Assemblymen Kevin Kiley and James Gallagher are preparing a California Supreme Court appeal brief after a panel of three Third District Court of Appeal justices ruled against the lawmakers last week.
The appellate justices overturned Sutter County Superior Court Judge Sarah Heckman’s decision that prohibits Gov. Newsom from exercising any power under the California Emergency Services Act (CESA), as previously reported.
“It's disappointing but not all that surprising,” Kiley told the Southern California Record. “This was always seen by the governor as his best shot in this particular court but, in fact, the court sided with us on a number of issues but ultimately ruled in favor of the governor. We're looking forward to taking it to the California Supreme Court and are hopeful that the justices there will do what we believe the law requires.”
Regarding Section 8571 of the CESA, which permits the governor during a state of emergency to suspend any regulatory statute, the Third District Court of Appeal ruled, “This provision of the Emergency Services Act is addressed to the Governor’s negative power to suspend unhelpful statutes in an emergency, not an affirmative power to create helpful ones.”
The panel that issued the May 5 opinion included presiding Justice Vance W. Raye, Associate Justice Ronald B. Robie, and Justice Jonathan Renner who was nominated to the Third Appellate Court of Appeal by former Gov. Edmund G. Brown, Jr. Presiding Justice Raye once worked as Gov. George Deukmejian’s (1983 to 1991) deputy legislative secretary and later as Gov. Deukmejian’s legal affairs secretary, according to the court’s website. Judge Robie worked first as a legislative intern with the California Assembly and subsequently as a staff director with the Assembly.
“Different districts have different justices, different backgrounds, and have different patterns in their decisions and this has always been a district that seems to be more deferential to the actions of the governor,” Kiley said. “That's why Gov. Newsom has always been eager to get in front of that particular court but this isn’t the end of the line. They're only an intermediate court and we've always said this is going to be decided by the California Supreme Court.”
Kiley characterized the Third District Court of Appeal’s reversal and remand as an odd opinion.
“All things considered the fact that even this court, which was very favorable to the governor, sided with us on most of the legal questions indicates the weakness of Gov. Newsom’s case and makes me hopeful that we'll get a better outcome before the higher court,” Kiley said.
Judge Raye, who authored the opinion, wrote the following statements in support of the lawmaker's arguments:
1. We conclude there is an actual controversy regarding the scope of the Governor’s authority to issue and implement executive orders under the Emergency Services Act, which the Governor clearly intends to continue to do during the COVID-19 state of emergency.
2. We agree that two out of the three provisions of the Emergency Services Act the court examined do not by their terms refer to the Governor’s powers in an emergency as including amending or making law.
3. In pertinent part, Section 8567, subdivision (a), provides that “[t]he Governor may make, amend, and rescind orders and regulations necessary to carry out the provisions of this chapter” and such “orders and regulations shall have the force and effect of law.” This language does not refer to the Governor making or amending “law” but rather distinguishes “orders and regulations” from “law” by stating that the former “shall have the force and effect of law.”