conference, Davis, CA, March 15, 1990.
“Electric Utility Mergers and Reorganization: Antitrust Meets Regulation,” Presented at the Third Annual Conference on Electric Law and Regulation, Denver, CO, March 9, 1990.
“Infrastructure, Regulatory, Risk/Reward Issues,” Presented at the Portland General Symposium, Portland, OR, November 6, 1989.
“Belated and Expensive: How Utilities Have Reacted to New Economic Imperatives in the Last Two Decades,” Conference Sponsored by the Energy Daily, The Watergate Hotel, Washington, D.C., November 3, 1989.
“Competitive Building: Price, Time, Location and Uncertainties,” Presented at the Coopers & Lybrand Annual Electric & Gas Conference, Crystal Gateway Marriot, Arlington, VA, November 2, 1989.
17

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3299 Page 28 of 64
“Electric Utilities: New Markets, New Challenges,” Speech before the Interstate Natural Gas Association of America Seminar, The Greenbrier, White Sulphur Springs, West Virginia, October 17, 1989.
“Sweetening the Pot: Plaintiff Devices to Maximize Claims (Contingent Value Surveys Hedonic Price Measures),” Second Annual Law and Economics Seminar a Putnam, Hayes & Bartlett, Inc., The Arizona Biltmore Hotel, Phoenix, AZ, October 11-14, 1989.
“Incentive Regulation and Conservation Policy,” Presented at the New England Conference of Public Utility Commissioners, Kennebunkport, ME, September 2, 1989.
“Incentive Regulation and Conservation Policy,” Presented at the New England Conference of Public Utility Commissioners (NARUC) Least-Cost Planning Conference, Charleston, SC, September 11, 1989.
“Twenty Years Since Earth Day I: What Have We Learned,” 7th International Oil and Gas Conference, Cambridge, MA, June 1-2, 1989.
“The Resurgence of Political Economy in Regulated Industries,” Law and Economics Seminar, London, England, May 18, 1989.
“Back to the Future in Gas and Electric Industries,” Annual Meeting of the Federal Bar Association, Washington, D.C., May 5, 1989.
“The Role of Rate Reform: The Bundling of Services,” International Association of Energy Economists, North American Gas Supply and Markets Conference, The Hyatt Regency, Denver, CO, September 7, 1989.
“Incentive Regulation: What Works and What Doesn’t,” Presented at the Great Lakes Conference of Public Utility Commissioners, The Greenbrier, White Sulphur Springs, WV, July 11, 1989.
“New Proposals for Incentive Regulation in the Electric Utility Industry,” Chief Executives’ Forum, Key Largo, FL, Sponsored by the First Boston Corporation and Putnam, Hayes & Bartlett, Inc., February 9-12, 1989.
“Current Trends in Regulation and Some New Proposals to Alter Incentives in the Electric Utility Industry,” Harvard Utility Forum Meeting, Cambridge, MA, February 2, 1989.
“Some New Proposals to Introduce Incentive Tariffs in the Electric and Natural Gas Industries,” Utility Discussion Group, Held by Putnam, Hayes & Bartlett, Inc., Capital Hilton, Washington, D.C., January 5, 1989.
“Privatization in Developing Countries: Case Studies of Electricity in Turkey and Pakistan,” EESIG Brown-Bag Lunch, December 14, 1988.
“Some New Proposals to Introduce Incentive Tariffs in the Electric and Natural Gas Industries,” Harvard Utility Forum – Harvard Gas Forum Demand-Side Bidding/Alternatives to Rate Base Regulation Workshop, Cambridge, MA, December 13, 1988.
“The March Towards a Competitive Gas Industry: Obligation to Serve, Incentive Regulation, and Risk Allocation,” The Interstate Natural Gas Association of America Seminar, Washington, D.C., December 2, 1988.
18

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3300 Page 29 of 64
“Pricing and Contracting Issues and Experience,” Presented at the AIT/ASEAN Senior Executive Seminar, Hua Hin, Thailand, November 9-11, 1988.
“Some Thoughts on Why and How to Initiate Private Power in Pakistan,” ASEA/AIT/USAID Senior Executive Seminar in Co-Generation and Private Power, Hua Hin, Thailand, November 1988.
“Meeting the Nation’s Future Electricity Needs: Cogeneration, Competition and Conservation,” Presented at the 100th Annual Convention and Regulatory Symposium of the National Association of Regulatory Utility Commissioners, San Francisco, CA, November 2, 1988.
Speech before the New Dimensions in Pricing Electricity Conference of Niagara Mohawk Power Corporation and the Electric Power Research Institute, “Cogeneration and Competition,” Syracuse, NY, September 30, 1988.
Speech before the Second Annual Conference of the American Cogeneration Association, “Cogeneration and Competition,” Chicago, IL, September 26, 1988.
“Valuing Damages to Natural Resources in Environmental Litigation,” Presentation before the American Bar Association Annual Meeting, Toronto, Ontario, CAN, August 8, 1988.
“Decision Making and Environmental Risks: Economic and Political Issues An Executive Summary,” The Robert M. La Follette Institute of Public Affairs, The University of Wisconsin-Madison, June 1988.
Comments Before the American Bar Association First Annual Conference on Electricity Law and Regulation, Denver, CO, April 7-8, 1988.
“After the Chaos: Gas Strategies for the Long Term,” Inside F.E.R.C.’s Eight Annual Conference, New Orleans, LA, March 21-22, 1988.
“Wholesale Electricity, Old Scar-Tissue: New Wounds Versus New Solutions,” before the National Governors’ Association, Washington, D.C., December 10, 1987.
“Recent Changes in Natural Gas Transportation and Marketing: What, if Anything, Can They Tell Us About Electricity Reform?” Seventh Annual Electricity and Gas Executives Conference, First National Bank of Chicago, September 21, 1987.
“U.S. Economic Regulation of Electricity,” with Miles Bidwell, NERA Seminar, London, England, June 26, 1987.
“Pricing and Energy Policy in Wisconsin and the United States,” Workshop on Energy, The Economy, and the Environment, IIASA, Laxenburg, Austria, June 23-25, 1987.
“State Regulation in the Natural Gas Revolution,” presented at Proceeding of Gas Mart ’87, The First National Trade Fair for Natural Gas, sponsored by Natural Gas Intelligence, Washington, D.C., May 3-5, 1987.
“Can Natural Gas Deregulation be a Model for the Electric Industry?” Speech given at the First Rutgers/New Jersey Department of Commerce Annual Conference on Energy Policy in the Middle Atlantic States, February 20, 1987 (also published in Energy Deregulation and Economic Growth).
19

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3301 Page 30 of 64
“Are Energy Efficiency Programs Worth It?” with Suellen M. Curkendall, IAEE Conference, MIT, Cambridge, MA, November 19-21, 1986.
“Marketing Strategies for Natural Gas Distributors in the 1900s,” before the Gas Utility Managers Conference Sponsored by the New England Gas Association, September 7-9, 1986.
“Conservation and Cogeneration: The Utilities’ Friends or Foes?” with M. Berkman, S. Curkendall and H. Parmesano, before the NERA Electric Utility Conference, Scottsdale, AZ, February 12-15, 1986.
“The Future Competitive Environment for Utilities,” remarks prepared for Dayton Power & Light Company 1985 Interdivisional Meeting, December 9, 1985.
“The Final Rule for Natural Gas Carriage,” Presentation before the Ohio Electric Association, Cincinnati, OH, October 23, 1985.
“The FERC’s Recent Interest in Wheeling and Carriage,” co-authored by Robert D. Obeiter, before the Ninth Annual News Media Seminar, Columbus, Ohio, and the Third NARUC Electric Research and Development Seminar, St. Charles, IL, October 22, 1985.
“The Regulatory World of Natural Gas: Are We Quitting the Game or Changing the Rules?” before the Natural Gas Supply Association 1985 Annual Meeting, Miami, FL, October 10, 1985.
“Marginal Cost and Competition: Unbundling Natural Gas Carriage,” before the Advanced Seminar in Gas Pricing Policies, Sponsored by the American Gas Association, College Park, MD, October 8, 1985.
“Commingling Competition with Regulation: Closing the Circle or Quitting the Game,” before the Iowa InvestorOwned Utilities Management Conference, Waterloo, IA, October 7, 1985.
“The State Regulator in a Free Gas Market,” Comments Presented at a Conference Sponsored by The Gas Daily, Chicago, IL, August 1985.
“Grafting Competition Onto Regulation: The Problems and The Promise,” before the Iowa State Regulatory Conference, Ames, IA, May 1985.
“Comments Before The Workshop on Current Antitrust Issues in Public Utility Industries, sponsored by the American Bar Association, Washington, D.C., March 1985.
“Yesterday, Today and Tomorrow,” Comments before the IEEE Winter Power Meeting, New York, NY, February 5, 1985.
“Natural Gas: The Eggs Have Been Scrambled, Now What?” Before the National Association for Regulatory Utility Commissioners Annual Meeting, Los Angeles, CA, November 1984.
“The Performance of the Regulation of Public Utilities in the U.S., “A NERA Seminar: Is American-Style Regulation Appropriate to the UK?” London, England, October 1984.
“A Strategy for Implementing Electricity Tariff Reform and Load Management in Korea,” Seoul, Korea, 1982.
“The National Energy Act and State Utility Regulation,” NARUC Convention, Las Vegas, NV, November 1982.
20

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3302 Page 31 of 64
“Time of the Electricity Pricing: Correcting Some Continuing Confusion,” NARUC Annual Convention, New Orleans, LA, November 16, 1977.
“Our Energy Crisis and Education: A Critical Assessment,” Council for Educational Development and Research Conference on Education Confronts Energy Conference, Washington, D.C., June 22, 1977.
“Alaskan Oil and Gas: The Wrong Route Revisited,” American Association for the Advancement of Science, Denver, CO, February 22, 1977.
The At Rann II Symposium, Prepared Summary of NSF Study to Provide a Practical Guide for the Analysis of the Marginal Cost Structure of Electric Utilities for the Purpose of Designing Electricity Tariffs, Washington, D.C., November, 1976.
Prepared Remarks “Cost/Benefit Aspects of Non-Waste Technology and Production,” presented at the NWT Seminar, Seminar on the Principles and Creation of Non-Waste Technology, Paris, France, November, 1976
The Advest Seminar comments entitled “Meeting Experiments,” at New York, NY, October, 1976.
The Annual Meeting of American Economic Association,” Nixon-Ford National Policy Plans: A Critique,” Atlantic City, New Jersey, September, 1976.
The NARUC annual Regulatory Studies Program, Prepared Remarks “Excerpt from the Marginal Cost and Pricing of Electricity: An applied Approach,” East Lansing, MI, August, 1976.
Prepared Remarks before the 1976 Symposium on Rate Design Problems of Regulated Industries, “The Marginal Cost of Electricity and Continuing Rate Controversies, “Kansas City, MO, February, 1976.
Prepared Remarks before the Wisconsin Manufacturing Association in Stevens Point, WI, September, 1975.
“Public Utility Pricing, Conservation and Ecology,” NARUC Annual Regulatory Studies Program, Michigan State University, East Lansing, MI. August 1975.
“Energy Pricing: The Growing Consumer Burden,” Third National Seminar for Consumer Representatives in State and Local Government. Milwaukee, WI, July, 1975.
“New Approaches to Public Utility Rate Setting,” Third National Seminar for Consumer Representatives in State and Local Government, Milwaukee, WI, July, 1975.
“The Design of Electricity Tariffs,” Upper Great Lakes Utilities Commission. Greenbriar, West Virginia. July 1975.
“Time of Day Pricing: WHY and HOW,” Joint Conference by the Federal Energy Administration, the American Public Power Association, the Edison Electric Institute, the National Association of Regulatory Utility Commissioners, and the National Electric Cooperatives Association. Washington, D.C., June, 1975.
Prepared Remarks before the Institute of Public Utilities, Michigan State University, East Lansing, MI, May, 1975.
21

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3303 Page 32 of 64
“The Energy Game: Who are the Players?” 49th Annual Convention of the Wisconsin Petroleum Association, April 2, 1975.
“Implementing Time-of-Day Pricing of Electricity: Promises and Pitfalls,” Atlanta, GA. March, 1975. Prepared remarks “The Time has Come to Speak Out On Our Energy and Economic Crisis,” Madison, WI, March,
1975. Prepared Remarks before The American Association for the Advancement of Science at the Minnesota Energy
Agency Conference, 1975,” Energy Pricing in the United States: A Critique,” 1975. “Benefit Cost Analysis and the National Environmental Policy Act,” Proceedings of the American Bar
Association, 1975. “Electricity Price Regulation: Critical Crossroads or New Group Participation Sport,” Ames Public Utility
Conference and the Midwest Association of Regulated Utilities Conference, both 1974. “Implementing Diurnal Pricing: A Pragmatic Approach,” At the Regulatory Information Systems Conference.
St. Louis, MO. 1974. “An Economist Views the National Environmental Policy Act and the Environmental Impact Statement,” Public
Choice Meetings, American Bar Association Annual Meeting, College Park, MD, March, 1973. “Electricity Growth: Economic Incentive and Environmental Quality,” With W. Gillen. Conference on Energy:
Demand and Institutional Problems, February, 1973. “Some Economic Implications of the NEPA,” Public Choice Meetings, American Bar Association Annual
Meeting, Washington, D.C., 1973. “Regression Analysis with Dichotomous Dependent Variables,” With V. Kerry Smith. Toronto, CAN,
December, 1972. “Optimality in Producing and Distributing Public Outputs,” The American Economic Association, December,
1971. “Preservation Versus Development: Some Economic Issues,” with J.V. Krutilla, Econometric Society Meetings,
December, 1970.
CIVIL PROCEEDINGS AND RELATED LEGISLATIVE TESTIMONY
Before the U. S. District Court for Northern California, 2019, Declaration and Deposition in a matter related to contract termination based in part on the feasibility of burning wood as a renewable energy resource compared to solar and wind power on the Big Island of Hawaii.
Testimony in the Matter of an Arbitration (Alberta) between TransAlta Generation Partnership and the Balancing Pool, in the matter of the definition of Rate Base and Net Book Value, April, 2019.
22

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3304 Page 33 of 64
Before the U.S. District Court, Southern District of California, Expert Report in San Diego Unified Port District v. Monsanto for plaintiff in Case No. 3:15-CV-0578, April 5, 2019.
Expert Report in the Matter of an Arbitration (Alberta) between TransAlta Generation Partnership and the Balancing Pool, in the matter of the definition of Rate Base and Net Book Value, January, 2019.
Before the Superior Court of California, County of Los Angeles, Expert Report in Shell Oil Company v Barclay Hollander Corporation, Case No. BC544786, June 15, 2017.
Before the Superior Court of California, County of Los Angeles, Declaration in Support of Plaintiff’s Motion for Class Certification, Imhoff v Goin, Case No. BC593161, January 3, 2017.
Before the United States District Court for the District of Arizona, Declaration in Support of the Navajo Transitional Energy Company’s Motions to Dismiss, October 26, 2016.
Before the United States District Court for the District of Arizona, Declaration in Support of the Navajo Transitional Energy Company’s Motions to Intervene, August 26, 2016.
Before the American Arbitration Association, Declaration in Opposition to Motion for Summary Judgment, U.S. Topco, Inc. v. Ever Energy Co., Ltd., Case No. 01-15-0002-6291, June 30, 2016.
Before the Supreme Court of the State of New York, County of Albany, Affidavit in Support of National Energy Marketers Association’s Application for an Order to Show Cause for a Temporary Restraining Order and Permanent Injunction, Index No. 868-16, May 9, 2016.
Expert Report in the Matter of an Arbitration (Alberta) between TransAlta Generation Partnership, ENMAX Energy Corporation, and the Balancing Pool, December 18, 2015.
Before the United States District Court for the District of Colorado Supplemental Expert Report in the matter of Arkansas River Power Authority (ARPA) v. Babcock & Wilcox Power Generation, in re ARPA’s Conversion of the Lamar Power Plant to Coal from Natural Gas, July 27, 2015.
Before the United States Supreme Court, Amicus Curiae Brief of Charles J. Cicchetti (sole author) on behalf of Petitioners in Federal Energy Regulatory Commission v. Electric Power Supply Association, et. al., Nos. 14480 & 14-841, July 2015.
Before the United States District Court for the District of Colorado, Expert Report of in the matter of Arkansas River Power Authority (ARPA) v. Babcock Wilcox Power Generation, in re ARPA’s Conversion of the Lamar Power Plant to Coal from Natural Gas, April 6, 2015.
New Jersey Department of Environmental Protection, et al. v. Occidental Chemical Corporation, et al., Superior Court of New Jersey Law Division—Essex County, Docket No. ESX-L-9868-05), Expert Report Estimating Economic Damages Related to Dioxin at Lister Avenue and the Passaic River, March 13, 2014.
In the Matter of Arbitration Proceedings Concerning Disputes with to TAGP’S July 26, 2012 Notice of Force Majeure at Sundance Generating Station Unit 6, Among TransAlta Generation Partnership (TAGP) and Capital Power PPA Management, Inc. (CPPMI) and Balancing Pool (Balancing Pool), Expert Report November 13, 2013.
23

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3305 Page 34 of 64
Before the Superior Court of New Jersey Law Division: Union County, Union County Docket No.: UNN-L-260111, Lionetti Associates, LLC t/a Lorco Petroleum Services v. City of Elizabeth, City Council of the City of Elizabeth and Liberty Water Company v. Joint Meeting of Essex and Union Counties, Deposition Transcript, November 1, 2013.
Before the Superior Court of New Jersey Law Division: Union County, Civil Action Docket No.: UNN-L-055610, Papetti’s Hygrade Egg Products, Inc. v. City of Elizabeth, City Council of the City of Elizabeth and Liberty Water Company, Expert Report, April 1, 2013.
Before the United States District Court for the District of Colorado, Civil Action No. 1:12-cv-01275-JLK, Diné Citizens Against Ruining our Environment v. Kenneth Salazar, Declaration August 2012.
Before the Supreme Court of the United States, Metropolitan Edison Company and Pennsylvania Electric Company v. Pennsylvania Public Utility Commission, On Petition for a Writ of Certiorari to the Commonwealth Court of Pennsylvania, Motion for Leave to File Brief as Amici Curiae in Support of Petitioners and Brief of Electrical Engineers, Scientists and Economists as Amici Curiae in Support of Petitioners, August 1, 2012.
Before the United States Court of Appeals for the Tenth Circuit, Nos. 11-9552, 11-9557 & 11-9567, On Petitions for Review of Final Action of the United States Environmental Protection Agency, Declaration in Support of the Navajo Nation’s Amicus Brief, May 18, 2012.
Before the State Assessment Review Board, Prepared Supplemental Testimony on behalf of Anadarko Petroleum, Case No. P-08-9, May 9, 2012.
Expert Rebuttal Report In the Matter of Arbitration Proceedings Concerning Disputes with Respect to Units 1 & 2 at Sundance Generating Station among TransAlta Generation Partnership, TransCanada Energy LTD. and Balancing Pool, March 27, 2012.
Expert Report in the Matter of Arbitration Proceedings Concerning Disputes with Respect to Units 1 & 2 at Sundance Generating Station among TransAlta Generation Partnership, TransCanada Entergy LTD. and Balancing Pool, February 3, 2012.
Before the United States District Court for the District of Colorado, Civil Action No. 1:11-cv-002243-REB-CBS, Center for Biological Diversity, et al v. Joseph Pizarchik, Affidavit on behalf of the Navajo Nation, in Support of Limited Motion to Intervene and Motion to Dismiss; June 13, 2011.
Before the Superior Court for the State of Alaska, Third Judicial District of Anchorage, in BP Pipelines (Alaska), et al. v. Alaska Department of Revenue et al., Videotaped Deposition Transcript, June 8, 2011.
Before the Superior Court for the State of Alaska, Third Judicial District of Anchorage, in BP Pipelines (Alaska), et al. v. Alaska Department of Revenue et al., Rebuttal Expert Report, May 11, 2011.
Before the Circuit Court or the State of Oregon, Linn County, Trial Testimony on behalf of PacifiCorp in the matter of Wah Chang v. PacifiCorp, Case No. 002578, April 24, 2011.
Before the Superior Court for the State of Alaska, Third Judicial District of Anchorage, in BP Pipelines (Alaska), et al. v. Alaska Department of Revenue et al., Expert Report, March 3, 2011.
24

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3306 Page 35 of 64
Before the Superior Court of New Jersey Law Division—Essex County, New Jersey Department of Environmental Protection et al. v. Occidental Chemical Corporation, et al., Docket No. ESX-L-9868-05, Expert Report on Damages Related to Lister Avenue, December 2010.
Before the Superior Court for the State of California, County of San Diego, City of Oceanside v. Dow Chemical, Docket No. 05-439807, Expert Report on behalf of the City of Oceanside, July 2010.
Before the U.S. Bankruptcy Court for the District of Delaware, In re Semcrude, Case No. 08-11525 BLS, on behalf of the Unsecured Creditors of Semcrude L.P. Expert Analysis of Trading Data, February 2010.
Before the District Court of Chambers County, Texas, Oral Videotaped Deposition In re David Jenkins, et al. vs. Entergy Jenkins Corporation, et.al., Cause No. 20666, December 15, 2009.
Before the District Court of Chambers County, Texas, Expert Report on Behalf of Defendants, In re: David Jenkins, George W. Strong, Francis N. Gans and Gary M. Gans vs. Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Gulf States, Inc., Cause No. 20666, October 16, 2009.
Before the Superior Court for the State of Alaska, Third Judicial District at Anchorage, Affidavit In re: Tesoro Alaska Company v. Union Oil Company of California, Unocal Pipeline Company, Unocal Corporation, Case No. 3AN-05-5877 Civ, September 9, 2009.
Before the Supreme Court of the United States, NRG Power Marketing, LLC, et al., Petitioners, v Main Public Utilities Commission, et.al., Respondents, On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit, Brief as Amici Curiae in Support of Petitioners, July 14, 2009.
Before the Superior Court of New Jersey Law Division – Essex County, New Jersey Department of Environmental Protection et al. v. Occidental Chemical Corporation, et al., Docket No. ESX-L-9868-05, Expert Report on a Comparison of Damage Theories, June 15, 2009.
Before the Superior Court for the State of Alaska, Third Judicial District at Anchorage, Rebuttal Report In re: BP Pipelines (Alaska) Inc., Exxon Mobil Pipeline Company, Unocal Pipeline Company, Conoco Phillips Transportation Alaska, Inc. and Koch Alaska Pipeline Company, Owners, and Alyeska Pipeline Service Company, as Agent for the Owners, Fairbanks North Star Borough and City of Valdez v. State of Alaska Department of Revenue, State Assessment Review Board, and North Slope Borough, Case No. 3AN-06-08446 CI, May 15, 2009. Deposition taken on May 28, 2009.
Before the United States District Court Southern District of Mississippi Jackson Division, Declaration In re: The State of Mississippi, ex rel. Jim Hood, Attorney General for the State of Mississippi v. Entergy Mississippi, Inc., et al., No 3:08cv780-HTW-LRA, May 4, 2009.
Before the United States District Court Southern District of Mississippi Jackson Division, Supplemental Declaration In re: The State of Mississippi, ex rel. Jim Hood, Attorney General for the State of Mississippi v. Entergy Mississippi, Inc., et al., No 3:08cv780-HTW-LRA, May 15, 2009.
Before the District Court of Chambers County, Texas, Oral Videotaped Deposition In re David Jenkins, et al. vs. Entergy Jenkins Corporation, et.al., Cause No. 20666, December 15, 2009.
25

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3307 Page 36 of 64
Before the District Court of Chambers County, Texas, Expert Report on Behalf of Defendants, In re: David Jenkins, George W. Strong, Francis N. Gans and Gary M. Gans vs. Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Gulf States, Inc., Cause No. 20666, October 16, 2009.
Before the Superior Court for the State of Alaska, Third Judicial District at Anchorage, Expert Report In re: BP Pipelines (Alaska) Inc., Exxon Mobil Pipeline Company, Unocal Pipeline Company, Conoco Phillips Transportation Alaska, Inc. and Koch Alaska Pipeline Company, Owners, and Alyeska Pipeline Service Company, as Agent for the Owners, Fairbanks North Star Borough and City of Valdez v. State of Alaska Department of Revenue, State Assessment Review Board, and North Slope Borough, Case No. 3AN-06-08446 CI, April 8, 2009.
Before the United States District Court for the District of Nevada, Declaration in re Western States Wholesale Natural Gas Antitrust Litigation (McGraw Hill), Base Case No, 2:03-cv-01431-PMP-PAL, MDL Docket No. 1566, April 9, 2009.
Before the Superior Court of California, County of Los Angeles, Declaration in re Joseph Ward-Wallace v. City of Los Angeles, Dennis Ellement, Jim Digrado, Randall Judd and Does 1 thorough 100, Inclusive, Case No.: BC 358255, February 4, 2009. Deposition on January 26, 2009.
Before the Chancery Court of Hinds County, Mississippi, First Judicial District, Affidavit in re State of Mississippi v. Entergy Corporation, Cause No. G2008-1540, November 6, 2008.
Before the United States District Court Southern District of Mississippi Jackson District, Declaration in re Entergy Corporation, Entergy Mississippi, Inc. and Entergy Services, Inc. v. Jim Hood, Attorney General of Mississippi, Scott A. Johnson, Special Assistant Attorney General of Mississippi, and Lee McDivitt, Investigator, Mississippi Attorney General’s Office, Consumer Protection Division, Civil Action No. 3:08CV-541-WHB-LRA, September 12, 2008.
In the United States District Court for the Central District of Illinois Springfield Division, Expert Report on Behalf of Enbridge Pipelines (Illinois) LLC, In re: Carlisle Kelly and Deanna Kelly v. Enbridge (US) Inc., January 22, 2008.
Before the Supreme Court of the United States, Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, Washington, et al., On Writ Certiorari to the United States Court of Appeals for the Ninth Circuit, Brief as Amici Curiae in Support of Petitioners, September 12, 2007.
Before the State Assessment Review Board, State of Alaska, Report in the Matter of Trans-Alaska Pipeline System v. Oil and Gas Property Tax (AS 43.46) 2007 Assessment Year, Appeal of Revenue Decisions, No. 07-56-06 & No. 07-56-07, May 17, 2007.
Before the Superior Court of California County of Placer, Expert Report In People of the State of California, ex rel. Edmund G. Brown, Jr., Attorney General of California, State Air Resources Board and the Placer County Air Pollution Control District v. Sierra Pacific Industries, Inc., No. SCV 17449, March 19, 2007.
Before the United States Bankruptcy Court for the Southern District of New York, Expert Report in Enron Power Marketing, Inc. vs. Virginia Electric and Power Co. d/b/a Dominion Virginia Power, Case No. 01-16034 (AJG), November 6, 2006.
26

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3308 Page 37 of 64
Before the Circuit Court of Holmes Mississippi, Expert Report in re Charles U. Donald, Virginia Donald and Mary Snowden Newton, vs. Entergy Corporation, Entergy Mississippi Inc., Entergy Services, Inc., Entergy Technology Holding Company, and Entergy Technology Company, Civil Action No. 2004-340, September 1, 2006.
Before the State Assessment Review Board, State of Alaska, Report in the Matter of the Trans-Alaska Pipeline System v. Oil and Gas Property Tax (AS 43.46) 2006 Assessment Year, Appeal of Revenue Decision, No.06-56-17, May 16, 2006.
Before the United States District Court of Idaho, Expert Report in Powerex Corp v. IDACORP Energy, L.P., Civil Case No.CV-04-441-S-EJL, October 28, 2005.
Before the United States District Court, District of Washington, Expert Reply Report In re Calpine Corporation Securities Litigation, August 24, 2005.
Before the United States District Court, District of Nevada, Declaration In the Matter of the Nevada Power Company v. El Paso Corporation, No. CV-S-03-0875-RLH-RJJ, August 15, 2005.
Before the United States District Court, District of Nevada, Expert Report In the Calpine Corporation Securities Litigation, Master File No. C02-1200 SBA, August 3, 2005.
Before the State Assessment Review Board, State of Alaska, Report In the Matter of the Trans-Alaska Pipeline System v. Oil and Gas Property Tax (AS 43.46) 2005 Assessment Year, OAII No. 05-0307-TAX, Appeal of Revenue Decisions, No. 05-56-12 & No. 05-56-13, May 9, 2005.
Before the United States District Court, District of Nevada, Reply To Reports of Brett Friedman and Craig Berg in Nevada Power Company v. El Paso Corporation, et al., Civil Case No. CV-S-03-0875-RLH-RJJ, February 9, 2005.
Before the Court of Chancery of the State of Delaware, in and for New Castle County, Report in VLIW Technology, L.L.C. v. Hewlett Packard Company, and STMIICROELECTRONICS, Civil Case No. 20069NC, January 21, 2005.
Before the United States District Court, District of Nevada, Report in Nevada Power Company v. El Paso Corporation, et al., Civil Case No. CV-S-03-0875-RLH-RJJ, January 10, 2005.
Before the United States District Court, District of New Hampshire. Expert Report in Enterasys Networks, Inc. v. Gulf Insurance Company, Civil Action No. 1:04-CV-27-SM, October 2004.
Before the United States District Court, District of Kansas, Expert Analyses in criminal proceeding related to alleged manipulation of share prices with fraudulent cable company customer count data. USA versus Barford, Kalkwarf, and Smith, August, 2004.
Expert Report In the Matter of Idacorp Energy L.P. v. Overton Power District No. 5, CV OC 0107870D, March 4, 2003.
Before the American Arbitration Association, Expert Affidavit on behalf of Vulcan Geothermal Power Company, Del Ranch, L.P., and CE Turbo LLC, October 2, 2002.
27

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3309 Page 38 of 64
Before the United States District Court for the Western District of Wisconsin, Second Affidavit in Support of Plaintiffs’ Motion for Summary Judgment and in Opposition to Defendants’ Motion For Summary Judgment on behalf of Alliant Energy Corporation and Wisconsin Power and Light Corporation, Docket No. 00-C-0611S, April 23, 2002.
Before the USDC, Eastern District of Virginia, Expert Report in Federal Energy Sales v. AES, Civil Action 01420-A, July 13, 2001.
Before the United States District Court for the Western District of Wisconsin, Expert Affidavit on behalf of Alliant Energy Corporation and Wisconsin Power and Light Corporation, Docket No. 00-C-0611-S, February 12, 2002.
Before the United States District Court for the Western District of Wisconsin, Expert Affidavit on behalf of Alliant Energy Corporation and Wisconsin Power and Light Corporation, No. 00-C-0611-S, February 1, 2001.
Before the District Court of Lancaster County, Nebraska, Trial testimony on behalf of KN Energy in KN Energy vs. Cities of Alliance Case Nos. CI 00:1309, CI 00:1310, CI 00:1311, CI 00:1312 (Consolidated), January 22, 2001.
Before the California Superior Court, County of Los Angeles, Deposition testimony on behalf of Tosco Corporation of Tosco Corporation vs. The Los Angeles Water and Power, Case No. BC 215396, January 17, 2001.
Before the District Court of Lancaster County, Nebraska Deposition testimony on behalf of KN Energy in KN Energy vs. Cities of Alliance Case Nos. CI 00:1309, CI 00:1310, CI 00:1311, CI 00:1312 (Consolidated), November 1, 2000.
Before the United States District Court for the Central District of California, Affidavit in the Matter of United States of America v. Montrose Chemical Corporation of California, et.al., Civil Action No. CV 90 3122-R, 21 August 2000.
Before the United States District Court for the Central District of California, Expert Report in the Matter of United States of America v. Montrose Chemical Corporation of California, et.al., Civil Action No. CV 90 3122-AAH (JRx), 15 April 2000.
Before the California Superior Court, County of San Francisco, Deposition testimony on behalf of RaybestosManhattan of Whiteley vs. Raybestos-Manhattan, Case No. 303184, November 30, 1999.
Before the California Superior Court, County of Los Angeles, Deposition testimony on behalf of F&M Trust of in re The Conservatorship of Leroy and Estelle Strader, September 8-9, 1999.
Before the United States District Court, District of Colorado, Deposition in re Atlantic Richfield v. Smallwood, Civil Action No. 95-Z-1767, July 1, 1997.
Before the United States District Court for the Western District of Missouri, Western Division, Expert Rebuttal Affidavit on behalf of Western Resources, Inc., No. 94-0509-CV-W-1, March 8, 1996.
Before the United States District Court for the Western District of Missouri, Western Division, Expert Affidavit on behalf of Western Resources, Inc., No. 94-0509-CV-W-1, June 15, 1995.
28

