Following a lawsuit filed by Pacific Legal Foundation on behalf of California landlords, the California Judicial Council announced last week that it will end its illegal ban on eviction hearings.

By creating a de facto ban on evictions, the Judicial Council undermined the state’s separation of powers and seized policymaking power from the legislature and governor to block landlords’ access to courts.

“Constitutional limitations on government are never more important than during an emergency,” said PLF senior attorney Damien Schiff. “In this case, we challenged an eviction moratorium enacted not by the politically responsible branches of California’s government, but rather by the judiciary. Because it attempted to codify policy rather than merely regulate the practice of state courts, the rule exceeded the Judicial Council’s authority under the California Constitution. We are pleased not only that the Judicial Council has voted to rescind the rule, but also that the Council recognized, as the Chief Justice put it, that the ‘judicial branch cannot usurp the responsibility of the other two branches on a long-term basis to deal with the myriad impacts of the pandemic.’”

About Pacific Legal Foundation

Pacific Legal Foundation is a national nonprofit legal organization that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 39 states plus Washington, D.C., PLF represents clients in state and federal courts, with 12 victories out of 14 cases heard by the U.S. Supreme Court

Temporary order defies L.A. County COVID-19 orders; full hearing on September 4; only applies to that church, for now

On Thursday, August 13, Thomas More Society Special Counsel Jenna Ellis and attorney Charles LiMandri filed suit in the Superior Court of the State of California County of Los Angeles on behalf of Pastor John MacArthur and Grace Community Church against Governor Gavin Newsom, Attorney General Xavier Becerra, Los Angeles Mayor Eric Garcetti, and other California and Los Angeles County public health officials. (See complaint)

On Friday, the California Court vindicated Pastor MacArthur and the church’s stance that church is essential by recognizing the constitutionally protected right of churches to remain open and hold indoor services in their sanctuary.

Hours after Grace Community Church filed suit to invalidate Los Angeles County’s unconstitutional restrictions on churches, the County filed for a temporary restraining order to force the church to stop holding indoor services and comply with every unreasonable and over-broad demand. At hearing today (Friday, August 14, 2020) in Los Angeles Superior Court, Judge Chalfant denied almost all of the County’s requests, agreeing with Pastor MacArthur and the Church that it is the County’s burden to show why it should be permitted to infringe on the constitutionally protected rights of churches to freely exercise religion. The judge did also express concern for some safety protocols.

To address those concerns and after explaining that the County was being unreasonable in its demands, counsel for Grace Community Church offered to comply with mask wearing and social distancing indoors until the matter could be fully heard, rather than the County simply rushing to shut down the Church. The judge agreed this was reasonable, set the full hearing for September 4, 2020, and ordered the Church to have congregants wear masks and social distance between family groups indoors.

Pastor John MacArthur said of the ruling, “I am very grateful the Court has allowed us to meet inside and we are happy for a few weeks to comply and respect what the judge has asked of us because he is allowing us to meet. This vindicates our desire to stay open and serve our people. This also gives us an opportunity to show that we are not trying to be rebellious or unreasonable, but that we will stand firm to protect our church against unreasonable, unconstitutional restrictions.”

Attorney Ellis said, “This is a huge vindication for Pastor John and the Board of Elders at Grace Community Church, who have simply asked for their right to worship the Lord together in church to be acknowledged and protected. When I spoke with Pastor John after the hearing, he expressed sincere gratitude to the California Court and Judge Chalfant and said his congregation will be happy to comply with the judge’s temporary order. This is why John MacArthur is so deeply loved and respected by his congregation and all over the world. He is a gracious and firm leader, and his biblical stand for church being essential has now been rightly validated. We look forward to continuing to advocate on his behalf in asking the Court to protect the fundamental rights of churches.”

Legal counsel LiMandri said, “This result is indeed a great victory for all citizens’ constitutional right to freedom of religion. Pastor MacArthur’s love of God and country motivated him and all the GCC church elders to resist the unjust government shut-down orders targeting people of faith. Their devotion and patriotism has brought about a result that respects the legitimate interests of both the church and state. This result makes it possible for the thousands of congregants of GCC to continue to gather together in their church to worship, while at the same time honoring the court’s requirement that reasonable and temporary safety measures be observed. This court ruling should stay in effect at least until there can be a full court hearing in this case on September 4, 2020. Please continue to pray that the courts allow this enlightened judge’s decision to stand so that all Californians can soon resume the worship of God in their respective churches.”

“We are simply continuing to do today what we have done for the past 63 years, that Grace Community Church has been open to welcome the Los Angeles community and serve their spiritual needs,” the pastor said in a statement. “We will remain open and teach the Gospel of Jesus Christ to all who decide they want to come worship with us.”

The suit seeks to prohibit California from enforcing its unconstitutional and onerous coronavirus pandemic regulations against Grace Community Church and seeks a judgment that the health orders violate the California Constitution.

“Having irreparably damaged the confidence of Americans—and Californians especially—who now realize that the pandemic restrictions are neither necessary nor good, on Sunday, July 26, 2020, Grace Community Church decided to resume worship services—joining millions of Americans in deciding that enough is enough. With deaths from the ‘COVID-19 suicide pandemic’ exceeding those from the actual coronavirus pandemic, Grace Community Church decided that it would no longer sit by and watch its congregants and their children suffer from an absence of religious worship and instruction. Perhaps unsurprisingly—perhaps not—this led the County of Los Angeles to submit a demand letter to Grace Community Church, ordering it to comply with the restrictions that Los Angeles County deems unnecessary to enforce against so many others. Grace Community Church does not intend to comply.”

