CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 448

Introduced by Senator Melendez

February 16, 2021

An act to add Article 18.5 (commencing with Section 8662) to Chapter 7 of Division 1 of Title 2 of the Government Code, relating to emergency services.


LEGISLATIVE COUNSEL'S DIGEST


SB 448, as introduced, Melendez. California Emergency Services Act: emergency powers: limitation.
Existing law, the California Emergency Services Act (CESA), among other things, authorizes the Governor to proclaim a state of emergency in an area affected or likely to be affected thereby if (1) the Governor finds that certain conditions exist and (2) the Governor either is requested to do so by specified local officials or finds that local authority is inadequate to cope with the emergency. Upon the proclamation of a state of emergency, the CESA authorizes the Governor to exercise various, specified powers, including the power to promulgate, issue, and enforce orders and regulations that the Governor deems necessary. The CESA also authorizes the governing body of any city, county, or city and county, or an official designated by ordinance adopted by that governing body, to proclaim a local emergency, as provided. During a local emergency, the CESA authorizes the governing body of a political subdivision, or officials designated by the governing body, to promulgate orders and regulations necessary to provide for the protection of life and property, including orders or regulations imposing a curfew within designated boundaries where necessary to preserve the public order and safety.
This bill would enact the Emergency Power Limitation Act. The bill would require an emergency order, as defined, to be narrowly tailored to serve a compelling public health or safety purpose and limited in duration, applicability, and scope. The bill would authorize any person to bring an action to invalidate or enjoin enforcement of an emergency order that is allegedly unlawful. The bill would prohibit a state agency from issuing an emergency order that infringes on an express constitutional right, as defined, in a nontrivial manner, and would require that an emergency order issued by the Governor that infringes on an express constitutional right expire within specified time periods.
The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Article 18.5 (commencing with Section 8662) is added to Chapter 7 of Division 1 of Title 2 of the Government Code, to read:
Article  18.5. Limitations on Emergency Powers

8662.
 This article shall be known, and may be cited, as the Emergency Power Limitation Act.

8662.1.
 The Legislature finds and declares the following:
(a) State and local officials, including the Governor, may only exercise those police powers conferred on them by the California Constitution or by the Legislature.
(b) Because the issuance of emergency orders by state and local officials infringes on individual liberty and constitutes an exception to the Legislature’s power to enact binding rules of behavior on citizens, those emergency orders should be limited in scope and duration to the maximum extent possible.

8662.2.
 For purposes of this article:
(a) “Emergency order” means any order, regulation, decree, regulation, or similar mandate issued by the Governor or a state agency, in response to a state of emergency, or a political subdivision, in response to a state of emergency or local emergency, that binds, curtails, or infringes on the rights of private persons, including, but not limited to, the following:
(1) An order or regulation of the Governor pursuant to Section 8567 or 8627.
(2) An order or regulation of a political subdivision pursuant to Section 8634.
(3) An exercise of a city’s or county’s police power pursuant to Section 7 of Article XI of the California Constitution in relation to a state of emergency or local emergency.
(b) “Local emergency” means a local emergency proclaimed by in accordance with Article 14 (commencing with Section 8630).
(c) “State of emergency” means a state of emergency proclaimed in accordance Article 13 (commencing with Section 8625).

8662.3.
 (a) Notwithstanding any other law, an emergency order shall be narrowly tailored to serve a compelling public health or safety purpose and shall be limited in duration, applicability, and scope.
(b) (1) Any person may bring an action to invalidate or enjoin enforcement of an emergency order that is allegedly unlawful, including an emergency order that is alleged to violate the requirements of subdivision (a). To the extent feasible, the court shall expedite proceedings in an action brought pursuant to this section.
(2) In an action brought to invalidate or enjoin enforcement of an emergency order brought pursuant to this section, the court may invalidate or enjoin enforcement of an emergency order for failure to comply with subdivision (a) if it finds that the emergency order has an unequal application or impact on analogous groups, situations, or circumstances. This paragraph shall not be construed to limit the authority of the court to invalidate or enjoin enforcement of an emergency order that it finds is not narrowly tailored to serve a compelling health or safety purpose or is unlawful for any other reason.

8662.4.
 (a) Notwithstanding any other law, on and after the effective date of this article, a state agency shall not issue an emergency order that infringes on an express constitutional right in a nontrivial manner.
(b) To the extent permitted by the California Constitution and this chapter, the Governor may issue an emergency order that infringes on an express constitutional right in a nontrivial manner, subject to the following limitations:
(1) If the Legislature is in session, or the Governor calls an extraordinary session relating to the applicable state of emergency pursuant to Section 3 of Article IV of the California Constitution, the emergency order shall expire within 30 days. The Governor shall provide notice to the Legislature of any emergency order subject to this paragraph as soon as is reasonably practicable following its issuance.
(2) In any other circumstance not described in paragraph (1), the emergency order shall expire within seven days.
(c) Except as otherwise expressly provided by law, if an emergency order by the Governor expires pursuant to subdivision (b), the Governor shall not reissue that emergency order or issue a new emergency order with substantially the same effect as the expired emergency order during the pendency of the applicable state of emergency. Notwithstanding the preceding sentence, the Governor may reissue an expired emergency order or issue an emergency order with substantially the same effect as an expired emergency order for a period of up to three days if the Governor finds that significant changed circumstances justify the reissuance of an expired emergency order or issuance of an emergency order with substantially the same effect as an expired emergency order.
(d) For purposes of this section, “express constitutional right” includes, but is not limited to, the following:
(1) The rights to assemble and speak.
(2) The right to travel.
(3) The freedom of religious exercise.
(4) The prohibition on the impairment of the obligation of contract.
(5) Property rights protected under the United States Constitution and the California Constitution.
(6) The freedom from unreasonable searches and seizures.
(7) The freedom to acquire and bear lawful firearms and ammunition.

8662.5.
 This article shall not be construed to confer additional emergency powers on the Governor, any state agency, or any political subdivision.

8662.6.
 The Legislature finds and declares that safeguarding the liberties of the residents of this state during a state of emergency or local emergency is a matter of statewide concern and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this article applies to all cities, including charter cities.