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3310 Page 39 of 64
Before the United States District Court for the Central District of California, Affidavit on behalf of Montrose Chemical Corporation of California, et.al., No. CV90-3122-AAH (JRx), March 1, 1995.
Before the Department of the Interior, Comments re NRDA Regulations, Type B Rule, September 22, 1993.
Before the National Oceanic and Atmospheric Administration, Comments on the Advance Notice of Proposed Rulemaking (57 Federal Register 8964) of Natural Resource Damage Assessment Regulations (Oil Pollution Act, Section 1006), October 1, 1992.
Before The United States District Court for the District of Utah. Testimony on behalf of Kennecott Corporation, Docket No. 86-C-902C, March 26, 1992.
Before the American Arbitration Association, Testimony on behalf of Hard Rock Cafe International, January 22, 1992.
G&H Landfill. Prepared analysis of the statistical effect of landfill location and neighborhood property values (early 1990s).
Before the Superior Court of California, Orange County, Expert Report re economic and stigma analysis related to environmental damages related to groundwater contamination in Bouchier v. MacHoward Leasing (Honda) (early 1990s).
State of Washington v. Nestucca (Sause Brothers). Prepared an economic analysis of sea bird losses related to an oil spill in the Pacific Ocean off the coast of Washington (early 1990s).
Before the Department of Interior, Comments on Notice of Proposed Rulemaking for Natural Resource Damage Assessment Regulations, Type B Rule (43 CFR Part 11), July 12, 1991.
Before the Massachusetts Appellate Tax Board, Analysis of the Fair Market Value of Boston Edison's Mystic Generating Station, Prepared for Boston Edison Company, December 10, 1990.
Before the U.S. Department of Interior, Comments on the U.S. Department of Interior's Advanced Notice of Proposed Rulemaking re: Natural Resource Damage Assessments (43 CFR Part 11), November 13, 1989.
Before the Senate Committee on Energy and Natural Resources, Prepared Statement related to the Demand-Side Provisions of the Public Utility Regulatory Policies Act of 1978 (PURPA) Contained in Subtitle B of Title III of S-324, The National Energy Policy Act of 1989, November 7, 1989
U.S. v. Motorola. Prepared statistical analyses of property values and ground water for Phoenix metropolitan area (early 1990s).
Before the United States District Court, State of Colorado, Expert Damages Report in State of Colorado v. Gulf & Western, December 2, 1985.
French Limited. Prepared analysis of environmental damages (late 1980s).
Commonwealth of Massachusetts v. Charles George Trucking Company. Prepared a damages analysis for environmental damages (late 1980s)
29

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3311 Page 40 of 64
U.S. v. Aerovox (New Bedford Harbor. Prepared numerous economic damage calculations, conducted surveys, and analyzed property data for several different clients in the late 1980s.
Before the House Subcommittee on Energy Conservation and Power of the Committee on Energy and Commerce, Comments on Hydroelectric Relicensing, June 5, 1985
Before the Department of Health and Social Services, Testimony on behalf of Madison General Hospital, In Application for Certificate of Need for Open Heart Surgery, CON 82-026, November, 1982. (Antitrust)
Before the Senate Committee on Energy and Natural Resources, Prepared Statement related to the Implementation of Title I of the Natural Gas Policy Act of 1978, November 5 and 6, 1981.
Before the Postal Rate Commission, Testimony on behalf of the National Association of Greeting Card Publishers, Docket No. R80-1, August 13, 1980.
Before the House Ways and Means Committee, Washington, D.C., Testimony on Utility Tax Reform, March 8, 1978.
Before the Senate Subcommittee on Energy Conservation and Regulation of the Senate Committee on Energy and Natural Resources, Comments on Utility Tax Reform, July, 1977.
Before the Subcommittee on Energy and Power of the U.S. House of Representatives Interstate and Foreign Commerce, comment with respect to Synthetic Fuel Loans, May, 1976.
Prepared comments on “H.R. 12461, Summary of Major Provisions of Electric Utility Rate Reform and Regulatory Improvement Act (formerly H.R. 10100), March, 1976.
Before the Subcommittee on Energy and Power of the U.S. House of Representatives Interstate and Foreign Commerce, Comments with respect to Electric Utility Reform, March, 1976.
Before the Senate and House Interior Committees, comments on Trans-Alaska Pipeline; Energy Conservation and Pricing; and the Optimum Transportation System for Alaskan Natural Gas, March, 1976
Before the Federal Energy Administration, “Amendments of Entitlements Program,” February, 1976.
Before the Wisconsin State Legislature, Environmental Quality Commission Testimony, January, 1976.
Before the Department of Energy, Mines and Resources, Testimony on behalf of the office of Energy Conservation, May 16, 1977.
Before the U.S. Senate Committee on Interstate and Foreign Commerce, Subcommittee on Energy and Power, Testimony, May 25, 1976.
Before the Wisconsin State Legislature, Testimony on the Governor’s transportation Program before the Senate Committee on commerce, Joint Committee on Highways, 1975.
Before the Senate Interior Committee re Energy Transportation, Testimony, December 12, 1973.
Before the Senate Sub-Committee on Consumer Economics, Testimony re Electricity Pricing, October 25, 1975.
30

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3312 Page 41 of 64
Before the U.S. Senate Committee on Interior and Insular, Testimony re the Trans Alaska Pipeline, May 3, 1973. Before the U.S. Senate Committee on Interior and Insular Affairs, Comments re the Role of Energy Conservation
in National Energy Policy, March 22, 1973. Before the Joint Economic Committee, Testimony Concerning the Relative Economic Merits of the Proposed
Trans Alaska Pipeline, June 9, 1972. State of Florida v. U.S. Army Corps of Engineers. Prepared an economic analysis for the State of Florida related
to damages on the Kissimmee River related to stream channelization (mid 1970s). U.S. Forest Service v. Disney. Prepared an economic analysis of preservation versus development of Mineral
King Ski development (early 1970s). Before the US Senate Commerce Committee, comments with respect to Natural Gas De-Regulation. Before the Subcommittee on Energy and Power of the U.S. House of Representatives Interstate and Foreign
Commerce, Comments with respect to Energy and Power, Electricity and Natural Gas Utility Policy. Before the Subcommittee on Energy and Power of the U.S. House of Representatives Interstate and Foreign
Commerce, comment with respect to Electricity and Natural Gas Utility Policy. Before the Department of the Interior, Comments with respect to the Trans-Alaska Pipeline. Before the New York and New Jersey Environmental Protection Agencies and Civil Proceedings, Testimony
With Respect to Tocks Island Dam and Delaware River Development. Before the Energy Council of the Federal Government, Critique of the Project Independence Report and Critique
of Oil and Natural Gas Policy. Before the Joint Economic Committee, Testimony on the Trans Alaska Pipeline, Mandatory Oil Import Quotas,
Hells Canyon, Energy Policy, and Electricity Pricing. Before the Florida Federal Courts on Kissimmee River Channelization. Before Tennessee Federal Courts on Tennessee Tombigbee River Development.
REGULATORY PROCEEDINGS AND RELATED LEGISLATIVE TESTIMONY Before the Alberta Utility Commission, Written Supplemental Evidence on behalf of Trans Alta Utilities in the
matter of Recovering Decommissioning Costs for Deferred Actions, March 2020. Before the Public Utility Commission of Colorado, Written Evidence on behalf of Tri-State G&T related to United Power and La Plata Electric’s membership contract abrogation, February 2020. Before the Public Service Commission of Wisconsin, 2019, testimony related to assigning costs related to the Milwaukee Metropolitan Sewerage District’s renewable energy generating capacity.
31

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3313 Page 42 of 64
Before the Public Utility Commission of Colorado, Written Evidence on behalf of Tri-State G&T related to DeltaMontrose Electric Association’s membership contract abrogation, April 2019.
Before the Alberta Utility Commission, Written Evidence on behalf of Trans Alta Utilities in the matter of Recovering Decommissioning Costs for Deferred Actions, December 2018.
Before the California Public Utilities Commission, Rebuttal Testimony on Behalf of Avalon Freight Services, Application Numbers 14-10-105 and 15-01-005, April 16, 2018.
Before the California Public Utilities Commission, Direct Testimony on Behalf of Avalon Freight Services, Application Numbers 14-10-105 and 15-01-005, March 25, 2018.
Before the Alberta Utilities Commission, Rebuttal Evidence on Behalf of Direct Energy Regulated Services (DERS) Application for a Retail Margin, February 9, 2018.
Before the New York Public Service Commission, Direct Testimony on Behalf of National Energy Marketers Association (NEM), Cases 15-M-0127, 12-M-0476, and 98-M-1343, September 15, 2017.
Before the Nevada Public Utilities Commission, Direct Testimony in Support of MGM Resorts International in fNevada Power Company d/b/a NV Energy’s 2017 General Rate Case, Cost of Capital Phase, Docket No. 1706003, September 12, 2017.
Settlement in Application of MGM Resorts International to Purchase Energy, Capacity, and Ancillary Services From a Provider of New Electric Resources, Docket No. 15-05017, June 14, 2017.
Before the Alberta Utilities Commission, Evidence in Support of Direct Energy Regulated Services (DERS) Application for a Retail Margin, September 2016.
Before the Federal Energy Regulatory Commission, Affidavit on Behalf of Algonquin Gas Transmission, LLC. NextEra Energy Resources, LLC, PSEG Companies v. ISO New England, Inc., Docket No EL16-93-000, July 28, 2016.
Before the Arizona Corporation Commission, Responsive Testimony on Behalf of the Energy Freedom Coalition of America (EFCA) In the Matter of Tucson Electric Power Company for Approval of its 2016 Renewable Energy Standard and Tariff Implementation, Docket No. E-01933A-15-0239, March 28, 2016.
Before the Arizona Corporation Commission, Testimony on Behalf of the Energy Freedom Coalition of America (EFCA) In the Matter of Tucson Electric Power Company for Approval of its 2016 Renewable Energy Standard and Tariff Implementation, Docket No. E-01933A-15-0239, March 11, 2016.
Before the National Energy Board, Written Evidence on Behalf of Westcoast Energy Inc., Carrying on Business as Spectra Energy Transmission, in the Matter of Nova Gas Transmission Ltd. Application for the Towerbirch Expansion Project, Hearing Order GH-003-2015, March 8, 2016.
Before the California Public Utilities Commission, Testimony on behalf of ChargePoint, Inc. in re Application of Pacific Gas & Electric for Approval of its Electric Vehicle Infrastructure and Education Program, Docket No. A.15-02-009, November 30, 2015.
32

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3314 Page 43 of 64
Before the Public Utilities Commission of Nevada, Testimony on behalf of the Alliance for Solar Choice in re Application of Nevada Power Company, Docket No. 15-07041, August 20, 2015.
Before the Pennsylvania Public Utility Commission, In re: Pennsylvania Public Utility Commission Bureau of Investigation and Enforcement v. HIKO Energy, LLC, Direct Testimony, Docket No. C-2014-2431410, March 13, 2015.
Before the Public Service Commission of Wisconsin, In re: Joint Application of Wisconsin Electric Power Company and Wisconsin Gas LLC, both d/b/a We Energies, for Authority to Adjust Electric, Natural Gas, and Steam Rates, Surrebuttal Testimony, on behalf of the Milwaukee Metropolitan Sewerage District, Case No. 05-UR. 107, September 22, 2014.
Before the Public Service Commission of Wisconsin, In re: Joint Application of Wisconsin Electric Power Company and Wisconsin Gas LLC, both d/b/a We Energies, for Authority to Adjust Electric Natural Gas, and Steam Rates, Rebuttal Testimony on behalf of the Milwaukee Metropolitan Sewerage District, 05-UR,107, September 12, 2014.
Before the National Energy Board, In re: Application for Approval of Mainline 2013-2030 Settlement, Additional Written on Behalf of Centra Gas Manitoba, T211-2013-05-01, September 3, 2014.
Before the National Energy Board, In the Matter of Trans Mountain Pipeline ULC, Application for Tariff Amendments Regarding Verification Procedures, Public Written Reply Evidence on Behalf of Phillips 66, Hearing Order RHW-001-2013, August 8, 2014.
Before the National Energy Board, Nova Gas Transmission LTD. Application for the North Montney Project, Written Evidence on Behalf of Westcoast Energy Inc., Carrying on Business as Spectra Energy Transmission, Hearing Order GH-001-2014, July 10, 2014.
Before the National Energy Board, T211-2013-05-01, Application for Approval of Mainline 2013-2030 Settlement, Written Evidence on Behalf of Centra Gas Manitoba, July 4, 2014.
Before the Regulatory Commission of Alaska, Prepared Answering Testimony on Behalf of Cook Inlet Energy, LLC and Aurora Gas, LLC, In the Matter of the Tariff Revisions Designated as TA 252-4 and TA 253-4 Filed by ENSTAR Natural Gas Company, a Division of SEMCO Energy, Inc., U-14-010, May 5, 2014.
Before the State Assessment Review Board (SARB) State of Alaska, Expert Report on the valuation of the Trans Alaska Pipeline System (TAPS) on behalf of various municipalities; May 2014.
Before the National Energy Board, Public Written Direct Evidence on behalf of Phillips 66 in the Matter of Trans Mountain Pipeline ULC Application for Tariff Amendments Regarding Verification Procedures, April 22, 2014.
Before the Minnesota Public Utilities Commission, Rebuttal Testimony on Behalf of Enbridge Energy, Limited Partnership, Docket No. PL-9/CN 13-153, OAH Docket No. 8-2500-30952, March 13, 2014.
Before the Regulatory Commission of Alaska, Prepared Testimony in the Matter of the Application Filed by Fairbanks Natural Gas, LLC to Amend Certificate of Public Convenience and Necessity No. 514 to Expand its Service Area and in the Matter of Application Filed by Interior Alaska Natural Gas Utility for a Certificate
33

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3315 Page 44 of 64
of Public Convenience and Necessity to Operate as a Natural Gas Utility in Areas of the Fairbanks North Star Borough, RCA Docket Nos. U-13-083/U-13-103, September 9, 2013.
Before the Alberta Handling Commission, Written report of Memoranda in re Retail Margins (Handling Fee) for the Alberta Bottle Depots August 29, 2013.
Before the Illinois Commerce Commission, Testimony in re Enbridge Pipelines (FSP) L.L.C., Docket No. 120347, July 3, 2012.
Before the Federal Energy Regulatory Commission and the Regulatory Commission of Alaska, Prepared Supplemental Reply Testimony., On Behalf of Anadarko Petroleum Corporation and Tesoro Alaska Company, Phase II Cost of Service-FERC/RCA Concurrent Hearing, Docket No. IS09-348-006, et al., June, 19, 2012.
Before the National Energy Board, Written Evidence on Behalf of Westcoast Energy, Case No. GH-001-2012, May 29, 2012.
Before the Federal Energy Regulatory Commission and the Regulatory Commission of Alaska, Prepared Supplemental Testimony. on Behalf of Anadarko Petroleum Corporation and Tesoro Alaska Company, Phase II Cost of Service-FERC/RCA Concurrent Hearing, May 4, 2012.
Before the Alberta Utility Commission, Written Evidence on behalf of EPCOR Distribution and Transmission Inc., Performance Based Ratemaking Proceeding, Appendix C, Application No. ___; Proceeding ___; July 22, 2011.
Expert Report in Support of the Formation of the Energy Interchange Natural Gas Network Hub in Central Louisiana, on behalf of Energy Interchange Joint Application for Certificates of Public Convenience and Necessity, Abandonment Authority, and for Authority to Offer New Market Based Rates; Docket No. CP11___; June 2011.
Before the Alberta Handling Commission, on behalf of the Beverage Container Management Board re Appropriate Margin; November 9, 2010.
Before the Alberta Utility Commission, Written Evidence on behalf of ATCO Gas 2011-2012 General rate application, Section 4.4 Appendix A, November 8, 2010.
Before the Federal Energy Regulatory Commission, Comments re Supplemental Notice of Proposed Rulemaking and Notice of Technical Conference, Docket RM10-17-000, August 25, 2010.
Before the Federal Energy Regulatory Commission, Prepared Testimony on Behalf of Puget Sound Energy’s Proposed amendment to its Open Access Transmission Tariff to add Schedule 12, Wind Integration-Within Hour Generation Following Service; Docket No. ER10-___000, June 14, 2010.
Before the Federal Energy Regulatory Commission, Comments on behalf of PJM Interconnection, LLC in re Demand Response Compensation in Organized Wholesale Energy Markets, Docket RM 10-17-00, April 27, 2010.
34

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3316 Page 45 of 64
Before the Alberta Utility Commission, Written Evidence on behalf of EPCOR Distribution and Transmission Inc., in re 2010-2011 Phase I Distribution Tariff and 2010-2011 Transmission Facility Owner Tariff, Appendix G-10, December 22, 2009.
Retail Margin Evidence on behalf of EPCOR Energy Alberta Inc., in re: 2010-2011 Regulated Tariff Application, AppendixE-5, December 22, 2009.
Before the Alberta Utilities Commission, Written Rebuttal Evidence for EPCOR Energy Alberta, Inc., Review Hearing on the AEUB Decision 2008-031, 2007-2009 Regulated Rate Tariff Non-Energy Return, Application No. 1577836 Proceeding Id. 174, September 28, 2009.
Before the Public Utilities Commission of the State of California, Supplemental Rebuttal Testimony on Behalf of the Navajo Nation, In re: Application of Southern California Edison Company Regarding the Distribution of SO2 Allowance Sales Proceeds Related to the Suspended Operation of Mohave Generating Station, Application 06-12-022, August 19, 2009.
Before the Alberta Utilities Commission, Rebuttal Testimony in Support of AltaLink Management LTD 20092010 General Tariff Application, April 16, 2009.
Before the Alberta Utilities Commission, Written Evidence In Support of EPCOR Energy Alberta Inc. Review Hearing on AEUB Decision 2008-031 2007-2009 Regulated Rate Tariff (RRT) Non-Energy Return, Appendix T, Application No. 1577836, Proceeding ID 174, April 9, 2009.
Before the Alberta Utilities Commission, Rebuttal Evidence on Behalf of ATCO Electric, Application No. 1578371, February 4, 2009.
Before the Alberta Utilities Commission, Testimony in Support of AltaLink Management LTD 2009-2010 General, Tariff Application, September 16, 2008.
Before the Public Utilities Commission of the State of California, Rebuttal Testimony. on Behalf of the Navajo Nation, in re Application of Southern California Edison Company (U 338-E) Regarding the Distribution of SO2 Allowance Sale Proceeds Related to the Suspended Operation of Mohave Generating Station, Application 06-12-022, August 1, 2008
Before the Public Utilities Commission of the State of California, Direct Testimony on Behalf of the Navajo Nation, in re Application of Southern California Edison Company (U 338-E) Regarding the Distribution of SO2 Allowance Sale Proceeds Related to the Suspended Operation of Mohave Generating Station, Application 06-12-022, August 1, 2008.
Before the North Carolina Utilities Commission, Rebuttal Testimony for Duke Energy Carolinas, In re: Application of Duke Energy Carolinas, LLC for Approval of Save-a-Watt Approach, Energy Efficiency Rider, and Portfolio of Energy Efficiency Programs, Docket No. E-7, SUB 831, July 21, 2008
Before the Nebraska Public Service Commission, Prefiled Direct Testimony On Behalf of SourceGas Distribution, LLC and Kinder Morgan, Inc., Docket No. FC-1327, July 9, 2008.
Before the Alberta Utility Commission, Direct Evidence on Behalf of ATCO Electric, Application No. 1578371, July 4, 2008.
35

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3317 Page 46 of 64
Before the Indiana Utility Regulatory Commission, Rebuttal Testimony on related to energy efficiency on Behalf of Duke Energy Indiana, Inc. Case No. 43373, July 2, 2008.
Before the Arizona Corporation Commission, Affidavit in Support of Arizona Public Service Company’s Motion for Interim Rate, Docket No. E-01345A008-0172, June 4, 2008.
Before the Illinois Commerce Commission, Sur-rebuttal, on Behalf of Enbridge Pipelines (Illinois) LLC, Docket No. 07-0446, May 21, 2008.
Before the North Carolina Utilities Commission, Direct Testimony in re Application of Duke Energy Carolinas, LLC for Approval of Save-a-Watt Approach, Energy Efficiency Rider, and Portfolio of Energy Efficiency Programs, Docket No. E-7, SUB 831, April 3, 2008.
Before the Illinois Commerce Commission, Reply Testimony on Behalf of Enbridge Pipelines (Illinois) LLC, Docket No. 07-0446, February 4, 2008.
Before the Public Service Commission of South Carolina, Rebuttal Testimony for Duke Energy Carolinas, In re: Application of Duke Energy Carolinas, LLC For Approval of Energy Efficiency Plan Including Energy Efficiency Rider and Portfolio of Energy Efficiency Programs, January 2008.
Before the Public Utility Commission of Oregon, Declaration (with Jeffrey A. Dubin) in Response to Wah Chang’s Renewed, Supplemental and Alternative Motions to Compel Compliance with DR 203, In Wah Chang v PacifiCorp, UM 1002, November 19, 2007.
Before the Public Utility Commission of Oregon, Declaration in Support of PacifiCorp’s Post Hearing Brief, In Wah Chang v. PacifiCorp, UM 1002, November 12, 2007.
Before the Illinois Commerce Commission, Testimony on Behalf of Enbridge Pipelines (Illinois) LLC, Docket No. 07-0446, October 5, 2007.
Before the Public Utility Commission for the State of Oregon, Supplemental Reply Testimony (with Jeffrey A. Dubin, Ph.D.) In Wah Chang v. PacifiCorp, Docket No. UM 1002, July 31, 2007.
Before the Oregon Public Utility Commission, Deposition in Wah Chang v. PacifiCorp, UM 1002, June 14, 2007.
Before the Oregon Public Utility Commission, Reply Testimony In Wah Chang v. PacifiCorp, UM 1002, May 24, 2007.
Before the Illinois Commerce Commission, Expert Testimony of On Behalf of Enbridge Energy Partners, L.P. and Enbridge Energy, Limited Partnership, Docket No. 06-0470, December 21, 2006.
Before the Alberta Energy and Utility Board, Expert Testimony on behalf of DERS and ENMAX In Support of The Direct Energy Regulated Services Default Rate Tariff and Regulated Rate Tariff Application in 2007 and 2008, December 15, 2006.
Before the Alberta Handling Commission, Written report Memoranda in re Retail Margins (Handling Fee) for the Alberta Bottle Depots September 19, 2006.
36

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3318 Page 47 of 64
Before the Alberta Utility Board, Rebuttal Evidence on Behalf of DERS re Application for Approval of Regulated Rate Tariff (RRT), August 11, 2006.
Before the Alberta Utility Board, Rebuttal Evidence on Behalf of ENMAX re Application for Approval of Regulated Rate Tariff (RRT), August 11, 2006.
Before the Alberta Energy and Utility Board, Expert Testimony In Support of The Enmax Energy Corporation Application for Approval of a Regulated Rate Tariff (RRT) to take effect July 1, 2006, Pursuant to Section 103 of the Electric Utilities Act and Section 23 of the Regulated Rate Option Regulation, April 4, 2006.
Before the Alberta Energy and Utility Board, Expert Testimony In Support of The Direct Energy Regulated Services Application for Approval of a Regulated Rate Tariff (RRT) to take effect July 1, 2006, Pursuant to Section 103 of the Electric Utilities Act and Section 26 of the Regulated Rate Option Regulation, March 21, 2006.
Before the FERC, Prepared Reply Testimony on behalf of Idacorp Energy L.P. and Idaho Power Company, Docket No. EL00-95-147, EL00-98-134, October 17, 2005.
Before the FERC, Prepared Reply Testimony of on behalf of Avista Energy Inc., Docket No. EL 00-95-000, EL00-98-000, November 7, 2005.
Before the FERC, Prepared Supplemental Testimony on behalf of Avista Energy Inc., Docket No. EL00-95000, EL00-98-000, September 30, 2005.
Before the FERC, Prepared Testimony on behalf of Idacorp Energy L.P. and Idaho Power Company, Docket No. EL00-95-000, EL00-98-000, September 14, 2005.
Before the FERC, Prepared Testimony on behalf of Avista Energy Inc., Docket No. EL00-95-000, EL00-98000, September 14, 2005.
Before the Florida Public Service Commission, Rebuttal Testimony on behalf of Progress Energy Florida, Docket No. 050078-EI, August 5, 2005.
Before the Florida Public Service Commission, Direct Testimony o on behalf of Progress Energy Florida, Review of Progress Energy Florida’s Rate Case Filing, Docket No. 050078, April 29, 2005.
Before the FERC, on Behalf of Pepco Holdings, Inc. in Docket No. EC05-43-000, April 11, 2005.
Before the FERC, Affidavit to Comment on Order Granting Motion and Requesting Comments in San Diego Gas & Electric Company v. Sellers Of Energy and Ancillary Service Into Markets Operated by the California Independent System Operator Corporation And the California Power Exchange, Docket No. EL00-95-045, EL00-98-042, January 10, 2005.
Before the Washington Utilities and Transportation Commission, Prefiled Rebuttal Testimony on behalf of Puget Sound Energy, Inc., Docket No. UE-04/UG-04, November 2004.
Before the National Energy Board, Direct Evidence In the Matter of TransCanada Pipelines, RH-3-2004, June 21, 2004.
37

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3319 Page 48 of 64
Before the California Public Utilities Commission, Rebuttal Testimony on behalf of The Navajo Nation, Application No. 02-05-046, June 4,2004.
Before the California Public Utilities Commission, Superseding Testimony on behalf of The Navajo Nation, Application No. 02-05-046, May 14, 2004.
Before the California Public Utilities Commission, Reply Testimony on behalf of Cal-CLERA, Docket No. R03-10-003, May 7, 2004.
Before the California Public Utilities Commission, Prepared Testimony on behalf of Cal-CLERA and the City of Victorville, Docket No. R03-10-003, April 15, 2004.
Before the Washington Utilities and Transportation Commission, Prefiled Direct Testimony on behalf of Puget Sound Energy, Inc., Docket No. UE-04/UG-04, April 5, 2004.
Before the FERC, Affidavit for the Independent Energy Producers, on Behalf of Mountainview Power, January 8, 2004.
On Behalf of VENCorp (Australia), Final Report on Stage 1 Definition of Market Design Packages, December 24, 2003.
On Behalf of VENCorp (Australia), Initial Report on Stage 1 Definition of Market Design Packages, December 8, 2003.
Before the Public Utilities Commission of the State of California, Prepared Rebuttal Testimony on behalf of The Navajo Nation, Application No. 02-05-046, October 29, 2003.
Before the Public Utilities Commission of the State of California, Comments on behalf of The California Clean Energy Resources Authority (Cal-CLERA), October 22, 2003.
Before the Public Utilities Commission of California, Prepared Direct Testimony on behalf of The Navajo Nation, Application No. 02-5-046, October 10, 2003.
Before the Public Utilities Commission of California, Prepared Rebuttal Testimony on behalf of the Independent Energy Producers Association, Docket No. A-03-03-032, October 6, 2003.
Before the California Public Utilities Commission, Prepared Direct Testimony on behalf of the Independent Energy Producers Association (IEP), Docket No. A.03-07-032, September 29, 2003.
Before the FERC, Testimony on behalf of BP Energy, Docket No. EL03-60-000, April 16, 2003.
Before the FERC, Testimony on behalf of Idacorp Energy L.P. and Idaho Power Company, Docket No. EL0110-007, March 20, 2003.
Before the FERC, Testimony on Behalf of Avista Energy, Inc., BP Energy Company, Idacorp Energy L.P., Puget Sound Energy Inc., TransAlta Energy Marketing (U.S.) Inc., TransAlta Energy Marketing (California) Inc., and TransCanada Energy, Ltd., Docket No. EL00-95-075, EL00-98-063, March 3, 2003.
38

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3320 Page 49 of 64
Before the FERC, Affidavit to Comment on FERC Staff’s Recommendations Related to Natural Gas Prices in California’s Electric Markets During the Refund Period, Docket No. EL00-95-045, EL00-98-042, October 14, 2002.
Before the FERC, Prepared Reply Testimony on Behalf of Avista and Accompanying Exhibits, Docket No. EL0095-045, EL00-98-042, August 9, 2002.
Before the FERC, Prepared Rebuttal Testimony Issues II and III, Docket No. EL00-95-045, EL00-98-042, July 26, 2002.
Before the FERC, Prepared Responsive Testimony Issues II and III, Docket No. EL00-95-045, EL00-98-042, July 3, 2002.
Before the US House of Representatives Subcommittee on Energy Policy, Natural Resources and Regulatory Affairs, Comments in the Matter of “California’s Electricity Markets: The Case of Enron and Perot Systems,” on behalf of Perot Systems Corporation, July 22, 2002.
Before the Arizona Corporation Commission, Supplemental Testimony on behalf of Arizona Public Service Company, Docket No. E-00000A-02-0051m June 26, 2002.
Before the Arizona Corporation Commission, Rebuttal Testimony on behalf of Arizona Public Service Company, Docket No. E-00000A-02-0051, et al., June 11, 2002.
Before the Alberta Energy and Utilities Board, In the Matter of an Application by NOVA Gas Transmission Ltd. For Fort Saskatchewan Extension & Scotford Sales Meter Station & Josephburg Sales Meter Station & Astotin Sales Meter Station, Supplemental Evidence May 7, 2002.
Before the Arizona Corporation Commission, Rebuttal Testimony on behalf of Arizona Public Service Company, Docket No. E-01345A-01-0822, April 22, 2002.
Before the Alberta Energy Board, Evidence In the Matter of An Application by NOVA Gas Transmission Ltd. for Fort Saskatchewan Extension & Scotford Sales Meter Station & Josephburg Sales Meter Station & Astotin Sales Meter StationMarch 26, 2002.
Before the Florida Public Service Commission, Rebuttal Testimony on behalf of Florida Power Corporation, Docket No. 000824-EI, February 11, 2002.
Before the Federal Energy Regulatory Commission, Prepared Supplemental Testimony on behalf of Avista Energy Inc., BP Energy Company, Coral Power, LLC, IDACORP Energy, LP, Puget Sound Energy and Sempra Energy Trading Corp (Competitive Supplier Group), Docket No. EL00-95-045 – EL00-98-042, January 31, 2002.
Before the Federal Energy Regulatory Commission Deposition testimony on behalf of Competitive Suppliers Group, Docket Nos. EL00-95-045 and EL00-98-042, November 28, 2001. (FERC)
Before the Federal Energy Regulatory Commission, Issue I. Prepared Testimony., on behalf of the Competitive Suppliers Group (Cal Refund), Docket No. EL00-95-045 – EL00-98-042, November 6, 2001.
39

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3321 Page 50 of 64
Before the Florida Public Service Commission, Direct Testimony on behalf of Florida Power Corporation, Docket No. 000824-EI, September 14, 2001.
Before the Federal Energy Regulatory Commission, prepared Direct Testimony and Exhibits on behalf of Idacorp Energy, L.P., Docket Nos. EL01-10-000 and EL01-10-001, August 27, 2001.
Before the State Corporation Commission of the State of Kansas, Rebuttal Testimony on behalf of Western Resources, Inc., Docket No. 01-WRSE-949-GIE, June 2001.
Before the State Corporation Commission of the State of Kansas, Direct Testimony on behalf of Western Resources, Inc., Docket No. 01-WRSE-949-GIE, June 2001.
Before the California Energy Commission, Statement and Affidavit re the Baldwin Energy Facility, June 2001.
Before the State Corporation Commission of the State of Kansas, Surrebuttal Testimony on behalf of Western Resources, Inc., Docket No. 01-WRSE-436-RTS, May 2001.
Before the State Corporation Commission of the State of Kansas, Rebuttal Testimony on behalf of Western Resources, Inc., Docket No. 01-WRSE-436-RTS, April 2001.
Before the State Corporation Commission of the State of Kansas, Direct Testimony on behalf of Western Resources, Inc., Docket No. 01-WRSE-436-RTS, January 2001.
Before the Federal Energy Regulatory Commission, Affidavit on behalf of Entergy Power Marketing Corp. and Koch Energy Trading, Inc., Docket No. EC00-106, 20 June 2000.
Before the Federal Energy Regulatory Commission, Affidavit on behalf of Western Resources, Inc., Docket No. ER00-00-000, 28 April 2000.
Before the Public Service Commission of Florida, Intervenor Testimony on behalf of Florida Power Corporation, Docket No. 991462, 7 March 2000.
Before the Public Service Commission of Wisconsin, Direct Testimony on behalf of ANR Pipeline Company, Docket No. 6650-CG-194, 6 March 2000.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Duke Energy South Bay, LLC, Docket Nos. ER98-496-000 and ER98-2160-000, 1 March 2000.
Before the Federal Energy Regulatory Commission, Affidavit on behalf of ANR Pipeline Company, Docket Nos. CP00-36-000, CP00-37-000, and CP00-38-000, 28 December 1999.
Before the Federal Energy Regulatory Commission, Direct Testimony on behalf of Duke Energy South Bay, LLC, Docket Nos. ER98-496-000 and ER98-2160-000, 22 December 1999.
Before the Public Service Commission of Wisconsin, Rebuttal Testimony on behalf of Alliant Energy Corporation, Docket Nos. 9403-YI-100 and 6680-UM-100, 23 September 1999.
Before the Public Service Commission of Wisconsin, Direct Testimony on behalf of Alliant Energy Corporation, Docket Nos. 9403-YI-100 and 6680-UM-100, 1 July 1999.
40

