A Sutter County Superior Court judge set a precedent this week that even during an extended state of emergency, the courts have a role to play in maintaining the constitutional balance of power, according to two assemblymen who sued Gov. Gavin Newsom.
On Monday, Nov. 2, it was widely reported that Judge Sarah Heckman ruled in favor of Assemblymen Kevin Kiley and James Gallagher’s motion for a preliminary injunction.
“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 (CESA) which amends, alters or changes existing statutory law or makes new statutory law or legislative policy,” Judge Heckman wrote in her opinion just one day before the General Election.
Assemblymen Kiley (R-Roseville) and Gallagher (R-Sacramento) sued Gov. Newsom over Executive Order N-67-20, which mandated a host of rules related to the Nov. 3 election, such as the number of precincts, planning the election, and how many days polls must open prior to the election.
“Generally, the job of the governor and the executive branch is to execute, administer and implement the laws so there are existing statutes that give the governor authority to carry out those laws off that's true of the emergency services law as well,” Kiley told Southern California Record. “There are a lot of emergency powers the governor is given to implement certain facets of the emergency response but the court found that the law does not give the governor the ability to just make up any new law that he wants.”
Judge Heckman’s rulings include the following:
The court finds the cause is not moot.
“One of the governor’s arguments was that this particular order, N-67-20, is no longer a live issue but we said there are a lot of other orders and the governor is going to presumably continue to issue orders,” Kiley said in an interview. “So, that's why it is still a live issue, not moot and the judge agreed with our argument.”
The court finds the CESA is not unconstitutional.
“We argued that if the CESA is as broad as the governor says it has been, then it would be unconstitutional and the judge decided that it's not as broad as the governor says it is and that the governor has been exceeding his authority under that law,” Kiley said. “That's why his actions violate the constitution but the judge found that the emergency services act itself does not violate the constitution.”
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 act only has any effect at all if you're in a state of emergency,” Kiley said “We argued that, even during a state of emergency, the act does not give the governor those powers. He claimed it does, but the judge ruled in our favor.
According to media reports, Gov. Newsom issued a statement through his press secretary Monday, saying that the tentative ruling makes clear that the Governor’s statutory emergency authority is broad and constitutional, and that the Governor has the authority, necessary in emergencies, to suspend statutes and issue orders to protect Californians.
“Additionally, this ruling has absolutely no effect whatsoever on the current election,” Jesse Melgar stated on behalf of Gov. Newsom. “We strongly disagree with specific limitations the ruling places on the exercise of the Governor’s emergency authority and are evaluating next steps.”