Transcription

• COVID-19: The Constitutionality of the Shutdown (with Greg Stepanicich)

  Introduction: Welcome to the official podcast of the University of California Riverside school of public policy. I'm your host, Maddie Bunting, this podcast series, I will be talking with various voices in the public policy world about today's pressing societal issues. Join me to learn about potential solutions and interventions for today's biggest policy challenges. Be they about health, the economy, the environment, or other societal problems impacting families in your community or the international community. For today's episode, we talk with Greg Stepanicich. My fellow public policy classmate Maya Prasad, joined me in asking questions about the legality of the shutdown Mr. Stepanicich currently serves as city attorney for Fairfield and Mill Valley. He previously served as city attorney for Agoura Hills, Beverly Hills and Seal Beach. Mr. Stepanicich joined the law firm of Richards Watson Gershon in Los Angeles in 1977. He opened up the firm’s San Francisco office in 1998 and continues to be it's managing shareholder. He is also a UCR School of Public Policy Advisory Board member. 

  Maddie Bunting: So you are the city attorney for Fairfield and Mill Valley in Northern California. For those listening, who may not know. Can you describe the role of a city attorney? 

  Mr. Stepanicich: Well, the city attorney really is sort of the all-purpose legal advisor to a city and it’s really on all matters affecting the city. So, you know, as a city attorney you really need to be a generalist and tend to cover a wide range of topics. And I think that in recent years the law has become so complex, in so many different areas that as a city attorney, you have to rely upon experts in particular areas of law, whether it’s in a law firm like myself, or in-house the attorneys office. There's also need to have experts in particular areas and help you deal with different issues. 

  Maddie Bunting: Wonderful. And you just talked about how the city attorney has to be a generalist. How has your role changed due to COVID? A pandemic is a more specific problem. Have other projects been placed on the back burner? 

  Mr. Stepanicich: Well, you know, the first two to three months, it was really a changed world and projects that were pending were put on the back-burner or at least slowed down. And, you know, we had to deal with some brand new issues of law that we have not dealt with before, first time in my career, which has spanned 43 years, I had to deal with a pandemic. What made this more complicated is we’re dealing with city regulations but in this case and with a pandemic and a health issue, the county regulations are paramount and also state regulations and know the counties are a subdivision of the state. So they really are part of that whole state hierarchy and exercise the same powers at the local level. And what we ended up having to do is initially when the shutdown orders came down and spent time first focusing upon the county orders, which were the first ones to come out and many hit were had a lot of ambiguities as to what was allowed or not allowed. And then Governor Newsom issued his state order and trying to reconcile those two at times was a little bit challenging them. And the way the law works here, is that counties can adopt stricter regulations than the state regulations. State regulations and state health orders have really set the floor. But then counties can add on to those regulations as you have seen with COVID throughout the state. And based oftentimes on the politics of individual counties, we have seen counties be stricter than the state and yeah, of course, we've seen the conflict have counties that were really were balking at some of the strictness of the state regulations. Then added onto this was just cities themselves doing and what could they do in addition to what the state and county we're doing? And just one example was the problem of renters, not having income and possibly being evicted. And we saw a city star for stepping in and adopting moratoriums on evictions, which was an economic issue, not a health issue, but it's an economic issue caused by a health problem. 

  Maddie Bunting: Something that I have learned during this time is learning so much more about the state government, but also local government. UCR sent us home or they, or they put finals online before this statewide shelter in place order went into effect. So it was really interesting those first couple of weeks seeing different orders from all different types of government and institutions all at once. So it was a very interesting time. 

