'It's never enough.' San Diego County supervisor weighs in on sliding back to purple tier

Counties continue to slide back into the 'purple' tier for COVID-19 cases, re-shutting down businesses whether the counties agree with the decision or not.

Jim Desmond, who serves as District 5's San Diego County Supervisor, believes we're continuing to hurt small businesses and focusing on the wrong target, as San Diego County slid back from the red tier and into purple, reenforcing stricter restrictions that started Nov. 14.

"We have seen a couple of dozen businesses who have been left no choice, they have to stay open otherwise they're going to close for good," Desmond said. "We're stuck in this purple tier for at least three weeks, and this is happening right before the holidays, right before the season where these people really, some of these shops make their money for the year and so there's going to be some defiance."

Shortly after the county moved back into the previous tier, photos came out of Gov. Gavin Newsom defying his own orders, as he was caught attending a large dinner party at the French Laundry restaurant in Napa Valley on Nov. 6.

This was on the heels of the trial Newsom had been involved in since October regarding his "one-man ruling," in which Assemblymen James Gallagher and Kevin Kiley filed a lawsuit against Newsom for continuing to execute orders that were unconstitutional. The judge ruled against Newsom and in favor of Gallagher and Kiley, as Kiley announced their victory on Twitter on Nov. 2.

With the finalized ruling happening before San Diego County was ushered back into closing down, many are confused as to how this could be possible if Newsom had lost his ability to continue issuing mandates. The simple answer: the battle is far from over.

"The governor has appealed the ruling of the trial court, and he's actually done it through a somewhat unusual instrument," Kiley said. "He wants the appeals court to come in and fairly quickly remove what the trial court did."

Kiley explained that the appeals court did not step in immediately, as Newsom hoped they would.

"Instead they've set up a briefing schedule, so the parties will each have a chance to argue their case in briefs submitted to the court," Kiley said. "That will ultimately lead to oral argument, and the court will produce a written decision which will almost certainly be a published decision that is then a binding precedent for all of the lower courts in California."

Kiley added that this will be a first-of-its-kind decision on the limits of a governor's emergency powers.

If they win, it can set a precedent that can be used to challenge the lockdown, and the blueprint.

"Any challenge to the lockdown for the blueprint, as it's called, would have to show how the reasoning that the court used to invalidate the order and issue in this case, can also be used to invalidate the lockdown as something that is not legally, lawfully permitted," Kiley said. "A lot will depend on obviously what the appeals court decides and the manner in which they reach their decision and the kind of reasoning they provide in the opinion."

There's one other review available, and that's the California Supreme Court.

"Regardless of how the Court of Appeals rules, I think there's a good chance that it might ultimately end up there," Kiley said.

Kiley understands how frustrated people are.

"This is all just so backwards," Kiley said, adding that the trial court's decision is going to remain on hold for now.

"That's the reason why the governor doesn't feel bound by the trial court's injunction," Kiley said. "It's because the appeals court has put it on pause over the next few weeks while it hears the case.

"In addition to that, the governor has claimed that he has authority to do the lockdowns not just under the Emergency Services Act, which he's used for almost everything he's done, but he also claims that he has this authority because of certain statutes dealing with quarantining, which I don't agree with," Kiley said.

On top of closing down businesses, Kiley added that he will be introducing new legislation soon, to make it so that the state is not allowed to take away your license, as they've been doing and threatening to do.

"I want to make it so these state agencies aren't allowed to do that unless they can actually prove that your business was responsible for some sort of outbreak, or increased transmission," Kiley said.

"In most cases, we know that's not happening," Kiley added. "The state just comes in and says, well you're violating our rules, therefore we're going to take away your license. But that's not the way it should be if they're doing this for reasons that have nothing to do with public health."

Desmond added that businesses don't have time to wait to see if and when the county will move back into an operating tier.

"That's what's frustrating," Desmond said. "I think the reason the case numbers are increasing is primarily due to a lack of complacency with, or not actually complacency, with the rules because the state keeps changing the rules. They keep changing the goal post, they tell us to do one thing, we do it, and then it's never enough."

Desmond also commented about Newsom's dinner party outing.

"I think that type of behavior is becoming predominant throughout the state and it's hurting our numbers, it's hurting small businesses, and the ever constant changing rules and protocols on businesses primarily has left many people frustrated, and I think that is what is one of the leading causes of the number of case increases," he said.

San Diego County is testing 15,000 people a day, according to Desmond, an increase from a month ago, which was around 10,000 per day.

"We can fight the virus and keep small businesses open," Desmond said.

Kiley added that the tier system has its issues.

"The tier system has so many problems with it, and ways that you can be forced into different kinds of economic shutdown based upon factors that have no real bearing on public health," he said.

"I think that that is incredibly frustrating for all of these counties, and that's why there's been a push for a greater measure of local decision making so that decisions can actually be made based upon what's happening on the ground, rather than the state just arbitrarily saying that entire categories of businesses or schools or whatever else has to shut down based on some rigid and arbitrary formula that it set," Kiley added.

Lexington Howe can be reached by email at [email protected].