Author: Stephanie Hill

On March 31, President Biden announced a $2.2 trillion “American Jobs Plan” to shore up the nation’s infrastructure and create jobs. “It is not a plan that tinkers around the edges,” the President said in a speech unveiling the plan. “It is a once-in-a-generation investment in America.” While the administration’s plan will undoubtedly face opposition, the broad commitment to infrastructure investment is consistent with legislative efforts advancing in the U.S. House of Representatives (the LIFT America Act). The final legislation could create exceptional federal funding opportunities for both public and private sector developers of transportation, water, energy and other infrastructure projects.

Unlike the economic stimulus in 2009, the White House’s plan seeks to incentivize more than just shovel-ready projects. “The American Jobs Plan is looking to the future,” said U.S. Department of Transportation Secretary Pete Buttigieg. “But, yes, we will be supporting hundreds of billions of dollars of shovel-ready projects, but we’re also interested in shovel-worthy projects, because this is a once-in-a-lifetime opportunity to shape America’s infrastructure future, to make sure we’re competing and winning, when other countries are doing so much more than we are.”

The sprawling proposal, which includes both spending and tax credits, would be paid for with 15 years of higher taxes on corporations. The spending in the plan would take place over eight years, and the tax increases would more than offset that spending in 15 years, according to estimates. Republicans in Congress and some business interests immediately criticized the plan to increase corporate taxes and other aspects of the plan and vowed to fight the proposal. Senate Majority Leader Mitch McConnell blasted the American Jobs Plan claiming the proposal is a “Trojan horse for major tax increases” and promised to oppose the plan “at every step.”

Although details about allocation and eligibility are not yet available, the plan in general includes:

Transportation infrastructure: The American Jobs Plan invests $621 billion on roads, bridges, public transit, rail, ports, waterways, airports and electric vehicles to improve air quality, reduce congestion, and limit greenhouse gas emissions.  This includes $115 billion in modernizing 20,000 miles of highways and roads and repair 10,000 bridges (including the ten most economically significant bridges in the country); double the federal funding for public transit by investing $85 billion to modernize existing transit and help agencies expand their systems to meet demand; $80 billion to passenger and freight railways; $25 billion to airports, including funding for the Airport Improvement Program; and $17 billion to waterways and ports, and includes a Healthy Ports program to mitigate the cumulative impacts of air pollution on neighborhoods near ports.

Water infrastructure, Brownfields and mine and oil and gas reclamation: The plan includes a $66 billion investment to rebuild water infrastructure, including upgrading the country’s drinking water, wastewater and stormwater systems, tackle new contaminants and support clean water infrastructure in rural parts of the country.  Additionally, the proposal includes a $5 billion investment in the remediation and redevelopment of Brownfield and Superfund sites, as well as related economic and workforce development.  An additional $45 billion will be allocated to replace all of the nation’s lead pipes and service lines.  Further, an additional $16 billion is allocated to plugging oil and gas wells and restoring and reclaiming abandoned coal hardrock, and uranium mines.  Finally, the plan calls for building clean industries in distressed communities, including investment in 15 decarbonized hydrogen demonstration projects in such communities and stablishing ten pioneer facilities that demonstrate carbon capture retrofits for large steel, cement and chemical production facilities.

Affordable housing:  The plan would allocate $213 billion in tax credits and grants to develop, preserve and retrofit more than two million affordable and sustainable housing units, including 500,000 new homes for low- and middle-income homebuyers.  The plan pairs this investment with the elimination of state and local exclusionary zoning laws.  The proposal also provides $40 billion to improve the infrastructure of the public housing system in America.

Electrical grid:  The American Jobs Pan includes a $100 million investment in the electric grid, including the creation of a tax credit that incentivizes the buildout of at least 20 gigawatts of high-voltage capacity power lines and establishing a new Grid Deployment Authority at the Department of Energy (DOE) that allows for better leverage of existing rights-of-way and supports creative financing tools to spur additional high priority, high-voltage transmission lines.

Electric vehicles:  The proposal includes $174 billion investment in the electric vehicle market, including consumers rebates and tax incentives to buy American-made electric vehicles and establishing grant and incentive programs to build a national network of 500,000 charging stations by 2030.  It would also replace 50,000 diesel transit vehicles and electrify at least 20% of yellow school buses.

