Gov. Gavin Newsom has appealed a Sutter County Superior Court judge’s decision that enjoins and prohibits him from exercising any power under the California Emergency Services Act (CESA) that would amend, alter or change existing statutory law, make new statutory law or legislative policy.
“We expected it,” Assemblyman Kevin Kiley (R-Roseville) said. “He rushed into the appeals court within a matter of a couple of days after the decision became final and filed a petition for an extraordinary writ because he wanted the court to throw out the decision right away but the court refused to do that.”
Instead, the Third Appellate District has set the case up for a full-fledged hearing with briefings and oral arguments.
“Gov. Newsom is acting as an autocrat, claiming for himself powers that actually belong to the legislature, which is not allowed under our constitution,” Kiley told the Southern California Record. “That’s the key issue in the case and we're hoping that the appeals court reaches a precedent-setting decision that this sort of behavior is not allowed by this governor or any governor.”
As previously reported in the Southern California Record, Assemblymen Kiley and James 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.
Among the defenses that Gov. Newsom invoked in his appeal is that Government Code Section 8627 centralizes the State’s authority and gives him all powers, including legislative and judicial power. Another defense is that Government Code Section 8567 allows Gov. Newsom to make orders and regulations that are contrary to and supersede any and all existing statutory laws.
“He claims that even if the injunction were in effect he could still do things like lockdowns because of a different statute that exists on the books dealing with quarantining,” Kiley said in an interview. “We, of course, would not necessarily agree with that but that is his position. In any case, the injunction is paused pending the outcome of this proceeding with the appeals court.”
As of December 10, the health department has cited 1,450,235 coronavirus cases statewide, resulting in 20,463 deaths, according to the state’s COVID-19 dashboard, which reports that the number of COVID-related deaths increased by 1.1% from the prior day total of 20,243.
Last week, Assemblymen Kiley and Gallagher filed a 13,986-word reply in opposition to Gov. Newsom’s appeal.
“The law is very clearly on our side and I think the governor has an indefensible position, which is claiming that a state of emergency gives him the powers of a Roman dictator where he can simply rule the state by decree,” Kiley said. “I'm confident that the court will look at the arguments of both sides and reach the right decision, which is that even during an emergency, we still have a constitution. We still have checks and balances and separation of powers. Legislative powers belong to the legislature.”
Since the injunction was granted by Sutter County Superior Court Judge Sarah Heckman, Kiley notes that he has seen a slight improvement in Gov. Newsom.
“He hasn't been creating policy that is as broad in terms of completely making up new laws like he was before but he is obviously imposing these lockdowns with newfound ferocity,” Kiley said. “So, in that sense, his behavior has not changed at all.”