Opinion: Common Sense


Bad Facts Make Bad Law

By Jennifer Welsh Zeiter

There’s a saying about some judicial decisions: “Bad facts make bad law.” Judges rule on cases as filed, with the facts intact. Small fact changes often result in very different rulings. Take the May 8 case heard by U.S. District Judge James V. Selna, brought by Newport City Councilperson Kevin Muldoon seeking a restraining order against Gov. Gavin Newsom for closing Orange County beaches as a violation of his (our) constitutional rights. To succeed, civil temporary restraining orders (TROs), must establish either a likelihood of success on the merits and the possibility of irreparable injury if relief is not granted; or that serious questions are raised advancing the public interest and the balance of hardships tips in favor of the plaintiff. It’s a sliding scale, weighed by judicial discretion.

Judge Selna denied Muldoon’s TRO request on several grounds. First, two days after Muldoon’s TRO filing, the beaches were reopened from 6 to 10 a.m. Judge Selna rightfully held the request as originally framed (i.e., as the facts alleged) was moot because the beaches had reopened, albeit partially. The Judge had to rule that way. Bad facts.

Judge Selna also ruled even if not moot, Muldoon would not likely succeed on the merits of his challenge to the closure of the beaches, primarily because Muldoon never actually visited the beaches, nor was actually prevented from doing so, and these “deficiencies” cast doubt on his claim of irreparable harm. Muldoon literally failed to test the waters. Bad facts. Had he done so, more weight might’ve been given to his claim, and combined with the beach closures a different judicial decision might’ve resulted.

Last, although a serious constitutional issue was raised, Judge Selna found the balance of hardships tipped in favor of the state, given “the public’s strong interest in reducing the spread of COVID-19 with measures designed to limit physical contact.”  Here’s the crux and where judicial discretion is often challenged on appeal. Judge Selna cited the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts that “In every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” (Interestingly, Jacobson concerned mandatory vaccines, sure to be future debated.)

Were the “measures designed to limit physical contact” reasonable, or too broad? Could a less restrictive measure have worked to limit physical contact, for example no congregating in non-familial groups or sitting on the beaches, but walking is OK? Did the safety of the general public demand it? Was it arbitrary? Why 6 to 10 a.m.? Why not 5 to 8 p.m. too? Was scientific data produced supporting beach closures, as opposed to sidewalks? Was the closure politically motivated disguised as public safety? Why only Orange County? Was there “pressure of great danger” requiring the beach closures, with a California mortality rate of only .05%?

Here’s the point. Much judicial discretion weighs on this slippery sliding scale. It’s not for me to decide if the decision was right or wrong. It was likely right, based on the facts dealt. Was the decision necessary to forestall a floodgate of lawsuits challenging government overreach and overtaxing our lockdowned courts, while siderailing timely hearing of other “emergency” matters like TROs in domestic abuse cases? Maybe, but legal actions protecting our constitutional rights, and civil and economic liberties, are critically important too, to ensure government restraints on our rights are justified, narrowly-tailored and not overreach.

So thank you, Councilmember Muldoon, for your efforts. If your suit forced the Governor’s hand to reconsider the draconian beach lockdown, it was worth it. Maybe we will get a better set of facts next time.

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