According to attorneys for the church, it is time for California to recognize that Christians are not second-class citizens, and the court must step in to do its job in applying the protections that the U.S. and California State constitutions provide to every individual equally and to churches in particular.

Pastor MacArthur opened the Sunday morning service on August 9, welcoming worshippers to “the Grace Community Church peaceful protest.” He was met with a standing ovation and extended applause from the congregation. Pastor MacArthur said of the lawsuit, “We are simply continuing to do today what we have done for the past 63 years, that Grace Community Church has been open to welcome the Los Angeles community and serve their spiritual needs. We will remain open and teach the Gospel of Jesus Christ to all who decide they want to come worship with us.”

Ellis said, “We hoped that Los Angeles County would see its error on its own, but after attempted negotiations with their counsel, California is still intent on targeting churches—specifically, Grace Community Church. Pastor MacArthur and the Board of Elders will stand firm in their leadership and resolve that church is essential, and California has no legitimate power to enforce such onerous and unconstitutional restrictions against the fundamentally protected right to freely participate in church. After Grace Community Church voluntarily complied with state orders for nearly six months, California’s edicts demanding an indefinite shut down have gone now far past rational or reasonable and are firmly in the territory of tyranny and discrimination. This isn’t about health. It’s about blatantly targeting churches.”

LiMandri stated, “It is unconstitutional for Governor Newsom and the State of California to discriminate against churches by treating them less favorably than other organizations and activities that are not protected by the First Amendment. Pastor MacArthur and his church, as well as all churches, are entitled to practice their religion without government interference. This is especially the case when the government has given free rein to protestors, and is not similarly restricting marijuana dispensaries, large retail outlets and factories, or abortion providers. The government orders are also unconstitutional because there is no compelling need for the onerous restrictions on the churches at this time. The hospitals are not overwhelmed and the percentage death rate from COVID-19 is now extremely small. It is time for Governor Newsom and Mayor Garcetti to recognize what President Trump has already proclaimed: churches are providing an ‘essential’ service to the people. Therefore, they must be allowed to serve the people in the manner in which God has called them.”

Read the Thomas More Society’s Complaint filed with the Superior Court for the State of California County of Los Angeles – in Grace Community Church and Pastor John MacArthur v. Gavin Newsome et al., on August 12, 2020, here.

Read the Demand Letter sent to Pastor John MacArthur by attorney Jason Tokoro, representing the County of Los Angeles in California, on July 29, 2020, here.

 

 

“This blatant manipulation of the ballot label as well as the title and summary is in direct contravention of the Attorney General’s fiduciary duty to prepare impartial ballot material,” said Jon Coupal, President of Howard Jarvis Taxpayers Association.

Today, July 29, 2020, the Howard Jarvis Taxpayers Association filed a lawsuit against California Attorney General Xavier Becerra for his abject failure to produce impartial ballot material related to Proposition 15, the “split roll” attack that seeks the partial repeal of Proposition 13.

Past criticism of Becerra’s bias has been vocal but has now reached a crescendo. Just this past week, editorial boards and columnists have lambasted Becerra. In fact, the specific deficiencies of Prop 15’s ballot label as well as the title and summary are well identified in the media reports themselves:

• ​ ​“The ballot title on Prop. 15 begins by stating that it ‘increases funding sources for public schools, community colleges and local government services.’ It would do so, it states, by ‘changing tax assessment – not raisingtaxes-on commercial and industrial property.” (John Diaz, California attorney general loads language on 2 November measures, The S.F. Chronicle, July 26, 2020, https://www.sfchronicle.com/opinion/diaz/article/California-attorney-general-loads-language-on-2-15434094.php, emphasis in original.)
• ​ ​“The title and summary of Proposition 15 are not only tilted toward one side,​ ​they are less than fully accurate. Property in California is not taxed on ‘purchase price.’ It’s taxed on fair market value at the time of purchase, adjusted annually, for inflation with increases capped at 2 percent per year… To say property is currently taxed on ‘purchase price’ conveys an impression that property taxes do not rise at all, which is misleading in a way that favors the measure’s proponents who seek to raise taxes. It’s also misleading, if not completely false, to state that​ ​Proposition 15 ‘increases funding sources.’ It doesn’t add new sources, it increases taxes on existing sources: businesses in California.” (The Editorial Board, Editorial: Biased ballot measure titles and summaries distort our democracy, Southern California News Group + Bay Area News Group, July 22, 2020, https://www.ocregister.com/2020/07/22/biased-ballot-measure-titles​-​and-summaries-distort-our-democracy/.)
• ​  ​“California Attorney General Xavier Becerra has once again written a biased ballot title and summary, which deliberately misleads voters about Prop. 15…” “The attorney general contorts the English language to avoid using the word ‘tax.’ Unfortunately, he can’t call Prop 15 a revenue increase, since, as the nonpartisan Legislative Analyst’s Office says, some rural governments could lose money if Prop 15 passes.” (Katy Grimes, Prop. 15: Messy Title, Feud With Signer, and Ironic Zuckerberg Contributions, California Globe, July 27, 2020, https://californiaglobe.com/section-2/prop-15-messy-title-feud-with-signer-and-ironic-zuckerberg-contributions/.)
• ​  ​“Rather than simply describe Proposition 15 for what it does, Becerra’s official title summarizes it this way: ‘Increases funding for public schools, community colleges, and local government services by changing tax assessment of commercial and industrial property.'” (Dan Walters, Becerra slants two ballot measure titles, CALmatters, July 27, 2020, “https://calmatters.org/commentary/dan-walters/2020/07/california-becerra-partisan-ballot-measure-titles/.)