Broadband: The American Jobs Plan would invest $100 billion to give every American access to affordable, reliable and high-speed broadband.

Other: The plan includes $180 billion to advance U.S. leadership in critical technologies, upgrade research infrastructure, and establish the U.S. as a leader in climate science, innovation, and research and development; $300 billion toward boosting manufacturing, specifically semiconductor, medical, and clean manufacturing; $100 billion to build new public schools and upgrade existing buildings, and $12 billion to states to use towards infrastructure needs at community colleges; $100 billion to workforce development to help dislocated workers; and $10 billion to modernize federal buildings’

U.S. House Democrats Also Introduced Infrastructure Funding Legislation

President Biden’s plan comes on heels of a much smaller infrastructure plan introduced last month by Democrats in the U.S. House Energy and Commerce Committee.  The Leading Infrastructure for Tomorrow’s America Act (or LIFT America Act) provides for a $312 billion investment in the nation’s electric grid, drinking water infrastructure and energy efficiency. The legislation is supported by all of the Democratic members of the panel and represents the committee’s opening proposal for a infrastructure package.

A full legislative hearing on the LIFT America Act was held on March 22 but the Committee has not yet voted on the legislation.  It is not known whether Congressional Democrats will attempt to merge this legislation with Biden’s more expansive American Jobs Plan.  However, Chairman Frank Pallone, Jr. (D-NJ) affirmed Biden’s proposal “aligns with the LIFT America Act.”

The LIFT America Act contains the following funding and investment proposals per year for fiscal years 2022-2026:

Drinking water infrastructure and programs: The proposal authorizes $4.5 billion per year for lead drinking water line replacements and the creation of a new EPA grant program under the Safe Drinking Water Act to aid community water systems fouled by Per- and polyfluoroalkyl substances (PFAS chemicals).  The LIFT America Act also would extend and expand authorizations of $26.3 billion for a variety of water programs, including the Safe Drinking Water State Revolving Loan Fund.

Grid modernization, energy conservation and clean energy infrastructure: The LIFT America Act authorizes $3.87 billion per year for electric grid infrastructure, focused on grid modernization, security, resiliency and efficiency.  The bill also includes funding to establish a strategic transformer reserve to speed electric grid recovery following extreme weather events.  It also offers tens of billions in authorizations for several programs to cut energy usage, as well as for energy efficiency retrofits at schools, homes and public facilities.  Further, the legislation would provide grants to states, local governments and Indian tribes to support their efforts to reduce fossil fuel emissions and conserve energy.

This proposed legislation also provides $850 million per year to spur the development of Smart Communities infrastructure through technical assistance, grants to local agencies and training. In particular, the LIFT America Act would authorize the DOE’s proposed Cities, Counties and Communities energy program to provide technical assistance to cities and communities and competitive grants for clean energy solutions in development and redevelopment efforts.

Alternative fuels, electric vehicles and electrification.  The legislation would authorize the Clean Cities Coalition Network Program and provide $375 million per year (allocated according to criteria to be established by the Secretary of Energy) to support expanded development of alternative fuel infrastructure and expanded use of alternative fuel vehicles.  Further, the bill would provide $625 million per year to reauthorize the State Energy Program and provides additional grants  to support development of an electric vehicle charging network.  It also includes $500 million per year for electric vehicle supply equipment for light-duty vehicles  and $22.5 billion per year to provide grants to state and local governments to support projects that encourage the use of electric vehicles.  Additionally, proposal authorizes $3.8 billion to reduce air pollution at ports by electrifying port infrastructure.

Brownfields and other programs:  The LIFT America Act would authorize $2.7 billion per year for EPA’s Brownfields program and includes provisions on dam safety, including mandating dam safety and financial viability requirements as part of the federal hydropower licensing process.  Further, the bill would authorize $80 billion in high-speed broadband internet buildout across the country.