  Mr. Stepanicich: Yeah, for us, like I said, it was really literally around the clock work and in really answering so many different questions that were coming up and then, you know, businesses would be asking cities. Yeah, what can I do or not do? And we would say now this is not a city order. So therefore, you really do have to talk to the county health officer to understand what your business can or cannot do. And I think we're also added to this. Normally when we have regulations, they are contained in a single document or may be a number of interrelated documents, but they take the form of an order, statute, city ordinance. What we had here were with both the state and the county actually adopting a lot of guidance just by the way of posting time websites. So which was also sort of an interesting way of doing regulation where you had your basic order issued, but then it was based so much time on guidance that was issued for various sectors to what they could or could not do. So it wasn't about just looking just at the order itself, but then also staying on track of all the various guidance documents ever being issued. For a while particularly in May when things started to open up, were really changing almost on a daily basis. 

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  Maya Prasad: There has been a lot of conversation regarding individual rights and freedoms during this pandemic. There have also been a lot of protests going on right now demanding less government involvement. Legally, does the government have the authority to require citizens to wear masks or businesses to close their doors? 

  Mr. Stepanicich: Well, it's a great question and has been the most controversial one through these last many months, and maybe start with just where this power comes from. And so the power to deal with a public health crisis is very broad and it’s based on what we call the police power. Police power is the power of government to protect the public health, safety, and welfare. And the legal standard the courts use in evaluating whether regulation is valid or not in this area will be, you know, is the regulation reasonably related to public purpose? And that's a pretty broad standard. And the fact is that it's an interesting political issue here because under our system of government, there is the separation of powers and the court's most of the time try to avoid stepping into the exercise of legislative powers and also executive power is obviously unless your constitutional rights have been violated or statutes are not being followed. But in particular, when it comes to public health, the courts have really shown tremendous mel difference to the decisions made by experts and asked how a public health issue can be or can be or should be addressed. And they don't want to take the role of a public health director or somebody else who has great expertise and decide how something should be done. So you're not going to yes, if they actually write arbitrary and there is no basis to make sure it can be struck down. But if there is a reasonable basis for the regulation being put into place, a court is probably not going to second guess it. And it's, you know, it's interesting when this all started, we started looking at all the case law or we thought it would be a lot of case law dealing with public health issues. And there are actually very few cases in this area. We end up relying upon actually a case, since the United States Supreme Court case that goes way back to 1905. And it was the, it was a case involving the state of Massachusetts. And it was smallpox that was the pandemic at that time. And there the court upheld a requirement by Massachusetts that all adults in the state had to be vaccinated against smallpox. And yeah, that was a pretty invasive regulation there requiring people to actually take a vaccine, whether they wanted it or not. And the court found that to be told you enforceable because of the seriousness of smallpox. And the decision that the only way to protect public safety was to have people take the vaccine. And, you know, we may be dealing with this issue again. But ultimately a vaccine is developed for COVID. And that's why, if you look right now, just step to the factual record that exists. There's no doubt and although people debate over the seriousness of this send and mortality rates and all these other factors are debated back and forth. The fact is that I think there's no doubt there's definitely a very real and deadly, deadly danger that we're faced with here. And I think there's no doubt that mask requirements, social distancing requirements, and also the closure businesses are going to be enforceable at this time. So more down the road, you know, that could change if this all goes away. But at this point in time, I don't I don't think there's any delta counties, cities and states are going to be able to enforce these regulations. 

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  Maya Prasad: I was wondering how does the government enforce such regulations to people who don't say believe in wearing a mask or who don't want to close their businesses? 