“This blatant manipulation of the ballot label as well as the title and summary is in direct contravention of the Attorney General’s fiduciary duty to prepare impartial ballot material,” said Jon Coupal, President of Howard Jarvis Taxpayers Association.

California voters are entitled by law to “a true and impartial statement of the purpose of the measure in such language that the ballot title and summary shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.” Instead, Attorney General Becerra has bowed to the political power of special interests who seek to hide from the voters that the measure they have put on the ballot is the biggest property tax increase in California history.

 

City hires outside attorneys, sends case to federal court; 90-day repayment period per month of late rent still in place

“Freedom isn’t free. Sometimes you have to stand up,” – Mark Jordan

By Allen Payton

In efforts to fight for his rights, and those of other Antioch and Contra Costa County residents and property owners, local real estate broker, Mark Jordan has been suing the City of Antioch over its rent and eviction moratorium. Specifically, Jordan is fighting the “City Urgency Ordinance and the rental repayment infringement,” and challenging both the city and county over the curfews, in June.

Temporary Evictions, Rent Moratorium Lawsuit Served

In April, Jordan sent a “Cease and Desist Demand” to the members of the Antioch City Council on Friday, April 3 in response to their vote on March 31 to place a moratorium on evictions for both residential and commercial properties. The council’s actions give renters up to 90 days to repay for each month of rent they are unable to pay during the coronavirus pandemic. (See related article) ACC2020.03.31 – URGENCY ORDINANCE – Moratorium on Evictions       Temp Evictions Complaint.Jordan.v.COA

No action was taken by the city council in response to Jordan’s demand, so on June 2, he served the City of Antioch with a lawsuit challenging the council’s decision.

“I gave the City every opportunity to back up on this issue,” Jordan wrote. “They did not.”

On June 18 Jordan wrote the Herald regarding an agenda item on the June 23 City Council meeting agenda, that the “City is looking to walk back the Ordinance, but is not addressing the core issue of the suit which is the illegal 90-day per month grace period for missed rent.”

Semi-Victory as Council Expires Moratorium

For the Antioch Council meeting on Tuesday, June 23, 2020 Jordan submitted the following comments for the agenda item dealing with the expiration of the city’s moratorium on rent increases and evictions. However, they were not read into the record.

City Clerk Arne Simonsen said Jordan’s comments were sent to his personal email account. But Jordan said he emailed his comments to Simonsen and all five city council members.

“Mayor and Council,

For the citizens of the City of Antioch, let me bring you up to speed.

I am a Plaintiff in a lawsuit against the City of Antioch concerning the Urgency Ordinance passed on March 31, 2020 No: 2182-C-S. The case number of my suit at the Superior Court of California, County of Contra Costa is MSC20-00976.

Why am I suing the City of Antioch? Because when they passed the Ordinance they violated the

Constitution of the United States and also the Constitution of the State of California. They violated your rights.

I noticed them that in passing the Ordinance they were making a mistake but they pressed forward. I demanded they rescind the Ordinance. They did nothing. The Courts opened and I filed.

Just so you know when an elected official violates the Constitution they are violating their oath of office and are therefore in a position where they may be held criminally liable and where qualified immunity may not protect them. Not a good place to be Mr. Mayor, Council Members.

It is not that tenants did not need protection initially because of the pandemic. They did, but when the City created a 90 day repayment period for each month a tenant was not paying rent, that was too far.

Miss a year’s rent, get 1080 days to catch up. That is almost three years. Nonsense.

This is governmental interference in private contracts and there is case law all the way back to the beginning of the Republic. You do not pass the general legal three point test to validate your action.

So, why did the City Council do this? Because; the City Attorney, Mr. Smith is providing very poor council (sic). And, although Mr. Smith has an excellent legal education he has little time in the practice of law.

Advice to Counsel Smith, wisdom comes with age. You are over your head.

The City now is attempting to sunset the Ordinance stating tenants have other protectors. True, but the real reason is that the City Attorney is trying to create a situation in which he can file a response and claim the matter is moot (over). It is not. Constitutional violations remain past a sunset. And, I will press the matter.

Antioch, also know this. I called the City Attorney last Friday after reviewing Agenda item 9. There has been NO return call. I talked with Mayor Wright yesterday stating I had reviewed the information and was prepared to sit and work out a settlement and informed him that there has been no response from Mr. Smith.

Since that discussion there has been NO response to my offer from the City of Antioch, Mayor, Manager or Counsel Smith. When any citizen cannot get a return phone call, government is failing. You are failing City Council.

Therefore; Antioch be informed that your City government, our City government, my City government is prepared to spend our money on a matter they will not win and should be anxious to conclude.

Did Mr. Smith miss the class at Harvard on settlement? What exactly are you trying to achieve City Council?

This is not my first run in with the City of Antioch. The first was about Religious Freedom and I had to bring in legal counsel to explain the U.S. Constitution. I prevailed. A church was able to obtain their sanctuary.

The second was a suit in which the City violated the California Constitution, Prop 218 over a number of years and agreed to return nearly a million dollars to Antioch Enterprise Funds. Police don’t patrol or protect sewer lines.

City Council, you really want to go to court? Really?

If you do, know I’m all in. I will press my rights and the rights of every other property owner in Antioch.

Not to the detriment of tenants but to the equality of the law, due process and our, everyone’s Constitutional rights.

My phone works just fine. You have to dial the seven digits. It’s a local call.”