California Governor Gavin Newsom signed Senate Bill (SB) 95 on March 19, 2021, which creates new Labor Code section 248.2 and mandates that public and private employers with 26 or more employees provide supplemental paid sick leave (SPSL) for COVID-related absences in addition to paid time off benefits employees receive by law or policy. The law goes into effect on March 29, 2021, applies retroactively to January 1, 2021, and is effective through September 30, 2021. To help employers understand the new law and its requirements, Meyers Nave attorneys Gorev Ahuja and Arlene Yang prepared this advisory guide answering the ten most common questions employers are asking about

SB 95. Additional information is also available in this FAQ provided by the State of California Department of Industrial Relations.

Please click here to read Gorev and Arlene’s guide.

1. Which employers are subject to SB 95?
2. When does SB 95 go into effect?
3. What happened to the prior mandates under AB 1867 and FFCRA?
4. Is SB 95 retroactive?
5. For what reasons may employees take supplemental paid sick leave?
6. What is the amount of leave employees receive and can use?
7. How much are employees paid?
8. What if employers already provided paid sick leave for COVID-19 reasons?
9. How does SB 95 interact with Cal/OSHA COVID-19 Emergency Temporary Standards?
10. What are the next steps for employers?

Faced with a once in a century pandemic, everyday life has changed in ways that none could have predicted a year ago. This extends to a quickly evolving jurisprudence regarding the interplay between constitutional rights and the government’s ability to restrict activity during a pandemic as the courts, including SCOTUS, have issued a plethora of expedited rulings on these issues. All Californians likely vividly recall when Governor Gavin Newsom issued the statewide shelter in place order one year ago this March. As we approach the one-year anniversary of the initial shelter in place order, below is a summary of three of the most recent developments in the continuing litigation in which worship services, restaurants, and gyms are challenging the State and local restrictions.

1. Worship Services: Cross Culture Christian Center, et al. v. Newsom, et al. – March 9, 2021 Eastern District Order Denying Request for Preliminary Injunction
   On February 6, 2021, the State updated the Blueprint in response to the Supreme Court’s decision in South Bay United Pentecostal Church v. Newsom. The updated Blueprint now permits worship services to resume indoors at 25% capacity in Tiers 1 and 2, and up to 50% capacity in Tiers 3 and 4. Plaintiffs Cross Culture Christian Center, Cornerstone Church, and their respective pastors, moved for a preliminary injunction that would allow up to 50% capacity for Tiers 1, 2, and 3 and up to 75% capacity for Tier 4. The Plaintiffs also sought to enjoin the State from enforcing the singing and chanting restrictions during worship services.
    
   The Honorable Judge Mendez was not persuaded that Plaintiffs could meet the high standard for a preliminary injunction. The Court ruled that Plaintiffs had not established that, under the revised Blueprint, worship services were treated any more harshly than comparable secular activity, such as movie theaters, lecture halls, and concerts where people gather for extended periods of time. The Court went on to find that even applying the more rigorous strict scrutiny standard, the Blueprint’s restrictions conformed with what SCOTUS had ordered in South Bay United.

 

2. Restaurants: County of Los Angeles Department of Public Health v. Sup. Ct. of Los Angeles (California Restaurant Association) – March 1, 2021 Court of Appeal Opinion Reversing Superior Court’s Preliminary Injunction
   On December 15, 2020, Los Angeles Superior Court Judge Chalfant issued a preliminary injunction enjoining Los Angeles County’s outdoor dining ban because he determined that the County’s failure to conduct a specific risk-benefit analysis meant the ban could not survive the deferential rational basis standard of review. This ruling was an outlier that misapplied the rational basis review standard and was quickly shot down on appeal. Specifically, after having previously stayed the injunction pending appeal, on March 1, 2021 the Court of Appeal then issued its decision on the merits reversing the superior court’s preliminary injunction. The Court of Appeal explained that the deferential emergency response standard of review set forth in Jacobson v. Massachusetts was the appropriate standard. While the Supreme Court has rejected that standard when a fundamental right was at issue, such as a Free Exercise claim, the Supreme Court had pointedly not overturned Jacobson despite its many opportunities to do so.
    
   In applying that standard, the Court of Appeal found that Los Angeles County’s outdoor dining ban had a real and substantial relation to the legitimate state interest in curbing the spread of COVID-19 and survived the constitutional challenge. The Court of Appeal decidedly rejected the superior court’s imposition of a requirement to conduct any specific risk-benefit analysis to support its COVID-19 restrictions. Now with Los Angeles County moving to the red tier, indoor dining is slated to resume at 25% capacity.

