A panel of appellate court justices Tuesday rejected a writ from Orange County Sheriff Don Barnes to suspend a lower court ruling ordering a halving of the county’s jail population to better conform with COVID-19 health guidelines.

Presiding Justice Kathleen O’Leary of the Fourth District Court of Appeals, Division 3, authored the ruling with Justice Raymond Ikola concurring and Justice David Thompson dissenting.

The justices noted that Orange County Superior Court Judge Peter J. Wilson’s order issued earlier this month did not order Barnes to cut the jail population in half before a scheduled Jan. 8 hearing.

Rather, Wilson ordered Barnes to submit a plan by Thursday on how to depopulate the jails.

Barnes “is not irreparably harmed by preparing a plan to comply with the challenged order or by participating in a status conference to discuss implementation of the proposed plan,” O’Leary wrote in the ruling. Also, O’Leary noted that Wilson’s order could be “amended” at the Jan. 8 hearing.

The appellate justices “invited” the American Civil Liberties Union, which sued to decrease the jail population, to file opposition to the sheriff’s petition by Jan. 12. Barnes can respond by Jan. 15.

“This schedule will allow the parties to incorporate additional developments at respondent court into their informal briefing,” O’Leary wrote.

Thompson dissented because he believes the sheriff’s petition should be denied outright as it is “premature for this court to take any action before the trial court enters a final order.”

Thompson said the order made earlier this month is “likely” to be “materially different” because of the recent outbreak in the jails.

“This is a fluid situation as evidence by the recent dramatic surge in the number of COVID-19 cases in the Orange County jail and the latest developments” in another appeal.

“The trial court must have an opportunity to address these changed circumstances in the first instance, along with the matters expressly reserved in the challenged order itself,” Thompson wrote.

“This court should only review the trial court’s action based up on a fully developed factual and legal record.”

ACLU attorney Corene Kendrick said the appellate justices “saw through (Barnes’) hyperbolic description of what Judge Wilson had ordered.” Kendrick accused the sheriff of “doom and gloom” with claims he will “have to release rapists and murderers.”

Said Barnes: “We received the appellate court’s ruling and are currently reviewing it and considering our next steps. I’m disappointed that the court did not grant an immediate stay, but we will continue to move forward through the appeals process in our fight to keep dangerous offenders from being released into our community.”

Kendrick said Barnes does not have to release all of the inmates outright. He has the option of home confinement and GPS monitoring, she said.

The outbreak in the county’s jails continued an upward trend with 1,099 inmates infected Monday rising to 1,246 on Tuesday. The county is awaiting results of 46 tests.

One inmate is hospitalized and a total of seven have been treated at hospitals since the recent outbreak occurred, officials said. One inmate has died.

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