During their meeting, the Antioch City Council approved an urgency ordinance expiring the city’s rent increase and eviction moratorium, giving Jordan a partial victory. However, that action was only taken because the county’s moratorium, approved by the Board of Supervisors and runs through July 15, applies to cities as well as unincorporated areas of the county. According to the ordinance the City Council finds that “residences and businesses… will continue to have protections from eviction and adequate ‘grace periods’ to repay unpaid rent…from the Governor’s Executive Orders, Judicial Council Emergency Rule, and the County’s Urgency Ordinance.” Urgency Ordinance expiring Eviction & Rent Increase Moratorium ACC062320

Another Lawsuit by Others Against State

In addition to Jordan’s lawsuit, another lawsuit was filed against the state on June 15 by the Pacific Legal Foundation (PLF) on behalf of two rental property owners challenging California courts’ refusal to hear eviction proceedings. (Christiansen & Martin vs. California Judicial Council).

In that case, PLF argues “the California Judicial Council decided to take matters into its own hands and effectively banned all evictions by forbidding courts from issuing summons or entering default judgments.

Their measure, Emergency Rule 1, means that landlords like Peggy Christensen, a retiree who depends on her rental income, cannot take legal action against tenants who damage the property, harass other tenants, or refuse to pay rent. It also means that landlords like Peggy are forced to turn away considerate renters in need of housing. In making this rule, the Judicial Council has seized policymaking power from the legislature and governor to block landlords’ access to the courts. Peggy and Peter Martin, another landlord, are fighting back with a state lawsuit to rein in the Judicial Council’s illegal overreach, restore the rule of law, and protect the entire state’s critical rental housing industry.”

According to PLF the “government cannot deprive landlords of their right to evict tenants who are able to pay rent yet refuse to do so, crippling their businesses and handicapping their ability to help tenants who face financial hardship.” Furthermore, the PLF claims “the California Constitution’s separation of powers prevents government agencies like the California Judicial Council from overriding the legislature and governor to take the law into its own hands and make social policy.”

Jordan’s Not Backing Down on 90-Day Repayment Period

In spite of the Antioch Council’s action on Tuesday night, June 23, Jordan refuses to back down.

“The fact that they’ve sunseted the ordinance doesn’t mean their violation of constitutional rights goes away,” Jordan said. “There are still remedies. So, this is not over.”

“Smith just wants to file a motion to dismiss because the whole matter is moot, since they sunseted the original ordinance,” Jordan stated. “I told the mayor I was more than willing to sit down and have a conversation with the city attorney. But there have been no phone calls.”

City Settles Previous Lawsuit by Jordan Over Misuse of Tax Dollars

“When I sued the city over their misuse of enterprise funds for police, theirs and my attorneys sat down and met with me, and we worked out a settlement agreement,” he explained. “Then it was taken to the council for approval. Since I have no attorney representing me, it’s incumbent upon Smith to meet with me and to try and settle the matter and take that to the council.”

“I’m actually saving the city money. The last time I sued them they had to pay my attorney $75,000,” Jordan added. (See related article)

City Settles Previous Lawsuit by Jordan Over Misuse of Tax Dollars

The legal counsel for the California Association of Realtors has been given a copy of Jordan’s lawsuit.

“They are actively watching all of these suits,” he said.

“We have a court date for a temporary injunction. That would enjoin the city from implementing the entire ordinance. If in fact they have sunseted the ordinance, that hearing would probably be unnecessary and all that remains are the constitutional violations. I’m not looking for any money, personally,” Jordan shared. “When you settle a lawsuit, people don’t normally admit any culpability. What they’re prepared to offer to settle the suit I don’t know because I can’t get a returned phone call.”

“I told the mayor if you think you’re going to just file an order to dismiss when you’ve violated my and others’ constitutional rights, that won’t settle the matter.

The court date was set for the August 24th.

He pointed out that the urgency ordinance adopted by the city council on June 23 had the incorrect number for the original urgency ordinance on the rent and evictions moratorium. The number used nine times in the document was 2181 instead of the correct Urgency Ordinance 2182-C-S.

“It is the wrong ordinance that they sunseted, as it has the wrong number on it. I know I’m being picky and technical about it, but that’s the law,” Jordan stated. “So, if they didn’t change the number, they didn’t sunset it.”

City’s Contract Attorney Responds

As of Friday, June 26 City Attorney Smith had yet to respond to Jordan’s lawsuit. Instead, that night at about 6:00 p.m., according to Jordan, attorney David Mehretu of Meyers Nave in Oakland, who was hired by the City to represent them, contacted Jordan about his case.

City’s 90-Day Per Month Repayment Period Still In Place

In addition, the City asked Mehretu to answer the questions the Herald sent to City Attorney Smith about the incorrect ordinance number in the new urgency ordinance and the impacts of the council’s sunsetting of the urgency ordinance.

Mehretu explained that the incorrect number in the new urgency ordinance which sunseted the original urgency ordinance was merely a clerical error and could be corrected by city staff. The intent of the city council is clear and the language in the new ordinance clearly refers to the original urgency ordinance. So, no additional vote of the council is necessary.

Regarding the 90-day repayment period for each month a renter is unable to pay, Mehretu said, “the sunset or termination of the urgency ordinance did not eliminate the 90-day per month in arrears protection for renters in Antioch.”

The months covered are “from the date of the original ordinance” which was adopted by the city council during a special meeting held on March 31, 2020. So, the city’s ordinance covers rent for the months of April, May and June and gives renters in Antioch nine months from the end of the shelter-in-place, which is currently scheduled to expire on July 15, to repay their back rent.

