Court Declares Gov. Newsom’s Abuse of Power Unconstitutional

restraining order Gavin Newsom

As the California Globe has reported for several months, California Assemblymen Kevin Kiley and James Gallagher sued to stop the "one-man rule" of California Governor Gavin Newsom. On October 21st, they were in Sutter County Superior Court, alleging that Gov. Gavin Newsom abused his emergency powers in issuing Executive Orders that had nothing to do with the pandemic coronavirus crisis. 

On Monday, in their abuse of power case against Governor Newsom, State Supreme Court Judge Sarah Heckman tentatively ruled in favor of Gallagher (R-Yuba City) and Kiley (R-Rocklin). 

Judge Heckman ruled unconstitutional the Governor's latest Executive Order N-67-20 in the preliminary decision. More significantly, the preliminary decision of Judge Heckman puts a permanent injunction on the Governor that prohibits him from making or modifying state law unilaterally.

Assemblyman Kiley wrote:

The Judge ruled Newsom violated the Constitution. She also issued an injunction restraining the Governor from issuing any more unconstitutional orders. You can read the ruling here.

This marks an end to Gavin Newsom’s one-man rule. It makes clear that the laws of the State of California do not countenance an autocracy under any circumstances – not for a single day, and certainly not for eight months with no end in sight.

The ruling is “tentative,” meaning Newsom has a few days to try to persuade the Judge to change her mind, but it’s rare for a tentative ruling to change. While Newsom can appeal, we are confident the decision is on solid legal ground and will stand.

Kiley and Gallagher claim that the Constitution of California has an explicit clause of separation-of-powers that Gov. Newsom has violated. "The Governor of California is legally barred from doing the very thing that Gov. Newsom did here: exercising legislative authority," they said. 

The Executive Order of Gov. Newsom to create an all-vote-by-mail-poll suspends and significantly alters the Election Code of California. Gov. Newsom claims that the order "fits well within the limited grant of authority by the Governor under the Emergency Services Act." 

"The lawyers of Gov. Newsom claimed that the governor has the" plenary "authority during a declared State of Emergency and under the California Emergency Services Act (CESA), along with" strong police powers.

In her ruling, Judge Heckman explains: 

The Governor takes the position the California Emergency Services Act’s grant of authority to exercise “all police power vested in the state,” allowing him to “promulgate, issue, and enforce such orders and regulations as he deems necessary” authorizes him to legislate by unilaterally amending existing statutory law. Not only is this an active and ongoing controversy between the parties, but it is a critically important one for the Judicial Branch to resolve.

The Governor has issued three executive orders during the current state of emergency specifically regarding the November 3,2020 general election (Def. Exs. 4 and 5; Pl. Ex. D) and has issued more than 50 different executive orders changing numerous Califomia statutes since the state of emergency was declared. (Pl. Ex. F) Further, despite representations by the Governor’s legal counsel that Executive Order N-67- 20 dated June 3,2020 is “withdrawn,” there is no evidence it has been formally rescinded, and the Executive Order includes provisions controlling the election process for the November 3, 2020 General Election which were not superseded by the subsequently enacted legislation.

Specifically, despite the subsequent legislation, the Executive Order remained in effect requiring all county election officials to use the Secretary of State’s barcode tracking system for all mail ballots and altered the statutorily required outreach in Voter’s Choice Act counties to provide noticed, public meetings allowing for public comment on voting access for California voters with disabilities or limited English proficiency.

Judge Heckman also found “The plain meaning of the CESA does not delegate to the Governor the power to legislate, and therefore does not violate the separation of powers under California Constitution.”

Importantly, Judge Heckman did rule “On the issue of whether Executive Order N.67-20 was authorized by the California Emergency Services Act, the court finds the executive order was NOT authorized by the CESA because it improperly amended existing statutory law, exceeding the governor’s authority and violating the separation of powers.” 

The judge explains:

The CESA allows the Governor, during a state of emergency, to issue orders and regulations and to suspend certain statutes, but the plain and unambiguous language of CESA does not permit the Governor to amend statutes or make new statutes. The Governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments. Because Executive Order N-67-20 amended sections of the Elections Code it exceeds the Governor’s authority under CESA and renders Executive Order N-67-2O invalid.

Kiley and Gallagher claimed that, unless allowed by the Constitution, the governor could not exercise legislative authority, while the governor's lawyers argued, "Making orders is what it says," and that the legislature was responsible for overriding the orders of the governor. 

In court, Gallagher and Kiley argued that there is a very clear difference in the emergency powers of the California Governor when it relates to legislation: he does not enact regulations or new laws, but the emergency powers allow the Governor to override legislation that is a roadblock to decision-making during the emergency. If it is getting in the way of promoting emergency operations, he may suspend any regulatory law.

It appears Judge Heckman agreed with them: 

The Court finds good cause to issue a permanent injunction consistent with the request set forth in paragraph 2l of plaintiffs’ complaint (Def. Ex. l), as follows: 8 Gavin Newsom, in his official capacity as Governor of the State of California is enjoined and prohibited from exercising any power under the California Emergency Services Act (Government Code $ 8550 et seq.) which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.

“Nobody disputes that there are actions that should be taken to keep people safe during an emergency. But that doesn’t mean that we put our Constitution and free society on hold by centralizing all power in the hands of one man,” Gallagher and Kiley said in a press statement.

The Court’s decision does not impact any of the election protocols for the 2020 election.

California Globe was the only Capitol media present at the trial. 

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