  Mr. Stepanicich: Well, you know, this has been a lot of discussion by city clients about this. And different cities have taken different approaches here. And I’ll give you the framework again of what type of enforcement is given to cities and counties to enforce the regulations. Under state law, the violation of a public health program is a misdemeanor and has some criminal offense, and can be punished by a fine of $1000 note for six months in jail for each time the regulation is violated. When this first started, there was definitely a desire not to start issuing misdemeanor citations, particularly to individuals, you know, if there was a business that was blatantly violating the rules and remaining open, it created health hazards. And there'd be a different story of course. But I think that with regards to especially individuals that were breaking, not fully complying with the shut-out order in which at first was extremely strict, It was the desire to educate and to seek voluntary compliance with the cities I have worked with that was really the approach from day one. You know, what's happened here is that, you know, it's, it's always become more and more controversial and people are starting with the claim to be their rights to not wear a mask and it’s interesting on masks, how this has become such a pipeline issue, which I do have a hard time firstly, understanding sense we do know now that masks do make a difference. But nonetheless, when with people, some cases now absolutely purposely violating rules that are meant to protect others. At the same time what do you do? There’s till reluctance, I think, to prosecute someone with a criminal misdemeanor. So what many counties have done now and what cities have also done is adopt ordinances that pose what are called administrative citations. So the administrative citation was not a criminal violation, but it involves a fine. So yeah the analogy would be a traffic ticket. And under this approach to find sort of between 50 to $500. And I think it's a much more measured approach. And I think that, although that became very controversial, when some counties did this, the counties were further cracking down on people. In fact, this was a really actually a little softer text than what was actually currently authorized by state law. And I think that was a better way of trying to approach, again, not someone who just forgot about wearing their mask or or inadvertently doing something, but if someone is purposely violated and regulations than the administrative citation approach I think applies a lot more flexibility to help to do enforcement. Also, another remedy that can be used and I have not been involved in there. And luckily, I haven't had a case in any of my cities where we've had to go this route. But there are civil remedies by way of getting an injunction. So if someone who's going to do something that violates a health regulation and it's either business or some institution, then there's civil injunction. It can be an effective way of going against civil. But again, you get a court order that orders an activity to stop. And then if someone violates, sat there in contempt of court, and that's a serious problem which most people do not want to find themselves in that situation before a judge. And I believe in Riverside County, there was a case with a church early on that was determinant to conduct in-person services and know that county Council there was involved in seeking and chunked her belief in that case. I think they also didn't want to go around the criminals. Tape is thought to be civil and junction was going to be much more effective. I think it was effective in this case. And it's been interesting with churches. You know, it's an interesting sort of some issue here. There's been litigation as you may know that involves churches suing over restrictions on in-person attendance at church services or religious ceremonies. And the, and in general, when you have, this kind of brings up the issue of how our constitutional rights are affected during a pandemic. Regulation of their adoption as part of the pandemic. And with regards to regulating any type of First Amendment activity and churches fall under the Free Exercise Clause of the First Amendment. The, normally the tests would be for that regulation directly to that church. You would have to show compelling governmental interests to, for the regulation. And that you've employed the least restrictive means of affecting that constitutional right, really tough tests to prevail on as the government. But when it comes to something like a pandemic or some other broadly based problem, where the rule is being applied not only against churches, that it's being applied against types of activities. And therefore the laws are really neutral as to who's conducting the activity in applies to a wide range of aon Religious activities. You go back to the rational relationship tests or reasonable relationships test I talked about earlier on a conversation here this afternoon and that's a much more deferential standard. So in California, we actually had a case that went up to the US Supreme Court involved at church in Chula Vista and a 5-4 decision by the Court that was authored by Justice Chief Justice Roberts. The court decided that Governor Newsom’s restrictions on church services, which at that time did allow small churches services, this was back in May, was constitutional. And it was again, a very interesting decision because he did talk about all these issues that I mentioned here involving dealing with a pandemic and a difference that a court is going to take to dealing with a public health issue that is deadly and dangerous. And what the court said was that the church services really no different than a whole wide range of secular activities were just a large group. People are gathering together in close proximity to each other for an extended period of time and it made comparisons to concerts and other types of movie theaters in that type of thing. And then to distinguish retail stores or grocery stores because they are people who are there for a very limited period of time and not engaging in conversation or singing and those types of things. So it was really a very, very interesting decision or not. And that's surprising, just based on the current Supreme Court, that was a 5-4 decision. Since decisions are five-four, kinda predict where this was going to come out except with Justice Roberts, because the Chief Justice has been very deferential with the other four on more conservative members on religion issues. But on this issue, he was very deferential to local government and state governments regulation of the pandemic.