 

3. Gyms: Excel Fitness Fair Oaks v. Newsom – March 2, 2021 Eastern District Order Granting Motion to Dismiss
   In the Blueprint’s Tier 1, gyms and fitness facilities may only operate outdoors. In response, many gyms and fitness facilities have brought challenges to these restrictions, raising several constitutional challenges including due process violations, equal protection violations, and regulatory takings. In one of the most recent decisions in the gym cases in California, Judge Mendez granted the State and local defendants’ motions to dismiss with prejudice as to each of these claims.
    
   The Court held that there was no fundamental constitutional right at issue, despite Plaintiffs’ arguments that the right to operate a business of one’s choosing constitutes a fundamental right. The Court further found the takings claim could not be sustained where Plaintiffs were contesting the validity of the law, and also because even complete restrictions on property use that are temporary are not regulatory takings. The other constitutional claims were subject only to the deferential rational basis standard of review as no fundamental right was at issue. The Court explained that the restrictions on indoor gym operations were rationally related to slowing the spread of the virus, and thus Plaintiffs’ challenges did not rise to the level of a constitutional violation. This case is on appeal to the Ninth Circuit.

 
Where Do We Go From Here?
California’s federal courts and appellate courts have been remarkably consistent in the many different challenges to State and local COVID-19 public health orders. These courts have refrained from second-guessing the public health officials who have crafted the restrictions, and have wielded the power of injunctive relief only where the law and evidence have compelled them to do so. In the most recent round of decisions, these courts have also been mindful of the overall context of the pandemic—there have now been more vaccinations than confirmed cases in the country and the vaccines offer the opportunity to finally put the pandemic in the past. But in light of that, and while State and local restrictions are now easing, the California federal and state courts are reluctant to speed up the reopening of California beyond what public health officials recommend.
 
About Our Shelter In Place Litigation Expertise
Meyers Nave’s Shelter In Place Litigation Team is currently defending counties, cities and health officials throughout California in federal and state court litigation challenging Public Health Orders, Shelter In Place Orders, and Reopening Plans related to the coronavirus pandemic. The team is tackling both the complex constitutional law issues in litigation as well as the practical enforcement issues that arise from restrictions placed on the operation of worship services, gyms, nail salons, wine bars, brew pubs, restaurants, and other businesses. We have obtained victories at the district and appellate court levels. Please click here for recorded Meyers Nave webinars and Client Alerts about legal developments related to COVID-19.

On February 25, 2021, the California Supreme Court issued two important wage and hour rulings regarding meal periods: (1) under California law, employers cannot round time punches to the nearest preset time increment; and (2) time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. In Donohue v. AMN Services, LLC, Plaintiff Kennedy Donohue worked as a nurse recruiter for AMN Services, LLC (“AMN”), a healthcare services and staffing company that recruits nurses for temporary contract assignments. Nurse recruiters were provided with 30-minute meal periods beginning no later than the end of the fifth hour of work.

AMN used a time keeping system that rounded time punches to the nearest 10 minute increment. For example, if an employee clocked out for lunch at 12:02 p.m. and clocked in after lunch at 12:25 p.m., the system would have recorded the time punches as 12:00 p.m. and 12:30 p.m.. Thus, the system would record a 30-minute meal period, even though the break was only 23 minutes.

Donahue filed a class action against AMN Services in 2014, alleging various wage and hour violations. Among other things, Donohue alleged that employees were prevented from taking their full lunch breaks, and claimed that the rounding policy resulted in employees being denied premium pay for breaks that were cut short.

Employers Cannot Round Time for Meal Periods
The case made its way to the California Supreme Court. The California Supreme Court opinion addressed two questions: (1) whether an employer may properly round time punches for meal periods, and (2) whether time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations.

First, the California Supreme Court found that rounding should not be applied to meal breaks. Given that the California Labor Code and wage orders have “precise time requirements” and that meal period provisions are designed to prevent even minor infringements, the Supreme Court reasoned that rounding is inconsistent with the purpose of the law. The rounding policy is not neutral, as “[i]t never provides employees with premium pay when such pay is not owed, but it does not always trigger premium pay when such pay is owed.”