Rent for July is covered under the county’s ordinance which gives renters 120 days to repay all back rent. Assuming the current shelter-in-place order is lifted on July 15, renters anywhere in the county who have been unable to pay their rent would have until November 15 to repay rent for July.

That’s what Jordan is fighting, claims is unfair and violates his constitutional rights.

Settlement Effort Breaks Down, New Meeting Set

Jordan attempted unsuccessfully to settle the case with the city out of court.

“We were close, but settlement failed,” he shared on Tuesday, June 30. “The City will respond to the lawsuit and we will move on.”

However, Jordan added, “We have a tentative agreement to have a discussion on settlement, next week.”

City’s Contract Attorneys Submit “Answer to Complaint”

The contract attorneys for the City, which now includes Deborah Fox, also of Meyers Nave, sent Jordan a response to his lawsuit, yesterday, Thursday, July 2nd. Jordan-Antioch-Answer

In their “Answer to Complaint” they offer eight Affirmative Defenses claiming Jordan’s lawsuit “fails to state facts sufficient to constitute a cause of action,” that he “lacks standing because Plaintiff (Jordan) has not suffered an injury in fact,” and “as a private party, Plaintiff lacks standing to enforce criminal laws.”

In addition, the City’s attorneys argue Jordan should have first filed a claim against the City, “pursuant to Government Code section 911.2 et seq.” The attorney’s Fifth Affirmative Defense is that the City “is not liable to Plaintiff because the acts complained of in the Complaint constituted one or more discretionary acts.”

The city’s attorneys are, of course, asking that the court dismiss the case and for Jordan to pay the City for costs and attorneys’ fees.

Case Moved to Federal Court – No Date Set, Yet

On Friday, July 3, Jordan shared, “City moves case from California Court to Federal court because there are US Constitutional claims of violation by the City.” Jordan-Antioch-STATE   ECF 1 Jordan-Antioch

In the filing, the first attorney listed for the city is Thomas Smith. So, both he and the attorney they hired are representing the city.

The case will no longer be heard on August 24th and there is no hearing date for a temporary injunction.

“I would have to write a new motion for federal court requesting a temporary injunction,” Jordan said. “The entire jurisdiction moves to federal court and whether they will set a new date we don’t know, yet.”

He reached out to the Pacific Legal Foundation, following advice of the California Association of Realtors, for possible pro bono representation.

Antioch Curfew Challenge

On Monday, June 1, 2020, the City of Antioch ordered a curfew for that night and later extended it through the following night. The Antioch Police Department stated in a Facebook post, that day that the “decision was made after we were made aware of credible threats of subjects coming into our community for the purpose of causing damage and committing criminal acts.” (See related article)

On June 2, Jordan wrote Mayor Sean Wright and councilmembers challenging both the curfew and the way it was announced: “I have read…that the City Manager has enacted a curfew. Is this correct? 1.  No posting exists on the City web site and therefore Notice does not exist for the public.  Or, where did you post such a notice and when for the public? 2.  By what right does the Manager have the right to enact a curfew?  Did you relegate your responsibility?  Why did the council not act? 3.  What emergency was declared?  Please see Emergency Services Act for approved list of emergencies. 4.  Where did you post the notice of emergency? 5.  What section of the Penal Code of the State of California are you using? Please answer the above questions or have the City Attorney respond to the questions.  Please provide a copy of the Notice if it exists.”

Jordan later wrote the Herald, “News is not a posting by the City. And, you must have an emergency declared.  Based on my reading. New report states Manager declared. Government does not have the right to take away civil rights based on a whim.”

Jordan received a copy of the Curfew Order from the city on the afternoon of June 2.

In response, Jordan emailed City Manager Ron Bernal writing, “Mr. Bernal, Please define exactly what events occurred in Antioch that you reference and which would constitute an emergency under the Emergency Services Act.  See Curfew Order, City of Antioch, 4th bullet point, dated June 1, 2020. You cannot act upon a belief or thought that an emergency may require this action.  There MUST be an actual emergency. This order without reference may constitute an attempt to silence free speech, the right of assembly and the right to present grievance against the government.  Please refer to the US Constitution and the State of California Constitution. Please define what, when and where caused this order within and for the City of Antioch.”

Having received no response, Jordan sent another email message to Bernal the next day, June 3: “Mr. Bernal, This is my 2nd request for exactly what events occurred within the City of Antioch that require this City curfew.  I will deal with the County separately. As with other matters I wish to give you and the City of Antioch every opportunity to comply with the requirements of the Emergency Services Act and to properly Notice the community as to what events occurred. A belief that an event might occur is insufficient to meet the requirements of the Act.  It is clear to the public now you know how to amend your Orders.

If you fail to respond, and fail to state to the public of Antioch exactly what events you reference and publish that clarification, well, then it is likely I will move to reverse you attempt to create a police state within the City.  Fair warning, don’t press me.  I take my civil rights, the United States Constitution and the Bill of Rights seriously.  And, I’m willing to fight to guard them.
I suggest you obtain legal advice outside of the City Attorney; perhaps someone well versed in the Constitution of the United States and the Bill of Rights.  I would direct your attention to Article 1. Your response and information is anticipated by the entire public of the City.”

Having still received no response from the City, Jordan wrote the Herald, “These documents and the Order of Curfew do not meet the requirement of the Act.  There is NO response from the City.”

Then on June 4, Jordan wrote the Herald, “no one from the City ever responded to my request for information. I posted the emails for the Mayor’s community forum 6/3/2020 but have no response from the Mayor. There was never a statement of what event(s) occurred which would justify such an order.  And, to be clear, ‘credible evidence’ that something might happen, is not sufficient to implement a curfew based on the Act. I’m not sure anyone at the City understands Constitutional Rights.”

