Three years into pandemic, still unclear who is in charge

More than three years after the pandemic began, legal confusion remains in California over who’s in charge at the local level during an emergency of issues such as curfews and eviction moratoriums.

Uncertainty over authority exacerbated tensions during the early months of the pandemic. Now that almost all restrictions have been lifted, it’s time to use the calm before the next storm, fire, flood, earthquake or pandemic to resolve the thorny issues of jurisdiction.

The dispute is not whether Gov. Gavin Newsom had the power to impose emergency orders and make temporary changes to state law. He did. The state’s appellate courts resolved that dispute.

Rather, as a recent Bay Area court case showed, the uncertainty is at the local level over whether counties during emergencies can set rules within cities. Or is county jurisdiction limited to unincorporated areas outside municipal boundaries?

Lack of clarity has potentially life-altering implications for emergency responses if they are delayed while lines of authority are hammered out.

This isn’t a fight over masking, quarantine or stay-at-home orders. State law permits county health officers to issue health orders in an emergency to stop the spread of disease if they have the consent of the cities. Because only three cities in the state — Berkeley, Long Beach and Pasadena — have their own health officers, most delegate that authority to the county official.

The dispute centers on issues outside the purview of the health officer — for example, whether county governments can dictate curfews and eviction moratoriums. This is not a red vs. blue issue. This is a county vs. city struggle over who is in charge, one that the Legislature and/or the courts should resolve before California faces its next emergency.

Unfortunately, state law fails to provide clear guidance, leaving cities and counties to sort it out. The magnitude of the legal gulf between them became clear last month when a Superior Court judge ruled that Alameda County never had authority to include cities in its eviction moratorium.

The ruling came in a case involving a tenant living in property owned by the city of Alameda who had failed to pay rent. The tenant claimed protection under Alameda County’s still-on-the-books eviction moratorium, which county supervisors applied to unincorporated areas and cities.

Alameda Superior Court Judge Victoria Kolakowski sided with the city, ruling that the state’s 1970 Emergency Services Act does not permit counties to adopt emergency orders and regulations that apply to cities.

Cities generally have authority to set rules within their boundaries, and counties set the rules for unincorporated areas. The state Constitution allows counties to perform municipal functions if a city requests the assistance.

Nevertheless, during the pandemic, some counties have clung to a non-binding 1979 legal opinion by the state Attorney General’s Office that cities are bound by county rules and regulations adopted during a local emergency to protect life and property.

In some situations, that would make intuitive sense. Because floods and fires, for example, do not stop at city boundaries, it could be best to have one agency leading the response and able to regulate throughout the county.

But, as Judge Kolakowski ruled, while that might be sensible, that is not what the Emergency Services Act says. Instead, the act “strongly suggests that during local emergencies counties and cities promulgate emergency orders and regulations within their respective territories.”

That is what Alameda City Attorney Yibin Shen has argued since the first summer of the pandemic when he sent a letter to then-Attorney General Xavier Becerra asking him to reconsider the office’s 41-year-old opinion — a request Becerra rejected.

The Alameda case was between the city and the tenant. The county was not a party to the litigation, but it clearly has an interest in the outcome. Nevertheless, Andrea Weddle, chief assistant counsel for Alameda County, who was present at a hearing in the case, never sought to defend the county’s eviction moratorium, which will expire at the end of this month. Weddle did not return emails seeking comment.

Unless the city of Alameda case is appealed, it won’t serve as legal precedent. But Kolakowski’s ruling has caught the attention of local government officials across the state and could open the door for more challenges to county mandates.

This power struggle between California’s cities and counties might just be getting started. It would be best to resolve the issue before more lives are on the line.