Rebuttable Presumption of Meal Period Violation
Second, the Court held that noncompliant meal periods raise a rebuttable presumption of meal period violations. The Court noted that to rebut the presumption, AMN would need to provide evidence that employees voluntarily chose to work during off-duty meal periods that appear in time records to be short or delayed based on unrounded time punches. At AMN, employees were required to answer questions from a drop-down menu on the timekeeping system to identify whether it was the employee’s decision to have a late, missing, or delayed meal period.

Takeaway for Employers
Employers that use rounding policies for meal periods should change their timekeeping practices to record the exact time that employees start and end their meal periods. Furthermore, this decision essentially states that there is no “de minimis” exception to the 30-minute lunch rule, meaning that a meal period premium may be owed if the meal period is only 29 minutes long.

In addition, employers should consider implementing policies to require employees to identify whether each late, short, or missed meal period was due to (1) the employee’s choice; or (2) the employer prevented it. If the employee claims that it was not the employee’s choice, then the employee should be paid a meal period premium for those days. Having documentation that the employee affirmatively stated that the short, late, or missed period was by the employee’s choice, should help to rebut any assumptions regarding alleged meal period violations, if the case were ever litigated.

Employers should ensure that employees are provided compliant meal periods and should consult with a Meyers Nave Labor and Employment counsel about the best way to handle situations in which the records show noncompliant meal periods.

The California Legislature passed Senate Bill 91 just days before the State’s existing COVID-19 Tenant Relief Act was set to expire.  In addition to extending the existing eviction moratorium and approving new rental assistance, SB 91 enacts many new and important changes to unlawful detainer law that impact landlords and tenants.  Since the COVID-19 pandemic began, this is the first time the State has adopted legislation that includes both financial assistance to landlords and restrictions on tenant evictions.

Four Primary Changes in SB 91

• Five month extension, until June 30, 2021, of the existing prohibition on evictions of residential tenants who are economically affected by COVID-19 and have paid at least 25% of their rent.
• New State rental assistance program funded by recent Federal stimulus funds providing assistance for many low income tenants.
• New requirements for landlord collection of COVID-19 rental debt.
• New protections for tenants affected by COVID-19.

How SB 91 Extends Assembly Bill 3088

Assembly Bill 3088, adopted in August 2020, provides eviction protections to residential tenants who submit declarations to their landlords claiming a financial hardship related to COVID-19.  Under AB 3088, tenants who timely submit their hardship declaration cannot be evicted for failing to pay rent due between March 2020 and August 2020.  In addition, AB 3088 provided that tenants who submit the hardship declaration cannot be evicted for failing to pay rent due between September 2020 and January 2021, so long as the tenants pay at least 25% of the rent due during that period.  SB 91 extends that eviction protection through June 30, 2021, requiring that tenants pay at least 25% of rent due prior to June 30, 2021.  AB 3088 allowed landlords to begin collecting COVID-19 rent as consumer debt in small claims court beginning March 1, 2021. SB 91 extends that date to August 1, 2021. New breach of contract actions can also be filed in Superior Court beginning July 1, 2021.

New State Rental Assistance Program

The new rental assistance program applies $1.4 billion of California’s share of federal rental relief funds to pay rental debt of tenants who meet three criteria: (1) a member of the household is unemployed or has been financially impacted by COVID-19, (2) the household is at risk of homelessness or housing instability, and (3) the tenant earns less than 80% of the area median income.  The program is scheduled to begin by March 15, but is not guaranteed to have sufficient funds to assist all tenants who meet these criteria.  First priority will be given to tenants earning up to 50% of area median income, and second to residents of communities disproportionately impacted by COVID-19.

Landlords will be able to apply directly to the State on behalf of their tenants for payments of rental debt.  The program will pay landlords up to 80% of tenant rental debt accumulated from April 1, 2020 to March 31, 2021.  As a condition of accepting State rental assistance, landlords must agree to release all other outstanding debt owed by the tenant for the period covered by the rental assistance.  If a landlord does not apply to the State program, the tenant may apply instead, but State rental assistance to the tenant will be limited to 25% of rental debt.  Landlords who refuse to participate may jeopardize their future recovery of rental debt, as courts will look to whether the landlord sought State rental assistance when determining the landlord’s recovery.

