The California Supreme Court is set to rule on Gov. Gavin Newsom's 73-page appeal of a Sutter County Superior Court judge’s decision that prohibits him from exercising any power under the California Emergency Services Act (CESA).
In her opinion, Sutter County Superior Court Judge Sarah Heckman enjoined Gov. Newsom from amending, altering, or changing existing statutory law, making new statutory law or legislative policy. However, the order is stayed while pending with the 3rd Court of Appeal.
“Gov. Newsom certainly has continued to issue orders,” said Assemblyman Kevin Kiley.
For example, on Jan. 27, Gov. Newsom signed an executive order confirming that certain health care professionals and providers are protected from legal liability when they render services, including COVID vaccinations, during a state of emergency.
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.
“Briefs have been submitted and we're just waiting to hear from the court now,” Kiley told the Southern California Record.
Among the briefs submitted was an amicus curiae filed by Luke Wake, an attorney with the Pacific Legal Foundation.
“They provided a very compelling argument about the separation of powers and how this issue is foundational to our system of government,” Kiley said.
Wake argues that Government Code § 8627 does not authorize Gov. Newsom to establish law because the California legislature cannot give away its police powers.
“If the Legislature truly conveyed all of its police powers in Section 8627, then it failed to resolve fundamental policy issues,” Wake wrote in his brief. “Under this broad construction, the Legislature has completely abdicated its role by leaving fundamental policy questions to the executive branch.”
The California legislature also submitted an amicus brief supporting Kiley.
In it, the legislature argued that the proper protocol for Gov. Newsom to amend election laws was by proclamation and a special session.
“There is no alternative constitutional provision for the Governor to act as the legislature and the executive in matters of enacting legislation,” wrote attorneys in their amicus brief on behalf of California state senators Shannon Grove, Brian Dahle, Senator Jim Nielsen, and State Assemblymembers Marie Waldron, Megan Dahle, and Jordan Cunningham. “Were this Court to endorse such a process, an untenable precedent weakening the separation of powers doctrine (and weakening the State Legislature) would result.”
Placer County and the U.S. Justice Foundation also submitted briefs in support of Kiley.
Attorney Emily F. Taylor argued in Placer County's amicus brief that Judge Heckman properly ruled the constitutional separation of powers bans Gov. Newsom from amending statutes or creating new statutes.
“By affirming the Constitutional limit on the Governor’s ability to create law, the court’s ruling protects the powers granted by the Constitution to local governing bodies to enact local ordinances and regulations that do not conflict with general laws,” Taylor wrote. “The ruling also affirms that the Governor does not have the Constitutional authority to unilaterally impose new statutory requirements on county governments, such as the election-related requirements set forth in Executive Order N-67-20.”