County Curfew Challenge

That same day, June 4, Jordan emailed members of the County Board of Supervisors about his concern over the county’s curfew.

“Board of Supervisors, It is my belief that you do not have the right or authority based on the Emergency Services Act to issue an unlimited curfew. Your order appears in violation of both the United States Constitution, Article 1 and the State of California Constitution.

Understood that there exists activity that most likely violates the California Penal Code. And, that any alleged criminal behavior should be addressed and directed to the District of Attorney. That said this order is a massive overreach bordering on the creation of a police state affecting all of the citizens of the County who have nothing to do with or who are effected by any of the minor civil unrest.

Therefore, I demand that you amend the order immediately to include a date certain termination or rescind the order in total. Should you do either by June 9, 2020 I will consider this matter closed. Your correction and attention to this matter is appreciated. If your counsel wishes to speak to me have him call.”

Supervisor Karen Mitchoff’s Chief of Staff, Anne O. responded to Jordan via email later that day writing, “The County Administrator has rescinded the curfew, effective 1pm today.”

He also received a copy of the county’s curfew termination order, which ended that issue.

“Freedom isn’t free. Sometimes you have to stand up,” Jordan added.

 

Claims “Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection”

“…the County’s Order violates federal and state law while unashamedly discriminating against houses of worship.”

On Wednesday, June 10, 2020 a formal legal letter was by attorney Harmeet Dhillon, founder of the Center for American Liberty, to members of the Contra Costa County Board of Supervisors, to ensure county health services staff follows through with their commitment to change the requirement to a recommendation that places of worship gather names and contact information of those who attend services and provide it to the county upon request. (See related articles, here, here and here). In addition, the letter points out that the county’s health order limiting indoor services to 12 people also violates the Constitution. 2020.06.10_HDhillon CAL Letter to Contra Costa County

June 10, 2020

Contra Costa County Board of Supervisors

651 Pine Street

Martinez, CA 94553

Re: Unconstitutional Contra Costa Health Services Order No. HO-COVID19-17, Specifically Regarding “Additional Businesses” (section 3 of Appendix C-1, Updated June 5, 2020)

Dear Board of Supervisors:

We write today, on behalf of clients in Contra Costa County, to demand the immediate rescission of Contra Costa Health Services Order NO. HO-COVID19-17 (the “Order”). The Order is concerning for two reasons: (1) Its requirement that houses of worship—and only houses of worship—keep and upon request disclose “a record of attendance” to Contra Costa Health Services violates both state and federally protected rights of associational privacy; (2) Restricting religious gatherings to no more than 12 participants violates First and Fourteenth Amendment protection. And while we appreciate the County’s recent announcement that it plans to revise its requirement that houses of worship keep and disclose attendance lists, until such plans manifest, we reiterate our objection over its current text.

1. Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates First Amendment Rights

The First Amendment to the U.S. Constitution prohibits government actors from enforcing any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” U. S. Const. amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (applying the First Amendment to the States through the Fourteenth Amendment). Under strict scrutiny, the government cannot burden religious activity unless it first establishes (1) a compelling interest for imposing such burdens, and (2) that the burdens are the “least restrictive means” necessary to further that compelling interest. Federal courts routinely enjoin the enforcement of laws and policies under this standard. See e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 524 (1993).

The County’s Order severely burdens religious expression. The Order’s restriction on indoor religious services—limiting the number of participants to 12 persons or 25% of the building’s capacity, whichever is less—does not survive exacting scrutiny in that it is not the least restrictive means to accomplish the County’s interest in public health. Simply put, there are better ways for the County to accomplish its interest in public health that do not burden religious expression as much. For example, restricting participation on a percentage basis only—with respect to facility seating capacity—is a better solution. Twelve people in a sanctuary that holds one thousand looks very different from twelve people in a sanctuary that holds one hundred people.

In other words, percentage-based restrictions accommodate larger houses of worship while satisfying the County’s interest in public health and social distancing.

1. Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection

The Fourteenth Amendment of the Constitution provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

Equal protection requires the state to govern impartially—not draw arbitrary distinctions between

individuals based solely on differences that are irrelevant to a legitimate governmental objection. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

Here, the County’s 12-person limit on religious gatherings is nothing if not arbitrary. This is more restrictive than statewide health guidelines, according to the California Department of Health for places of worship, which currently limits attendance to 25% of building capacity or a maximum of 100 attendees, whichever is less; it is unclear where Contra Costa County’s “12 person” idea originates.

Additionally, no other establishment in Contra Costa County is subject to these more restrictive and draconian requirements. Costco, laundromats, marijuana dispensaries, and countless other purely secular entities are not burdened by this arbitrary, 12-person limitation.

On April 14, 2020, the United States Attorney General, William Barr, issued a statement addressing the disparate treatment being afforded to houses of worship.

As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions 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 County may not treat houses of worship as second class entities; at a minimum, it must treat them equitably with respect to secular counterpart. Contra Costa Health Services Order NO. HO-COVID19-17 does the opposite—it targets houses of worship with more burdensome restrictions.

III. The Order Infringes Upon Constitutionally Protected Right to Privacy Under State Law

The right to privacy is an inalienable right under California law.3 This privacy interest irrefutably extends to participation in religious gatherings.