Notice to Tenants by Feb. 28

The most urgent of SB 91’s provisions is a requirement that landlords must send a notice by February 28 describing changes in the law to all tenants who are behind in rent for the period of March 1, 2020 to February 1, 2021.  Failure to send the notice by the February 28 deadline may affect landlords’ ability to exercise unlawful detainer remedies against tenants.  The notices are available on the California Apartment Association website for no charge.

Actions to Recover COVID-19 Rental Debt

SB 91’s new rules for COVID-19 rental debt collection include a requirement that landlords file a declaration that they have attempted to assist the tenant with obtaining state rental assistance funds.  The new legislation also adopts a cap on attorneys’ fees of $500 for uncontested cases and $1,000 for contested cases, with judges retaining discretion to award higher fees for more complex cases.

Additional Restrictions and Requirements for Landlords

SB 91 also adopts new rules prohibiting landlords from imposing or collecting late fees for COVID-19 rent debt, as well as prohibiting landlords from increasing fees or imposing new fees for services previously provided for free.  Landlords are directed to apply tenant rent payments to future periods rather than paying off past COVID-19 rent debt, and are also prevented from applying security deposits to pay COVID-19 rent debt.  Landlords and tenant screening services may not use unpaid COVID-19 rent debt as a negative factor in tenant screening, and landlords are prohibited from selling COVID-19 rent debt to collection companies until July 1, 2021.

Impact on Local Eviction Laws

Similar to AB 3088, SB 91 pauses any new local eviction moratoriums passed between August 19, 2020 and June 30, 2021. Those ordinances cannot take effect until July 1, 2021.

Impact on Commercial Evictions

AB 91 does not apply to commercial unlawful detainers, meaning that commercial evictions can occur. However, locally enacted moratoriums may protect certain commercial tenants. For example, Los Angeles County’s eviction moratorium, which applies to both unincorporated County areas as well as incorporated cities in the County without their own commercial eviction moratorium, prohibits evictions for commercial tenants unable to pay rent due to the COVID-19 pandemic. As with many California cities and counties, the Los Angeles County ordinance is limited to small businesses.  Ordinances vary substantially, as do the respective termination dates for the eviction bans, so determining the procedural and substantive rights of the parties requires careful review.

Impact of Federal Centers for Disease Control and Prevention Eviction Moratorium

On September 2, 2020 the U.S. Centers for Disease Control and Prevention (CDC) issued a public health order to temporarily stop landlords from evicting residential tenants who provide a declaration that they are unable to pay rent.  Recently extended by a new CDC order, tenants who provide this declaration to their landlord may not be evicted for failure to pay rent through March 31, 2021.  While it is unclear how this law applies to individual cases in California, it may protect tenants who are not covered by the State law.

Impact on Advice and Counsel

SB 91’s requirements are complex and are likely to cause confusion for landlords, tenants and courts. This complex, albeit temporary, set of rules relating to the eviction process and related legal proceedings in the COVID-19 environment will be subject to interpretation by courts and will continue to change. Landlords, tenants and their counsel need to precisely follow all statutorily required procedures and stay abreast of potential future developments in the law.

 

 

In late Friday evening orders, the Supreme Court on February 5, 2021 issued rulings on applications for injunctive relief in both South Bay United Pentecostal Church, et al. v. Newsom, et al. and Harvest Rock Church, et al. v. Newsom, et al. In a partial victory for the church plaintiffs, the rulings allow for indoor religious services at up to 25% capacity, but SCOTUS did not stop the State’s ability to enforce the singing and chanting ban or the Tiers 2, 3, and 4 occupancy restrictions for indoor religious services under the State’s Blueprint for stopping the spread of COVID-19. Both orders issued limited temporary injunctive relief pending further decisions by the Ninth Circuit or the Supreme Court. South Bay United included several separate opinions, laying out patchwork guidance for lower courts and revealing significant divisions among the Justices. Harvest Rock reached the same conclusion without analysis.