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3322 Page 51 of 64
Before the Public Service Commission of the State of Missouri, Surrebuttal Testimony on behalf of Western Resources, Inc. and Kansas City Power & Light, Case No. EM-97-515, 10 June 1999.
Before the State Corporation Commission of the State of Kansas, Rebuttal Testimony on behalf of Western Resources, Inc., Docket No. 97-WSRE-676-MER, 18 March 1999.
Before the Federal Energy Regulatory Commission, Affidavit on behalf of Duke Energy South Bay LLC, Docket No. ER98-496-000 and ER98-2160-000, February 1999.
Before the Georgia Public Service Commission, Rebuttal Testimony on behalf of Georgia Power Company, GPSC Docket No. 9355-U, 27 October 1998.
Before the Public Service Commission of the State of Missouri, Direct Testimony on behalf of Western Resources, Inc. and Kansas City Power & Light Company, Case No. EM-97-515, Vol. III, June 1998.
Before the State Corporation Commission of the State of Kansas, Direct Testimony on behalf of Western Resources, Inc., Docket No. 97-WSRE-676-MER, 17 June 1998.
Before the Georgia Public Service Commission, Direct Testimony on behalf of Georgia Power Company, GPSC Docket No. 9355-U, 3 June 1998.
Before the Federal Energy Regulatory Commission, Direct Testimony on behalf of Duke Energy, Docket No. ER98-496-000 and ER98-2160-000 24 April 1998.
Before the Public Service Commission of Wisconsin, Surrebuttal Testimony on behalf of Wisconsin Electric Power Company, Docket No. 05-BE-100, __ March 1998.
Before the Public Service Commission of Wisconsin, Rebuttal Testimony on behalf of Wisconsin Electric Power Company, Docket No. 05-BE-100, 23 March 1998.
Before the Public Service Commission of Wisconsin, Testimony on behalf of Wisconsin Electric Power Company, Docket No. 05-BE-100, 9 March 1998.
Before the Pennsylvania Public Utilities Commission, Rebuttal Testimony on behalf of Pennsylvania Power Company, Docket No. R-00974149, 19 February 1998.
Before the State Corporation Commission of Kansas, Prepared Statement on behalf of Western Resources, Inc., 28 October 1997
Before the Federal Energy Regulatory Commission, Testimony on behalf of Wisconsin Energy Corporation and ESELCO, Inc., Docket No. EC97-___-000, 22 October 1997.
Before the Pennsylvania Public Utilities Commission, Direct Testimony on behalf of Pennsylvania Power Company, Docket No. R-00974149, 26 September 1997.
Before the Public Utilities Commission of the State of California, Testimony on behalf of Southern California Edison Company, Docket No. U-338-E, September 15, 1997.
41

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3323 Page 52 of 64
Before the Federal Energy Regulatory Commission, Affidavit on behalf of The Power Company of America, L.P., Docket No. ER95-111-000, November 1, 1996.
Before the Public Service Commission of Wisconsin, Rebuttal Testimony on behalf of Wisconsin Energy Corporation, Wisconsin Electric Power Company, et.al. (Applicants), Docket Nos. 6630-UM-100, 4220-UM101, October 23, 1996.
Before the Public Utilities Commission of the State of California, Rebuttal Testimony on behalf of Pacific Telesis Group, No. 96-04-038, October 15, 1996.
Before the Commonwealth of Massachusetts Department of Public Utilities, Rebuttal Testimony on behalf of Boston Gas Company, Docket No. D.P.U. 96-50, Exhibit BGC-117, August 16, 1996.
Before the State Corporation Commission of the State of Kansas, Revised Direct Testimony on behalf of Western Resources, Inc. and Kansas Gas and Electric, Docket Nos. 193,306-U and 193,307-U, July 11, 1996.
Before the Federal Energy Regulatory Commission, Prepared Rebuttal Testimony on behalf of Koch Gateway, Docket No. RP95-362-000, June 18, 1996.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Wisconsin Electric Power Company, Northern States Power Company (Minnesota and Wisconsin), and Cenerprise, Docket Nos. EC9516-000, ER95-1357-000, and ER95-1358-000, May 28, 1996.
Before the Arkansas Public Service Commission, Rebuttal Testimony on behalf of Arkansas Power & Light, Docket No. 89_128 U, 1996.
Before the New Mexico Public Utility Commission, Direct Testimony on behalf of Southwestern Public Service Company, Case No. _______, November 1995.
Before the State Corporation Commission of the State of Kansas, Direct Testimony on behalf of Kansas Gas and Electric Company, August 11, 1995.
Before the Federal Energy Regulatory Commission, Direct Testimony on behalf of Koch Gateway Pipeline Company, Docket No. RP-95- -000, June 28, 1995.
Before the National Energy Board of Canada, Evidence in the Matter of Fort St. John and Grizzly Valley Expansion Projects, British Columbia Gas, January 1995.
Before the Federal Energy Regulatory Commission, Rebuttal Comments in the Matter of Pricing Policy for New and Existing Facilities Constructed by Interstate Natural Gas Pipelines on behalf of Cascade Natural Gas Corporation, et.al. Docket No. PL94-4-000, December 5, 1994.
Before the Federal Energy Regulatory Commission, Comments Related to Pricing Policy for New and Existing Facilities Constructed by Interstate Natural Gas Pipelines on behalf of Cascade Natural Gas Corporation, LFC Gas Company, Northwest Natural Gas Company, and Washington Natural Gas Company, Docket No. PL944-000, November 4, 1994.
Affidavit on behalf of Barr Devlin, October 1994. (FERC)
42

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3324 Page 53 of 64
Before the Federal Energy Regulatory Commission, Comments and Responses Related to Pricing Policy for New and Existing Facilities Constructed by Interstate Natural Gas Pipelines on behalf of Cascade Natural Gas Corporation, LFC Gas Company, Northwest Natural Gas Company, and Washington Natural Gas Company, Docket No. PL94-4-000, September 26, 1994.
Before the Federal Energy Regulatory Commission, Statement on behalf of Buckeye Pipe Line Company, L.P., Docket Nos. OR94-6-000 and IS87-14-000, February 22, 1994.
Before the Federal Energy Regulatory Commission, Surrebuttal Testimony on behalf of Koch Gateway Pipeline Company, Docket No. RP93-205-000, November 29, 1993.
Before the Federal Energy Regulatory Commission, Direct Testimony on behalf of Koch Gateway Pipeline Company, Docket No. RP93-205-000, September 30, 1993.
Before the Indiana Utility Regulatory Commission, Direct Testimony on behalf of PSI Energy, Inc.(now Duke Energy Indiana), Cause Nos. 39646, 39584-S1, June 23, 1993.
Before the Minnesota Public Utilities Commission, Rebuttal Testimony on behalf of Northern States Power Company, Docket Nos. E002/GR-92-1185, G002/GR-92-1186, March 23, 1993.
Before the Pennsylvania Public Utility Commission, Rebuttal Testimony on behalf of Pennsylvania Gas and Water Company, Docket No. R-22482, March 9, 1993.
Before the State of Maine Public Utilities Commission, Direct Testimony on behalf of Central Maine Power, Docket No. 90-085-A, January 7, 1993.
Before the Federal Energy Regulatory Commission, Affidavit regarding Order 636-A Compliance Filing Proposed Restructuring on behalf of United Gas Pipe Line Company, Docket No. RS92-26-000, October 29, 1992.
Before the Federal Energy Regulatory Commission, Rebuttal and Cross Answering Testimony on behalf of Exxon Pipeline Company, Docket Nos. IS92-3-000, et.al., August 10, 1992.
Before the Arizona Corporation Commission Task Force on Externalities, Comments in Response to Shortcomings and Pitfalls in Attempts to Incorporate Environmental Externalities into Electric Utility Leastcost Planning, Docket No. U-000-92-035, March 20, 1992.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Texas Eastern Transmission Corporation, Docket Nos. CP90-2154-000, RP85-177-008, RP88-67-039, et.al., RP90--119-001, et.al., RP914-000, RP91-119, and RP90-15-000, January 30, 1992.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Washington Gas Light Company, Docket Nos. RP90-108-000, et.al., RP90-107-000, January 17, 1992.
Before the Federal Energy Regulatory Commission, Comments in Response to Notice of Proposed Rulemaking on behalf of United Gas Pipe Line Company, Docket No. RM92-11-000, October 15, 1991.
Before the Federal Energy Regulatory Commission, Direct Testimony on behalf of Washington Gas Light Company, Docket Nos. RP91-82-000, et.al., August 27, 1991.
43

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3325 Page 54 of 64
Before the Arizona Corporation Commission, Rejoinder Testimony on behalf of Arizona Public Service Company, Docket Nos. U-1345-90-007 and U-1345-89-162, June 18, 1991.
Before the Federal Energy Regulatory Commission, Comments submitted in Response to Notice of Public Conference and Request for Comments on Electricity Issues, Docket No. PL91-1-000, June 10, 1991.
Before the Arizona Corporation Commission, Rebuttal Testimony on behalf of Arizona Public Service Company, Phase II, Docket Nos. U-1345-90-007 and U-1345-89-162, May 3, 1991.
Before the Federal Energy Regulatory Commission, Direct Testimony on behalf of United Gas Pipe Line Company, Docket Nos. RP91-126-000, CP91-1669-000, CP91-1670-000, CP91-1671-000, CP91-1672-000, and CP91-1673-000, April 15, 1991.
Before the Federal Energy Regulatory Commission, Comments on Electricity Issues, Docket No. PL91-1-000, April 12, 1991.
Before the Arizona Corporation Commission, Rebuttal Testimony on behalf of Arizona Public Service Company, Docket No. U-0000-90-088, November 26, 1990.
Before the State of Maine Public Utilities Commission, Rebuttal Testimony and Exhibits on behalf of Central Maine Power, Docket No. 90-076, November 16, 1990.
Before the State Corporation Commission of Virginia, Direct Testimony on behalf of Historic Manassas, Inc., SCC Case No. PUE 890057, VEPCO Application 154, November 2, 1990.
Before the Iowa Utilities Board, Comments Prepared at the Request of Iowa Electric Light and Power Company on Iowa's Proposed Rulemaking Related to Utility Energy Efficiency Programs, Docket No. RMU90-27, October 15, 1990.
Before the Arkansas Public Service Commission, Testimony on behalf of Arkla, Inc., Docket no. 90-036-U, August 31, 1990.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Northeast Utilities Service Company, Docket Nos. EC90-10-000, ER90-143-000, ER90-144-000, ER90-145-000 and EL90-9-000, July 20, 1990.
Before the Illinois Commerce Commission, Testimony on behalf of Commonwealth Edison, Docket No. 90-0169, July 17, 1990.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of New York State Customer Group (Niagara Mohawk Power Corporation; Rochester Gas & Electric Corporation; New York State Electric & Gas Corporation), Docket Nos. RP88-211-000, RP88-10-000, RP90-27-000, June 1, 1990.
Before the Federal Energy Regulatory Commission, Statement on behalf of Public Service Company of Indiana, now Duke Energy Indiana, Docket Nos. ER89-672-000, February 15, 1990.
Before the Federal Energy Regulatory Commission, Prepared Direct Testimony submitted on behalf of The New York State Customer Group, which includes Niagara Mohawk Power Corporation, Rochester Gas and Electric
44

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3326 Page 55 of 64
Corporation and New York State Electric & Gas Corporation, Docket Nos. RP88-211-000, RP88-10-000, RP88-215-000 and RP90-27-000, January 23, 1990.
Before the Arkansas Public Service Commission, Rebuttal Testimony on behalf of Arkansas Power & Light Company, Docket No. 89-128-U, January 12, 1990.
Before the Federal Energy Regulatory Commission, Prepared Answering Testimony Sponsored by Texas Eastern Transmission Corporation, Docket Nos. RP88-67-000 and RP88-81-000, January 10, 1990.
Before the Federal Energy Regulatory Commission, Comments on the Federal Energy Regulatory Commission's Proposed Policy Statement on Gas Inventory Charges, Docket No. PL89-10999, July 1989.
Before the Public Utilities Commission of Texas, Direct Testimony on behalf of Enron-Dominion Cogen Corporation, Docket No. 8636, June 12, 1989.
Before the Maine Public Utilities Commission, Direct Testimony on behalf of Central Maine Power Company, Docket No. 88-310, March 1, 1989.
Before the Public Utilities Commission of Ohio, Comments Submitted on behalf of Dayton Power and Light Company, In the Matter of the Revision and Promulgation of Rules for Long Term Forecast reports and Integrated Resource Plans of Electric Light Companies, Case no. 88-816-EL-OR, November 21, 1988.
Before the Federal Energy Regulatory Commission, Comments of the Energy and Environmental Policy Center, RE: Regulations Governing Independent Power Producers, Docket No. RM88-4-000, July 18, 1988.
Before the Federal Energy Regulatory Commission, Comments of the Energy and Environmental Policy Center, RE: Regulations Governing Bidding Programs, Docket No. RM88-5-000, July 18, 1988.
Before the Federal Energy Regulatory Commission, Comments of the Energy and Environmental Policy Center, Re: Administrative Determination of Full Avoided Costs, Sales of Power to Qualifying Facilities, and Interconnection Facilities, Docket No. RM88-66-000, July 18, 1988.
Before the Maine Public Utilities Commission, Testimony on behalf of Central Maine Power Company, Docket No. 88-111, June 22, 1988.
Before the Federal Energy Regulatory Commission, Comments of the Energy and Environmental Policy Center, Re: Brokering of Interstate Natural Gas Pipeline Capacity, Docket No. RM88-13-000, June 17, 1988.
Before the Federal Energy Regulatory Commission, Comments of the Energy and Environmental Policy Center, Re: Administrative Determination of Full Avoided Costs, Sales of Power to Qualifying Facilities, and Interconnection Facilities, Docket No. RM88-6-000, June 16, 1988.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Public Service Company of New Mexico, April 12, 1988.
Before the Federal Energy Regulatory Commission, Oral Comments, Re: Order No. 500, Docket No. RM87-34000 et.al., March, 1988.
45

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3327 Page 56 of 64
Before the Federal Energy Regulatory Commission, Statement on behalf of Transwestern Pipeline Company, Docket No. CP88-143-000, March, 1988.
Before the Public Service Commission of New Hampshire, Testimony on behalf of Public Service Company of New Hampshire, Docket No DR88-000, January 7, 1988.
Before the Ontario Energy Board, Testimony on behalf of ICG Utilities (Ontario) LTD, The 1987 Amended Gas Pricing Agreement, E.B.R.O. 411-III et.al., November, 1987.
Before the New Hampshire Public Utility Commission, Technical Statement on behalf of Public Service Company of New Hampshire, Filing of special Contract No. NHPUC-54 Between Nashua Corporation and Public Service Company of New Hampshire, October 30, 1987.
Before the Federal Energy Regulatory Commission, Statement on behalf of Arkla, Inc., included as an exhibit in Arkla, Inc.'s Comments on Notice of Proposed Rulemaking, Docket No. RM87-34-000, October 13, 1987.
Before the Pennsylvania Public Utility Commission, Rebuttal Testimony on behalf of West Penn Power Company, Docket No. R-850220, September 28, 1987.
Before the Public Service Commission of New York, Prepared Rebuttal Testimony on behalf of National Fuel Gas Distribution Company, September 14, 1987.
Before the New Hampshire Public Utilities Commission, Prefiled Direct Testimony on behalf of Public Service Company of New Hampshire, Docket No. DR87-151, August 28, 1987.
Before the Pennsylvania Public Utility Commission, Direct Testimony on behalf of West Penn Power Company, Docket No. R-850220, Reconsideration, July 27, 1987.
Before the Commonwealth of Massachusetts Department of Public Utilities, Statement on behalf of Boston Edison Company, Docket Nos. 86-36, June 12, 1987.
Before the State of Illinois Commerce Commission, Rebuttal Testimony on behalf of Commonwealth Edison Company, Docket Nos. 87-0043, 87-0044, 8700096, May 4, 1987.
Before the Federal Energy Regulatory Commission, Comments on behalf of Tennessee Gas Pipeline Company, In the Matter of Iroquois Gas Transmission System, Docket No. CP86-523-001, March 9, 1987.
Before the New Hampshire Public Utility Commission, Direct Testimony on behalf of Public Service Company of New Hampshire, NHPUC Docket No. DR86-122, March 3, 1987.
Before the Federal Energy Regulatory Commission, Comments on behalf of Transwestern Pipeline Company, In the Matter of Notice of Inquiry into alleged anticompetitive Practices Related to Marketing Affiliates of Interstate Pipelines, Docket No. RM87-5-000, December 29, 1986.
Before the Maine Public Utilities Commission, Testimony on behalf of Central Maine Power Company, Docket No. 86-215, Re: Proposed Amendments to Ch. 36, December 18, 1986.
46

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3328 Page 57 of 64
Before the Utah Public Service Commission, Surrebuttal Testimony on behalf of NUCOR Steel Corporation, In the Matter of the Investigation of Cost of Service Issues for Utah Power & Light Company, Case No. 85-03506, December 5, 1986.
Before the Public Service Commission of New York, Prepared Direct Testimony on behalf of National Fuel Gas Distribution Corporation, Case Nos. 38947 and 28954, November 21, 1986.
Before the Federal Energy Regulatory Commission, Prepared Rebuttal Testimony on behalf of Transwestern Pipeline Company, Docket No. RP86-126, November 13, 1986.
Before the Federal Energy Regulatory Commission, Prepared Cross-Answering Testimony on behalf of Members of the New England Customer Group, Docket No. RP86-119, October 28, 1986.
Before the Federal Energy Regulatory Commission, Prepared Testimony on behalf of Members of the New England Customer Group, Docket No. RP86-119, October 14, 1986.
Before the Utah Public Service Commission, Rebuttal Testimony on behalf of NUCOR Steel Corporation, Docket No. 85-035-04, September 30, 1986.
Before the State of New Jersey Department of Energy, Board of Public Utilities, Rebuttal Testimony on behalf of Elizabethtown Gas Company, September, 1986.
Before the State of Illinois Commerce Commission, Testimony on behalf of Commonwealth Edison Company, Docket No. 86-0249, August 25, 1986.
Before the Public Utilities Commission of Ohio, Rebuttal Testimony on behalf of Ohio Power Company, Case No. 85-726-EL-AIR, April, 1986.
Before the State of New Jersey Department of Energy, Board of Public Utilities, Testimony on behalf of Elizabethtown Gas Company, Docket No. 8112-1039, March, 1986.
Before the Maine Public Utilities Commission, Rebuttal Testimony on behalf of Central Maine Power Company, Docket No. 85-132, March, 1986.
Before the Federal Energy Regulatory Commission, Comments on behalf of National Economic Research Associates, Inc., Notice of Inquiry Re: Regulation of Electricity Sales-for-Resale and Transmission Service, 18 C.F.R. Parts 35 and 290, Issued June 28, 1985, Docket No. RM85-17-000 (Phase II), January 23, 1986.
Before the Alaska Public Utilities Commission, Rebuttal Testimony on behalf of Seagull, Enstar Corporation, and Enstar Natural Gas Company, U-84-67, December, 1985.
Before the Virginia State Corporation Commission, Rebuttal Testimony on behalf of Dominion Resources, Inc. and Virginia Electric and Power Company, Case No. PUE 830060, November 26, 1985.
Before the Federal Energy Regulatory Commission, Comments on behalf of National Economic Research Associates, Inc., Notice Requesting Supplemental Comments Re: Regulation of Natural Gas Pipeline After Partial Wellhead Decontrol, Docket No. RM85-1-000 (Part D), November 18, 1985.
47

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3329 Page 58 of 64
Before the Federal Energy Regulatory Commission, Oral Comments on behalf of National Economic Research Associates, Inc., Notice of Inquiry Re: Regulation of Electricity Sales-for-Resale and Transmission Services (Phase II), Docket No. RM85-17-000, November 4, 1985.
Before the Public Service Commission of Wisconsin, Rebuttal Testimony on behalf of Eastern Wisconsin Utilities, Docket No. 05-EP-4, November, 1985.
Before the Federal Energy Regulatory Commission, Oral Comments on behalf of National Economic Research Associates, Inc., Notice of Inquiry Re: Regulation of Electricity Sales-for-Resale and Transmission Services (Phase I), Docket No. RM85-17-000, August 9, 1985.
Before the Maine Public Utilities Commission, Direct Testimony on behalf of Central Maine Power Company, Docket No. 85-132, August, 1985.
Before the Public Utilities Commission of Ohio, Direct Testimony on behalf of Ohio Power Company, Docket No. 85-726-EL-AIR, July, 1985.
Before the Public Service Commission of Wisconsin, Direct Testimony on behalf of Wisconsin Gas Company, Docket Nos. 05-UI-18 and 6650-DR-2, June, 1985.
Before the Ontario Energy Board, Testimony on behalf of Unicorp of Canada Corporation, In the Matter of Union Enterprises Ltd. and Unicorp of Canada Utilities Corporation, E.B.R.L.G. 28, Exhibit 10.4, April, 1985.
Before the Utah Public Utilities Commission, Testimony on behalf of NUCOR Steel, Docket No. 84-035-01 (Rate Spread Phase), January, 1985.
Before the Nuclear Regulatory Commission, Affidavit for Alabama Power Company, October 1984.
Before the Federal Energy Regulatory Commission, Prepared Direct Testimony on behalf of Consolidated Gas Supply Corporation, Application of Consolidated Gas Supply Corporation for Rate Relief, Docket No. RP82115, April, 1984.
Before the Public Utilities Commission of Ohio, Rebuttal Testimony on behalf of East Ohio Gas Company, et.al., In the Matter of the Investigation into Long Term Solutions Concerning Disconnection of Gas and Electric Service During Winter Emergencies, Case No. 83-303-GE-COI, March, 1984.
Before the Federal Energy Regulatory Commission, Testimony on behalf of Florida Power and Light Company, Docket Nos. ER82-793 and EL83-24, February, 1984.
Before the Public Utilities Commission of Ohio, Direct Testimony on behalf of East Ohio Gas Company, et.al., In the Matter of the Investigation into Long Term Solutions Concerning Disconnection of Gas and Electric Service During Winter Emergencies, Case No. 83-303-COI, January, 1984.
Before the Federal Energy Regulatory Commission, Supplemental Direct Testimony on behalf of Consolidated Gas Supply Corporation, Docket No. RP81-80, September, 1983.
Before the Arkansas Public Service Commission, Direct Testimony on behalf of Arkansas Louisiana Gas Company, Docket No. 83-161-U, August, 1983.
48

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3330 Page 59 of 64
Before the New Mexico Public Service Commission, Testimony on behalf of Public Service Company of New Mexico, Case No. 1811, July 17, 1983.
Before the Federal Communications Commission, Rebuttal Case Testimony on behalf of Interstate Mobile Phone Company, in American Mobile Commission of Washington and Oregon, CC Docket No. 83-445, June, 1983.
Before the Public Service Commission of Indiana, Prepared Rebuttal Testimony on behalf of Northern Indiana Public Service Company, Case No. 37023, May, 1983.
Before the Public Service Commission of New York, Testimony on behalf of the Industrial Energy Users Association, in Procedure to Inquire into the Benefits to Ratepayers and Utilities from Implementation of Conservation Programs that will Reduce Electric Use, Case No. 28223, May, 1983.
Before the Public Utilities Commission of Maryland, Testimony on behalf of the Mid-Atlantic Petroleum Distributors Association, the Oil Heat Association of Washington, and Steuart Petroleum Company, Case No. 7649, May, 1983.
Before the Connecticut Department of Public Utility Control, Testimony on behalf of the Independent Petroleum Association, Docket No. 83-01-01, April, 1983.
Before the State Corporation Commission of Virginia, Testimony on behalf of the Mid-Atlantic Petroleum Distributors Association, the Oil Heat Association of Washington, and Steuart Petroleum Company, Case No. PUE 830008, March, 1983.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Arkansas Louisiana Gas Company, Docket Nos. RP82-75-000 et.al., February 1983.
Before the Federal Communications Commission, Rebuttal Case Testimony on behalf of Interstate Mobile Phone Company, in American Mobile Communications of Washington and Oregon, CC Docket No. 83-3, February, 1983.
Before the Federal Energy Regulatory Commission, Prepared Testimony on behalf of Consolidated Gas Supply Corporation, in Application of Consolidated Gas Supply Corporation for Rate Relief, Docket No. RP82-115, July, 1982.
Before the Federal Energy Regulatory Commission, Rebuttal Testimony on behalf of Consolidated Gas Supply Corporation, Docket No. RP81-80, April, 1982.
Before the Florida Public Service Commission, Testimony on behalf of Florida Power & Light Company, Docket No. 820097-EU, April, 1982.
Before the Massachusetts Department of Public Utilities, Direct Testimony on behalf of Boston Edison Company, Docket No. 906, January, 1982.
Before the New Mexico Public Service Commission, Testimony on behalf of Public Service Company of New Mexico, In the Matter of New Mexico Public Service Commission Authorization for Southern Union Company to Transfer Certain Property to Western Gas Company, NMPSC Case 1689, January, 1982.
49

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3331 Page 60 of 64
Before the Connecticut Department of Public Utility Control Authority, Testimony on behalf of Southern Connecticut Gas Works, DPUC Investigation Into Utility Financing of Conservation and Efficiency Improvements, Docket No. 810707, August, 1981.
Before the Connecticut Public Utility Control Authority, Prepared Testimony on behalf of Connecticut Natural Gas Corporation, July, 1981.
Before the Philadelphia Gas Commission, Testimony on behalf of Philadelphia Gas Works, in PGW Rate Investigations, July, 1981.
Before the California Public Utility Commission, Prepared Testimony on behalf of Pacific Gas and Electric Company, In Application of Pacific Gas and Electric Company for Rate Relief, Application No. 68153, June, 1981.
Before the Federal Energy Regulatory Commission, Prepared Testimony on behalf of Consolidated Gas Supply Corporation, Docket No. RP81-80, June, 1981.
Before the Tennessee Valley Authority Board, Comments on Tennessee Valley Authority Proposed Determinations on Ratemaking Standards, Contract TV-53565A, October, 1980.
Before the Federal Energy Regulatory Commission, Testimony on behalf of Pennsylvania Power and Light Company, Split-Savings and Emergency Tariffs, August, 1980.
Before the Public Service Commission of Maryland, Answering Testimony on behalf of the People’s Counsel of Maryland re Baltimore Gas & Electric Company, Docket No. 7159, May 1, 1980.
Final Report of Consultants' Activities Submitted to Tennessee Valley Authority Division of Energy Conservation and Rates, in Consideration of Ratemaking Standards Pursuant to the Public Utility Regulatory Policy Act of 1978 (P.L. 95-617) and One Additional Standard, Contract No. TV-53575A, May, 1980.
Before the Utah Public Service Commission, Direct Testimony on behalf of NUCOR Steel, PSCU Case No. 83035-06, 1980.
Before the Council on Environmental Quality, Washington, D.C., statement on “Alaskan Natural Gas, May, 1980.
Presentation entitled “An Analysis of the Proposed Building Energy Performance Standards (BEPS),” Washington, D.C. in March, 1980.
Before the Ontario Energy Board, Testimony on behalf of the Public Interest Advocacy Board and National AntiPoverty Organization, February 27, 1979.
Before the Federal Power Commission/Federal Energy Regulatory Commission, Testimony with respect to Cogeneration Pricing Rules, 1979.
Before the Federal Energy Regulatory Commission, Testimony on behalf of the State of Wisconsin in the Matter of the Northwest Alaskan Pipeline Company, Docket No. CP78-123, 1979.
50

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3332 Page 61 of 64
Before the Federal Energy Administration, “The Effects of Middle Distillate Decontrol on the American Consumer: A Critique of the Decontrol Monitoring and Price Index Actions of the FEA with Michael McNamara and Rod Shaughnessy, Washington, D.C., August, 1977.
Before the Pennsylvania Public Utility Commission in Case No. 76-PRND-7, February 7, 1977.
Statements before the Council on Environmental Quality, Washington D.C., May 1977
Before the Wisconsin Public Service Commission, Testimony on behalf of the Environmental Defense Fund, December 1, 1976.
Before the Public Utilities Control Authority of the State of Connecticut, Testimony re Marginal Cost Pricing of Electricity and Natural Gas on behalf of the Environmental Defense Fund, July 22, 1976.
Before the Federal Energy Administration, “Analysis and Recommendations of Northern Tier Pipeline Proposals, July, 1976.
Before the Energy Council of the Federal Government, “Third State of EPCA: Additional Incentives,” June, 1976.
Before the Wisconsin Public Service Commission, Testimony with respect to Electric Rate Structures; Price Elasticity of Demand for Electricity; and Application for WEPCO for Authority to Construct and Place in Operation a Coal Fired Power Plant and Related Facilities in the Town of Pleasant Prairie, Kenosha County and Certain Related Transmission and Substation Additions, CA-5489, June, 1976.
Before the Federal Power Commission/Federal Energy Regulatory Commission, Testimony with respect to Alaskan Natural Gas, March, 1976.
Before the Federal Power Commission/Federal Energy Regulatory Commission, Testimony with respect to Natural Gas Pricing, March, 1976.
Before the Wisconsin Assembly Environmental Quality Committee, Testimony re Assembly Bill 1228, January 22, 1976.
Before the Public Utility Commission of Maine, Testimony on behalf of Attorney General of the State of Maine re electricity pricing principles, 1976.
Before the Federal Energy Administration, “Allocation of Canadian Crude Oil,” December, 1975.
Before the Federal Energy Administration, “Establish Energy Administration to Establish Mandatory Allocation of Canadian Crude Oil,” December 1975.
Before the Federal Energy Administration, Comments re Modification or Termination of the State Set-Aside Program, November 20, 1975.
Comments before the U.S. Department of Interior on its Study: Alaskan Natural Gas Transportation Systems, October 29, 1975.
Before the Public Service Commission of Minnesota, Rebuttal Testimony on behalf of the Minnesota Energy Agency in the Application of Northern States Power to Raise Rates, September 4, 1975.
51

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3333 Page 62 of 64
Before the Public Service Commission of Minnesota, Testimony on behalf of the Minnesota Energy Agency in the Application of Northern States Power to Raise Rates, July 25, 1975
Before the Federal Energy Administration, “Rate Design and Its Relationship to Loan Management,” June, 1975.
Comments before the Federal Power Commission on Proposed Rulemaking RM 75-19 on end Use Rate Schedules, May 30, 1975.
Before the Public Utilities Commission of Maine, Testimony in CMP Case No. F.C. 2072, February 7, 1975.
Before the Federal Energy Administration, “Modification or Termination of the State Set-Aside Program,” 1975.
Before the California Public Utilities Commission, Testimony on behalf of the Environmental Defense Fund in the Application of Pacific Gas & Electric to raise its rates, Application No. 54279, 1975.
Before the Public Service Commission of the State of Nevada, Testimony on behalf of the Washoe County District Attorney’s Office in the Matter of the Application of Sierra Pacific Power Company for Authority to Increase Rates for Electric, Gas and Water Service, Docket Nos. 574, 575, and 576, 1974-76
Before the Michigan Public Service Commission, Testimony in the matter of Detroit Edison Company, Case No. U-4570 and Consumers Power Company, Case No. U-4576, 1974.
Before the Virginia State Corporation Commission, Testimony on behalf of the Central Virginia Environmental League, Case No. 10848, 1974.
Before the Federal Energy Regulatory Commission, Testimony on behalf of the Environmental Defense Fund re electricity pricing, October 8, 1974.
Before the New Jersey Public Utility Commission, Supplemental Testimony on behalf of the Environmental Defense Fund in PSEG rate increase case, August 8, 1974.
Before the Michigan Public Service Commission, Testimony on behalf of the Environmental Defense Fund in Detroit Edison Case No. U-4570, August 8, 1974.
Before the Maryland Public Service Commission, Testimony on behalf of the Environmental Defense Fund in Baltimore Gas & Electric Case No. 6700, January 24, 1974.
Before the Public Service Commission of Wisconsin, Supplemental Testimony on behalf of the Environmental Defense Fund in Madison Gas & Electric Rate Increase Case 1973.
Before the Federal Power Commission/Federal Energy Regulatory Commission Testimony With Respect to El Paso Natural Gas Coal Gasification, 1972.
Before the Federal Power Commission/Federal Energy Regulatory Commission Testimony With Respect to El Paso Natural Gas Pricing, 1972.
Comments before various Utility Regulatory Commissions (Maryland, New York, Michigan, New Jersey, Arkansas, Maine, California, Florida, Rhode Islands, Minnesota, Connecticut, Massachusetts, Missouri, Nevada, New Hampshire, Vermont, Virginia, Wisconsin, Texas, Ontario, Philadelphia, New Mexico,
52

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3334 Page 63 of 64
Pennsylvania, TVA, Indiana) on Marginal Cost Pricing of Electricity; Conservation; Rate of Return; Diversification; Nuclear Cancellation; Sale of Utility Property; and Public Policy, 1972-1976. Before various Canadian Regulatory Commissions, Testimony on Energy and Telephone Pricing, 1972-1976. Before the U.S. Postal Rate Commission, Testimony on Marginal Cost Pricing of Postal Rates, 1972. Before the Federal Communications Commission, Testimony on Telegraph Price Elasticity and Cellular Mobile Telephone Pricing, 1972 Before the Public Service Commission of Wisconsin, Testimony on behalf of the Environmental Defense Fund in Madison Gas & Electric Rate Increase Case, 1972. Before the Council on Environmental Quality, US Department of the Interior and Joint Economic Committee on the National Environmental Policy Act (NEPA) and the Trans Alaska Pipeline on behalf of the Center for Law and Social Policy, Environmental Defense Fund, Wilderness Society and Friends of the Earth (FOE). Before the Federal Power Commission, Testimony with respect to The Economics of Preservation versus Development of Hells Canyon, Hearings Nos. 2243/73, 1969. Before the Federal Power Commission, Exhibit R-667, Technical Note Estimating the Present Value of a NonReproducible Asset With Increasing Annual Benefits Over Time, Hearings Nos. 2243/73, 1969. Before the FCC, Testimony for Western Union Telegraph Company and related Statistical Analysis of Elasticity of Demand for Public Message Telegraph Service(1968). The Western Union work included econometric analysesto determinethe price elasticity of demandfor various classes of service to change rates from distance related chargesto a"postalized"system,and insure the recovery of required rate ofreturn. Consultant toRobertR.NathanAssociates, The Impact of Mine Drainage on Recreation (Appendix E, AppalachianRegionalCommission, 1969). State of New York: an analysis recreation participation to develop the recreational attributes of Finger Lakes (1969). Consultant to Mathematica Inc. (Princeton, NJ), estimate an econometric model for the visitor industry in Hawaii to design state tax and tourist policy. (Visitor Industry and Hawaii’s Economy: A Benefit Cost Analysis, MATHEMATICA, Inc., Princeton, NJ 1969.) Wharton School of Finance, The Demand for Water Oriented Recreation, RFF Mimeo, 1967.
53

Case 3:20-cv-00865-BAS-AHG Document 53-5 Filed 08/10/20 PageID.3335 Page 64 of 64
54

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3336 Page 1 of 8

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED PENTECOSTAL

20

CHURCH, a California non-profit corporation; and BISHOP ARTHUR

21 HODGES III, an individual,

22

Plaintiffs,

23

v.