In Church of Hakeem, Inc. v. Superior Court, Alameda County, 110 Cal. App. 3d 384 (Ct. App. 1980), the court expressly declined to mandate disclosure of member names and addresses, even after allegations of criminal activity or wrongdoing by the church. In City of Carmel-by-the-Sea v. Young, 2 Cal. 3d 259 (Ct. App. 1970), the court affirmed a list of freedoms afforded constitutional protections, such as the freedom of association and privacy in one’s associations, encompassing privacy of the membership lists of a constitutionally valid organization. In Pacific Union Club v. Superior Court, 232 Cal. App 3d 60 (Ct. App. 1991), the court provided a robust analysis of associational rights and ultimately upheld a private club’s right not to disclose member lists.

Applied here, Contra Costa County’s Order requiring houses of worship to create and preserve the names and contact information of those in attendance at a worship service or ceremony, and then disclose such information “immediately upon request” unconstitutionally violates privacy rights while chilling religious expression. Whether gathering for political, social, or religious reasons, the right of association is sacrosanct. Unfortunately, the County’s Order deprives Californians their right to pray, worship, repent, and seek spiritual guidance privately. Rather, the Order subjects their most intimate religious activities to potential publication.

3 “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. 1 § 1

1. The Order Violates Right to Privacy Protected by Federal Law

The “Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.” Nat’l Ass’n for Advancement of Colored People v. State of Ala. Ex rel. Patterson, 357 U.S. 449, 462 (1958). Citing American Communications Ass’n, C.I.O., v Douds, 339 U.S. 382, 402 (1950), the Court explained,

‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particular where a group espouses dissident beliefs.

Here, Contra Costa County’s Order tramples Californians’ right to privacy and in doing so, violates the Due Process Clause. Similar to the state of Alabama in NAACP v. Alabama, Contra County is requiring houses of worship to disclose the identities of congregants gathering to worship. And similar to the state of Alabama, this mandatory disclosure of religious expression “curtails the freedom to associate,” “denying “the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,” and is “subject to the closest scrutiny.” Id. at 460-61.

1. Attendance Recordation Requirement Violates Equal Protection Protected by Federal Law.

By the Order’s express terms, the Order discriminates against places of worship by requiring places of worship to create and maintain attendee lists, yet the Order places no other such burdens on any other non-religious establishment whatsoever. As the United States Supreme Court has noted, “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). Further, “A law is not generally applicable if its prohibitions substantially under include non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9^th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). So, “In other words, if a law pursues the government’s interest ‘only against conduct motivated by religious belief,’ but fails to include in its prohibitions substantial, comparable secular conduct that would similarly threaten the government’s interest, then the law is not generally applicable.” Id.

The County fails this standard. Houses of worship are uniquely burdened by this public disclosure requirement. And again, no other entity appears to be subjected to this standard.

In conclusion, we believe the County’s Order violates federal and state law while unashamedly discriminating against houses of worship. For these reasons, the Center for American Liberty respectfully requests that Contra Costa Health Services Order NO. HO-COVID19-17, requiring houses of worship to record and disclosure attendance at religious services, be either rescinded or amended to cure its constitutional defects. We look forward to hearing your response.

Regards,

Harmeet K. Dhillon

cc: John Gioia, Candace Anderson, Diane Burgis, Karen Mitchoff, Federal D. Glover

May also challenge 12-person or 25% capacity limit for indoor services

Following is the statement from the Center for American Liberty’s Founder Harmeet K. Dhillon concerning the Contra Costa Health Services Order No. HO-COVID19-17. (See related article)

“The Center for American Liberty was contacted recently regarding the June 5, 2020 Order issued from Contra Costa Health Services (Order No. HO-COVID19-17). This Order was concerning for several reasons and we intend to formally reach out to Contra Costa County with an analysis of our concerns.

The June 5, 2020 Order, as presently written, specifically singles out places of worship by requiring that places of worship in Contra Costa County create and preserve a list of persons in attendance, and then disclose such attendance list upon request to the government – a burden that is notably not placed on other establishments in Contra Costa County. Such burden is unconstitutional and is discriminatory on its face.

The California Constitution provides certain inalienable rights, including the right to privacy, to freely assemble, and to enjoy one’s religion- Californians deserve to freely worship and assemble without fear that his or her name and address will end up in a government database. The Center for American Liberty welcomes any official change to this June 5, 2020 Order and will continue to be vigilant about any attempts to discriminate against houses of worship or people of faith in California.

Additionally, the June 5, 2020 Order currently limits houses of worship to a 12 person or 25% limit (whichever is fewer), which is arbitrary, and we will also be monitoring, and potentially challenging, this disparate burden on places of worship and people of faith in Contra Costa County.”

By Matt J. Malone, Public Information Officer, Superior Court of California, Contra Costa County

Due to anticipated civic activities in the area, the Contra Costa Superior Court will close at all locations at 12:00 p.m. on Friday, June 5.

ALL COURT LOCATIONS WILL REOPEN TO THE PUBLIC ON MAY 26, 2020 AT 8:00 A.M.