  Maddie Bunting: And that is so interesting because there has been little guidance from the federal government or just any national presence regarding COVID-19 and that has left the responsibility to state and county and city governments. Regarding the legality of the shutdown, I'm curious, what does communication look like outside of the public eye? When businesses are coming to you and public health experts and you are contemplating various degrees of shutting down, do you consider public backlash? Do you consider protests up in Sacramento? People wanting to get haircuts? What does it look like a little bit behind the scenes, can you tell us anything? 

  Mr. Stepanicich: Well, you know, there's a lot of discussion taking place behind the scenes. Just asked to you first look at the law of that, then, you know, there are political realities that have to be dealt with and how do you do something, you know, how do you apply the law in a way that's going to be effective? And unbelievable. I think credibility is such an important point of how effective a law is going to be. And how it’s obeyed and followed. So there definitely was a lot of discussion here about what was going to be the best way to best approach both educate and to get people to comply. And also, what type of regulations should the city itself adopt? Because there were a lot of discussions early on about the cities themselves, even adopting stricter regulations and how they race, a question of whether cities on the public health side could do that. You know, as I mentioned, the law is very clear on the relationship between the county and state and how interplay of regulations work. But we don't have a lot of guidance with respect to what additional things can cities do. And I think ultimately, most cities, in this case, decided to just go with altering wasn't strongest guidelines became the state guidance and kinda shifted because then the governor did allow counties to go their own route. But then we got shifted back now to state regulations being paramount if the statement if the county is on the state watch list, which since like 37 counties now are on the on the watch list. So that's why again, trying to think I should try to figure this all out. There are large discussions not gonna be taking place in a puff meeting because you're aren't really Wayne a lot of different factors of Approach. And at the end of the day though, for any regulation that's adopted by a city, it has to be done publicly. You know, that's added and another interesting dimension here, and that's the Zoom meeting. And I have to say never thought I'd ever see meetings conducted this way. Where we always think though, City Council made by the Brown Act requires them to be public in a public place. It can't be done electronically only under very limited circumstances. And now you know during the governor's orders, it loosened up all those requirements. Sand, it does allow for zoom meetings. And so against a nonetheless, nothing changes in the sense that any regulations the city adopts has to be done publicly and on noticed agendas with public disclosure. But I think the point that's been hampered by it here is the input from the public. And because the public still participates in the meetings, although, you know, zoom as you probably all know, a whole problem with zoom bombers. Which was a really serious calm in the very beginning and doing Zoom meetings, got totally disrupted and it was really quite offensive. And so what a lot of cities that did then was a member of the public you can participate by written communications and those communications provided during the meeting and can be considered by the city council. And the other worked and I, you know, ultimate long-term. If I don't, I don't think it's a very effective way of doing things and one of my cities, that's one of the few cities currently the city of Fairfield is conducting public meetings and they've been very active because there's been a lot of issues here of some controversy and people have participate with masks and different safety controls there. But most cities are not doing that. And so when he have land use, or zoning hearings, which oftentimes cities are very controversial everyone wants to speak that is still accommodated through to zoom. But really it's not accommodated in the same way where people can fully participate in the meeting. So, you know, it's going to be interesting here. I do think we're going to see a lot of changes in the way business is done, both private sector and public sector. A lot more teleconferences, Zoom meetings, et cetera. And I think there's a, you know, some good environmental effects can be from now to people beyond that's on the road and driving and reducing traffic congestion, but when it comes to a public meeting of a city, a city council or directors of another type of public agency may need to get back and public meetings, I don't I don't think I think the current format just doesn't work effectively to really allow full public engagement and public meetings. And so I think again, once people can once again safely assemble into large gatherings that we definitely will most surely, the leeway given by the governor on that issue will go away and we'll be back having our regular publicity council meetings.