Case No. 3:20-cv-865-BAS
Declaration of Sean G. Kaufmann in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction

24 GAVIN NEWSOM, in his official capacity Judge: Hon. Cynthia Bashant 25 as the Governor of California, et al.,

26

Defendants.

27

28

DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3337 Page 2 of 8

1

I, Sean G. Kaufman, declare and state as follows:

2

1. I am a certified public health professional (CPH), behaviorist, health

3 education and infectious disease specialist, with particular expertise in both

4 behavioral-based training and infectious disease risk mitigation in clinical, laboratory

5 and other public health settings. I make this declaration of personal, firsthand

6 knowledge, and if called and sworn as a witness could and would testify competently

7 thereto.

8

2. I received my Bachelor of Arts and Sciences in Psychology in 1996 from

9 San Diego State University in San Diego, California. In 1999, I received my Master in

10 Public Health in Health and Human Behavior, also from San Diego State University

11 in San Diego California.

12

3. From 1997 to 1999, I was employed as a Project Manager and Health

13 Education Specialist at San Diego State University in San Diego, California, serving

14 in the Student Health Services Office of Health Promotion. In that role, I provided

15 training programs, counseling and patient services for a variety of health issues.

16

4. From 1999 through 2006, I worked for the Centers for Disease Control

17 and Prevention (“CDC”) in Atlanta, Georgia, serving during my tenure in CDC’s

18 National Center for HIV, AIDS and Tuberculosis, CDC’s National Center for

19 Infectious Diseases, CDC’s Office of Terrorism and Emergency Response and the

20 Office of the Director of the CDC. While with the CDC, I assisted with the CDC’s

21 response to HIV, the 9/11 and 2001 anthrax attacks, the West Nile Virus, SARS and

22 monkeypox. I received a Distinguished Service Award from the United States

23 Department of Health and Human Services in 2002 for outstanding contributions

24 and public health activities in response to the 9/11 and subsequent anthrax attacks. I

25 also received a Distinguished Service Award from the United States Department of

26 Health and Human Services in 2003 for outstanding contributions and public health

27 activities in response to the 2003 SARS outbreak.

28

1
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3338 Page 3 of 8

1

5. From 2004 through 2014, I served as Senior Associate and Director of

2 the Science and Safety Training Program in the Rollins School of Public Health at

3 Emory University in Atlanta, Georgia. During my association with Emory University,

4 I developed and directed the Biosafety Laboratory 3 (“BSL3”) and BSL4 Science and

5 Safety Training Program along with the ONSITE program, all of which programs

6 trained individuals both domestically and internationally to work safely in and

7 support high-containment laboratories equipped to handle the most infectious and

8 dangerous biological agents in the world. While associated with Emory University, I

9 trained and managed those who clinically treated the first two Ebola patients in the

10 United States working at the Emory University Isolation Unit during the 2014 Ebola

11 outbreak.

12

6. From 2011 through the present, I have served as the Founding Partner,

13 President and Chief Executive Officer of Safer Behaviors (USA), where I serve as an

14 expert consultant in behavioral-based training around infectious diseases in clinical

15 and laboratory settings. In that role, I develop, manage, implement, and deliver a

16 wide range of services for people working with and around infectious diseases,

17 including those in laboratories, healthcare settings, and high-containment work

18 environments, Applied Laboratory Emergency Response Training (ALERT)

19 Programs for first responders, Personal Protective Equipment (“PPE”) Training

20 Programs, Emergency Communication Leadership Programs, and Biological Risk

21 Mitigation Training for those serving on the frontline of emerging infectious diseases.

22

7. Since 2014, I have provided Advanced Biological Risk Mitigation

23 Training Programs with the American Society for Microbiology (ASM), National

24 Institutes of Health (NIH), Fogarty International Center, CRDF Global throughout

25 Pakistan, Egypt and Malaysia. I have consulted for the World Health Organization

26 (WHO) and developed its Shipping of Infectious Substances Training and its

27 Identification of Polio Samples for Eradication Efforts. In 2015, I received the John

28 H. Richardson Special Recognition Award from the American Biological Safety

2
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3339 Page 4 of 8

1 Association, recognizing outstanding contributions that have enhanced ABSA and

2 the profession of biological safety.

3

8. My publications include the following: (a) Anthrax in New Jersey: A

4 Health Education Experience in Bioterrorism Response and Preparedness, HEALTH

5 PROMOT. PRACT. 6:430-36 (2005); (b) Biosafety Behavioral Based Training for High

6 Biocontainment Laboratories: Bringing Theory into Practice for Biosafety Training,

7 APPLIED BIOSAFETY J. 12:3 (2007); (c) Review of the Emory University Applied

8 Laboratory Emergency Response Training (ALERT) Program, APPLIED BIOSAFETY J.

9 14:1 (2009); (c) Surviving Biosafety: Coping with Occupational Stressors of Serving the

10 Profession, APPLIED BIOSAFETY J. 17:4 (2012); (d) Chapter12: Strategies for

11 Communicating with the General Public About High-Containment Laboratories, ANTH.

12 OF BIOSAFETY XIII, AM. BIOLOGICAL SAFETY ASSOCIATION (2012); (e) Viral

13 Hemorrhagic Fevers: Chapter 9 – BSL4 Workforce Preparedness in Hemorrhagic Fever

14 Outbreaks, TAYLOR & FRANCIS (2013); (f) Bioerror and Safety Culture: The Leadership

15 Commitment to the Preparedness, Protection and Promotion of Scientists, CULTURE: A

16 PUBLICATION OF THE AMERICAN SOCIETY FOR MICROBIOLOGY (2014); (g) Biological

17 Safety Principles and Practices: Chapter 28 – A One-Safe Approach. Continuous Safety

18 Training Initiatives, ASM PRESS (2017); and (h) Prepare and Protect: Safer Behaviors in

19 Laboratories and Clinical Containment Settings, ASM & WILEY PRESS (2020).

20

9. I am an International Federation of Biosafety Professionals Certified

21 Professional in Biorisk Management, am certified as an MBTI Certified Provider by

22 GS Consultants, hold a Certification in Public Health provided by the National Board

23 of Public Health Examiners and have been accredited as a Certified Health Education

24 Specialist by the National Commission for Health Education Credentialing.

25

10. In or about November 2019, while directing a Leadership Program in

26 Biological Risk Mitigation in Islamabad, Pakistan, I first became aware of an outbreak

27 of what was ultimately determined to be a novel coronavirus, SARS COV-2, in

28 Wuhan, China, that the world has since come to commonly refer to as COVID-19.

3
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3340 Page 5 of 8

1

11. Over the ensuing months, as part of my biosafety work and regular

2 professional development, I have engaged in a thorough review of WHO and CDC

3 data and the reams of international and domestic scientific data that have been

4 published regarding COVID-19 in The Lancet, Dispatch, The New England Journal of

5 Medicine, JAMA, Clinical Infectious Diseases and other publications, as well as the

6 outcomes of prevailing international and domestic and international biosafety

7 protocols associated with COVID-19. I have also facilitated multiple trainings,

8 discussions, and assisted organizations with strategies minimizing risks to health and

9 safety specific to COVID-19.

10

12. Through that process, I have become readily familiar with COVID-19’s

11 droplet (micro and macro) and surface transmission, the risks and likelihood of

12 symptomatic and pre-symptomatic transmission, reproduction rates, signs,

13 symptoms, mortality, risks and other infectious disease characteristics of COVID-19

14 across the population – including in both children and adults, as well as those with co-

15 morbidities. I have put that ongoing review, as well as my education and twenty-five

16 years of public health experience, to use in implementing and evaluating COVID-19

17 public health and safety protocols, including with respect to public health expertise I

18 am currently providing to, among others, large-scale venues and film and television

19 productions on safe operating procedures and protocols.

20

13. I understand that the State of California currently claims that there is no

21 way, consistent with science and public health, for houses of worship located within

22 any county that is either on or any less than 14 days removed from the State of

23 California’s COVID-19 “monitoring list” – the precise criteria for which

24 “monitoring list” are opaque but appear to require some combination of what the

25 state deems to be a COVID-19 “surge” in infections or hospitalizations, what the

26 state deems to be “stretched” ICU bed or ventilator capacity, or what the state

27 deems to be “insufficient” COVID-19 testing – to open their doors to in-person

28 worship and to do so safely. As such, I understand that the default position of the

4
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3341 Page 6 of 8

1 State of California is that the science of public health dictates that no church,

2 mosque, synagogue, or other house of worship located in California counties on the

3 “monitoring list” can open for in-person instruction at all.

4

14. Despite the state’s claim, there is no rational and legitimate scientific or

5 public health basis supporting the sweeping breadth and scope of the State of

6 California’s above-described closure mandate. Rather, given the real and significant

7 public health and other harms—including especially psychological harms—known to

8 be associated with restricting religious freedom, such unprecedented restriction

9 should only ever be properly wielded as a disease control mechanism when the risks

10 are far greater; when such closures are far more targeted – often at the individual

11 church level; and far more limited in time. None of these criteria are met by the State

12 of California’s closure mandate.

13

15. With respect to risks, everything that we know as public health and

14 infectious disease professionals about the likelihood of symptomatic and

15 presymptomatic transmission, reproduction rates, signs, symptoms, mortality, risks

16 and other infectious disease characteristics of COVID-19 both domestically and

17 internationally does not rationally comport with what I understand the state is

18 claiming to be true in attempting to justify its mandate. Indeed, commonly utilized

19 Susceptible, Infectious, and Recovered – or “SIR” – disease transmission modeling

20 associated with COVID-19, together with WHO and CDC public health metrics,

21 suggest that California’s mandate is likely to make the overall public health situation

22 worse and not better by, inter alia, enlarging the population of susceptible individuals.

23

16. With respect to targeting, the sweeping nature of the State of

24 California’s closure mandate shows that it is not rationally targeted as an infectious

25 disease control mechanism. There is no public health reason that a house of worship

26 in an unaffected portion of a California county must be prohibited from operating

27 because of an outbreak in an affected portion of a California county. Moreover, it is

28 simply not true for the State of California to claim that there is no way to safely

5
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3342 Page 7 of 8

1 operate as a house of worship in a county that meets the state’s criteria for placement 2 on its “monitoring list.” While nothing is ever free from any risk, the data shows that

3 any house of worship in any California county that (1) removes from the in-person

4 church environment for between 5-7 days any individual that (i) reports having been

5 in contact with a person who is COVID-19 positive; or (ii) has exhibited COVID-19 6 symptoms; (2) engages in temperature screening of all attendees, staff and visitors at 7 points of entry, denying such entry to anyone who has a fever; (3) quickly and 8 aggressively tests, isolates and contact traces any child or staff member presenting

9 with COVID-19 symptoms; and (4) teaches, enforces and engages in frequent

10 handwashing, sanitization and decontamination of high travel points within the

11 church environment, may be said to meet commonly accepted public health 12 definitions of safe operating that minimize risks. From a public health and infectious 13 disease control perspective, all of these features are both feasible and sustainable at 14 minimum cost.

15

17. And with respect to being limited in time, the State of California’s

16 church closure mandate is not properly time-limited as a matter of public health and

17 infectious disease control. To the extent the State of California may expect a vaccine 18 at some point in the future, it should be noted that a vaccine has never been 19 developed for a coronavirus like COVID-19. And even if developed and sufficiently 20 adopted, any COVID-19 vaccine is likely to be similar to influenza vaccines that have 21 been shown to quickly lose effectiveness. The latest COVID-19 data shows that the

22 disease is not likely to ever be eradicated.

23 ///

24 /// 25 /// 26 /// 27 ///

28 ///

6
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-6 Filed 08/10/20 PageID.3343 Page 8 of 8

1

18. In short, the State of California’s overbroad and insufficiently targeted

2 closure mandate is flatly inconsistent with the science of public health, biosafety

3 protocols and with our understanding as infectious disease professionals of the

4 characteristics of the COVID-19 virus.

5

I declare until penalty of perjury under the laws of the United States and the

6 State of California that the foregoing is true and correct. Executed on August 10,

7 2020.

8

9

Sean G. Kaufman

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7
DECLARATION OF SEAN G. KAUFMAN

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3344 Page 1 of 46

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED PENTECOSTAL

20

CHURCH, a California non-profit corporation; and BISHOP ARTHUR

21 HODGES III, an individual,

22

Plaintiffs,

23

v.

Case No. 3:20-cv-865-BAS
Declaration of James LyonsWeiler in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction

24 GAVIN NEWSOM, in his official capacity Judge: Hon. Cynthia Bashant 25 as the Governor of California, et al.,

26

Defendants.

27

28

DECLARATION OF JAMES LYONS-WEILER

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3345 Page 2 of 46

1

I, James Lyons-Weiler, declare as follows:

2

1. My name is James Lyons-Weiler. I am a resident of Allison Park,

3 Pennsylvania; I am over 18 years-old; and I am otherwise competent to make this

4 declaration.

5

Professional Background

6

2. I am currently CEO and Director of The Institute for Pure and Applied

7 Knowledge in Pittsburgh, PA, a registered not-for-profit organization that conducts

8 biomedical research in the public interest. I was formerly Senior Research Scientist at

9 the University of Pittsburgh, were I served as the Scientific Director of the University

10 of Pittsburgh’s Bioinformatics Analysis Core. Prior to that, I had been faculty in the

11 Departments of Pathology and Biomedical Informatics, where I conducted grant-

12 funded research, taught courses and advised graduate students and medical and post-

13 doctoral fellows. I have over 54 peer-reviewed publications and have served as

14 Associate Editor and Editor-in-Chief on two journals. I currently serve as the

15 Founding Editor-in-Chief of the journal Science, Public Health Policy & the Law. I

16 append a biosketch (a form a curriculum vitae) should it be helpful to the Court. I

17 have no stake in the current case, as I am not involved in and do not profit from

18 vaccine manufacture as a non-worshipping Scientist I hope to bring objectivity to the

19 considerations being deliberated.

20

3. Plaintiffs contacted me and asked if I would be willing to offer my expert

21 opinion about the risks associated with in-person worship services with social

22 distancing. Children are at very low risk of serious or critical illness and death from

23 SARS-CoV-2 infection, and they do not pose a severe risk of transmission to adults.

24

4. The CDC estimate of the population-wide death rate of COVID-19 is

25 0.26%.1 However, the vast majority of this risk is in the elderly and in people whose

26
27 1 USA Today, https://www.usatoday.com/story/news/factcheck/2020/06/05/fact-check-cdc-
estimates-covid-19-death-rate-0-26/5269331002/
28

1
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3346 Page 3 of 46

1 overall health has been significantly deteriorated prior to infection (e.g., individuals

2 with pre-existing chronic pulmonary illness, whose death rate is 6.3%, cardiovascular

3 illness (10.5%), high blood pressure (6%), adults with diabetes (7.3%), and cancer 4 (5.6%).2

5

5. However, these frightening rates—which are from the earliest reports in

6 the outbreak, from Wuhan City in Hubei Province, China—are massively inflated

7 because they are only symptomatic case fatality rates, not infection case fatality rates.

8 After the peak infection wave subsided in China, scientists there estimated that as 9 many as 85% of COVID-19 cases were undetected.3

10

6. Even the attribution of death to COVID-19 is still in question, and it is

11 unlikely that we will be able to determine an accurate count of those who “died

12 from” the infection, as opposed to “died with” the infection. In Italy, 99% of deaths 13 have had a significant comorbid condition.4 Also, late-stage treatment of patients

14 critically ill with COVID-19 initially involved ventilator use, which may have

15 exacerbated the mortality rate. It has been observed that high-pressure “per

16 protocol” use of ventilators in COVID-19 patients with severe infections, showing

17 inflammation to the periphery of the alveoli, may cause further tissue damage to the 18 patients’ already inflamed and thinned-out lung epithelial layers.5,6

19

7. The original overall death rate estimate from COVID-19 – 3% - and the

20 percentage of overall deaths attributed to COVID-19 – would appear to be a cause of

21 concern worthy of drastic measures designed to reduce community transmission. We

22 2 https://markets.businessinsider.com/news/stocks/coronavirus-age-differences-millennials23 parents-health-social-distancing-2020-3-1029000036

24 3 https://www.medpagetoday.com/infectiousdisease/covid19/85448

25

4 https://www.bloomberg.com/news/articles/2020-03-18/99-of-those-who-died-from-virus-hadother-illness-italy-says

26 5 https://time.com/5820556/ventilators-covid-19/

27 6 https://www.wsj.com/articles/some-doctors-pull-back-on-using-ventilators-to-treat-covid-19-
11589103001
28

2
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3347 Page 4 of 46

1 now know the Infection Case Fatality Rate is about 0.26% (compared to CDC’s

2 “influenza” death rate of 0.1%). There is, however, new information revealing

3 serious problems with the rates of diagnosis and the rates of attribution of deaths

4 attributed to COVID-19 – all of which likely caused a per capita diagnosis and death

5 rate overestimation.

6

Problems with Rates of Diagnosis

7

8. The use of mass screening of populations using the Reverse

8 Transcriptase Polymerase Chain Reaction (RT-PCR), such as the test used by the

9 Centers for Disease Control, is problematic. This test serves as the gold-standard

10 against which other RT-PCR tests are validated. Unfortunately, US CDC’s test

11 appears to be inaccurate. Dr. Sin Hang Lee (Milford, CT) determined the nucleotide

12 sequence of the PCR product of a test designed to detect RT-PCR. To evaluate the

13 test, he requested and received clinical samples from patients whose diagnosis had

14 been confirmed by CDC’s PCR test. These samples included “CDC-test-positive”

15 and “CDC-test-negative” samples. His experiments showed that the SARS-CoV-2

16 virus PCR products from the two sample sets did not match their labels; some of the

17 “CDC-test-negative” samples could yield amplified PCR product that matched the

18 target sequence of the SARS-CoV-2 genome. He also found that some of the “CDC-

19 test-positive” samples did NOT contain SARS-CoV-2 nucleotide sequence. His

20 experiments included positive and negative controls, and the sequence from the

21 “CDC-test-negative” samples actually matched a new mutation strain of SARS-

22 CoV-2 isolated from NYC. (See Businesswire: “CDC Coronavirus Test Kits Generate

23 False Positive and 20% False Negative Results - Connecticut Pathologist’s Newly Published 24 Findings Confirm.”)7 I append Dr. Lee’s peer-reviewed publication “Testing for

25

26

27 7 https://www.businesswire.com/news/home/20200717005397/en/CDC-Coronavirus-Test-Kits28 Generate-30-False

3
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3348 Page 5 of 46

1 SARS-CoV-2 in cellular components by routine nested RT-PCR followed by DNA 2 sequencing” published July 17, 2020.8

3

9. This means that both the rate of diagnosis and the rate of deaths

4 attributed to COVID-19 are both now in serious question.

5

Problems with Attribution of Cause of Death

6

(Died with vs. Died From)

7

10. Different states have been counting and reporting COVID-19 deaths

8 differently. On April 16, 2020, The Washington Post reported that in Alabama,

9 officials had “ruled that one of every 10 people who died with Covid-19 did not die of

10 Covid-19,” contrasting the practice in Colorado, which was counting all deaths

11 involving respiratory complications without any type of molecular diagnostic test.9

12

11. On April 8, 2020, Dr. Deborah Birx announced that the CDC was

13 classifying all deaths of patients who die with coronavirus as “COVID-19 deaths”

14 regardless of cause.10

15

12. On May 27, 2020, National Geographic reported that “Regardless of

16 whether a death is due to a car crash or COVID-19, the process remains largely the same” 17 when reporting COVID-19 deaths, citing the CDC’s policy that also includes using 18 symptom-only diagnosis of COVID-19.11

19

20

21

22 8 http://www.int-soc-clin-geriat.com/info/wp-content/uploads/2020/03/Dr.-Lees-paper-on-

23 testing-for-SARS-CoV-2.pdf

24

9 https://www.washingtonpost.com/investigations/which-deaths-count-toward-the-covid-19death-toll-it-depends-on-the-state/2020/04/16/bca84ae0-7991-11ea-a130-

25 df573469f094_story.html

26 10 https://www.foxnews.com/politics/birx-says-government-is-classifying-all-deaths-of-patients-
with-coronavirus-as-covid-19-deaths-regardless-of-cause

27 11 https://www.nationalgeographic.com/science/2020/05/what-we-need-to-find-true-coronavirus-

28 death-toll/#close

4
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3349 Page 6 of 46

1

13. On May 15, 2020, The Washington Examiner reported that a San Diego

2 County supervisor reported that only six of 194 “confirmed” COVID-19 deaths to 3 date at that time were “pure, solely coronavirus deaths.”12

4

14. On July 16, 2020, FOX 35 Orlando reported that the Florida

5 Department of Health had confirmed that it had counted a death of a victim of a 6 motorcycle accident as a COVID-19 death.13

7

15. On March 18, 2020, Bloomberg reported that 99% of people who died

8 from the SARS-CoV-2 virus in Italy had other illnesses.14

9

16. Verified reports of individuals being sent positive test responses but

10 having never been tested exist;15 most these are individuals in queue for testing who

11 leave the queue, leading to incorrectly paired test results for themselves and everyone

12 in queue following them.

13

17. The complications of testing accuracy on top of the lack of consistent

14 diagnosis and attribution of death makes assessment of the actual risk of death due to

15 coronavirus difficult if not impossible.

16

18. In May, 2020, a Medpage article proposed that excess deaths would

17 provide an accurate estimate,16 but we now know that deaths due to non-specific

18 effects of society’s response to COVID-19 outnumber the deaths that might be due to

19 COVID-19: deaths from suicides due to job loss and social isolation and deaths from

20 lack of access to healthcare.

21

22 12 https://www.washingtonexaminer.com/news/san-diego-county-supervisor-says-six-of-194-

confirmed-deaths-are-pure-solely-coronavirus-deaths
23
13 https://www.fox35orlando.com/news/fox-35-investigates-questions-raised-after-fatal-

24 motorcycle-crash-listed-as-covid-19-death

25

14 https://www.bloomberg.com/news/articles/2020-03-18/99-of-those-who-died-from-virus-hadother-illness-italy-says

26 15 https://www.mysuncoast.com/2020/07/19/concerns-arise-some-receive-positive-covid-results27 never-got-tested/
16 https://www.medpagetoday.com/blogs/working-stiff/85925
28

5
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3350 Page 7 of 46

1

19. It is now understood that deaths in the US and elsewhere from COVID-

2 19 are restricted to individuals that have potential indicators of expected severity.

3 The medical literature of factors that place individuals at risk of serious illness and

4 mortality from COVID-19 include an altered immune system (specifically Th25 skewed immunity vs. Th1/Th2 balanced immunity).17 Patients who progress to

6 serious COVID-19 in need of critical care undergo a type of inflammatory response

7 known as a cytokine storm, involving cytokines IL-1β, TNF-α and IL-6.

8

20. Clinical care does not yet make use of an assay to determine patients’

9 Th2/Th1 balance, but a combined risk model that includes comorbidity, age and

10 Th2/Th1 cell counts could be useful in predicting the clinical course of SARS-CoV-2

11 infections, reducing mortality and streamlining resource allocation. This means we

12 can expect dramatically improved clinical care of COVID-19 patients and lower

13 serious illness and death as effective and tailored treatments come online.

14

Current Case Fatality Rates and Infection

15

Case Fatality Rates Are Dropping

16

21. Although immunity to SARS-CoV-2 following infection was originally in

17 doubt due to waning presence of antibodies in people previously infected,18 this

18 concern is likely overblown; long-term immunity of COVID-19 is now suspected to

19 involve memory B-cell and T-cell immunity, like other viruses. The very best

20 resource available on this complex issue of antibody vs. T- and B-cell immunity for

21 the layperson is the July 20th, 2020 article in The Atlantic by Mr. Derek Thompson.19

22 In short, the fear over re-infection is false, anecdote-based and rejected by the

23 absences of millions of repeat diagnoses of COVID-19 among those previously

24

25

17 https://www.biocentury.com/article/304604/how-covid-19-vaccine-developers-can-lower-therisk-of-being-derailed-by-antibody-dependent-enhancement

26 18 https://www.reuters.com/article/us-health-corominavirus-antibodies-vaccine-idUSKCN24F261

27 19 https://www.theatlantic.com/ideas/archive/2020/07/could-covid-19-immunity-really-
disappear-months/614377/
28

6
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3351 Page 8 of 46

1 infected.20 Due to a surge in testing, more asymptomatic COVID-19 “cases” are

2 being detected. Cross-protection from prior exposure to coronaviruses, including the

3 common cold, is now highly suspected to already have conferred immunity from

4 COVID-19 symptomatic disease. The cross-protection may be so effective that in the 5 UK, herd immunity may already have been achieved.21 Herd immunity is general

6 immunity in the population achieved when a sufficient number of individuals are

7 immune, either through natural infection or via vaccination to cause viral

8 transmission to end. One estimate from the UK is that only 10% infection in a

9 population might provide herd immunity due to such high prior cross-protection due 10 to exposure to other coronaviruses.18 Eventually, with or without a vaccine, the

11 population will achieve herd immunity, and during that process, the vulnerable –

12 those with comorbid conditions, those with Th2-skewed immunity, and the elderly,

13 should be cautious about exposure and become educated and ask their doctors for 14 recently reported, safer, potentially highly effective treatment options.22,23,24

15

22. The only elevated risks to healthy adults appear to be a hypothetical

16 possibility of increased risk of miscarriage if a woman is pregnant and becomes

17 infected with SARS-CoV-2, and a potential increased risk of hospitalization relative 18 to the full population if pregnant.25 However, CDC has supported (without FDA

19 approval) the use of both the influenza vaccine and the TdaP vaccine during

20 pregnancy. A study has found that military personnel who received the flu vaccine

21

22 23 20 https://www.sciencedirect.com/science/article/pii/S1521661620305106
21 https://www.dailymail.co.uk/news/article-8532935/Britain-herd-immunity-against-
24 coronavirus.html
25 22 https://academic.oup.com/jid/article/191/12/2033/839720
26 23 https://www.mediterranee-infection.com/wp-content/uploads/2020/03/COVID-IHU-2-1.pdf 27 24 https://www.publichealthpolicyjournal.com/clinical-and-translational-research
25 https://www.cnn.com/2020/06/25/health/coronavirus-pregnant-risks-cdc-study/index.html
28

7
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3352 Page 9 of 46

1 had 36 percent increased risk for coronavirus.26 Other studies support the conclusion

2 of increased risk of viral infections, especially respiratory viral infections – following 3 the influenza shot.27,28,29 According to the chief medical officer for England, people in

4 the UK who have received the influenza vaccine for this flu season were cautioned to

5 self-isolate for 12 weeks because they fall into the government’s “high risk” category 6 for acquiring a SARS-CoV-2 infection.30 This “disease enhancement” from a 7 vaccine is known as “pathogenic priming”31 which is expected to occur with

8 vaccination against SARS-CoV-2 coronavirus due to its occurrence in animal trials of

9 vaccines against SARS-CoV-1 and MERS (Middle Eastern Respiratory Syndrome

10 Virus). This may occur in part due to antibody dependent enhancement. It has

11 inaccurately been referenced as “immune enhancement.”

12

23. Contrary to the representation of risk in the mainstream media, there is

13 minimal risk to adults and children attending worship services due to Coronavirus.

14 Women receiving vaccinations during pregnancy may be at higher risk to

15 complications if they are vaccinated and become infected with SARS-CoV-2, but this

16 is only a hypothetical risk unsupported by data.

17

The Sweden Model

18

24. For some time, the world has had their eye on Sweden, which never

19 used “lock-down” as a tool to fight SARS-CoV-2. Instead, they created special

20 protections for those at highest risk of death and serious illness – the elderly, people

21 with diabetes, and people with cardiovascular disease. Schools and churches

22 23 26 https://www.sciencedirect.com/science/article/pii/S0264410X19313647?via%3Dihub
27 https://www.sciencedirect.com/science/article/pii/S0264410X18303153
24
28https://insights.ovid.com/pediatric-infectious-disease/pidj/2011/02/000/vaccine-effectiveness-
25 against-laboratory-confirmed/4/00006454
26 29 https://academic.oup.com/cid/article/54/12/1778/455098 27 30 https://www.mirror.co.uk/news/uk-news/coronavirus-top-medic-warns-anyone-21708701
31 https://www.sciencedirect.com/science/article/pii/S2589909020300186?via%3Dihub
28

8
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3353 Page 10 of 46

1 remained open, allowing the virus to spread throughout the population, conferring

2 immunity to those who acquired the infection. Countries (like ours) that did employ

3 lock-down are now experiencing a “second surge.” Part of the surge in cases is due to

4 more aggressive testing, and it is known that Sweden’s increase in cases in June

5 coincided with more aggressive testing. While cases in Sweden are not zero, they are

6 not experiencing any increase in COVID-19 deaths.

