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SLO County supervisors consider lawsuit to fight state stay-at-home order 

The San Luis Obispo County Board of Supervisors is mulling filing litigation against the state to try to overturn Gov. Gavin Newsom's COVID-19 stay-at-home order and remove SLO County from its Southern California region—a route that the county counsel warned has a "very low" chance of succeeding in court.

click to enlarge SUE NEWSOM? SLO County Supervisor John Peschong led the Board of Supervisors on Jan. 5 in asking its counsel to bring back options for litigation to challenge the state's stay-at-home order. - SCREENSHOT BY PETER JOHNSON
  • Screenshot By Peter Johnson
  • SUE NEWSOM? SLO County Supervisor John Peschong led the Board of Supervisors on Jan. 5 in asking its counsel to bring back options for litigation to challenge the state's stay-at-home order.

In a motion made at a Jan. 5 board meeting, 1st District Supervisor John Peschong said he thinks SLO County should be in the state's purple tier for economic restrictions—which allows outdoor dining and other business activities that are currently barred under the stay-at-home order.

"That allows some semblance of normal business life to go on, but it is safe," Peschong said. "If you look at the numbers and you look at the counties around us, we've done well."

Passed on a 3-2 vote, Peschong's motion directed County Counsel Rita Neal to explore the county's legal options and discuss them with the board at its next closed session meeting in late January. Part of the discussion will be whether SLO could join a recent San Bernardino County lawsuit, which contests its inclusion in the 23-county Southern California region.

"I think we need to analyze that and have a discussion," Peschong said. "I believe we should be our own region. That's the goal here."

The idea of a lawsuit was met with opposition from 2nd District Supervisor Bruce Gibson and 3rd District Supervisor Dawn Ortiz-Legg. Both pointed to the SLO County's worsening COVID-19 metrics—where cases, hospitalizations, and deaths are at record highs—and added that a lawsuit had little chance of succeeding in court.

Since March of last year, nearly 50 lawsuits have tried to challenge the state's COVID-19 orders. Only two have prevailed at the superior court level, Neal said.

"I think it's really a waste of our staff's time," Gibson said. "Litigation against the public health orders of the state have roughly had the survival of a snowflake in hell. ... I believe we should be in the purple tier. But we're not."

Ortiz-Legg added that while SLO County has better ICU capacity right now—about 25 percent—than its neighbors in Santa Barbara County and further south, that doesn't mean the health care system isn't severely impacted or the situation couldn't get worse quickly.

"I think we have to be very careful in how we approach this," Ortiz-Legg said. "We need to really step back and get through this holiday period ... before we make any rash decisions on anything about going alone, so to speak. I do believe we're kind of reaching for the stars here."

But Peschong argued that with no foreseeable end in sight to Newsom's order, SLO County as an extension of Southern California may be under severe stay-at-home restrictions for months. Fifth District Supervisor Debbie Arnold agreed, and said about a lawsuit: "I'm ready to give it a try."

"We have desperate situations going on all over the county," Arnold said. "We don't really have a lot of choices in asking for some autonomy. I think this is the only way."

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