  Commercial (Kamillah Pollard): The UCR School of Public Policy stands with the black community against racism and social injustice and violence. Join us for the next installment of our Black Lives Matter webinar series on Friday, August 28th, at noon when Paulette Brown-Hinds of Voice Media Ventures talks about the importance of the black press in the Black Lives Matter movement. RSVP now via bit.ly/spp-black-press. You can also find the link in our shownotes. 

  Maddie Bunting:Yes. Speaking about going back to public meetings such as important ones with the City Council, we know that you have been working on measures related to reopening, such as developing regulations to expand outdoor dining. Looking forward, what path do you believe would be most beneficial on the local, the city level to ensure public health and safety?

  Mr. Stepanicich: But you know, it's been interesting, I think that with the outdoor dining we promoted and that's one thing we've done in both Mill Valley and Fairfield to allow an expansion of outdoor dining. Outdoor dining, typically, in cities is restricted. And so there was an expansion of use of sidewalks, parking lots, and even public squares for, for expansion of outdoor dining, again appropriately, people's paced appropriately, and so on. But I think that's working well for people. But you know, it's been really now with the second surge of the virus really hasn't been possible to open up more. And so we've seen with our cities now is that they, broadly jumped on the idea of promoting outdoor dining. And that's still very consistent with the current guidance. Switches outdoor activities conducted in a safe way or fine. Indoor activities are still severely restricted. So I haven't really seen most recently cities taking steps on reopening I think I went out this way and you see what happens with the current statistics and infections and see where the guy goes at the state level. I think we probably see some more reopening occurring. You know, I think it's going to be more careful. I don't think we'll see bars hoping for a while. But there may be other types of businesses that will open up sooner, but that's going to be really dictated by your counties in the state. I think over the next few months, rather than cities really playing that much of a role in that whole question. The one thing cities are doing though, is you haven't been approached by businesses now as to what type of economic help can cities provide to the small businesses that are really suffering and there's no doubt you see the situation with that a lot of businesses going out of business. And so just in Fairfield now just last Tuesday we adopted a program to provide these loan grants and actually it's going to be a forgivable wound if you can get a loan up to $10,000. And then if you're, if you can show, demonstrate adult American loss of revenue due to COVID and stay in business for six or more months after getting the grant becomes a forgiven loan and in fact a grant. So you don’t have a financial burden on these businesses having to pay back the loan where they're still trying to get on their feet. So I do think where we're going to be seen now at the local level and state level and we know the national level, still what type of relief needs to be given because the economic impacts of this have been huge. And I think we especially think about people who are working on the margin, which has been a really devastating situation. And I think that's really where there is a lot to be said to have to be dealt with here. And I think we are seeing this being dealt with for sure at the state and local level and, and Congress keeps barely over what they're going to do next. But I'm going to have to think that Congress likewise will have some type of additional relief for businesses and individuals while this still goes on. Just one final thought here is that I think this is another example though, with local government here. Now we really have been on the forefront here of dealing with this and, you know, you mentioned how the Federal Government has really taken a backseat and hasn't been very helpful in it really has put the burden on states and the cities to really step up then and take the action that needs to occur here. That is interesting. I have been this business for a long time and I've definitely been pretty happy to be involved in local government act, as it turns out, that because I was after loss was interested in going back to DC, but whole thing, low government is really taking a lead on some of the issues of climate change, a number of different issues. And even here, I think local government has played a very important role in dealing with this health crisis. And, and just kind of goes to show you when you're working at the local level. In some ways it's more manageable to deal with things because they're just the scale and the size, I think allows that to happen. And there tends to be a little less of the partisanship that occurs in Washington. So I think you will see, despite all the controversy with mask orders, everything else you still seem to get people working better together on a community basis to try to address the problem. 

  Outro: This podcast is a production of the UC Riverside School of Public Policy. I’m Maddie Bunting, ‘til next time.