Sutter County Superior Court Judge Sarah Heckman is allowing a lawsuit filed by two lawmakers against Gov. Gavin Newsom to proceed to trial instead of granting their motion for an injunction.
“We had hoped for a broad injunction, which would have restrained the governor from issuing any more orders without going through the legislative process,” said Assemblyman Kevin Kiley (R-Roseville).
Kiley and Assemblyman James Gallagher sued Gov. Newsom over Executive order N-67-20, which mandated a host of rules related to the Nov. 3 elections, such as number of precincts, planning the election and how many days polls must open prior to the election.
“We've been arguing all along that the governor has issued an executive order and a number of executive orders that exceed his powers and that he's not allowed to legislate on his own,” Kiley told the Southern California Record. “We have three branches of government not one. He's been acting like we have one. We're hoping that this case will put that to an end.”
Gallagher and Kiley vs. Gov. Newsom is set for trial on October 21 at the Sutter County Courthouse but first a pre-trial conference will take place on Monday, Oct. 12.
“There’s a little more briefing that needs to be done and some evidentiary issues that need to be handled but most of the arguments have already been developed in our brief that we just debated this week on Wednesday, Oct. 7,” said Kiley.
As previously reported, the COVID-19 outbreak led to the expansion of Gov. Newsom’s executive powers after a state of emergency was declared on March 4 but the state of emergency has not been terminated and is still in effect seven months later.
“Judge Heckman hasn’t issued an opinion yet but our argument is that, even if there is a state of emergency, the governor still isn't allowed to exercise the kind of powers he has been,” Kiley said in an interview.
According to Kiley, two lawyers from the state attorney general’s office argued on behalf of Newsom at the hearing, which took place on Oct. 7, that the complaint is moot because the executive order had been replaced by legislation but Judge Heckman denied their motion.
“I just don't think the judge bought the argument and that she thinks the case should be decided on the merits,” said Kiley. “The governor's attempts to get out of this on a technicality didn’t sway her.”
Kiley added that he’s encouraged by the Michigan Supreme Court decision, in which the state’s Emergency Services Act was declared unconstitutional.
“The Michigan Supreme Court ruling is very helpful for us because it shows the courts are starting to take seriously their role of upholding checks and balances during this extended state of emergency and, moreover, I think it applies to our case because California law shares so many similarities with Michigan law,” Kiley said. “The governor’s attornies tried to create a distinction based upon the legislature's ability to terminate a state of emergency but the judge did not seem to buy that.”