What’s Next for Rulings on Tiers 1, 2, 3, and 4?
Although the injunctions in South Bay United and Harvest Rock are temporary, the procedural posture of these two cases means these orders may be SCOTUS’ last word on the Tier 1 occupancy restrictions before the State may lift them. The Court will be considering the petition for writ of certiorari by April 1, 2021 and, if it is granted, the matter will not be decided on the merits until after briefing by the parties and oral arguments which would push out a final decision until the fall of 2021 or later. However, in the meantime, the Court may have additional opportunities on an emergency basis to examine the singing and chanting ban along with the occupancy restrictions in Tiers 2, 3, and 4 because religious institutions are already moving forward in the district courts with challenges to the ban and occupancy restrictions.

Analysis of South Bay United Opinions

Majority Opinion

• The four concurring and dissenting opinions provide the only guidance, while the majority opinion simply lays out the Court’s order: the State and San Diego County are enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship, but they may impose a 25% capacity restriction and enforce the singing and chanting ban. The order is without prejudice to the church’s right to submit additional evidence to the District Court in support of the challenge to the singing and chanting ban.

Concurring Opinions

• Chief Justice Roberts’ concurring opinion reflects the Court’s middle of the road approach. While Roberts notes that “federal courts owe significant deference to politically accountable officials” with expertise in public health, he states that courts are entrusted with protecting the people’s rights, including the right to free exercise. Roberts concludes that the State’s total ban on indoor worship “appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
• Justice Gorsuch’s concurring opinion, joined by Justices Thomas and Alito, states that California “so obviously targets religion for differential treatment” that the restrictions are subject to strict scrutiny analysis. The opinion explains that the State cannot pass this constitutional test because it cannot show that dangers posed by religious services (large number of people mixing, in close proximity, for extended periods, with singing) cannot be mitigated by less onerous restrictions such as plexiglass dividers or limiting the duration of indoor religious gatherings. The opinion notes that train stations, hair salons, and some retail have similar risk factors but are still allowed to operate with restrictions. Justice Gorsuch also notes the record was unclear as to whether the singing and chanting ban is generally applicable or if the State allows the entertainment industry an exception. Finally, Justice Gorsuch challenged the contention that any restrictions were “temporary” in light of the vaccinations that are now underway, arguing that the State has continued to move the goalposts such that the “restoration of liberty [is] just around the corner.”
• Justice Barrett’s concurring opinion agreed with Justice Gorsuch’s as to the capacity restrictions, but she notes the church failed to meet its burden with regard to the singing and chanting ban and therefore concurred in the denial of the injunction on that issue.

Dissenting Opinion

• Justice Kagan’s dissent, joined by Justices Breyer and Sotomayor, disagrees with the majority on almost every issue, starting with the standard of review. Kagan notes that the State had demonstrated the restrictions were neutral, because neutrality requires only that similar activity is treated similarly, and the Blueprint treats religious services like other activity where “large groups of people [come together] in close proximity for extended periods of time,” such as political meetings, going to the movies, or dining at a restaurant. Justice Kagan harshly criticizes the majority opinion for its lack of explanation, noting that the opinion “leaves state policymakers adrift, in California and elsewhere” because there is no explanation as to whether the injunction entered is based on the record evidence or “naked judicial instinct.”

Looking Ahead
The Court’s rulings in South Bay United and Harvest Rock follow its decision in a case late last year from New York which barred the State of New York from enforcing certain limits on attendance at churches and synagogues. In a 5-4 decision just before midnight on Thanksgiving Eve, the Court issued its ruling in Roman Catholic Diocese v. Cuomo which stayed the enforcement of restrictions on indoor worship services that capped attendance at 10 or 25 persons in designated geographic zones. The rulings in South Bay United, Harvest Rock, and Roman Catholic Diocese now set a higher bar in order for pandemic-related restrictions on worship services to survive constitutional First Amendment analysis.

On Saturday, February 6, 2021, Governor Newsom’s office issued revised guidelines for indoor church services reflecting the Supreme Court’s rulings in South Bay United and Harvest Rock. The new interim State guidelines limit attendance at indoor services in areas with widespread or substantial virus spread to 25% of a building’s capacity. Indoor services in areas with moderate to minimum spread are limited to 50% capacity. Before the ruling, indoor worship services were banned in purple-tiered counties — those deemed to be at widespread risk of coronavirus transmission.