7

25. US News and World Report outlined on July 7, 2020 that how, after a

8 false “surge” in cases due to increased testing in June 2020, during which the

9 number of deaths due to COVID-19 continued to fall, the Swedes reported the lowest

10 daily new case report since May.32

11

26. Euromomo reports that this, the 32nd week of 2020 (first week of

12 August), Sweden has no excess deaths – this achieved without a lock-down.33

13

27. Initially, Sweden did limit gatherings in churches to 20 people at a time,

14 but America Magazine cites “voluntary social distancing, appropriate hygiene and 15 self-isolation by members of high-risk groups” as the secret to their success.34

16 Sweden’s R0, the basic reproduction number, has been <1 for over a month, meaning 17 they are benefiting from herd immunity without a vaccine- and without draconian

18 physical isolation measures.

19

20

21

22

23

24

25

32 https://www.usnews.com/news/world/articles/2020-07-07/swedens-daily-tally-of-new-covid19-cases-falls-to-lowest-since-may

26 33 https://www.euromomo.eu/graphs-and-maps

27 34 https://www.americamagazine.org/politics-society/2020/05/25/how-parish-sweden-responds-
coronavirus-it-will-all-work-out
28

9
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3354 Page 11 of 46

1

2

3

4

5

6

7

8

9

10

11

12

13

14 15 Figure 1. Comparison of numbers of deaths with United States and Sweden 16 highlighted. Note the log scale and absolute numbers. Data Source: Our World 17 in Data.

18

28. In the US, numerous nodes of transmission have been attributed to in-

19 person church services, however, not all have been confirmed via contact tracing.

20 The transmission of the virus in a church service can be minimized by appropriate

21 social distancing, as is done in restaurants, and modifications to church services like

22 mass via preparation of individual servings of ingested sacrament. More importantly,

23 those at high risk of serious illness or death from COVID-19 should be protected via

24 appropriate actions taken at the level of the individual citizen, who should know

25 whether they have likely been exposed to SARS-CoV-2 as the population moves

26 toward herd immunity via community transmission. It is worth keeping in mind that

27 medical procedures, not COVID-19, were likely the cause of the majority of deaths

28

10
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3355 Page 12 of 46

1 with inappropriate use of ventilators instead of anti-coagulants, as is now quickly

2 becoming the standard practice.

3

29. The increase in cases in the US are not as large of a concern as they were

4 in the beginning of the pandemic. With an infection case fatality rate estimated by

5 independent means and by CDC at 0.26% that is falling fast, COVID-19 is not the

6 monster we initially thought it was. The overall case fatality rate was overestimated

7 by an order of magnitude due to insufficient testing. We now know that many people

8 have immunity to COVID-19 due to prior exposure to other coronaviruses; this

9 immunity is so valuable that the US government is spending billions of dollars in a bid

10 to create a vaccine for COVID-19, a venture fraught with its own slate of serious

11 problems, not the least of which is the high likelihood of pathogenic priming (disease

12 enhancement) caused by secondary exposure to viral proteins following vaccination.

13

Conclusion

14

30. Given that herd immunity seems the most likely outcome ending the

15 transmission of the virus, and that other segments of society are allowed to assemble

16 (protestors, shoppers, diners, etc.) the special, undue and ineffectual burden placed

17 upon religious members of society who would otherwise be free to worship as they

18 see fit, the harm visited upon the co-worshipping citizens of California exceeds those

19 required of other identifiable categories of people. This arbitrary and limited physical

20 isolation would seem to merely delay the biological inevitability.

21

31. I kindly offer a reminder to the Court that the lock-down logic made

22 sense for the initial two weeks for which the American public was requested to

23 participate, based on the argument that the medical community needed time to ready

24 for a surge which never came. The increase in COVID-19 transmission that is

25 resulting as a result of Gov. Newsom’s reopening plan is expected and is largely

26 manageable. We have been told by unelected individuals that society cannot re-open

27 until there is a vaccine (including Dr. Anthony Fauci of the NIAID and Bill Gates of

28 the Bill & Melinda Gates Foundation); neither of these individuals can guarantee in

11
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3356 Page 13 of 46

1 spite of the cost of the investment in COVID-19 vaccines that any will be both

2 sufficiently effective and sufficiently safe to act as a proxy for the otherwise inevitable

3 herd immunity that need not come at the significant cost of human life given

4 treatment protocols that are proving far more effective than earlier deadly medical

5 protocols. A rational response to COVID-19 will not dismantle the foundations of

6 freedom we have inherited intact from prior generations, which includes the rights to

7 peaceable assemble, freedoms of expression, and the freedom of religion.

8

I declare until penalty of perjury under the laws of the United States and the

9 State of California that the foregoing is true and correct. Executed on August 10,

10 2020.

11

12

James Lyons-Weiler

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

12
DECLARATION OF CHARLES CICCHETTI

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3357 Page 14 of 46
EXHIBIT 1

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3358 Page 15 of 46 Program Director/Principal Investigator (Last, First, Middle):Lyons-Weiler, James

BIOGRAPHICAL SKETCH
Provide the following information for the Senior/key personnel and other significant contributors in the order listed on Form Page 2. Follow this format for each person. DO NOT EXCEED FOUR PAGES.

NAME
James Lyons-Weiler
eRA COMMONS USER NAME (credential, e.g., agency login)
jameslyonsweiler

POSITION TITLE
CEO/President/Director/Scientist Institute for Pure and Applied Knowledge

EDUCATION/TRAINING (Begin with baccalaureate or other initial professional education, such as nursing, include postdoctoral training and residency training if applicable.)

INSTITUTION AND LOCATION

DEGREE (if applicable)

MM/YY

FIELD OF STUDY

State University of New York, Oswego, NY

B.A.

8, 1991 Biology

Ohio State University

M. Sc.

6, 1993 Zoology

The University of Nevada, Reno

Ph.D.

6, 1998

Ecology, Evol & Conservation Biology

Pennsylvania State University

Postdoctoral

2000

Computational Molecular Biology

A. Personal Statement
My research program is focused on improving healthcare via the development of treatment efficacy and risk biomarkers, optimizing clinical interventions after adverse events, and understanding the neurological and immunological basis of vaccine injuries. I have been performing collaborative research with DNA sequence data since 1996, microarray gene expression data since 1998, proteomic data since 2003, and next generation sequencing since 2009 in cancer, immunology and neurobiology. I have participated in program-level consortia including the NCI’sEarly Detection Research Network, caBIG, and managed a large multi-institutional consortium in Proteomics and Bioinformatics (funded via TATRC). With a deep understanding of the effects of data preprocessing algorithms on the validity of downstream statistical inferences, and fundamental comprehension of principles of ecology and evolutionary theory, I have developed novel paradigms for high-dimensional –omic analyses, including advances in statistical methods for variant calling, transcriptional profiling, machine-learning based prediction modeling, integrative translational research via decision modeling, covariate matching for case/control selection, and for the statistical evaluation of survivorship prediction models. These advances are applied via intelligent methods optimization, in which empirically optimized data analysis protocols are arrived at routinely via systematic comparative evaluative methodological research & development to insure reproducibility. I have directed the successful analysis of at least twenty-five Next Generation Sequence data sets with various applications from whole microbial and mouse genome sequencing to from various platforms for transcriptomics, variant detection, ChipSeq, methylomics, and whole genome/exome sequencing. The algorithms I have developed are current in use by many labs as they provide information measures reflective of both data quality and algorithm performance using objective evaluation measures. I have written books on Ebola, Translational Research and Autism. I founded the Institute for Pure and Applied Knowledge to conduct biomedical and translational research in the public interest.
Positions and Honors
1998-2000 AP Sloan/US Department of Energy Postdoctoral Fellow in Computational Molecular Biology 1998-2001 (Awarded but declined) NIH National Research Service Award in Bioinformatics 2000-2002 Assistant Professor, University of Massachusetts, Lowell, Department of Biological Sciences 2000-2002 Co-Director, Center for Bioinformatics and Computational Biology, University of Massachusetts, Lowell 2002-2007 Assistant Professor, University of Pittsburgh School of Medicine, Department of Biomedical Informatics;
Core Faculty Member, Biomedical Informatics Training Program; Department of Pathology; Fully Associated Faculty Member, University of Pittsburgh Cancer Institute 2007-2014 Scientific Director, Bioinformatics Analysis Core Service, University of Pittsburgh; Adjunct Assistant Professor, Department of Biomedical Informatics, University of Pittsburgh 2014-present CEO/Director/Scientist, Institute for Pure and Applied Knowledge

PHS 398/2590 (Rev. 06/09)

Page

Biographical Sketch Format Page

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3359 Page 16 of 46

Program Director/Principal Investigator (Last, First, Middle):Lyons-Weiler, James
Other Experience and Professional Membership 2019-present Editor in Chief, Science, Public Health Policy & the Law 2016-2019 Editorial Board, Cancer Research 2004-present Member, Society for Experimental Biology 2004-2006 Associate Editor, Applied Bioinformatics 2006-2007 Founding Editor-in-Chief, Cancer Informatics 2002-2012 NIH Grant reviewer 2008-2010. Grant Review Committee, New Jersey Commission on Cancer Research 2009 Member, The Society for Clinical and Translational Science

B. Selected Peer-Reviewed Publications Most relevant to the current application

Lyons-Weiler J. 2020. Pathogenic Priming Likely Contributes to Serious and Critical Illness and Mortality in COVID-19 via Autoimmunity. J Transl Autoimmun. 2020 Apr 9:100051. doi: 10.1016/j.jtauto.2020.100051. McFarland, G, E La Joie, P Thomas and J Lyons-Weiler. 2020. Acute Exposure and Chronic Retention of Aluminum in Three Vaccine Schedules and Effects of Genetic and Environmental Variation. J Trace Elements in Medicine and Biology 58:126444. Lyons-Weiler, J 2018. Autism is an Acquired Cellular Detoxification Syndrome with Genetic Heterogeneity. Autism Open Access 8(1):1-15. Lyons-Weiler, J and R. Ricketson. 2018. Reconsideration of the Immunotherapeutic Pediatric Safe Dose Levels of Aluminum. Journal of Trace Elements in Medicine and Biology 48:67-73. Dobrowolski SF, Lyons-Weiler J, Spridik K, Vockley J, Skvorak K, Biery A. 2016. DNA methylation in the pathophysiology of hyperphenylalaninemia in the PAHenu2 mouse model of phenylketonuria. Mol Genet Metab. pii: S1096-7192(16)30001-4. doi: 10.1016/j.ymgme.2016.01.001. PMID 26822703. Dobrowolski SF, Lyons-Weiler J, Spridik K, Biery A, Breck J, Vockley J, Yatsenko S, Sultana T. 2015. Altered DNA methylation in PAH deficient phenylketonuria. Mol Genet Metab. 115(2-3):72-7. doi: 10.1016/j.ymgme.2015.04.002. PMID: 25990862. Ozburn AR, Falcon E, Twaddle A, Nugent AL, Gillman AG, Spencer SM, Arey RN, Mukherjee S, LyonsWeiler J, 2014. Self DW, McClung CA. 2014 Direct Regulation of Diurnal Drd3 Expression and Cocaine Reward by NPAS2. Biol Psychiatry. pii: S0006-3223(14)00594-0. doi: 10.1016/j.biopsych.2014.07.030. PMID: 25444159. Zubenko GS, Hughes HB 3rd, Jordan RM, Lyons-Weiler J, Cohen BM. 2014. Differential hippocampal gene expression and pathway analysis in an etiology-based mouse model of major depressive disorder. Am J Med Genet B Neuropsychiatr Genet. 165(6):457-66. doi: 10.1002/ajmg.b.32257. PMID: 25059218. Dobrowolski, SF, A. Biery, K Sprydik, E. Kranik, K. Skvorak, J. Vockley, J. Lyons-Weiler, T. Sultana. 2014. Methylome repatterning in a mouse model of Maternal PKU Syndrome. Molecular Genetics and Metabolism 113(3):194-9. doi: 10.1016/j.ymgme.2014.08.006. Shin SS, Bales JW, Yan HQ, Kline AE, Wagner AK, Lyons-Weiler J, Dixon CE. 2013. The effect of environmental enrichment on substantia nigra gene expression after traumatic brain injury in rats. J Neurotrauma. 30:259-70. PMID 23094804 Tanaka Y, Shigemura N, Kawamura T, Noda K, Isse K, Stolz DB, Billiar TR, Toyoda Y, Bermudez CA, Lyons-Weiler J, Nakao A. 2012. Profiling molecular changes induced by hydrogen treatment of lung allografts prior to procurement. Biochem Biophys Res Commun. 425:873-9. PMID 22902635 Hsu E, Shi H, Jordan RM, Lyons-Weiler J, Pilewski JM, Feghali-Bostwick CA. 2011. Lung tissues in patients with systemic sclerosis have gene expression patterns unique to pulmonary fibrosis and pulmonary hypertension. Arthritis Rheum. 63:783-94. PMID 21360508 Founds SA, Shi H, Conley YP, Jeyabalan A, Roberts JM, Lyons-Weiler J. 2012. Variations in discoverybased preeclampsia candidate genes. Clin Transl Sci. 5:333-9. PMID 22883611 Montecalvo A, Larregina AT, Shufesky WJ, Stolz DB, Sullivan ML, Karlsson JM, Baty CJ, Gibson GA, Erdos G, Wang Z, Milosevic J, Tkacheva OA, Divito SJ, Jordan R, Lyons-Weiler J, Watkins SC, Morelli AE. 2012. Mechanism of transfer of functional microRNAs between mouse dendritic cells via exosomes. Blood. 119:756-66. PMID 22031862.

PHS 398/2590 (Rev. 06/09)

Page

Continuation Format Page

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3360 Page 17 of 46
Program Director/Principal Investigator (Last, First, Middle):Lyons-Weiler, James
Hsu E, Shi H, Jordan RM, Lyons-Weiler J, Pilewski JM, Feghali-Bostwick CA. 2011. Lung tissues in patients with systemic sclerosis have gene expression patterns unique to pulmonary fibrosis and pulmonary hypertension. Arthritis Rheum. 63:783-94. PMID 21360508
Sultana, T., R. Jordan & J. Lyons-Weiler. 2009. Optimization of the use of consensus methods for the detection and putative identification of peptides via mass-spectrometry using protein standard mixtures. J. of Proteomics & Bioinformatics 2:262-273. PMID 19779596 http://www.omicsonline.com/ArchiveJPB/2009/June/02/JPB2.262.html Davies, M.L., S. Xu, J. Lyons-Weiler, A. Rosendorff, L.R. Wasil; S.A. Webber, D. Metes, D.T. Rowe. 2011. Cellular factors associated with latency and spontaneous Epstein-Barr virus reactivation in Blymphoblastoid cell lines. Virology 400:53-67. PMID 20153012
Additional recent publications of importance to the field (in chronological order) Dagda RK, Sultana T, Lyons-Weiler J. 2010. Evaluation of the consensus of four peptide identification algorithms for tandem mass spectrometry based proteomics. J Proteomics & Bioinformatics 3:39-47. PMID 20589240. Founds SA, Conley YP, Lyons-Weiler JF, Jeyabalan A, Allen Hogge W, Conrad KP. 2009. Altered global gene expression in first trimester placentas of women destined to develop preeclampsia. Placenta. 30:1524. PMID19027158 Ranganathan S, Polshyna A, Lutka F, Nicholl G, Lyons-Weiler J, and Bowser R. Assessment of protein stability in cerebrospinal fluid by mass spectrometry based proteomics. Clinical Proteomics 2:91-101. http://www.springerlink.com/content/81778847577u8h73/ PMID 20200596 Lyons-Weiler, J, S Patel and S Bhattacharya. 2003. A classification-based machine learning approach for the analysis of genome-wide expression data. Genome Research 13:503-512. PMID 12618382 Bhattacharya, S, D Long, J Lyons-Weiler. 2004. Overcoming confounded controls in the analysis of gene expression data from microarray experiments. Applied Bioinformatics 2:197-208. PMID 15130791 Patel, S, J Lyons-Weiler. 2004. caGEDA: A web application for the integrated analysis of global gene expression patterns in cancer. Applied Bioinformatics 3:49-62. PMID 16323966 Lyons-Weiler, J, S Patel, MJ Becich and T Godfrey. 2004. Tests for finding complex patterns of differential expression in cancer: towards individualized medicine. BMC Bioinformatics,5:110. PMID 15307894 Lyons-Weiler, J, R Pelikan, HJ Zeh, III, DC Whitcomb, DE Malehorn, WL Bigbee, and M Hauskrecht. 2005. Assessing the statistical significance of the achieved classification error of classifiers constructed using serum peptide profiles, and a prescription for random sampling repeated studies for massive highthroughput genomic and proteomic studies. Cancer Informatics 1(1) 53-77. PMID19325865 Shi H, Lyons-Weiler J. 2007. Clinical decision modeling system. BMC Med Inform Decis Mak. Aug 13;7(1):23. PMID17697328 Jordan R, Patel S, Hu H, and Lyons-Weiler J. 2008. Efficiency analysis of competing tests for finding differentially expressed genes in lung adenocarcinoma. Cancer Informatics, 6: 389-421. http://www.lapress.com/journal.php?journal_id=10&issue_id=101 PMID 19259419 Berty, H.P., H. Shi & J. Lyons-Weiler. 2010. Determining the statistical significance of survivorship prediction models. J. Clinical Evaluation 16:155-165.

PHS 398/2590 (Rev. 06/09)

Page

Continuation Format Page

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3361 Page 18 of 46
EXHIBIT 2

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3362 Page 19 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Testing for SARS-CoV-2 in cellular components by routine nested RT-PCR followed by DNA sequencing
Sin Hang Lee 1*
1 Affiliation Milford Molecular Diagnostics Laboratory, 2044 Bridgeport Avenue, Milford, CT 06460, U.S.A.
* Correspondence: shlee01@snet.net
Received: June 29, 8:12 a.m. (local Japan time); Accepted by the International Journal of Geriatrics and Rehabilitation: June 29, 23:33 p.m.; Date of initial revision by author in response to Dr. James Lyons-Weiler’s review: July 12, 14:03 p.m.; Date of second revision by author in response to Dr. Harumi Kuno- Sakai’s review： July 13, 12:25 p.m.; Date of the acceptance by the journal’s editorial board of Dr. Sin’s manuscript revised twice in response to reviews by Dr. James Lyons-Weiler and Dr. Harumi Kuno-Sakai as the finalized excellent manuscript suitable for publication: July 13, Uploaded online and Published: July 17
Abstract: Currently, molecular tests for SARS-CoV-2 infection are primarily based on reverse transcriptionquantitative polymerase chain reaction (RT-qPCR) on cell-free fluid samples of respiratory tract specimens. These tests measure the rate of fluorescent signal accumulation as a surrogate for direct DNA sequence determination and are known to generate false-negative and false-positive results. The author has developed a routine protocol to test the cellular components of respiratory tract specimens instead of cell-free fluids only and to use conventional nested RT-PCR to amplify the target nucleic acid for high detection sensitivity. A 398-bp heminested PCR amplicon is used as the template for direct DNA sequencing to ensure no false-positive test results. Using this protocol to re-test 20 reference samples prepared by the Connecticut State Department of Public Health, the author found 2 positives among 10 samples classified as negative by RT-qPCR assays. One of these two positive samples contained a mutant with a novel single nucleotide insertion in the N gene and a wild-type parental SARS-CoV-2. Of the 10 samples classified as positive by RT-qPCR assays, only 7 (7/10) were confirmed to contain SARS-CoV-2 by heminested PCR and DNA sequencing of a 398-bp amplicon of the N gene. One of the latter 7 positive SARS-CoV-2 isolates belongs to a newly discovered mutant first isolated from a specimen collected in the State of New York on March 17, 2020, according to information retrieved from the GenBank database. Routine sequencing of a 398-bp PCR amplicon can categorize any isolate into one of 6 clades of SARS-CoV-2 strains known to circulate in the United States. The author proposes that extremely accurate routine laboratory tests for SARS-CoV-2 be implemented as businesses attempt to return to normal operation in order to avoid raising false alarms of a re-emerging outbreak. False-positive laboratory test reports can easily create unnecessary panic resulting in negative impacts on local economies.
Keywords: Nested RT-PCR; DNA sequencing; cellular components; SARS-CoV-2; false-negative RTqPCR; false-positive RT-qPCR; single nucleotide insertion; 398-base; mutant; parental virus
1. Introduction
Accurate diagnosis and isolation of infectious patients without delay are the key steps in reducing the spread of emerging highly contagious diseases, like COVID-19. False-negative laboratory test results allow infected patients with mild clinical symptoms to spread SARS-CoV-2 among susceptible persons. False-positive test results may lead to placement of non-infected persons in the same isolation rooms with COVID-19 patients; eventually the non-infected individuals may become true-positive patients.
The lack of timely appropriate response from the Centers for Disease Control and Prevention (CDC) to the need of an accurate laboratory test for SARS-CoV-2 has been reported to be a factor contributing to the pandemic of COVID-19 in the United States in 2020 [1]. On February 2, 2020 the CDC was the only
69

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3363 Page 20 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
place in the country that could perform SARS-CoV-2 tests. But on February 12, the CDC announced that the test was providing inconclusive results. By then, the United States had reported 11 COVID-19 cases.
The CDC designed its own test in March 2020. The Food and Drug Administration (FDA) picked a conservative testing strategy, allowing laboratories to use only the CDC test kits distributed under the Emergency Use Authorization (EUA) authority. When the CDC test kits failed by generating many falsepositive results, neither a new strategy nor a new test was available for more than two weeks [1]. Eventually, the pandemic COVID-19 spread widely and rapidly throughout the country [2].
After an investigation, the lawyers from Department of Health and Human Services of the U. S. government concluded that the faulty CDC test kits were likely contaminated due to “time pressure’’ [3].
However, independent scientists have reported that at least two sets of the N primers used in the CDC test kits were found to give false positive signals even in the absence of cDNA (no template control condition) [4], indicating possible faulty designs. Yet from February 4 to July 7, 2020, the FDA issued 104 individual EUAs for Molecular Diagnostic Tests for SARS-CoV-2 to device manufacturers [5]. These commercial devices are almost all based on RT-qPCR using the CDC primers and probes or using undisclosed primers and probes which cannot be independently verified.
One group of scientists in Australia tested a commercial RT-qPCR test kit and found its positive predictive value to be only 55.56%. The authors suggested that any positive results derived from one commercial test kit should be confirmed using another nucleic acid test or nucleotide sequencing [6].
Another attempt to mitigate false-positive results generated by commercial RT-qPCR kits was to develop more conventional PCR-based protocols, using the primers of the RT-qPCR kits or newly developed primers, and apply a multiplex PCR-based protocol that allowed the simultaneous testing of primer sets for RdRP, N, E, and S genes all in one reaction [7]. However, the authors offered no means to verify the various PCR products. In diagnostic virology, the optimization of multiplex PCRs can pose several difficulties, including poor sensitivity or specificity and/or preferential amplification of certain specific targets. The presence of more than one primer pair in the multiplex PCR increases the chance of obtaining spurious amplification products, primarily because of the formation of primer dimers. These nonspecific products may be amplified more efficiently than the desired target, consuming reaction components and producing impaired rates of annealing and extension [8].
False-positive RT-qPCR for SARS-CoV-2 in preoperative screening has caused unnecessary delay of urgent otolaryngology surgeries in a university hospital [9].
When a false-negative RT-qPCR for SARS-CoV-2 is generated, the tendency is to lay blame on faulty specimen collection and handling [10]. But the cause may be more complex.
The RT-qPCR test kits distributed by the CDC, also known as the CDC 2019-Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel [11], depend on using commercial viral RNA purification devices for sample preparation. Nasopharyngeal or oropharyngeal samples should be obtained by using a Nylon flocked swab, if available, to enhance the collection and release of sufficient human cellular material to be tested.
However, these commercial viral RNA preparation kits, for example, the QIAamp® Viral RNA Mini Kit (Qiagen), are for purification of viral RNA from 180 µL of plasma, serum, cell-free body fluids and culture supernatants. Samples collected in viral transport media or saline need to be centrifuged or filtered
70

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3364 Page 21 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
to remove the cellular components for proper viral RNA sample preparation [12]. The Roche DNA and Viral NA Small Volume Kit is for purifying nucleic acids from up to 200 µL sample volumes using the MagNA Pure 96 Instrument.
SARS-CoV-2 must grow and replicate in a living cell. The viral particles are primarily located in intra-cytosolic vacuoles of the infected cell [13]. The number of SARS-CoV-2 particles per infected cell has not been published. But according to the studies on other viruses, such as the human immunodeficiency virus (HIV) [14] and the human papillomavirus (HPV) [15], one infected cell in a patient’s specimen may contribute several thousands of copy numbers of viral genome equivalents to be tested. Therefore, testing the cellular components of a nasopharyngeal swab rinse or bronchoalveolar lavage rather than the cellfree supernatant may raise the detection sensitivity of nucleic acid-based tests for molecular diagnosis of SARS-CoV-2 infection. An additional advantage of testing the host cells for virus is to assure that a positive result is an indication of having detected viral particles capable of causing infection, not merely non-infective free viral RNA residues floating in the extracellular fluid.
Nucleic acid-based diagnostics for infectious diseases are designed to determine the nucleotide sequence in a unique segment of the genome of the pathogen. Methodologies available to diagnostic laboratories for sequence determination include restriction fragment length polymorphism (RFLP), probe hybridization, and direct DNA sequencing.
The CDC RT-qPCR assay panel uses TaqMan® probes to bind 2 or 3 target DNA sequences if such sequences are present in the sample. The probes are labeled at the 5'-end with a fluorescent dye reporter molecule 6-carboxyfluorescein (FAM) and with the quencher, Black Hole Quencher 1 (BHQ-1) at the 3'end. The principle of this test relies on the 5´–3´ exonuclease activity of Taq polymerase to cleave and degrade the dual-labeled probes which have annealed to the complementary target sequences during hybridization. Degradation of the probe releases the fluorophore from it and breaks its proximity to the quencher, thus relieving the quenching effect and allowing fluorescence of the fluorophore. It is assumed that the intensity of fluorescence detected in the qPCR thermal cycler is directly proportional to the fluorophore released and the amount of DNA template present in the PCR. However, even when a probe anneals to a partially matching sequence, enzymatic primer extension may take place with release of the fluorophore and the quencher thereafter as the probe degrades. Therefore, the fluorescent signals accumulated in RT-qPCR are merely a surrogate of the probe sequence, not the true image of the target nucleotide sequence of the template which may not exist in the sample being tested.
In contrast, automated DNA sequencing is considered the gold standard technology for nucleotide sequence determination because each fluorescent signal is emitted from a specific fluorescent dye coupled to a specific nucleotide molecule, reporting the actual position of the labeled nucleotide in a DNA sequence during capillary electrophoresis. The computer-generated sequence electropherogram represents a true image of the alignment of the 4 nucleic acid bases in the template.
According to the guidance of the U.S. Food and Drug Administration (FDA) on molecular diagnosis of viral infection caused by human papillomavirus (HPV), if the performance of a newly introduced molecular diagnostic device deviates from an FDA-approved device on the market, a conventional PCR detection followed by Sanger sequencing on both strands of the PCR amplicon (bi-directional sequencing) which contains a minimum of 100 contiguous bases is acceptable as valid diagnostics for HPV infection provided the sequence matches the reference or consensus sequence, e.g. with an Expected Value (EValue) <10-30 for the specific HPV DNA target based on a BLAST search of the GenBank database [16]. It
71

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3365 Page 22 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
implies that nucleotide sequencing of a PCR amplicon of certain size with supportive GenBank BLAST search results is a de facto gold standard.
The DNA probes used in the CDC RT-qPCR test kits for SARS-CoV-2 assay are about 25 bases long. This design of RT-qPCR with multiple short probes does not meet the FDA requirement for nucleic acidbased molecular diagnostics for viral disease infections. In molecular diagnostics for infectious diseases when complex human specimens are tested, the significance of detecting 4 short sequences each of 25 bases long by hybridization does not equate to that of a DNA sequence composed of 100 contiguous bases that matches a signature sequence of the genome of the pathogen. Unconnected short DNA fragments may come from different sources in a complex human specimen.
The crucial step in most nucleic acid-based assays is to amplify the target DNA or cDNA in a complex clinical sample. PCR amplification always faces problems caused by inhibitors carried over from the clinical sample. Real-time PCR or qPCR is no exception. No commercial viral RNA extraction kits can remove all PCR inhibitors from the human respiratory tract specimens. For example, the QIAamp Viral RNA Mini Kit is not designed to separate viral RNA from cellular DNA [12]. The CDC test panel [11] also requires demonstration of human DNA in the test samples. Non-target nucleic acid molecules and other PCR inhibitors are usually co-extracted and co-purified along with SARS-CoV-2 RNA [17]. Inhibition of PCR by host DNA is a well-recognized problem in molecular diagnosis of bacterial infections [18]. These PCR-inhibitory molecules may come from the host cells, and from other viruses, bacteria and fungi normally residing in the human respiratory tract. The nature and quantity of these nucleic acids and inhibitors in the respiratory tract vary from one person to another, and are totally unpredictable. Nontemplate nucleic acids can affect PCR amplification efficiency, the fluorescent signal growth curve and the cycle threshold (Ct) value in qPCR assays [19].
This paper introduces a protocol developed for conventional nested PCR amplification followed by sequencing of a 398-base cDNA amplicon of the nucleocapsid (N) protein gene to be used as a method for the detection of SARS-CoV-2 RNA, using cellular components of the specimens as the test material to raise the sensitivity of detection. The inhibitors carried over from the test material are greatly diluted in a nested PCR setting. Routine sequencing of the unique 398-bp nested PCR amplicon guarantees no-false positive test results. DNA sequencing of the PCR amplicon of the genomic nucleic acid of the pathogen is a well-established molecular test for detection of infectious agents which are difficult to culture [20].
2. Results 2.1. Single target sequencing for molecular diagnosis of SARS-CoV-2
An in-depth study of the region of the SARS-CoV-2 nucleocapsid (N) gene which the CDC selected to design its N1, N2 and N3 probes revealed that there is a highly conserved ~400-base segment of sequence with 5 single nucleotide polymorphisms between the N2 and N3 probes. Selection of a 398base segment from this region for PCR detection and to prepare the template for DNA sequencing would be able to satisfy the FDA requirement for molecular diagnosis of viral infection [16]. The positional relationship between this 398-base sequence and those of the N1, N2 and N3 probes is illustrated in Figure 1.
72

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3366 Page 23 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 1 A segment of the N gene sequence of SARS-CoV-2 retrieved from the GenBank database, sequence ID# LC528233, highlighted to show the sequences and positions of the 3 probes N1, N2 and N3 (in red) with their respective flanking primers (highlighted in yellow) and a 398-base segment (in bold and underlined; position: 2872829125) with 5 single nucleotide polymorphisms (SNPs) highlighted in green. The sequence of the N gene targeted for SARS-CoV-2 RT-qPCR detection in China [21] is shaded in gray
The 398-base prototype sequence underlined is identical to the corresponding sequence in the N gene of the strain first isolated in Wuhan in December 2019 ─ GenBank Sequence ID: NC_045512.2. This version of sequence is present in most strains of SARS-CoV-2 subsequently isolated worldwide. However, strains with the 5 single nucleotide polymorphisms (highlighted in green) were first isolated in the United States. The dates and locations of the first sample collection for these 5 strains are summarized as follows, based on information retrieved from the GenBank database.
28800 A-to-T. Nasopharyngeal swab, CA, USA, 01-23-2020. Sequence ID: MN994467 28829 C-to-A. Nasal swab, NY, USA, 03-17-2020. Sequence ID: MT370913 28862 C-to-T. Oropharyngeal swab, MA, USA, 01-29-2020. Sequence ID: MT039888 28886 G-to-A. Nasopharyngeal swab, CA, USA, 02-06-2020. Sequence ID: MT106052 29103 C-to-T. Sputum of patient, TX, USA, 02-11-2020. Sequence ID: MT106054
Based on information retrieved from the GenBank database, this 398-base N gene nucleic acid sequence is specific for SARS-CoV-2. Except in the receptor-binding domain (RBD) where there is a 97.4% amino acid similarity between Guangdong pangolin coronaviruses and SARS-CoV-2, bat coronavirus RaTG13 is most closely related to SARS-CoV-2 in the remainder of the viral genome [22]. As illustrated below, alignment of the 398-base nucleic acid segment of the N gene of bat coronavirus RaTG13 (GenBank: MN996532, in red) against that of SARS-CoV-2 (in black) shows a 96.0% (1-16/398) similarity (the 16 nucleotide dissimilarities are highlighted green). CAATCCTGCTAACAATGCTGCAATCGTGCTACAACTTCCTCAAGGAACAACATTGCCAAAAGGCTTCTACGCAGAAGGGAGCAGAG CAATCCTGCTAACAATGCTGCAATCGTGCTACAACTTCCTCAAGGAACAACATTGCCAAAAGGCTTCTACGCAGAAGGGAGCAGAG GTGGCAGTCAAGCTTCTTCTCGCTCTTCATCACGTAGTCGCAACAGTTCAAGAAACTCAACTCCAGGCAGCAGTAGGGGAACTTCC GCGGCAGTCAAGCCTCTTCTCGTTCCTCATCACGTAGTCGCAACAGTTCAAGAAATTCAACTCCAGGCAGCAGTAGGGGAACTTCT CCTGCTAGGATGGCTGGCAATGGCAGTGATGCTGCTCTTGCTTTGCTGCTGCTTGACAGATTGAACCAGCTTGAGAGCAAAATGTC CCTGCTAGAATGGCTGGCAATGGCGGTGATGCTGCTCTTGCTTTGCTGCTGCTTGACAGATTGAACCAGCTTGAGAGCAAAATGTC TGGTAAAGGCCAACAACAACAGAGCCAAACTGTCACTAAGAAATCTGCTGCAGAGGCTTCTAAGAAACCTCGGCAAAAACGTACTG TGGTAAAGGCCAACAACAACAAGGCCAAACTGTCACTAAGAAATCTGCTGCTGAGGCTTCTAAGAAGCCTCGGCAAAAACGTACTG CCACCAAACAATACAATGTAACACAAGCTTTTGGCAGACGTGGTCCAGAACAAA CCACTAAAGCATACAATGTAACACAAGCTTTCGGCAGACGTGGTCCAGAACAAA
73