• IF YOU ARE SICK, DO NOT COME TO THE COURT. NO ONE WHO IS SICK OR WHO IS EXHIBITING COVID-19 SYMPTOMS WILL BE PERMITTED TO ENTER ANY COURT FACILITY.
• YOU MUST WEAR A MASK OR FACE COVERING TO ENTER ANY COURT FACILITY AND AT ALL TIMES WHILE INSIDE.
• ANYONE ENTERING ANY COURT FACILITY WILL HAVE THEIR TEMPERATURE TAKEN. IF YOU HAVE A TEMPERATURE OF 100 DEGREES OR HIGHER, YOU WILL BE DENIED ENTRY FOR THAT DAY.
• PLEASE EXPECT LONG LINES AND LONG WAIT TIMES. THE COURT WILL FOLLOW SOCIAL DISTANCING REQUIREMENTS AND BUILDING ACCESS WILL BE LIMITED. PLEASE OBEY ALL SIGNS. YOUR PATIENCE IS APPRECIATED.
• CLERK’S OFFICES ARE OPEN 8:00 A.M. – 2:00 P.M., WITH PHONE HOURS FROM 10:00 A.M. – 2:00 P.M., UNTIL FURTHER NOTICE.
• THE MARTINEZ COURT RECORDS OFFICE REMAINS CLOSED. SEE BELOW FOR INFORMATION CONCERNING RECORDS ACCESS.
• PLEASE READ THE REMAINDER OF THIS RELEASE FOR INFORMATION ABOUT SPECIFIC OPERATIONS.

Entrances and Exits. All buildings will operate a single entry/exit point. Please follow all signs carefully. The Court Street entrance for the Wakefield Taylor building in Martinez will not be open; use the Main Street entrance only.

No Nonessential Parties. Due to social distancing limitations, individuals who are not essential to Court matters should not accompany parties to Court for any matter or case type.

Drop Box Filings. Drop boxes will still be available from 9 A.M. – 3 P.M. (one hour after clerk’s office closure). Because clerk’s offices will experience high demand and significant wait times, the Court encourages you to file items by drop box. Items placed in the drop box before 3:00 p.m. will be file-stamped that day. Drop box locations are:

• Civil: Main Street entrance of the Wakefield Taylor Courthouse in Martinez.
• Criminal: Main Street entrance of the Wakefield Taylor Courthouse in Martinez.
• Family: Main entrance of Family Law building in Martinez.
• Juvenile: Main entrance of the Walnut Creek Courthouse.
• Probate: Main Street entrance of the Wakefield Taylor Courthouse in Martinez.
• Pittsburg and Richmond courthouses: These drop boxes are available only for filings in case types heard at those locations.

Jury Service. Jury service will resume. Be assured that we are working with the County Health Department to ensure your safety. Those summoned must follow the rules above for access to the Court, including wearing masks. To obey social distancing requirements, jurors will be called in two-hour blocks. See your jury summons for call-in information. No more than 50 jurors will be present in a jury assembly room at any time. If you are sick, exhibiting COVID-19 symptoms, or are a high-risk individual (e.g., over 60 years of age, immunocompromised, etc.), the Court will excuse you from service upon proof. Please call 925-608-1000 and follow the prompts for Jury Services.

Emergency Local Rules. All Emergency Local Rules remain in effect unless otherwise noted or as superseded by effect of the Court’s reopening. Rules are available at: http://www.cc-courts.org/local-rules/local-rules.aspx

Filing Holidays. The Court is open for filing as of May 26, 2020. Filing holidays under this Court’s Implementation Orders and/or Emergency Local Rules expire as of the Court’s reopening. Judicial Council Emergency Rules of Court and/or orders of the Chief Justice, available on the Court’s website, may further extend filing holidays in certain cases. Review these carefully.

Records. The Court Records office in Martinez remains closed. The Court will only accept records requests and requests for background checks via drop box or mail, subject to all legal confidentiality exceptions. Do not wait in line or come to a clerk’s window with a records request.

Request forms may be downloaded from the appropriate Court Records webpage:

• For Criminal matters and background checks: http://www.cc-courts.org/criminal/records.aspx. Submit by mail or use the Criminal drop box.
• For any other matters: http://www.cc-courts.org/civil/records.aspx. Submit by mail or use the drop box for the appropriate case type.

Specific Matters

• Restraining Orders. The Court continues to accept applications for domestic violence, civil harassment, and gun violence restraining orders. For civil restraining orders, please review the Civil Emergency Local Rules. For domestic violence restraining orders and emergency protective orders, please review the Family Emergency Local Rules.
• Traffic. The Court is in the process of rescheduling all traffic matters and you will receive a notice of new dates. Read your notice carefully: The location of your matter may differ from your original notice. All traffic matters have been granted a 120-day extension which also applies to payment deadlines as well as deadlines for traffic school and community service completion.
• Small Claims. The Court will reschedule all small claims matters and provide notice of new dates. Read your notice carefully: The location of your matter may differ from your original notice.
• Unlawful Detainer. The Judicial Council’s Emergency Rules of Court prohibit the Court from issuing a summons on any new unlawful detainer complaints, with limited exceptions for urgent public health and safety matters. For matters involving violence, threats of violence, and/or health and safety issues, parties should provide documents with the filing, such as a declaration under oath, relating facts supporting the urgency on those grounds.
• Civil Limited and Unlimited.

1. Hearings and filings will proceed under the Civil Emergency Local Rules. Hearings from May 18, 2020 through May 27, 2020, will go forward on fully-briefed matters. Briefs for hearings on May 28, 2020, or thereafter must be filed under normal statutory timeframes even if that requires a filing during the closure period. Review the Civil Emergency Local Rules for further information.
2. The CourtCall process in the Civil Emergency Local Rules will be used for all hearings until further notice. Do not come to Court for your hearings.
3. Review the Complex Emergency Local Rules for procedures for Complex cases.

• Probate. All matters should be submitted via drop box. The Probate File Examiner Office will not be open to accept ex parte submissions until further notice. Review the Probate Emergency Local Rules for information on hearings and use of remote technology. The Probate department will be providing additional guidance separately.
• Criminal Virtual and Emergency Courtrooms. These courtrooms will close as of May 26, 2020, except by written stipulation of the parties approved by the Presiding Judge.