Last weekend, several coastal counties (including Los Angeles and San Diego counties) closed their beaches to the public. Some counties chose not to do so. Among these is the great County of Orange. Governor Gavin Newsom, accordingly, directed by executive fiat that Orange County beaches should be closed, effective May 1, 2020.
Is Governor Newsom’s order to close Orange County beaches constitutional?
Governor Newsom’s Order to Close Orange County Beaches May be Void for Vagueness
Governor Newsom undoubtedly has the authority to issue executive orders. And under the Government Code, the Governor’s “orders and regulations shall have the force and effect of law.” (Gov. Code § 8567, subd. (a).) Willful neglect of or failure to obey the Governor’s order may be prosecuted as a misdemeanor. (Gov. Code § 8665.)
However, as with all laws, the Governor’s orders must comply with the Constitution. In Second Chances Law Group’s view, Governor Newsom’s order to close Orange County beaches does not so comply.
Notice is a fundamental element of due process. Accordingly, any law or order whose prohibitions are not clearly defined is considered void for vagueness.
Nearly fifty years ago, Justice Thurgood Marshall explained why vague laws cannot be enforced consistent with the Constitution:
“First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972).)
The boundaries of the forbidden areas under the Governor’s order are not clearly defined. To be sure, the Governor’s order closes Orange County beaches, and everyone of ordinary intelligence knows what a beach is. However, it is unclear whether the Governor’s order includes just areas immediately adjacent to the shore (i.e., the area covered in sand), or if it also includes paths which lead to and abut those areas. Nor is it clear whether the Governor’s order also includes piers.
To use the words of Justice Marshall, the vagueness in Governor Newsom’s order “impermissibly delegates” excessive discretion to police officers. This raises the possibility that police officers may move around boundaries so as to enforce the Governor’s order in a manner that is arbitrary and discriminatory – for example, by reference to a person’s race.
Simply put, Governor Newsom’s order does not provide fair warning as to where people can and cannot go, and it raises the risk that the innocent may be discriminatorily trapped into a criminal prosecution.
Before he became the Governor of our great state, he was the Mayor of the City and County of San Francisco. Then-Mayor Newsom wrote a letter in which he famously declared as follows:
“Upon taking the Oath of Office, becoming the Mayor of the City and County of San Francisco, I swore to uphold the Constitution of the State of California. Article I, Section 7, subdivision (a) of the California Constitution provides that ‘[a] person may not be … denied equal protection of the laws.’”
Clearly, now-Governor Newsom is not as committed to the Constitution as then-Mayor Newsom was.
Confused about what your rights and obligations are under California law and county orders?
Second Chances Law Group encourages you to comply with all federal, state, and local laws. If you are confused over what your rights and obligations are, or if you have been cited or arrested for violating the Governor’s order, contact one of our experienced attorneys today.