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3367 Page 24 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
The pair of PCR primers (underlined) defining this 398-base segment of amplicon are highly conserved among all known strains of SARS-CoV-2 and have not undergone mutations, based on search of the GenBank database. A single base mutation within a 21-base primer usually does not affect the result of heminested PCR unless the mutation occurs at the position binding the 3’ terminus of the primer.
SARS-CoV-1 gene (GenBank: AY274119.3) is not amplified by the primary PCR primer pair used in this protocol and there is < 90% similarity between the 398-base N gene sequence of the SARS-CoV-1 genome and that of the SARS-CoV-2 genome. Molecular misdiagnosis of SARS-CoV-2 based on nucleotide sequencing of this segment of the N gene is extremely unlikely.
2.2. Nested RT-PCR of cell lysates is needed to raise sensitivity for SARS-CoV-2 detection
In PCR research, a theoretically 100% efficient exponential amplification of the target DNA during repeated thermal cycling cannot be achieved even under strictly controlled experimental conditions. In the hands of most researchers, a properly designed PCR in the absence of any identifiable interfering substances in the sample matrix may amplify target DNA with a 90% efficiency [23, 24]. In molecular diagnosis of infectious diseases, there is always a possibility of false-negative results even when target DNA molecules are plentiful in the patient samples. After DNA purification steps are used before PCR, a 14% false-negative rate has been observed for hepatitis B virus detection, most probably due to incomplete removal of PCR inhibitors [25].
A high template/non-template nucleic acid ratio is one of the determinant factors in successful realtime PCR assays [19]. For example, persistent human papillomavirus (HPV) infection is the key factor in cervical carcinogenesis. During the long course of cancerous development, the viral load decreases from several thousand viral copies to about double digit per infected cell [15]. Virologic DNA real-time PCR assay is reported to be effective in identifying cervicovaginal cytology samples containing low-grade lesions with koilocytes which can have thousands of copies of human papillomavirus (HPV) per cell with a sensitivity rate of 95.5%. But the same real-time PCR test kit was only 58.26% effective in detecting highgrade CIN 3 lesions in which the viral load can be as low as 10 copies per cell [15, 26]. Non-template nucleic acids are potent PCR inhibitors which can greatly raise the Ct values of a qPCR assay when a nontemplate/template ratio is high in the reaction mixture.
False-negative test results for SARS-CoV-2 are expected in any PCR assays, including RT-qPCR when the viral load is low in the sample being tested. In testing low viral load samples, the laboratories must use highly sensitive assays to increase the detection sensitivity without causing false positives.
All diagnostic PCR assays depend on fluorescence intensity for evaluation. In the CDC RT-qPCR Assay Panel, the intensity of fluorescence emitted by a dye is measured by fluorometer, an instrument. In conventional PCR, the intensity of fluorescence emitted by a DNA/ethidium bromide complex is observed and evaluated with human eyes. A fluorometer used in qPCR is more sensitive than human eyes in measuring fluorescent signals, but it does not measure fluorescence emitted from a DNA complex. There are no products generated by the CDC RT-qPCR assays for further analysis whereas an amplicon of conventional PCR is composed of a mass of DNA molecules. The heminested PCR amplicon can be used as the template for DNA sequencing validation. Therefore, conventional PCR followed by DNA sequencing is the more appropriate testing platform for SARS-CoV-2 if a reliable test result is desired for patient management.
74

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3368 Page 25 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Nested, or two-round PCR, is a proven technique to mitigate the low sensitivity of conventional PCR in molecular diagnosis of infectious diseases, such as HPV infections [27] and borrelial spirochetemia [28]. This technique can be used for SARS-CoV-2 tests to increase detection sensitivity, as shown in Figure 2.
The left panel of Figure 2 is an image of agarose gel electrophoresis of the products of primary RTPCR (upper half) and heminested PCR (lower half) showing that heminested PCR increased the sensitivity of one-round RT-PCR by ~1,000 fold in detecting a 398-base N gene segment of synthetic SARS-CoV-2 RNA. The number of copies of synthetic viral RNA added to each 25 µL primary RT-PCR mixture was calculated based on the analysis data supplied by BEI Resources, NIAD, NIH, Cat. No. NR52358. As demonstrated, a single copy of viral RNA was detected with a robust amplicon band observed in lane 6 and lane 7 (lower half). In contrast, it needed 100-1,000 copies of viral RNA to generate a weak band in primary PCR, barely visible in lane 4 and lane 3 (upper half). The primary and heminested PCR primers and the PCR conditions are detailed in the Methods section.
The right panel of Figure 2 is an image of agarose gel electrophoresis showing two (2) positive heminested PCR products in lanes 9 and 10. There are no visible primary PCR products in any lanes. These 10 “negative” samples, each consisting of 0.5-1 mL of fluid (See Materials and Methods), were prepared and used as reference material by the Connecticut State Department of Public Health, Microbiology Laboratory Division on April 30, 2020 to assist local laboratories for developing their nucleic acid-based tests for SARS-CoV-2 under the CLIA program. Although these 10 samples were classified as negative by RT-qPCR, no Ct values were given. The cell lysates were extracted by phenol/chloroform and the RNAs were precipitated in ethanol as the test material (See Methods)
Figure 2 Agarose gel electrophoresis: Heminested PCR raises the sensitivity for detection of a 398bp N gene segment in synthetic SARS-CoV-2 RNA (Left) and of viral RNA extracted from infected human cells in respiratory tract specimens (Right: Amplicons of cDNA of viral RNA detected in lanes 9 and 10 from reference samples #1-10 classified as negative by RT-qPCR assays )
75

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3369 Page 26 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
The laboratory data presented in Figure 2 show that two-round PCR is needed for the detection of amplicons when this technology is used for molecular identification of SARS-CoV-2 in respiratory tract samples. The material to be tested should include cellular components of the specimen for maximizing the sensitivity of detection. 2.3. False positives of RT-qPCR assay for SARS-CoV-2
PCR, including qPCR, is known to generate both false-negative and false-positive results when this DNA replication tool is used for the diagnosis of infectious diseases.
In an international external quality assessment proficiency testing program for MERS-CoV, a Coronavirus, laboratories using RT-qPCR assay on simulated samples with viral load equivalent to throat swab MERS-CoV RNA concentrations generated an 84.6% detection sensitivity and 8.1% false-positive results [29]. False-negative and false-positive rates are usually much higher in routine testing than those observed in regulatory proficiency test programs.
It is not unexpected to find false-positive results generated by RT-qPCR when this tool is used to test for SARS-CoV-2.
On April 30, 2020, in addition to the 10 negative samples referenced above the Connecticut State Department of Public Health, Microbiology Laboratory Division also prepared 10 reference samples, which were diagnosed as positive for SARS-CoV-2 by the CDC RT-qPCR assays, in support of the local laboratories to develop their tests for the virus.
According to the documents accompanying these 10 positive samples, they all generated an N1 Ct value between 16 and 29.78 and an N2 Ct value between 15.05 and 29.4 except one with an N2 Ct 67.86. The R. P. (RNase P gene) Ct values for these 10 samples ranged from 3.31 to 25.13. Based on these Ct values, all samples were interpreted as confirmed positive and used as standard reference material for developing SARS-CoV-2 assays. However, only 7 of these 10 samples were found to be positive by nested PCR amplification (Figure 3).
76

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3370 Page 27 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 3 Agarose gel electrophoresis showing that only 7 of the 10 samples classified as positive for SARS-CoV-2 by RT-qPCR could be confirmed by conventional nested PCR followed by DNA sequencing of a 398-bp cDNA amplicon of the N gene
As demonstrated in Figure 3, primary PCR products after amplification of 30 thermal cycles were only visualized on 2 of 7 validated positive samples (lanes 18 and 20). Five of the 7 positives (5/7) needed nested PCR for detection. All seven positive nested PCR products were proven to consist of a 398-base segment of SARS-CoV-2 N gene by DNA sequencing. Six (6/7) were of the protype (See Section 2.4. Figures 4 and 5). Sample #13 belongs to a newly discovered mutant first isolated from a human specimen collected in the State of New York on March 17, 2020 (See Section 2.4. Figures 6 and 7). 2.4. Routine sequencing for PCR product validation and single nucleotide polymorphisms
For emerging serious virus infectious diseases, such as Ebola, the European CDC’s laboratory criteria of case definition are 1) Detection of virus nucleic acid in a clinical specimen and confirmation by sequencing or a second assay on different genomic targets; or 2) Isolation of Ebola virus from a clinical specimen [30].
A recent “Report from the American Society for Microbiology COVID-19 International Summit” on the Value of Diagnostic Testing for SARS–CoV-2/COVID-19 pointed out that one of the new challenges in the current molecular diagnostics is to optimize the current multiple targets to a single target [31].
By following these recommendations and the FDA’s guidance for molecular diagnosis of another viral infection [16], routine bi-directional sequencing of a >100-bp PCR amplicon of the viral genome was designed as the proper molecular testing platform for SARS–CoV-2. Examples are presented by analysis of the computer-generated 398-base N gene sequences on the reference samples supplied by the Connecticut State Department of Public Health Microbiology Laboratory Division as follows.
77

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3371 Page 28 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 4 Electropherogram showing DNA sequence of the nested PCR amplicon visualized in Lane 20 of Figure 3. Forward Co4 PCR primer was the sequencing primer. Note: the base C in position 14 is underlined
78

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3372 Page 29 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 5 Electropherogram showing DNA sequence of the nested PCR amplicon visualized in Lane 20 of Figure 3. Reverse Co3 PCR primer was the sequencing primer. Note: the base G in position 191 is underlined
Connecting the two sequences illustrated in Figures 4 and 5 after all the complementary bases were converted to those for a 5′–3′ reading resulted in a composite sequence fully matching a 398-base sequence illustrated in Figure 1, position 28728-29125 which is generally accepted as the protype sequence for SARS-CoV-2.
79

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3373 Page 30 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 6 Electropherogram showing DNA sequence of the nested PCR amplicon visualized in Lane 13 of Figure 3. Forward Co4 PCR primer was the sequencing primer. Note: the base A in position 14 is underlined
80

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3374 Page 31 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 7 Electropherogram showing DNA sequence of the nested PCR amplicon visualized in Lane 13 of Figure 3. Reverse Co3 PCR primer was the sequencing primer. Note: the base T in position 191 is underlined
Connecting the two sequences illustrated in Figures 6 and 7 after all the complementary bases were converted to those for a 5′–3′ reading resulted in a composite sequence fully matching a 398-base sequence illustrated in Figure 1, position 28728-29125 except for a single base mutation of C-to-A in position 28829, as annotated in GenBank Sequence ID: MT370913.
81

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3375 Page 32 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 8 Electropherogram showing two superimposed SARS-CoV-2 N gene sequences in the nested PCR amplicon visualized in Lane 10 of Figure 2, right panel. Forward Co4 PCR primer was the sequencing primer. One sequence was from a novel mutant with a single nucleotide A insertion at position 250, and the other was from a wildtype parental virus
AGCCTCGGCAAAAACGTACTGCCACTAAAGCATACAATGTAACACAAGCTTTCGGCAGACGTGGTCCAGAACAA AGCCTCGGCAAAAAACGTACTGCCACTAAAGCATACAATGTAACACAAGCTTTCGGCAGACGTGGTCCAGAACAAA
The computer-generated electropherogram illustrated in Figure 8 shows one protype N gene sequence of SARS-CoV-2 from position 1 to position 249. But there was a single nucleotide A insertion at position 250 in the second N gene, creating a mutant while the wildtype parental virus was infecting the human host. The chance for one patient being infected by two SARS-CoV-2 strains from the very beginning is extremely low. A virus mutant with a nucleotide A insertion in this segment of the N gene has not been reported in the literature nor deposited into the GenBank. In Figure 8, the extra nucleotide in the mutant gene caused a frameshift in DNA sequencing after the nucleotide A insertion. The two components of each double peak in different colors are aligned against each other in sequence and presented immediately below the electropherogram. The inserted base A is underlined.
This sequencing pattern showing an “A” insertion in one of the two templates at position 250 was reproduced for 3 times to rule out possible sequencing artifacts. Sequencing from the opposing direction on this amplicon composed of two homeologous DNA templates failed to generate a readable sequence due to insertion of the “A” nucleotide into the mutant gene too close to the site of the reverse Co3 sequencing primer.
In summary, the results of re-testing the cellular components of 20 reference samples of nasopharyngeal and oropharyngeal swab rinses by heminested RT-PCR amplification followed by
82

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3376 Page 33 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
nucleotide sequencing showed that SARS-CoV-2 was not found in 3 of the 10 (3/10) reference samples classified as positive by RT-qPCR, and that 2 of the 10 (2/10) reference samples classified as negative by RTqPCR in fact contained SARS-CoV-2.
Among the 9 positive samples, one isolate showed a C-to-A single nucleotide mutation in the 398base segment of the N gene targeted for amplification. According to information retrieved from the GenBank database, this mutation was discovered first in a specimen collected in New York State on March 17, 2020. And only 5 cases with this mutation were reported to the GenBank as of May 13, 2020.
In addition, one of the two positive isolates from the 10 RT-qPCR-negative samples in fact contained two viral genomes, one from a mutant with a single nucleotide insertion in the N gene which was not found in the GenBank database, and one from a wildtype parental virus. Co-infection of one patient by two strains of SARS-CoV-2, a mutant and the wildtype parental virus, has not been reported and may pose a challenging problem in molecular diagnosis of SARS-CoV-2
2.5. Unintended primer extension in RT-qPCR The CDC 2019-Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel [11] advises to
use cell-free samples prepared by the QIAamp Viral RNA Mini Kit as the material to be tested. But it also requires proof of human genomic nucleic acids in the same samples for a valid negative SARS-Cov-2 RNA result. As proof of the presence of sufficient human cell nucleic acids in the material being tested, the CDC protocol sets a cycle threshold (Ct) value within 40.00 cycles (< 40.00 Ct) in the human RNase P gene RT-qPCR channel for positive cut-off.
The sequences of the primers and probe for the RNase P gene RT-qPCR as an Internal Process Control (IPC) are given as follows [32] (color-highlighted for discussion convenience).
These primers and probe were designed to amplify a 65-base segment of Homo sapiens ribonuclease P/MRP subunit p30 (RPP30). Sequence ID: NM_001104546. The relevant sequence in this segment of the gene is retrieved from the GenBank database and pasted below with primer-matching colors to indicate the positions of the CDC-recommended primers and the probe which is typed in red in reverse complement (Figure 9).
Figure 9 Segment of DNA sequence retrieved from the GenBank database (NM_001104546) showing the color-highlighted positions of primers and probe used in the CDC RT-qPCR assay kit and the sequence of the 160-bp (underlined) amplicon used as the template to generate the sequence illustrated in Figure 10
It was assumed that a 65-base segment of the RPP30 gene defined by the two primers would be amplified as shown in Figure 9 in the RT-qPCR testing platform. However, it has never been
83

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3377 Page 34 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
demonstrated that this sequence has actually been amplified in real practice because the inter-primer sequence is too short for the currently used sequencing technologies. To prove that this 65-base sequence is actually present in the clinical sample, a longer amplicon (160-base, underlined in Figure 9) is needed to be used as the sequencing template to generate a sequence illustrated in Figure 10.
Figure 10 Electropherogram of a 65-base sequence (underlined) presumed to be generated during RT-qPCR using the CDC SARS-CoV-2 test kit, but it has never been shown in real practice
There is a single copy of RPP30 DNA sequence located at 10q23.31 locus on chromosome 10 in each haploid human genome and there are two copies in a diploid human cell [33]. RPP30 has been used as a reference for the autosomal chromosomes in research when there is abundant human chromosomal material in the sample [33, 34]. However, in cell-free fluids derived from respiratory tract specimens there are no intact human cells in the sample being tested. RPP30 gene is detected in the viral RNA extracts only when some broken human cell nuclear parts have not been completely removed from the cell-free samples. In the absence of a preferred template, the PCR primers may anneal to a non-target DNA with partially matching sequence and initiate an unintended primer extension or PCR. Such an example is illustrated in Figure 11.
Figure 11. Sequencing electropherogram showing PCR amplification of an unintended DNA segment by the CDC RNase P Reverse Primer (underlined)
The sequence illustrated in Figure 11 was generated during an attempt of using the CDC RNase P primers to induce a 65-bp PCR amplicon for further analysis as an internal control which can be validated by DNA sequencing. In this electropherogram, the binding site for the CDC RNase P reverse primer is underlined. Submission of this sequence to GenBank for BLAST algorithmic analysis led to a return illustrated in Figure 12 (yellow and green added by author).
84

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3378 Page 35 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 12 In the absence of a fully matching template, the primers designed for the CDC RT-qPCR assay kit may anneal to partially matching DNA and initiate an unintended PCR
As shown in Figure 11, PCR amplification as often applied in clinical diagnostics is not absolutely specific. There are always some irrelevant products, visible or invisible, generated as a result of enzymatic DNA replications in addition to those represented in the main sequence. The main sequence in this electropherogram shows that the CDC RNase P reverse primer found and annealed to a segment of DNA which shares 16 (highlighted in green, Figure 12) of its 20 bases in sequence to initiate an unintended PCR (compare the green-highlighted sequence in Figure 12 with the primer sequence underlined in Figure 11). The sequence highlighted in yellow is totally different from that of the probe (Figure 9).
The findings described in this section suggest that non-specific hybridization or annealing between non-target DNA and the primer or probe used in the CDC RT-qPCR test kits for SARS-CoV-2 may have contributed to the causes for false-positive results especially when the Ct cut-off value has been set as high as 40.0 [11].
Other investigators also reported that the CDC N2 and N3 primer sets can amplify irrelevant nucleic acids in RT-qPCR and in conventional PCR [4].
In an FDA publication titled “Real-Time Fluorescent RT-PCR Kit for Detecting SARS-CoV-2”, the Instructions for Use repeatedly emphasize that the Ct values for positive result on all controls and samples should be no higher than 37 [35]. Setting a 40.00 Ct value as the cut-off point for the presence of RNase P gene or for the presence of SARS-CoV-2 N gene in the sample being tested deviates from common practice and from the FDA guidance. Accepting a questionable Ct value as evidence for the presence of RNase P gene in the sample being tested may have allowed many invalid test results to be reported as negatives.
2.6. Human BRCA1 gene as internal extraction control
Since the segment of RNase P gene selected for the CDC RT-qPCR test panel was not always PCRamplifiable for validation by conventional PCR followed by sequencing, a segment of human BRCA1 gene was selected as the internal cellular extraction control.
85

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3379 Page 36 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
A pair of AG1 and R2 PCR primers (see Materials and Methods section) was designed to initiate a 409-bp BRCA1 gene primary PCR. The primary PCR product was re-amplified by a pair of AG2/R2 heminested PCR primers to generate a 323-bp amplicon which can be used as the template for sequencing validation. Demonstration of a segment of BRCA1 gene amplicon was accepted as reliable physical evidence to confirm that sufficient human nucleic acids had been extracted into the sample being tested in the SARS-CoV-2 negative cases. While the RNase P gene in the 20 reference samples supplied by the Connecticut State Department of Public Health Microbiology Laboratory Division could not be detected, the BRCA 1 gene was demonstrated in all these samples as shown in Figures 13 and 14.
Figure 13 Image of agarose gel electrophoresis showing a 323-bp heminested PCR amplicon of human BRCA1 gene in all 20 reference samples tested. Lane 11=water negative control. Lane 12= known human cell extract positive control
86

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3380 Page 37 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Figure 14 Sample of electropherograms confirming a segment of human BRCA1 gene sequence of the nested PCR amplicons shown in lower half of Figure 13. The 21 bases in the end are the binding site for R2 primer (5’-GTATGTAAGGTCAATTCTGTTC-3′)
3. Discussion This article has demonstrated that for molecular diagnosis, testing the cellular components for SARS-
CoV-2 rather than cell-free fluids only on respiratory tract specimens by conventional nested PCR and using the traditional phenol/chloroform method for RNA sample preparation can reduce the number of false-negatives. Using nucleotide sequencing to validate every positive PCR amplicon practically eliminates all false-positive results. For timely accurate molecular diagnosis and characterization of infectious agents, concerned scientists have been urging to bring microbial sequencing to the hospital laboratories to improve individual and population health [36, 37].
Nested PCR is a simple method to increase the detection sensitivity of the conventional PCR technology. Cross contamination which is often used as a reason to object using nested PCR in diagnostic laboratories can be mitigated by elimination of transferring PCR products by micropipettes and proper training of the testing staff. Cross contamination is a function of the laboratory performing PCR, not an inherent part of the nested PCR technology [28].
RT-qPCR tests are known to generate both false-negative and false-positive results [4, 6, 7, 9]. Highly sensitive and accurate laboratory tests for SARS-CoV-2 are needed for certain populations, especially for the people of advanced age living in long-term care facilities and their care takers. Patients with falsenegative test results may transmit the virus to family, friends, or care-givers. Uninfected residents in longterm care facilities with false-positive results may be isolated in rooms with Covid-19 patients, which puts them at risk of becoming true positives. Convalescent hospitalized patients must be tested by an extremely sensitive, no false-positive nucleic acid test prior to being discharged into the communities.
Long-term care facilities with exceptionally high COVID-19 death tolls among their residents may consider re-testing the residues of the respiratory tract samples of the deceased collected and tested prior to their death. If false-negative and false-positive test results were found, the false test results might have contributed to spreading of SARS-CoV-2 in the institution. Then corrective measures can be made in the infection control practices to lower the rate of cross infection among the residents.
87

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3381 Page 38 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
Highly sensitive, no-false positive SARS-CoV-2 tests are needed in hospitals with head-and-neck surgical department to screen patients before admission for protection of the medical staff involved [9].
Extremely accurate SARS-CoV-2 laboratory tests are especially important as businesses attempt to return to normal operation in order to avoid raising false alarms of a re-emerging outbreak. False-positive test reports can easily create unnecessary panic resulting in negative impacts on local economies.
The current SARS-CoV-2 nucleic acid test platforms overly depend on the supply of commercial RNA extraction devices, such as the QIAamp viral RNA preparation kits. However, better options are readily available. For example, the abilities of QIAamp blood kit (Qiagen, Inc., Hilden, Germany) and another commercial kit to extract the hepatitis B virus (HBV) DNA template from serum for amplification by PCR were evaluated and compared with that of the standard phenol-chloroform method. Differences in the sensitivities of the three methods were revealed by nested PCR of HBV DNA extracted from serially diluted hepatitis B e antigen (HBeAg)-positive (high-titer) serum. Phenol-chloroform was found to be a 106 times more sensitive extraction method than the QIAamp blood kit; and nested PCR was found to be 106 times more sensitive than one-round PCR in detection of HBV DNA in serum samples [25]. In nested PCR, the PCR inhibitors carried over from the sample into the primary PCR are further diluted by about 100-fold. The value of nested PCR followed by DNA sequencing for detection of SARS-CoV-2 was previously reported by Nao and colleagues [38].
As demonstrated in the Results section of this article, using the standard phenol-chloroform method to prepare viral RNA from cell lysates and nested RT-PCR amplification followed by DNA sequencing for SARS-CoV-2 detection, 2 false negatives and 3 false positives were found in 20 reference samples which had been tested by the CDC RT-qPCR kits.
In addition, one of the seven (1/7) RT-qPCR positive samples was found unexpectedly to contain an isolate which belongs to a strain of SARS-CoV-2 with single C-to-A mutation in the 398-bp N gene segment targeted for amplification. This newly discovered strain was first recognized in a specimen collected in the State of New York on March 17, 2020, and then found in specimens collected in the District of Columbia and Connecticut in the next two weeks, according to information retrieved from the GenBank database. It is not known how many of the Covid-19 patients were caused by this locally developed “mutant” in the tri-state area of New York, Connecticut and New Jersey.
Another surprise in testing the 20 reference samples prepared by the Connecticut State Department of Public Health Microbiology Laboratory Division was the finding of a SARS-CoV-2 mutant with a novel single nucleotide A insertion within the 398-base DNA segment sequenced. This novel mutant and the wildtype parental virus apparently co-infected the host cells collected for testing and their N genes were co-amplified in the nested PCR process. This novel viral mutant was present in a person with a falsenegative test result and was capable of infecting the host cells as the parental virus. It is not known if such a mutant can be transmitted to another individual to cause a new infection as the wildtype parental virus can.
As of early May 2020, there were at least 198 recurrent mutations identified among global isolates of SARS-CoV-2 [39]. For patient management, it is neither practical nor necessary to routinely check all these known mutations in the genome of every isolate for diagnostic purpose.
88

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3382 Page 39 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
However, it is feasible to routinely perform a bi-directional DNA sequencing of a 398-bp PCR amplicon of the N gene on every positive sample to categorize each isolate into one of the 6 SARS-CoV-2 clades which are known to circulate in the United States to track real-time movement of these viral strains in order to facilitate studies of their possible relevancy to transmissibility and pathogenicity.
The major limitation of this method is that the nested PCR and nucleotide sequencing technologies cannot be readily automated. The test takes 24 to 48 hours to generate a result because the procedures of cell digestion, two PCR amplifications and DNA sequencing take more than 10 hours of instrument time to complete. As for all PCR-based nucleic acid detection methods, unexpected mutation of the N gene in the SARS-CoV-2 genome affecting the binding site for the 3’ terminus of any of the PCR primers may cause false-negative results. If a patient does not have SARS-CoV-2 infected cells in the upper respiratory tract, or the specimen does not contain any virus-infected cells, this method may generate false-negative test results.
4. Materials and Methods
4.1. Test materials
The specimens used for this study were 10 negative and 10 positive reference samples which were specially prepared by the Connecticut State Department of Public Health, Microbiology Laboratory Division, on April 30, 2020 and packaged in a Styrofoam box containing dry ice to be used in support of the local diagnostic laboratories in the State of Connecticut to develop their laboratory tests for detecting SARS-CoV-2 virus in respiratory tract specimens. All samples were in 0.5-1 mL of saline as the media in plastic vials with screw caps and processed on the same day in Milford Molecular Diagnostics Laboratory, in Milford, Connecticut.
According to the Connecticut State Department of Public Health, Microbiology Laboratory Division, these samples were all clinical specimens, namely nasopharyngeal or oropharyngeal swabs placed in saline, that were received at the Connecticut State Department of Public Health, Microbiology Laboratory Division for the purpose of testing for SARS-CoV-2. No culture, spiking/or diluents were added or performed on these specimens. These 20 samples were previously tested by the CDC 2019-Novel Coronavirus (2019nCoV) Real-Time RT-PCR Diagnostic Panel as negative for SARS-CoV-2 or positive for SARS-CoV-2, and were used as reference samples for evaluation of other laboratory-developed assays for SARS-CoV-2 in nasopharyngeal and oropharyngeal swab specimens.
4.2. RNA extraction
The entire content of each sample was transferred to a graduated 1.5 mL microcentrifuge tube and centrifuged at ~16,000× g for 5 min to pellet all cells and cellular debris. The supernatant was discarded except the last 0.2 mL which was left in the test tube with the pellet.
To each test tube containing the pellet, 200 µL of digestion buffer containing 1% sodium dodecyl sulfate, 20mM Tris-HCl (pH 7.6), 0.2M NaCl and 700 μg/mL proteinase K, modified from a protocol for releasing cellular RNase P genes from HeLa cells [40], was added. The mixture was digested at 47°C for 1 hr in a shaker.
An equal volume (400 µL) of acidified 125:24:1 phenol:chloroform:isoamyl alcohol mixture (Thermo Fisher Scientific Inc.) was added to each tube. After vortexing for extraction and centrifugation at ~16,000×
89

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3383 Page 40 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020

g for 5 min to separate the phases, 200 µL of the aqueous supernatant without any material at the interface was transferred to a new 1.5 mL microcentrifuge tube.

To the 200 µL of phenol/chloroform-extracted aqueous solution, 20 µL of 3M sodium acetate (pH 5.2) and 570 µL of 95% ethanol were added. The mixture was placed into a cold metal block in a -15 to -20°C freezer for 20 min. The precipitated nucleic acids were centrifuged at ~16,000× g for 5 min and washed with 700 µL of cold 70% ethanol.

After a final centrifugation at ~16,000× g for 5 min, the 70% ethanol was completely removed by a finetip pipette, and the microcentrifuge tubes with opened caps were put into a vacuum chamber for 10 minutes to evaporate the residual ethanol. The nucleic acid in each tube was dissolved in 50 µL of M.B. grade water. All samples were tested immediately.

As positive control, a 0.2 mL aliquot of suspension of nasopharyngeal and oropharyngeal cells previously collected from normal individuals, tested negative for SARS-CoV-2, and stored in normal saline at -20°C was spiked with 400 copies of Quantitative Synthetic RNA from SARS-Related Coronavirus 2, Cat. No. NR-52358 supplied by BEI Resources, NIAD, NIH. This positive control tube was processed along with the reference samples for digestion and extraction.

The negative control consisted of 0.2 mL aliquot of suspension of nasopharyngeal and oropharyngeal cells previously collected from normal individuals, tested negative for SARS-CoV-2, and stored in normal saline at -20°C.

4.3. PCR primers

Based on the sequence retrieved from the GenBank database and presented in Figure 1, 3 primers were designed for primary and heminested PCR amplification of a 398-bp cDNA fragment to be used as the template for nucleotide sequencing confirmation of nucleic acid from the SARS-CoV-2. Their sequences and positions are listed below (see Figure 1).

