Daryn Coleman left his job in the telecommunications industry in 2010 with a dream of starting a family entertainment center that would bring joy to others. He and his wife invested their life savings in his dream, which became Ghost Golf, an indoor miniature golf venue with a unique haunted house theme.
In 2018, Daryn and his wife moved their family and the business to Fresno, California, where they quickly began expanding the business. They added arcade games and a themed shooting gallery and began plans for an escape room and perhaps laser tag.
Those plans came to an abrupt halt in March of 2020, however, when Gov. Gavin Newsom issued statewide business shutdown orders in response to the COVID-19 pandemic. Ghost Golf was shut down for more than a year, with the exception of four days at the end of June 2020 when California health officials allowed the business to reopen.
Daryn spent those four days and a thousand dollars implementing strict safety protocols, only to close again under Newsom’s second shutdown order. Two months later, the governor announced his “Blueprint for a Safer Economy,” a complex, sweeping color-coded regulatory scheme for counties and corresponding restrictions for all sectors of the economy.
Under the Blueprint’s most restrictive tiers, indoor family entertainment centers, like Ghost Golf, were forced to remain closed—even though they would have ensured social distancing and required patrons to wear masks. Ghost Golf had no revenue between March 2020 and April 2021, when the center finally reopened. As a result, Ghost Golf lost tens of thousands of dollars each month it remained closed. These restrictions nearly destroyed Daryn’s business; he was able to survive only because his landlord was willing to work with him.
The governor later suspended his Blueprint regime in June 2021 and ended the COVID-19 emergency proclamation in 2024. But the governor could proclaim a new emergency and re-impose Blueprint-like restrictions at any point in response to contagious disease or any other public health threat. What is more, the California Department of Public Health asserts an on-going power to re-impose Blueprint-like restrictions, or any other restrictions it deems necessary, to respond to COVID-19 regardless of whether there remains a continuing emergency. As such, business owners like Daryn Coleman worry that they may face new restrictions in response to some future event.
Daryn fought because he remained concerned about the possibility of renewed restrictions, and because he believed the governor and the Department of Public Health were out of line. Under the California Constitution, only the Legislature may make law. But throughout the pandemic, Governor Newsom and bureaucrats at the Department of Health usurped the lawmaking function.
The court of appeals ruled that the state did not violate the California Constitution when the legislature delegated sweeping emergency powers to the governor. The court’s reasoning was that the general purposes of the Emergency Services Act gave sufficient direction in providing that the governor should use his emergency powers to protect public health. But as Ghost Golf argued, that left the governor free to do anything that the Legislature might do in response to public health concerns.
The Supreme Court of California denied our request to take up the case. Unfortunately, that means that California’s nondelegation doctrine will remain effectively moribund unless and until the Supreme Court should take another nondelegation case in the future.
What’s At Stake?
- A state legislature cannot hand open-ended power to a governor or a state agency, even during an emergency.
- A governor cannot design an entire regulatory regime, such as California’s color codes, that restricts business operations and forces business closures indefinitely without violating separation of powers.
