The lawsuit filed by Assemblymen James Gallagher and Kevin Kiley is to determine whether the governor has the emergency authority to make law without legislative authority, using his emergency powers during the COVID shutdown of the state. Gov. Gavin Newsom had issued 58 executive orders by the time Gallagher and Kiley filed their suit. Many of those decisions and executive orders were legally dubious if not outright unconstitutional, all under the guise of “public health.”
Gallagher and Kiley have consistently said throughout the lockdowns that the California Constitution is abundantly clear that the governor cannot make law himself, because only the Legislature can.
Wednesday, the Third District Court of Appeal issued their decision.
“The Third District sided with me and James on almost every legal issue,” Assemblyman Kiley posted on Twitter. “Yet it somehow found a path to avoid limiting the Governor’s powers. This case will be decided by the California Supreme Court.”
The Third District sided with me and James on almost every legal issue. Yet it somehow found a path to avoid limiting the Governor's powers. This case will be decided by the California Supreme Court. pic.twitter.com/YPdPNPCmQN
— Kevin Kiley (@KevinKileyCA) May 5, 2021
“Not the ruling we wanted, but this fight is far from over,” Assemblyman Gallagher posted on Twitter.
— James Gallagher (@J_GallagherAD3) May 5, 2021
The Assemblymen argued in their lawsuit that California’s Constitution has an explicit separation-of-powers provision, which Gov. Newsom has violated. “A California Governor is constitutionally forbidden from doing the very thing Gov. Newsom has done here: exercise legislative powers,” they say.
The Globe talked with Assemblyman Kiley about their filing in appeals court in December.
He explained that following their legal win in Sutter County Superior Court, Gov. Newsom and his legal team appealed Kiley and Gallagher’s trial court victory. This is what they write in their return response:
“This case concerns a limited point of law: whether the California Constitution countenances a dictatorship. Gavin Newsom is no Caesar, but his legal theory in this case and ruling philosophy this year are that of dictator legibus faciendis. The Executive can make laws at will, and the participation of the Legislature is at his discretion.”
They say in their response:
What is at issue is whether, in addition to this duly delegated authority, the Governor may lay claim to a form of “police power” that includes acts of purely legislative creation. Such power, if legitimized by this Court, would admit of no practical limitation.
This is the Third District Court of Appeal decision:appellate court decision on Kiley:Gallagher suit
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