Primary PCR primers Forward primer Co1 5’-ACATTGGCACCCGCAATCCTG-3’ Reverse primer Co3 5’-TTTGTTCTGGACCACGTCTGC-3’
Heminested PCR primers Forward primer Co4 5’-CAATCCTGCTAACAATGCTGC-3’ Reverse primer Co3 5’-TTTGTTCTGGACCACGTCTGC-3’

28715-28735 29105-29125
28728-28748 29105-29125

The Sequences of the primary and heminested PCR primers for the BRCA1 gene are listed as follows.
Primary PCR primers for a 409-bp BRCA1 gene amplicon are: Forward AG1 primer 5′-AAGGGGTTGGCAGCAATATGTG-3′ Reverse R2 primer 5′-GTATGTAAGGTCAATTCTGTTC-3′
Heminested PCR primers for a 323-bp BRCA1 gene amplicon are: Forward AG2 primer 5′- GACGTTGTCATTAGTTCTTTGG-3′ (also for sequencing) Reverse R2 primer 5′-GTATGTAAGGTCAATTCTGTTC-3′
90

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3384 Page 41 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
4.4. Primary RT-PCR conditions for SARS-CoV-2 gene amplification
To initiate the primary RT-PCR, a total volume of 25 µL mixture was made in a PCR tube containing 20 µL of ready-to-use LoTemp® PCR mix with denaturing chemicals (HiFi DNA Tech, LLC, Trumbull, CT, USA), 1 µL (200 units) of Invitrogen SuperScript III Reverse Transcriptase, 1 µL (40 units) of Ambion™ RNase Inhibitor, 0.1 µL of Invitrogen 1 M DTT (dithiothreitol), 1 µL of 10 µmolar Co1 forward primer in TE buffer, 1 µL of 10 µmolar Co3 reverse primer in TE buffer and 1 µL of sample RNA extract, synthetic N gene RNA extract as positive control or water as negative control.
The ramp rate of the thermal cycler was set to 0.9 °C/s. The program for the temperature steps was set as: 47°C for 30 min to generate the cDNA, 85°C 1 cycle for 10 min, followed by 30 cycles of 85°C 30 sec for denaturing, 50°C 30 sec for annealing, 65°C 1 min for primer extension, and final extension 65°C for 10 minutes.
4.5. Heminested PCR conditions for SARS-CoV-2 gene amplification
The heminested PCR mixture was a 25 μL volume of complete PCR mixture containing 20 μL of readyto-use LoTemp® mix, 1 μL of 10 μmolar Co4 forward primer, 1 μL of 10 μmolar Co3 reverse primer and 3 μL of water.
To initiate the heminested PCR, a trace (about 0.2 μL) of primary PCR products was transferred by a micro-glass rod to the complete heminested PCR mixture. The thermocycling steps were programmed to 85°C 1 cycle for 10 min, followed by 30 cycles of 85°C 30 sec for denaturing, 50°C 30 sec for annealing, 65°C 1 min for primer extension, and final extension 65°C for 10 minutes.
The crude heminested PCR products showing an amplicon of 398 bp in size at agarose gel electrophoresis were subject to Sanger reaction without further purification.
4.6. Primary and heminested PCR conditions for BRCA1 gene amplification
The primary PCR mixture contained 20 µL of ready-to-use LoTemp® PCR mix with denaturing chemicals (HiFi DNA Tech, LLC, Trumbull, CT, USA), 2 µL of water, 1 µL of 10 µmolar forward AG1 primer, 1 µL of 10 µmolar reverse R2 primer and 1 µL of sample RNA extract. For thermocycling, the temperature steps were programmed for an initial heating at 85 °C for 10 min, followed by 30 cycles at 85 °C for 30 s, 50 °C for 30 s and 65 °C for 1 min. The final extension was 65 °C for 10 min.
The heminested PCR mixture contained 20 µL of ready-to-use LoTemp® PCR mix, 1 μL of forward AG2 primer, 0.5 μL of reverse R2 primer and 3.5 μL of water in a total 25 μL volume. About 0.2 μL of the primary PCR products was transferred into the corresponding heminested PCR mixture with a micro-glass rod. The thermocycling steps were identical to those used for the primary PCR.
4.7. Interpretation of PCR results
As described above, 1 µL of RNA extract of patient sample, 1 µL of SARS-CoV-2 synthetic N gene RNA extract as positive control (P) and 1 µL of negative cell extract control (N) were used to initiate a set of primary PCR for viral nucleic acid detection.
91

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3385 Page 42 of 46 International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
In addition, 1 µL of each sample was used to initiate a BRCA1 gene primary PCR; and 1 µL of negative cell extract and 1 µL of water were used in the N and P control (see gel electrophoresis image below), respectively, for the BRCA1 primary PCR.
In routine testing, only the heminested PCR products were subjected to agarose gel electrophoresis because most primary PCR amplicons are not visible to the naked eyes.
An aliquot of 5 µL of each heminested PCR product was pipetted for agarose gel electrophoresis to detect the bands of the target DNA amplicons. As illustrated in the agarose gel image pasted below, for example, the negative control in Lane N of the SARS-CoV-2 series (upper half) and the water control in the P Lane of the BRCA1 (lower half) must show no amplicons. A 398-bp amplicon must be visualized in the P Lane of the SARS-CoV-2 series (upper half) and a 323-bp amplicon must be visualized in the N Lane of the BRCA1 series (lower half). Otherwise, the assay results are not valid.
As shown in the above image of gel electrophoresis, when the control amplicons on the P and N lanes are correctly visualized, there will be 4 possible combinations in the sample lanes. Sample 1 and 4 patterns are considered presumptive-positive for SARS-CoV-2 RNA. Sample 2 pattern is negative for SARS-CoV-2 as human BRCA1 gene is demonstrated in the sample. Sample 3 pattern indicates that no human cell genetic material was present in the sample being tested; the test result is invalid. Sample 4 pattern indicates that there is SARS-CoV-2 RNA in the test sample, but the human DNA has been extracted by the acidified phenol chloroform mixture. In some samples, there are more copies of viral genome equivalents than human genome copies. Since human genomic DNA is a potent PCR inhibitor, acidified phenol chloroform is used to remove most of the DNA from the sample to be tested.
The presumptive-positive crude heminested PCR products showing an amplicon of 398 bp in size in the SARS-CoV-2 series and the negative samples showing an amplicon of 323 bp in size in the BRCA1 series at agarose gel electrophoresis are subjected to Sanger reaction and automated sequencing for validation without further purification.
92

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3386 Page 43 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
4.8. DNA Sequencing
The 398-bp SARS-CoV-2 heminested PCR product (about 0.2 µL), if detected at gel electrophoresis, was transferred by a micro-glass rod into a Sanger reaction tube containing 1 μL of 10 μmolar sequencing primer (Co3 or Co4), 1 μL of BigDye® Terminator (v 1.1/Sequencing Standard Kit), 3.5 μL 5× buffer, and 14.5 μL water in a total volume of 20 μL for 20 enzymatic primer extension/termination reaction cycles according to the protocol supplied by the manufacturer (Applied Biosystems, Foster City, CA, USA). For the SARS-CoV-2 negative samples, the 323-bp heminested PCR product was transferred by a micro-glass rod into a Sanger reaction tube containing 1 μL of 10 μmolar forward AG2 primer , 1 μL of BigDye® Terminator (v 1.1/Sequencing Standard Kit), 3.5 μL 5× buffer, and 14.5 μL water in a total volume of 20 μL for 20 enzymatic primer extension/termination reaction cycles according to the protocol supplied by the manufacturer (Applied Biosystems, Foster City, CA, USA). After a dye-terminator cleanup with a CentriSep column (Princeton Separations, Adelphia, NJ, USA), the reaction mixture was loaded in an Applied Biosystems SeqStudio Genetic Analyzer for sequence analysis. Sequence alignments were performed against the standard sequences stored in the GenBank database by on-line BLAST alignment analysis.
5. Conclusions
Testing the cellular components of respiratory tract specimens instead of cell-free fluids only and using conventional nested RT-PCR to amplify the target nucleic acid can reduce the number of false negatives in molecular testing for SARS-CoV-2. Routine sequencing of the nested PCR products not only can eliminate false positives, but also can categorize the positive isolate into one of the six clades of SARSCoV-2 known to exist in the United States, based on single nucleotide polymorphisms in a 398-base segment of the N gene. Extremely accurate routine laboratory tests for SARS-CoV-2 are needed in longterm care facilities and as businesses attempt to return to normal operation. Molecular diagnosis of SARSCoV-2 infection will become a serious matter and a positive test result must be substantiated by a DNA sequencing electropherogram showing the genomic fingerprints of the virus. False-positive test reports can easily create unnecessary panic resulting in negative impacts on local economies.
Based on an official document dated March 15, 2020, the FDA issued a letter on February 4, 2020 authorizing emergency use of the CDC 2019-Novel Coronavirus (2019-nCoV, renamed as SARS-CoV-2) Real-Time Reverse Transcriptase (RT)-PCR Diagnostic Panel for the presumptive qualitative detection of nucleic acid from the 2019-nCoV in upper and lower respiratory specimens [41]. The methodology presented in this paper is for definitive qualitative detection of nucleic acid from the SARS-CoV-2 infecting the cells in upper and lower respiratory specimens. The FDA also advises that in performing Clinical Evaluation of newly developed RT-qPCR assays for the SARS-CoV-2, using Recommended Comparator Method for percent agreement performance calculations, false results can be investigated using an additional EUA RT-PCR assay, and/or Sanger sequencing [42]. Routine nucleotide sequencing of all detected 398-bp N gene amplicons guarantees no-false positive results in SARS-CoV-2 assays.
Author Contributions
S.H.L.: Conceptualization, study design, methodology, data analysis, manuscript preparation and final review
Funding: None.
Acknowledgments: The author thanks the staff of the Connecticut State Department of Public Health, Microbiology Laboratory Division for the supply of 20 reference samples in support of developing a nested RT-PCR followed by
93

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3387 Page 44 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
DNA sequencing test for SARS-CoV-2. The author also thanks Wilda Garayua for her technical assistance in performing the nucleotide sequencing.
Conflicts of Interest: Sin Hang Lee is Director of Milford Molecular Diagnostics Laboratory specialized in developing DNA sequencing-based diagnostic tests implementable in community hospital laboratories. The reagents and equipment used in this work can be substituted with similar products from various suppliers. The technology presented is not patentable.
References
1. Kelly, Meg, Sarah Cahlan and Elyse Samuels. 2020. What went wrong with coronavirus testing in the U.S. Washington Post. March 30, 2020. https://www.washingtonpost.com/politics/2020/03/30/11-100000-what-went-wrong-withcoronavirus-testing-us/
2. CDC. Public Health Response to the Initiation and Spread of Pandemic COVID-19 in the United States, February 24–April 21, 2020. Morbidity and Mortality Weekly Report (MMWR). Weekly / May 8, 2020 / 69;551-6. https://www.cdc.gov/mmwr/volumes/69/wr/mm6918e2.htm
3. Willman, David. 2020. CDC coronavirus test kits were likely contaminated, federal review confirms. Washington Post. June 20, 2020. https://www.washingtonpost.com/investigations/cdccoronavirus-test-kits-were-likely-contaminated-federal-review-confirms/2020/06/20/1ceb4e16-b2ef11ea-8f56-63f38c990077_story.html
4. Won J, Lee S, Park M, Kim TY, Park MG, Choi BY, Kim D, Chang H, Kim VN, Lee CJ. Development of a Laboratory-safe and Low-cost Detection Protocol for SARS-CoV-2 of the Coronavirus Disease 2019 (COVID-19). Exp Neurobiol. 2020; 29:107-119.
5. FDA. In Vitro Diagnostics EUAs. July 7, 2020. https://www.fda.gov/medical-devices/coronavirusdisease-2019-covid-19-emergency-use-authorizations-medical-devices/vitro-diagnostics-euas
6. Rahman H, Carter I, Basile K, Donovan L, Kumar S, Tran T, Ko D, Alderson S, Sivaruban T, Eden JS, Rockett R, O'Sullivan MV, Sintchenko V, Chen SC, Maddocks S, Dwyer DE, Kok J. Interpret with caution: An evaluation of the commercial AusDiagnostics versus in-house developed assays for the detection of SARS-CoV-2 virus. J Clin Virol. 2020; 127:104374.
7. Park M, Won J, Choi BY, Lee CJ. Optimization of primer sets and detection protocols for SARSCoV-2 of coronavirus disease 2019 (COVID-19) using PCR and real-time PCR. Exp Mol Med. 2020; 52: 963-977.
8. Elnifro EM, Ashshi AM, Cooper RJ, Klapper PE. Multiplex PCR: optimization and application in diagnostic virology. Clin Microbiol Rev. 2000; 13:559-570.
9. Katz AP, Civantos FJ, Sargi Z, Leibowitz JM, Nicolli EA, Weed D, Moskovitz AE, Civantos AM, Andrews DM, Martinez O, Thomas GR. False-positive reverse transcriptase polymerase chain reaction screening for SARS-CoV-2 in the setting of urgent head and neck surgery and otolaryngologic emergencies during the pandemic: Clinical implications. Head Neck. 2020; 42:16211628.
10. CDC. Interim Guidelines for Collecting, Handling, and Testing Clinical Specimens for COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/lab/guidelines-clinical-specimens.html
11. CDC 2019-Novel Coronavirus (2019-nCoV) Real-Time RT-PCR Diagnostic Panel. Instructions for Use. https://www.fda.gov/media/134922/download
12. QIAamp® Viral RNA Mini Handbook. January 2020.
94

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3388 Page 45 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
13. Zhou P, Yang XL, Wang XG, Hu B, Zhang L, Zhang W, Si HR, Zhu Y, Li B, Huang CL, Chen HD, Chen J, Luo Y, Guo H, Jiang RD, Liu MQ, Chen Y, Shen XR, Wang X, Zheng XS, Zhao K, Chen QJ, Deng F, Liu LL, Yan B, Zhan FX, Wang YY, Xiao GF, Shi ZL. A pneumonia outbreak associated with a new coronavirus of probable bat origin. Nature. 2020; 579(7798):270-273.
14. Hockett RD, Kilby JM, Derdeyn CA, Saag MS, Sillers M, Squires K, Chiz S, Nowak MA, Shaw GM, Bucy RP. Constant mean viral copy number per infected cell in tissues regardless of high, low, or undetectable plasma HIV RNA. J Exp Med. 1999; 189:1545-54.
15. Adcock R, Cuzick J, Hunt WC, McDonald RM, Wheeler CM; New Mexico HPV Pap Registry Steering Committee. Role of HPV Genotype, Multiple Infections, and Viral Load on the Risk of High-Grade Cervical Neoplasia. Cancer Epidemiol Biomarkers Prev. 2019; 28:1816-1824.
16. FDA. Establishing the Performance Characteristics of In Vitro Diagnostic Devices for the Detection or Detection and Differentiation of Human Papillomaviruses. https://www.fda.gov/media/92930/download
17. Tahamtan A, Ardebili A. Real-time RT-PCR in COVID-19 detection: issues affecting the results. Expert Rev Mol Diagn. 2020; 20:453-454.
18. Radomski N, Kreitmann L, McIntosh F, Behr MA. The critical role of DNA extraction for detection of mycobacteria in tissues. PLoS One. 2013; 8:e78749.
19. Bastien P, Procop GW, Reischl U. Quantitative real-time PCR is not more sensitive than "conventional" PCR. J Clin Microbiol. 2008; 46:1897-1900.
20. Goldenberger D, Künzli A, Vogt P, Zbinden R, Altwegg M. Molecular diagnosis of bacterial endocarditis by broad-range PCR amplification and direct sequencing. J Clin Microbiol. 1997; 35:2733-2739.
21. 新型冠状病毒肺炎实验室检测技术指南 http://www.chinacdc.cn/jkzt/crb/zl/szkb_11803/jszl_11815/202003/W020200309540843062947.pdf
22. Lam TT, Jia N, Zhang YW, Shum MH, Jiang JF, Zhu HC, Tong YG, Shi YX, Ni XB, Liao YS, Li WJ, Jiang BG, Wei W, Yuan TT, Zheng K, Cui XM, Li J, Pei GQ, Qiang X, Cheung WY, Li LF, Sun FF, Qin S, Huang JC, Leung GM, Holmes EC, Hu YL, Guan Y, Cao WC. Identifying SARS-CoV-2related coronaviruses in Malayan pangolins. Nature. 2020; 583(7815):282-285.
23. Svec D, Tichopad A, Novosadova V, Pfaffl MW, Kubista M. How good is a PCR efficiency estimate: Recommendations for precise and robust qPCR efficiency assessments. Biomol Detect Quantif. 2015; 3:9-16.
24. Lalam N. Estimation of the reaction efficiency in polymerase chain reaction. J Theor Biol. 2006; 242:947-953.
25. Kramvis A, Bukofzer S, Kew MC. Comparison of hepatitis B virus DNA extractions from serum by the QIAamp blood kit, GeneReleaser, and the phenol-chloroform method. J Clin Microbiol. 1996; 34:2731-2733.
26. FDA. Cobas® HPV Test. https://www.accessdata.fda.gov/cdrh_docs/pdf10/p100020s017c.pdf 27. Lee SH. Guidelines for the use of molecular tests for the detection and genotyping of human
papilloma virus from clinical specimens. Methods Mol. Biol. 2012; 903:65-101. 28. Lee SH, Vigliotti JS, Vigliotti VS, Jones W, Shearer DM. Detection of borreliae in archived sera from
patients with clinically suspect Lyme disease. Int J Mol Sci. 2014; 15:4284-4298. 29. Pas SD, Patel P, Reusken C, Domingo C, Corman VM, Drosten C, Dijkman R, Thiel V, Nowotny N,
Koopmans MP, Niedrig M. First international external quality assessment of molecular diagnostics for Mers-CoV. J Clin Virol. 2015; 69:81-85.
95

Case 3:20-cv-00865-BAS-AHG Document 53-7 Filed 08/10/20 PageID.3389 Page 46 of 46
International Journal of Geriatrics and Rehabilitation 2(1):69- 96, July 17, 2020
30. eCDC. Ebola virus disease ad hoc case definition for reporting in the EU. https://www.ecdc.europa.eu/en/all-topics-z/ebola-and-marburg-fevers/threats-andoutbreaks/ebola-outbreak-west-africa-2013-2016
31. Patel R, Babady E, Theel ES, Storch GA, Pinsky BA, St George K, Smith TC, Bertuzzi S. Report from the American Society for Microbiology COVID-19 International Summit, 23 March 2020: Value of Diagnostic Testing for SARS-CoV-2/COVID-19. mBio. 2020; 11:e00722-20.
32. CDC. Research Use Only 2019-Novel Coronavirus (2019-nCoV) Real-time RT-PCR Primer and Probe Information. https://www.cdc.gov/coronavirus/2019-ncov/lab/rt-pcr-panel-primerprobes.html
33. Dyavar SR, Ye Z, Byrareddy SN, Scarsi KK, Winchester LC, Weinhold JA, Fletcher CV, Podany AT. Normalization of cell associated antiretroviral drug concentrations with a novel RPP30 droplet digital PCR assay. Sci Rep. 2018; 8:3626.
34. Imaizumi T, Yamamoto-Shimojima K, Yamamoto H, Yamamoto T. Establishment of a simple and rapid method to detect MECP2 duplications using digital polymerase chain reaction. Congenit Anom (Kyoto). 2020; 60:10-14.
35. FDA. Real-Time Fluorescent RT-PCR Kit for Detecting SARS-2019-nCoV https://www.fda.gov/media/136472/download
36. Peacock S. Health care: Bring microbial sequencing to hospitals. Nature 2014; 509(7502):557-9. 37. Peacock SJ, Weinstock GM. Microbial sequencing to improve individual and population health.
Genome Med. 2014; 6:103. 38. Nao N, Shirato K, Katano H, Matsuyama S, Takeda M. Detection of second case of 2019-nCoV
infection in Japan. 2020. https://www.niid.go.jp/niid/en/2019-ncov-e/9334-ncov-vir3-2.html 39. van Dorp L, Acman M, Richard D, Shaw LP, Ford CE, Ormond L, Owen CJ, Pang J, Tan CCS,
Boshier FAT, Ortiz AT, Balloux F. Emergence of genomic diversity and recurrent mutations in SARS-CoV-2. Infect Genet Evol. 2020; 83:104351. 40. Puranam RS, Attardi G. The RNase P associated with HeLa cell mitochondria contains an essential RNA component identical in sequence to that of the nuclear RNase P. Mol Cell Biol. 2001; 21:548561. 41. Open letter from FDA to Robert R. Redfield, MD, Director, Centers for Disease Control and Prevention. March 15, 2020. https://www.fda.gov/media/134919/download 42. FDA. Molecular Diagnostic Template for Laboratories. Policy for Coronavirus Disease-2019 Tests During the Public Health Emergency (Revised) https://www.fda.gov/media/135659/download
96

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3390 Page 1 of 23

1

Charles S. LiMandri (SBN: 110841) Paul M. Jonna (SBN: 265389)

2 Jeffrey M. Trissell (SBN: 292480)

3

LIMANDRI & JONNA LLP P.O. Box 9120

4 Rancho Santa Fe, CA 92067

5

Telephone: (858) 759-9930 Facsimile: (858) 759-9938

6 cslimandri@limandri.com pjonna@limandri.com
7 jtrissell@limandri.com

8 Thomas Brejcha, pro hac vice*

9 Peter Breen, pro hac vice*

10 THOMAS MORE SOCIETY 309 W. Washington St., Ste. 1250

11 Chicago, IL 60606

12

Telephone: (312) 782-1680 tbrejcha@thomasmoresociety.org

13 pbreen@thomasmoresociety.org

14 *Application forthcoming

Harmeet K. Dhillon (SBN:207873) Mark P. Meuser (SBN: 231335) Gregory R. Michael (SBN: 306814) DHILLON LAW GROUP INC. 177 Post Street, Suite 700 San Francisco, CA 94108 Telephone: 415-433-1700 Facsimile: 415-520-6593 harmeet@dhillonlaw.com mmeuser@dhillonlaw.com gmichael@dhillonlaw.com
Attorneys for Plaintiffs

15 Attorneys for Plaintiffs

16

17

UNITED STATES DISTRICT COURT

18

SOUTHERN DISTRICT OF CALIFORNIA

19 SOUTH BAY UNITED PENTECOSTAL

20

CHURCH, a California non-profit corporation; and BISHOP ARTHUR

21 HODGES III, an individual,

22

Plaintiffs,

23

v.

24 GAVIN NEWSOM, in his official capacity 25 as the Governor of California, et al.,

26

Defendants.

27

Case No. 3:20-cv-865-BAS
Declaration of Dr. Jayanta Bhattacharya in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction; and Request for Leave to File Late Declaration
Judge: Hon. Cynthia Bashant

28

DECLARATION OF DR. JAYANTA BHATTACHARYA

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3391 Page 2 of 23

1 TO: THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF

2

RECORD:

3

PLEASE TAKE NOTICE that Plaintiffs South Bay United Pentecostal

4 Church and Bishop Arthur Hodges III, by and through counsel, have retained Prof.

5 Jayanta Bhattacharya, M.D., Ph.D. to provide an expert declaration in this action.

6 Plaintiffs reviewed Dr. Bhattacharya’s declaration filed in Brach v. Newsom, No. 2:20-

7 cv-6472-SVW-AFM (N.D. Cal. Aug. 3, 2020), and concluded that many of his

8 opinions directly relevant to this action. Specifically, the opinions which Dr.

9 Bhattacharya made at paragraphs 1–14 and 31–43 are directly relevant. The opinions

10 in paragraphs 15–42 also translate because California uses the same “monitoring list”

11 to determine whether schools and churches must be shuttered. However, due to

12 other commitments, Plaintiffs and Dr. Bhattacharya were unable to prepare a

13 declaration for filing in this action by August 10, 2020. Thus, Plaintiffs respectfully

14 request leave to file such declaration by no later than Friday, August 14, 2020. In the

15 interim, Plaintiffs are submitting Dr. Bhattacharya’s previously prepared declaration,

16 which is consistent with the opinions Plaintiffs would have him provide in this action,

17 and request that the Court take judicial notice of it. See Fed. R. Civ. P. 201;

18 ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 756 n.1 (9th Cir.

19 2014) (taking judicial notice of court documents); Lozman v. City of Riviera Beach,

20 Fla., 713 F.3d 1066, 1076 n.9 (11th Cir. 2013) (same).

21

22

LiMANDRI & JONNA LLP

23 24 Dated: August 10, 2020 25 26 27

By: ____________________ Charles S. LiMandri Paul M. Jonna Jeffrey M. Trissell Attorneys for Plaintiffs

28

1
DECLARATION OF DR. JAYANTA BHATTACHARYA

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3392 Page 3 of 23
ATTACHMENT

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3393 Page 4 of 23
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 1 of 20 Page ID #:1575

1 HARMEET K. DHILLON (SBN: 207873)

2 harmeet@dhillonlaw.com MARK P. MEUSER (SBN: 231335)
3 mmeuser@dhillonlaw.com

4 GREGORY R. MICHAEL (SBN: 306814)

5

gmichael@dhillonlaw.com DHILLON LAW GROUP INC.

6 177 Post Street, Suite 700

7 San Francisco, California 94108 Telephone: (415) 433-1700
8 Facsimile: (415) 520-6593

9 Attorneys for Plaintiffs
10

11

UNITED STATES DISTRICT COURT FOR

12

THE CENTRAL DISTRICT OF CALIFORNIA

13 MATTHEW BRACH, an individual, 14 et al.,

15

Plaintiffs,

16

v.

17 GAVIN NEWSOM, in his official capacity as the Governor of California,
18 et al.,

19

Defendants.

20

Case Number: 2:20-CV-06472-SVW-AFM

DECLARATION OF DR. JAYANTA BHATTACHARYA IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER

Judge: Courtroom:

Hon. Stephen V. Wilson 10A

21

22 I, JAYANTA BHATTACHARYA, declare as follows:

23

1. I am a resident of Los Altos, California. I am 52-years-old, and I am

24 otherwise competent to render this declaration.

25

2. I am a Professor of Medicine at Stanford University and have worked on the

26 Stanford University faculty since 2001. I had an MD and a Ph.D. in economics, both

27 earned from Stanford University. I am the director of the Stanford Center for

28

1

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3394 Page 5 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 2 of 20 Page ID #:1576

1 Demography and Economics of Health and Aging. At Stanford, I teach courses on health

2 economics in the Economics department and on advanced statistical methods in the

3 School of Medicine.

4

3. My primary research area is health economics, including a focus on

5 economic epidemiology. Between 1996 and 2020, I have published 136 articles in peer-

6 reviewed journals, including top-ranked journals in the economics, statistics, public

7 health, epidemiology, medicine, and health policy literatures. I have published numerous

8 papers on the economics and medicine of infectious disease, including on the economics

9 and epidemiology of HIV, H1N1 flu, H5N1 flu, seasonal influenza, antimicrobial

10 resistance and antibiotic use, and COVID-19. I have written a popular textbook, Health

11 Economics, used to teach the subject in universities around the world. The textbook

12 includes a chapter on economic epidemiology that surveys the literature on disease

13 modeling, including compartment models such as the Susceptible-Infected-Recovered

14 (SIR) models, commonly in use to forecast the COVID-19 epidemic.

15

4. I have been actively researching the COVID-19 epidemic using my

16 expertise in infectious disease epidemiology and health economics. To date, I have

17 published two papers in peer-reviewed journals related to the epidemic, In addition, I 18 have written three articles that are currently under consideration at peer-reviewed 19 journals, and I have published three editorials on economic1 and epidemiological2 issues 20 related to the epidemic, including an editorial3 on optimal public health management of 21 the epidemic.

22

23 1 Jay Bhattacharya and Mikko Packalen, Lives vs Lives: The Global Cost of Lockdown,

24 Spectator USA, https://spectator.us/lives-vs-lives-global-cost-lockdown/ (last visited

25

July 9, 2020). 2 Eran Bendavid and Jay Bhattacharya, Is the Coronavirus as Deadly as They Say?,

26 WSJ Opinion, https://www.wsj.com/articles/is-the-coronavirus-as-deadly-as-they-say-

27

11585088464 (March 24, 2020). 3 Jay Bhattacharya and Sanjiv Agarwal, Lift lockdowns, protect the vulnerable, treat

28 Covid like a health issue and not a disaster, The Print, https://theprint.in/health/lift-

2

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3395 Page 6 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 3 of 20 Page ID #:1577

1

5. My published papers on COVID-19 includes the first published serological

2 study measuring the prevalence of the COVID-19 epidemic. This study, conducted in LA

3 County, uses evidence from a specific antibody response to SARS-CoV-2 (the virus that

4 causes COVID-19) infection in an adult community-dwelling sample picked to be

5 representative of the county. This piece was published in the Journal of the American

6 Medical Association, one of the leading peer-reviewed journals in medicine. This paper

7 finds that by April 10 - 11, 2020, 4.3% of LA County adults show specific antibody

8 evidence of prior or current COVID-19 infection. This prevalence rate represents a

9 multiple of 43.5 times the number of cases confirmed by the county public health

10 authority by that date. One important implication of this paper is that the infection fatality

11 rate from COVID-19 infection in LA County up to the date of the survey (that is, the

12 probability of dying given that a person is infected with SARS-CoV-2) is at least an order

13 of magnitude lower than the case fatality rate. The case fatality rate includes only patients

14 who were infected with SARS-CoV-2 and identified as a case in the denominator of the

15 calculation. Cases most typically include patients who have severe symptoms and thus 16 come to the attention of medical authorities. Our study shows that cases represent only a

17 small fraction of the set of people who have been infected with SARS-CoV-2. I served

18 as the senior author for this article.

19

6. I have also published a second peer-reviewed paper in the Journal of Public

20 Health on racial disparities in knowledge and attitudes regarding the danger posed by

21 COVID-19 infection and the efficacy of personal behaviors like hand washing and social

22 distancing in protecting against infection. I reviewed the literature cited in the paper

23 regarding best practices for personal protection to prevent exposure to SARS-CoV-2.

24

7. I currently have three unpublished papers on COVID-19 presently

25 undergoing peer review. These include two papers reporting on seroprevalence studies

26 and a third paper using data from seroprevalence studies in the context of an SIR model

27 lockdowns-protect-the-vulnerable-treat-covid-like-a-health-issue-and-not-a-
28 disaster/466786/ (last visitited July 26, 2020) 3

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3396 Page 7 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 4 of 20 Page ID #:1578

1 to forecast the spread of COVID-19 in a way that accounts for the large number of

2 asymptomatic patients.

3

8. First, I am the senior author of the Santa Clara County seroprevalence study.

4 It is the first seroprevalence study where the study team made a scientific paper available

5 (undergoing peer review), and it is still, to my knowledge, the largest community

6 seroprevalence survey in the US. The results from Santa Clara County (SCC) were 7 similar to the results from the LA County seroprevalence study. On April 3rd & 4th, 2020,

8 the seroprevalence of SARS-CoV-2 antibodies in the SCC sample, reweighted to match

9 the zip code of residence, sex, and race distribution of SCC, was 2.8%. The Santa Clara

10 study has been enormously influential and has served as a template for the many

11 seroprevalence studies that have followed it. The preprint article reporting on the Santa

12 Clara study, though not peer-reviewed, has generated 147 citations (according to Google

13 Scholar accessed on July 9, 2020) to date.

14

9. Second, I am the senior author of a study (still undergoing peer review)

15 measuring the seroprevalence of SARS-CoV-2 infection among employees of Major 16 League Baseball on April 14th & 15th, 2020. This is the first seroprevalence study of

17 national scope measuring the extent of COVID-19. The main finding from that study is

18 that, as of the date of data collection, the prevalence of current or prior COVID-19

19 infection in the MLB employee population was 0.7%.

20

10. Finally, I am a co-author of a preprint paper (still undergoing peer review)

21 titled “Visualizing the Invisible: The Effect of Asymptomatic Transmission on the 22 Outbreak Dynamics of COVID-19.” This paper presents the first forecasting model that

23 accounts for data provided by seroprevalence studies such as the LA County, Santa Clara 24 County, and MLB studies. In particular, the model accounts for the vast population of 25 previously infected people identified by the seroprevalence studies and challenges the 26 notion that contact tracing can be a viable strategy to control the further spread of 27 COVID-19 infection.

28 4

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3397 Page 8 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 5 of 20 Page ID #:1579

1

11. In addition to my published work, over the past three months, I have been

2 invited to serve as a peer reviewer for several scientific journals to review COVID-19

3 related submissions by other scientists. These journals include the British Medical

4 Journal, Health Affairs, the Journal of Infectious Disease, and the Annals of Internal

5 Medicine. For these journals, I have provided scientific advice regarding the publication

6 of articles on topics related to the COVID-19 epidemic.

7

12. In May 2020, I testified at a virtual roundtable organized by Senator Pat

8 Toomey on the subject of the potential reopening of youth baseball leagues while

9 protecting the safety of participants. At this roundtable, I reviewed the evidence regarding

10 the relatively low mortality and morbidity risk that SARS-CoV-2 infection poses to

11 children and adolescents, and I discussed social distancing and other protocols to make

12 youth baseball safer for coaches, umpires, and other adult participants.

13

13. In July 2020, I was invited to testify at a House Oversight Briefing to the

14 Economic and Consumer Policy Subcommittee on SARS-CoV-2 vaccine development.

15 My testimony focused on the randomized trials and other studies currently underway to

16 produce a safe and effective vaccine to SARS-CoV-2 infection, and in particular on the

17 confidence that the public can have on the US Food and Drug Administration’s (FDA)

18 evaluation of the scientific evidence regarding new vaccines.

19

14. Plaintiffs in this case contacted me about providing expert testimony

20 regarding the risks of opening schools in California this Fall, and I agreed to provide an

21 affidavit with my professional opinion on these matters. I am not taking any personal 22 payments for my COVID-19 related work, so my work on this affidavit is pro-bono.

23

15. To prepare this affidavit, I have reviewed the Governor’s Executive Order

24 N-60-20 and the July 17, 2020 “COVID-19 Industry Guidance: School and School-Based

25 Programs.” I have also closely studied the scientific data on COVID-19. I have

26 compared the Governor’s July 17th order against guidelines provided by both the World

27 Health Organization (WHO) and the US Centers for Disease Control (CDC) for school

28 5

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3398 Page 9 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 6 of 20 Page ID #:1580

1 reopening. My main conclusion is that there is no scientific basis for closing schools

2 across the state this Fall.

3

16. The World Health Organization (WHO) guidance4 on school opening

4 emphasizes that school opening decisions be based on the “Current understanding about

5 COVID-19 transmission and severity in children”, the “Local situation and epidemiology

6 of COVID-19 where the school(s) are located “, and the “School setting and ability to

7 maintain COVID-19 prevention and control measure”. The WHO guidance explicitly

8 recommends the consideration of “what harm might occur due to school closure (e.g. risk

9 of non-return to school, widening disparity in educational attainment, limited access to

10 meals, domestic violence aggravated by economic uncertainties etc.), and the need to

11 maintain schools at least partially open for children whose caregivers are ‘key workers’

12 for the country.”

13

17. The US Centers for Disease Control (CDC) March 12th, 2020 interim

14 guidance5 concurs with the WHO guidance document, with an emphasis on accounting

15 for local conditions regarding disease spread and providing concrete guidance on steps

16 to take (masks, social distancing, staff training, and the like) to open schools safely. The

17 interim guidance suggests keeping schools open even if there is moderate community

18 spread of SARS-CoV-2 infection, with school closures limited only to communities with

19 “substantial” community spread.

20

21

22

23

24 4 World Health Organization (2020) Considerations for school-related public health

25

measures in the context of COVID-19. https://www.who.int/publications/i/item/considerations-for-school-related-public-

26 health-measures-in-the-context-of-covid-19

27 5 Centers for Disease Control (2020) Interim Guidance for Administrators of US K-12 Schools and Child Care Programs. https://www.cdc.gov/coronavirus/2019-
28 ncov/community/schools-childcare/guidance-for-schools.html

6

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3399 Page 10 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 7 of 20 Page ID #:1581

1

18. The US CDC July 23rd, 2020 guidance6 on school opening (entitled “The

2 Importance of Reopening Schools this Fall”) emphasizes the well-documented benefits

3 of keeping schools open. Among the harms of extended school closure include: (1)

4 “severe learning loss” for all students, but especially students with special needs and

5 disabilities; (2) widening of income and racial disparities in educational outcomes for

6 children; (3) hampered development of social and emotional skills by children and

7 potential harm to child mental health; (4) exposure of children to heightened risk of

8 “physical, sexual, and emotional maltreatment and abuse” at home from some families;

9 (5) nutritional deprivation of poor children due to the cessation of school meal programs;

10 and (6) sharp reduction in regular physical activity by children in the absence of physical

11 education programs. Crucially, the CDC recommends that these harms be taken into

12 account in school closure decisions. The guidance document closes by suggesting that

13 “[r]eopening schools creates opportunity to invest in the education, well-being, and future

14 of one of America’s greatest assets—our children—while taking every precaution to

15 protect students, teachers, staff and all their families.”

16

19. Governor Newsom’s Executive Order N-60-207, issued on May 4th, 2020,

17 did not specifically mention schools, but invested power in the State Public Health

18 Officer to make determinations about the re-openings of “businesses and spaces” that are

19 more restrictive than those made by local county public health authorities. Under this 20 authority, on July 17th, 2020, the California Department of Public Health forced the

21 closure of all schools in California counties that have been on the state’s county 22 monitoring list.8

23

24 6 Centers for Disease Control (2020) The Importance of Reopening America’s Schools

25

this Fall. https://www.cdc.gov/coronavirus/2019-ncov/community/schoolschildcare/reopening-schools.html

26 7 Newsom G (2020) Executive Order N-60-20. https://www.gov.ca.gov/wp-

27

content/uploads/2020/05/5.4.20-EO-N-60-20-text.pdf 8 California Department of Public Health (2020) COVID-19 and Reopening In-Person

28 Learning: Framework for K-12 Schools in California, 2020-2021 School Year.

7

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3400 Page 11 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 8 of 20 Page ID #:1582

1

20. The state places a county on this list if it meets at least one of six criteria

2 related to the number of COVID-19 PCR tests conducted or positivity rate, number of

3 cases and growth in cases, growth in hospitalizations, or inadequate hospital ICU or

4 ventilator capacity. None of these criteria are related to the risks to children or to teachers

5 that arise from reopening schools for in-person teaching. The scientific evidence indicates

6 that a county could meet all six criteria for closing schools, and the marginal public health

7 risk from conducting school in-person would be small. In particular, the order ignores the

8 evidence that the mortality risk and severe adverse health outcome risk to children from

9 COVID-19 disease is small or negligible. The order ignores the fact that children are

10 exceedingly unlikely to pass the virus on to adults. The evidence on these points are

11 covered extensively below. The order ignores the fact that keeping schools closed results

12 in public health harm to children outlined in the WHO’s guidance on school opening

13 discussed in paragraph 16 above, and the CDC’s guidance on school opening discussed

14 in paragraph 18 above. The governor’s executive order thus ignores the recommendations

15 of both the CDC and the WHO that school reopening decisions take account of the latest 16 scientific evidence on risk to children and viral transmission dynamics, relevant local

17 conditions, and the public health harm arising from keeping schools closed.

18

21. In the paragraphs that follow, drawn both from my own work and from the

19 scientific literature on COVID-19, I discuss (1) the relative risk that young people (below

20 age 25) with active SARS-CoV-2 infection pose with regard to infecting older people;

21 (2) the mortality risk from COVID-19 infection for patients of different ages; and (3) the

22 public health community’s approval of the principle that individuals and groups may

23 appropriately take actions that raise the risk of COVID-19 infection if the value provided

24 by those actions to participants is sufficiently large to outweigh the infection-related

25 harms.

26

27 https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/CO
28 VID-19/Schools%20Reopening%20Recommendations.pdf 8

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3401 Page 12 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 9 of 20 Page ID #:1583

1

22. The overwhelming weight of scientific data suggests that the risk of

2 transmission of the virus from younger people aged 20 and below to older people is small

3 or negligible, and the risk of transmission from people 20 to 25 to older people is small

4 relative to the risk of transmission from people older than 25 to others older than 25.

5

23. The most important evidence on childhood spread of the disease comes from

6 a study conducted in Iceland and published in the New England Journal of Medicine.9

7 The data for this study come from Iceland’s systematic screening of its population to

8 check for the virus. The study reports on both a population-representative sample and a

9 sample of people who were tested because of the presence of symptoms consistent with

10 COVID-19 infection. The study team isolated SARS-CoV-2 virus samples from every

11 positive case, sequenced the genome of the virus for every case, and tracked the mutation

12 patterns in the virus. This analysis, along with contact tracing data, allowed the study

13 team to identify who passed the virus to whom. From this analysis, the senior author of 14 the study, Dr. Kari Stefansson, concluded10 that “[E]ven if children do get infected, they

15 are less likely to transmit the disease to others than adults. We have not found a single

16 instance of a child infecting parents. There is amazing diversity in the way in which we

17 react to the virus.”

18

24. A French study,11 conducted by scientists at the L’Institut Pasteur, examined

19 data from school-teachers, students, and their parents in Crepy-en-Valois in France.

20 Collecting data in late April 2020, the authors found that 61% of the parents of infected

21

22 9 Daniel F. Gudbjartsson, Ph.D., Agnar Helgason, Ph.D., et al., Spread of SARS-CoV-2 in the Icelandic Population, The New England Journal of Medicine,
23 https://www.nejm.org/doi/full/10.1056/NEJMoa2006100 (June 11, 2020).

24 10 Roger Highfield, Coronavirus: Hunting Down COVID-10, Science Museum Group,

25

https://www.sciencemuseumgroup.org.uk/blog/hunting-down-covid-19/ (April 27, 2020).

26 11 Arnaud Fontanet, MD, DrPH, Rebecca Grant, et al., SARS-CoV-2 Infection in Primary

27 Schools in Northern France: A Retrospective Cohort Study in an Area of High Transmission, Institut Pasteur, https://www.pasteur.fr/fr/file/35404/download (last
28 visited July 9, 2020).

9

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3402 Page 13 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 10 of 20 Page ID #:1584

1 students were infected by SARS-CoV-2, while 6.9% of parents of non-infected students

2 were infected. The schools in France were closed from the end of January on, at first

3 because of February holiday and then the late February lockdown. The authors found

4 three cases among kids in January using antibody tests but found no evidence of virus

5 spread to other kids or teachers from those early cases. Any spread between the end of

6 January and the end of April (when the authors collected samples) must have occurred

7 during the lockdown. The kids who tested antibody positive at the end of April, because

8 of the circumstances of the lockdown, must have become positive from a source other

9 than their school. The main contacts of the young children were their parents, of whom

10 61% were positive, which is consistent with parent to child spread. Also consistent is the

11 fact that only 6.9% parents tested positive in April for the virus among the kids who were 12 antibody negative. The authors’ main conclusion12 from these facts is that parents were

13 the source of infections in school children; children were not the source. This finding

14 bolsters the conclusion from the Icelandic study that the disease spreads less easily from

15 children to adults than it does from adults to adults.

16

25. Researchers in Ireland conducted a similar but smaller study13 that

17 exhaustively tracked the contacts of three schoolchildren (10-15 years old) and three 18 adults (including one teacher and two adult students). All six patients had confirmed cases 19 of COVID-19 disease but were found to have contracted the virus from contacts outside 20 of the school setting. Despite identifying a total of 722 contacts, the study authors 21 reported finding no instance of an infected child infecting another child. The infected

22

23 12 COVID-19 In Primary Schools: No Significant Transmission among Children or

24 From Students to Teachers, Institut Pasteur, https://www.pasteur.fr/en/press-area/press-

25

documents/covid-19-primary-schools-no-significant-transmission-among-childrenstudents-teachers (June 23, 2020).

26 13 Laura Heavey, Geraldine Casey, et al., No Evidence of Secondary Transmission of

27 COVID-19 from Children Attending School in Ireland, 2020, Eurosurveillance, https://www.eurosurveillance.org/content/10.2807/1560-
28 7917.ES.2020.25.21.2000903#html_fulltext (May 28, 2020).

10

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3403 Page 14 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 11 of 20 Page ID #:1585

1 adults, by contrast, had many fewer contacts – 102 – but did pass on the infection to a

2 few adult contacts.

3

26. A report14 by the ministry of health in the Netherlands, based on contact

4 tracing data, finds almost no disease spread by infected patients 20 and under at all, and

5 only limited spread by adults 20-25 to others outside their own age category. The authors

6 of the study concluded: “Data from the Netherlands also confirms the current

7 understanding: that children play a minor role in the spread of the novel coronavirus. The

8 virus is mainly spread between adults and from adult family members to children. The

9 spread of COVID-19 among children or from children to adults is less common.”

10

27. A German15 study reports a strikingly similar finding on the likelihood of

11 pediatric disease spread. The German Society for Pediatric Infectious Diseases collected

12 on all children and adolescents admitted to a hospital for COVID-19 treatment between

13 mid-March and early May 2020 – 128 patients in all, admitted to 66 different hospitals.

14 The authors were able to find the source of infection for 38% of these patients, which

15 turned out to be a parent 85% of the time. Though the authors document a limitation of

16 small sample size, they conclude that “In contrast to other epidemic viral respiratory

17 infections, the primary source of infection with SARS-CoV-2 appears not to be other

18 children.” The authors reported a single death among these 128 pediatric patients.

19

28. The National Academies of Sciences, Engineering, and Medicine convened

20 the Committee on Guidance for K-12 Education on Responding to COVID-19 in May 21 2020 to review the science regarding the public health costs and benefits of school 22 reopening and to make recommendations about best practices for reopening, completing

23

24 14 Children and COVID-19, National Institute for Public Health and the Environment,

25

https://www.rivm.nl/en/novel-coronavirus-covid-19/children-and-covid-19 (July 2, 2020).

26 15 Armann, J. P., Diffloth, N., Simon, A., Doenhardt, M., Hufnagel, M., Trotter, A.,

27 Schneider, D., Hübner, J., & Berner, R. (2020). Hospital Admission in Children and Adolescents With COVID-19. Deutsches Arzteblatt international, 117(21), 373–374.
28 https://doi.org/10.3238/arztebl.2020.0373

11

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3404 Page 15 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 12 of 20 Page ID #:1586

1 its report16 in July 2020. The report emphasizes the need to balance the public health risk

2 from school re-opening against the long term harm arising children missing in-person

3 instruction. The report points to the inequitable harm posed on minority students from

4 closing schools. The report recommends prioritizing in-person instruction for K-5

5 students and special needs students and provides concrete mitigation strategies (such as

6 masks) to support school reopening. Though the report calls for further research on the

7 likelihood of disease spread, it does not review many of the European studies that I review

8 in my declaration.

9

29. A recent South Korean contact tracing study17 was cited in the New York

10 Times as providing evidence that “Older Children Spread the Coronavirus Just as Much

11 as Adults.” The study authors traced the 59,073 contacts of 5,706 COVID-19 patients,

12 confirmed by PCR to be infected. The authors divide up their patients into 10-year age

13 bins, and report the fraction of contacts in each bin who also tested positive. The authors

14 report that among 0-9-year-old cases, 5.3% of household contacts tested positive, while

15 among 10-19-year-old cases, 18.6% of household contacts tested positive (in both groups,

16 only about 1% of non-household contacts tested positive.

17

30. Contrary to the interpretation of the NYT headline, this pattern of evidence

18 does not imply that older children spread the corona virus as much as adults. First, the

19 authors define an index case as “the first identified laboratory-confirmed case or the first

20 documented case in an epidemiologic investigation within a cluster.” In other words, they

21 cannot tell whether an index case was the first person within a cluster to be infected – just 22 that they were the first to come to the attention of public health authorities. Unlike the

23 16 National Academies of Sciences, Engineering, and Medicine. 2020. Reopening K-12

24 Schools During the COVID-19 Pandemic: Prioritizing Health, Equity, and

25

Communities. Washington, DC: The National Academies Press. https://doi.org/10.17226/25858.

26 17 Park YJ, Choe YJ, Park O, Park SY, Kim YM, Kim J, et al. Contact tracing during

27 coronavirus disease outbreak, South Korea, 2020. Emerg Infect Dis. 2020 Oct (accessed online July 27, 2020) . https://doi.org/10.3201/eid2610.201315
28

12

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3405 Page 16 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 13 of 20 Page ID #:1587

1 Icelandic study, referenced in paragraph 23, the authors of the South Korean study do not

2 sequence the genome of the viruses identified to document mutation patterns.

3 Consequently, they cannot distinguish whether the index patient passed the virus to the

4 contact or the other way around. Second, the authors report that children 0-9 years old

5 represented only 0.5% of their index cases and children 10-19 years old represented only

6 2.2% of their index cases. The vast majority of their cases were 20 years old or older. The

7 study data collection took place during a period of strict lockdown and school closure in

8 South Korea. It is highly unlikely that these few index children spread the disease

9 throughout their cluster. The authors document that adults are more likely to have

10 contacts outside their household than children during this period. It is far more likely that

11 older members of households were the true index cases and spread the infection to

12 children within the household. Third, the authors report that 7% of household contacts of

13 20-29 year olds were infected. This is less than the positive case rate for 10-19 year olds.

14 If the higher rate of infections among household contacts of 10-19 year olds is evidence

15 of increased transmissibility, then the low rate of infections among households of 20-29 16 year olds should be taken as evidence of decreased transmissibility for patients in that

17 age group. A better interpretation is that the study methods of this paper do not permit

18 any inference whatsoever about the relative propensity of children and adults to transmit

19 the disease.

20

31. In the paragraphs that follow, I review evidence on the size of the mortality

21 risk with respect to COVID-19 infection. The best evidence on the infection fatality rate

22 from SARS-CoV-2 infection (that is, the fraction of infected people who die due to the

23 infection) comes from seroprevalence studies. The definition of seroprevalence of

24 COVID-19 is the fraction of people within a population who have specific antibodies

25 against SARS-CoV-2 in their bloodstream. Seroprevalence studies provide better

26 evidence on the total number of people who have been infected than do case reports,

27 which miss infected people who are not identified by the public health authorities.

28 13

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3406 Page 17 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 14 of 20 Page ID #:1588

1 Because they ignore unreported cases in the denominator, fatality rate estimates based on

2 case reports are substantially biased upwards.

3

32. According to a meta-analysis18 by Dr. John Ioannidis of every

4 seroprevalence study conducted with a supporting scientific paper (50 estimates in total

5 from 32 different localities around the world), the median infection fatality rate from

6 COVID-19 infection is 0.27%. For COVID-19 patients under 70, the meta-analysis finds

7 an infection fatality rate of 0.05%, with a range between 0.00% to 0.57% in different 8 locations. A newly released meta-analysis19 by scientists independent of Dr. Ioannidis’

9 group, published in the National Bureau of Economic Research working paper series,

10 reaches qualitatively similar conclusions.

11

33. A recent US Centers for Disease Control (CDC) report20 found that there

12 were between six and 24 times more SARS-CoV-2 infections than cases reported

13 between March and May 2020. This study is based on serological analysis of blood

14 samples incidentally collected by commercial laboratories in 10 cities nationwide.

15 Though the CDC does not provide the infection fatality rate estimate implied by their

16 seroprevalence estimate in their report, the multiplier to cases they report is in line with

17 the seroprevalence studies reviewed by Dr. Ioannidis above, which imply an infection 18 fatality rate between 2 and 3 in 1,000.

19

20

21

22 18 John P.A. Ioannidis, The Infection Fatality Rate of COVID-19 Inferred from Seroprevalence Data, medRxiv,
23 https://www.medrxiv.org/content/10.1101/2020.05.13.20101253v2.full.pdf (July 14,

24 2020).

25

19 Levin AT, Cochran KB, Walsh SP (2020) Assessing the Age Specificity of Infection Fatality Rates for COVID-19: Meta-Analysis & Public Policy Implications. National

26 Bureau of Economic Research Working Paper #27597.

27 20 Havers FP, Reed C, Lim T, et al. Seroprevalence of Antibodies to SARS-CoV-2 in 10 Sites in the United States, March 23-May 12, 2020. JAMA Intern Med. Published online

28 July 21, 2020. doi:10.1001/jamainternmed.2020.4130

14

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3407 Page 18 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 15 of 20 Page ID #:1589

1

34. In May 2020, the CDC released guidance21 for pandemic planning scenario

2 that included its best estimate of the infection fatality rate in the US, of 0.26%. The CDC’s

3 estimate of the symptomatic fatality rate among diagnosed cases was 0.4%, and they

4 estimated about 65% of all cases are symptomatic, which implies an infection fatality rate

5 estimate of 0.4% * 0.65 = 0.26%.

6

35. By contrast, the CDC estimated22 that the symptomatic fatality rate from

7 influenza infection of 0.13% and 0.10% during the 2017-18 and 2018-19 seasons,

8 respectively. These figures should be compared against the symptomatic fatality rate for

9 COVID-19 reported by the CDC (0.4%) rather than the infection fatality rate (0.26%).

10 To my knowledge the CDC has not provided a publicly available estimate of the infection

11 fatality rate for the flu during those seasons. Here, the symptomatic fatality rate represents

12 the probability that a patient infected with the flu virus with some flu symptoms dies from

13 the flu, while the infection fatality rate indicates the probability that a patient infected

14 with influenza, either with or without symptoms, dies from the flu.

15

36. In mid-July, the CDC updated its pandemic planning site and revised its

16 preferred estimate of IFR upward to 0.65%.23 In support of this revision, the CDC cited

17 an pre-print meta-analysis of 25 infection fatality rate estimates.24 This meta-analysis

18 includes IFR estimates provided in modeling papers (based on no direct empirical data)

19

20

21 COVID-19 Pandemic Planning Scenarios, Centers for Disease Control and Prevention, (May 20, 2020).

21 https://web.archive.org/web/20200706205612/https://www.cdc.gov/coronavirus/2019-

22 ncov/hcp/planning-scenarios.html. Accessed through the internet archive site, https://web.archive.org.
23 22 Disease Burden of Influenza, Centers for Disease Control and Prevention,

24 https://www.cdc.gov/flu/about/burden/index.html (last visited on July 9. 2020).

25

23 COVID-19 Pandemic Planning Scenarios, Centers for Disease Control and Prevention, (July 10, 2020). https://www.cdc.gov/coronavirus/2019-ncov/hcp/planning-

26 scenarios.html

27 24 Meyerowitz-Katz, G., & Merone, L. (2020). A systematic review and meta-analysis of published research data on COVID-19 infection-fatality rates. medRxiv.
28 https://www.medrxiv.org/content/10.1101/2020.05.03.20089854v4

15

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3408 Page 19 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 16 of 20 Page ID #:1590

1 and observational studies that do not adequately consider undiagnosed infections.

2 Though the meta-analysis does consider 9 seroprevalence studies among its sources, it

3 arbitrarily restricts attention to only seroprevalence studies reported by a select set of

4 governments, while ignoring the much larger set of seroprevalence studies (including

5 peer-reviewed studies) cited by Prof. Ioannidis in his report cited in paragraph 30 above.

6

37. The mortality risk for those infected with SARS-CoV-2 is not the same for

7 all patients. Older patients are at substantially higher risk of death if infected, while

8 younger patients face a vanishingly small risk. The best evidence on age-specific

9 infection fatality rates comes again from seroprevalence studies. Three such studies (of

10 which I am currently aware) provide age-specific infection fatality rate estimates. The

11 CDC’s current best estimates are that the symptomatic fatality rate from COVID-19

12 among patients less than 50 years old is 0.05%, or 5 in 10,000; 0.2% for patients between

13 ages 50 and 64; and 1.3% for patients 65 and above. The infection fatality rates are lower

14 than these numbers since only a fraction of patients is symptomatic.

15

38. A study of the seroprevalence of COVID-19 in Geneva, Switzerland

16 (published in the Lancet)25 provides a detailed age break down of the infection fatality

17 rate in a preprint companion paper:26 0.0016% for patients 5 to 9 years old (16 deaths per

18 100,000 infections); 0.00032% for patients 10 to 19 years old (3.2 deaths per million 19 infections); 0.0092% for patients 20 to 49 years old (92 deaths per 100,000 infections); 20 0.14% for patients 50 to 64 years old (14 cases per 10,000 infections); and 5.6% for 21 patients above 65.

22

23

24 25 Silvia Stringhini, PhD, Ania Wisniak, MS, et al., Seroprevalence of Anti-SARS-CoV-

25

2 IgG Antibodies in Geneva, Switzerland (SEROCoV-POP): A Population Based Study, The Lancet, https://www.thelancet.com/journals/lancet/article/PIIS0140-

26 6736(20)31304-0/fulltext (June 11, 2020).

27 26 Francisco Perez-Saez, Stephen Lauer, et al., Serology-Informed Estimates of SARSCOV-2 Infection Fatality Risk in Geneva, Switzerland, OSFPREPRINTS,
28 https://osf.io/wdbpe/ (June 15, 2020).

16

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3409 Page 20 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 17 of 20 Page ID #:1591

1

39. For this affidavit, I estimated the age-specific infection fatality rates from

2 the Santa Clara County seroprevalence study27 data (for which I am the senior

3 investigator). The infection fatality rate is 0% among people between 0 and 19 years

4 (there were no deaths in Santa Clara in that age range up to that date); 0.013% for people

5 between 20 and 39 years (1.3 deaths per 10,000 infections); 0.16% for people between

6 40 and 69 years (1.6 deaths per 1,000 infections); and 1.3% for people above 70 years. 7 In fact, in all of California28 up through July 23rd, there have been no deaths at all among

8 COVID-19 patients below 18. 77.5% of all COVID-19 related deaths occurred in patients

9 65 and older.

10

40. In the preceding paragraphs, I have presented evidence that the risk of

11 disease spread from younger people to older people is small, and that the risk of mortality

12 to people under the age of 65 is on the order of 1 in 1,000 if someone does become

13 infected (lower with younger age). The final question I address in my affidavit is a vital

14 principle promoted by public health experts and the public health community that implies

15 that certain action may be justified despite some public health risk if the action is

16 sufficiently important to warrant it.

17

41. The Black Lives Matter (BLM) protests started nationwide shortly after the

18 killing of George Floyd in Minnesota on May 25th, 2020. One press account29 suggests

19 that more than 26 million Americans nationwide (primarily in big cities, but also

20 27 Eran Bendavid, MD, Bianca Mulaney, MS, et al., COVID-19 Antibody 21 Seroprevalence in Santa Clara County, California, medRxiv preprint,

22 https://www.medrxiv.org/content/10.1101/2020.04.14.20062463v2 (April 30, 2020) 28 Age Group in California, Cases and Deaths Associated with COVID-19, California
23 Department of Public Health,

24 https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Cases-

25

by-Age-Group.aspx (July 23, 2020). 29 Matthew Wright, Black Lives Matter Protests May be the Largest in U.S. History as

26 More Than 26 Million Americans Have Been at the More Than 4, 700 Demonstrations

27 Around the Country, DailyMail.com, https://www.dailymail.co.uk/news/article8488409/BLM-protests-largest-U-S-history-26MILLION-Americans-attended.html
28 (July 8, 2020).

17

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3410 Page 21 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 18 of 20 Page ID #:1592

1 elsewhere) have participated in at least one protest since the first protests started on May

2 26th, 2020. Protest organizers have manifestly not followed WHO or CDC guidelines

3 regarding the conduct of large scale events during the COVID-19 epidemic. Prominent

4 public officials, including Los Angeles Mayor Eric Garcetti, have participated in BLM 5 protests that violate guidelines regarding the use of masks30 and maintained social

6 distancing during large events.

7

42. The reaction31 of many prominent voices32 within the public health

8 community to the BLM protests has emphasized the importance of the right of Americans

9 concerned about racial injustice to protest despite COVID-19. Nearly 1,300 public health 10 experts signed a public letter33 supporting the right of BLM protestors to gather publicly

11 because of their (the protestors’ and the public health experts’) deeply held opposition to

12 systemic racism. The letter explicitly acknowledged that social distancing and public

13 masking would minimize the spread of COVID-19 and urged “to the extent possible” that

14 these practices be followed by demonstrators while recognizing that protestors would not

15 always be able to follow these guidelines. The signatories, in effect, weighed the costs of

16

17 30 Jaclyn Cosgrove, et al., Mayor Garcetti takes a knee amid chants of ‘Defund police!’ at downtown L.A. protest, Los Angeles Times,
18 https://www.latimes.com/california/story/2020-06-02/mayor-garcetti-takes-a-knee-

19 amid-chants-of-defund-police-at-downtown-l-a-protest (June 2, 2020).

20

31 Rachel Weiner, Political and Health Leaders’ Embrace of Floyd Protests Fuels Debate Over Coronavirus Restrictions, The Washington Post,

21 https://www.washingtonpost.com/health/political-and-health-leaders-embrace-of-floyd-

22 protests-fuels-debate-over-coronavirus-restrictions/2020/06/11/9c60bca6-a761-11eabb20-ebf0921f3bbd_story.html (June 11, 2020).
23 32 Dan Diamond, Suddenly, Public Health Officials Say Social Justice Matters More

24 Than Social Distance, Politico,

25

https://www.politico.com/news/magazine/2020/06/04/public-health-protests-301534 (June 4, 2020)

26 33 Open Letter Advocating for an Anti-Racist Public Health Response to Demonstrations

27 Against Systemic Injustice Occurring During the COVID-19 Pandemic, Google Drive, https://drive.google.com/file/d/1Jyfn4Wd2i6bRi12ePghMHtX3ys1b7K1A/view (last
28 visited July 9, 2020). 18

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3411 Page 22 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 19 of 20 Page ID #:1593

1 the protests (some risk of COVID-19 disease spread and mortality) against the benefits

2 (support for a cause they deem worthy) and concluded in favor of the BLM

3 demonstrations.

4

43. The principle the public letter supports is entirely reasonable: public health

5 recommendations regarding behavior by private actors (such as the decision to protest)

6 should weigh the benefits of that behavior against the public health costs. Though the

7 signatories of the letter express their own support for the cause underlying the BLM

8 protests, this principle cannot be contingent on their particular support of those activities. 9 If this contingency were necessary, the charge by other public health experts34 that the

10 signatories are hypocritical in their support of masks, social distancing, and social

11 isolation to reduce COVID-19 spread would be correct. If the benefits of the undertaking

12 are important enough relative to the public health risks and care is taken to minimize

13 those risks by adhering to the extent possible to safe practice guidelines promulgated by

14 public health authorities, then the activity should receive approval by public health

15 experts.

16

44. Many of California’s schools were preparing to resume in-person education

17 before the Governor issued his most recent guidance. The benefits of in-person schooling 18 are well documented in the CDC and WHO guidance on school reopening (see 19 paragraphs 16 and 18 above). Schools can adhere to the various CDC and WHO 20 guidelines to a much greater extent than the BLM protests, which drew the support of 21 public health experts despite the enhanced public health risk. Given these considerations 22 – and the scientific evidence cited in this affidavit regarding disease spread and the 23 COVID-19 infection fatality rate – I believe that it is a public health priority that most 24 schools in California open safely this Fall.

25

26 27 34 Joseph S. Ladapo, The Coronavirus Credibility Gap, WSJ Opinion,
https://www.wsj.com/articles/the-coronavirus-credibility-gap-11593645643 (July 1, 28 2020).
19

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-8 Filed 08/10/20 PageID.3412 Page 23 of 23
 
 

  
Case 2:20-cv-06472-SVW-AFM Document 28-3 Filed 08/03/20 Page 20 of 20 Page ID #:1594

1

I declare under penalty of perjury under the laws of the United States of America

2 and the State of California that the foregoing is true and correct.

3

4 Dated: July 27, 2020 5

_______________________________ Jayanta Bhattacharya, M.D., Ph.D.

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 20

Declaration of Dr. Jayanta Bhattacharya

Case No. 2:20-cv-06472

Case 3:20-cv-00865-BAS-AHG Document 53-9 Filed 08/10/20 PageID.3413 Page 1 of 1

1

CERTIFICATE OF SERVICE

2

South Bay United Pentecostal Church, et al. v. Gavin Newsom, et al.

3

USDC, Southern District Case No.: 3:20-cv-00865-BAS-AHG

4

I hereby certify that I electronically filed the following document with the Clerk of the Court

by using the CM/ECF system:

5

• 6

Notice of Motion and Renewed Motion for a Temporary Restraining Order / Preliminary Injunction;

7•

Memorandum of Points & Authorities in Support of Renewed Motion for a Temporary Restraining Order / Preliminary Injunction;

8•

Second Supplemental Declaration of Bishop Arthur Hodges III in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction;

9•

Supplemental Declaration of Jeffrey M. Trissell, Esq. in Support of Plaintiffs’ Renewed

10 •

Motion for a Temporary Restraining Order / Preliminary Injunction; Supplemental Declaration of George Delgado, M.D. in Support of Plaintiffs’ Renewed

11 •

Motion for a Temporary Restraining Order / Preliminary Injunction; Declaration of Charles Cicchetti in Support of Plaintiffs’ Renewed Motion for a

12 •

Temporary Restraining Order / Preliminary Injunction; Declaration of Sean G. Kaufmann in Support of Plaintiffs’ Renewed Motion for a

13 •
14

Temporary Restraining Order / Preliminary Injunction; Declaration of James Lyons-Weiler in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction;

• 15

Declaration of Dr. Jayanta Bhattacharya in Support of Plaintiffs’ Renewed Motion for a Temporary Restraining Order / Preliminary Injunction; and Request for Leave to

16 •

File Late Declaration; and [Proposed] Order on Plaintiffs’ Renewed Motion For a Temporary Restraining Order

17

/ Preliminary Injunction.

18

I certify that all participants in the case are registered CM/ECF users and that service will be

accomplished by the CM/ECF system.

19

20 [X]

BY ELECTRONIC TRANSMISSION: I electronically filed the above document(s) with the Clerk of the Court using the CM/ECF system. The CM/ECF system will send notification

21

of this filing to the person(s).

22 [ ]
23 [ ]
24

BY MAIL: By placing a copy of the same in the United States Mail, postage prepaid, and sent to their last known address(es).
BY ELECTRONIC MAIL: I served a true copy, electronically on designated recipients via electronic transmission of said documents.

25

I declare under penalty of perjury, under the laws of the State of California, that the above

26 is true and correct.

27

Executed on August 10, 2020, at Rancho Santa Fe, California.

28

______________________________

Kathy Denworth

1
CERTIFICATE OF SERVICE 3:20-cv-00865-BAS-AHG