Court of Appeal Rules on Governor’s Emergency Powers Challenge

On May 5, in an unanimous 3-0 decision, the California Court of Appeal, Third Appellate District, issued its ruling in Newsom v. Superior Court of Sutter County (Gallagher, Kiley, and others as Real Parties in Interest). The decision was certified for publication. The decision is expected to be appealed to the California Supreme Court.

The case was defended by the Attorney General’s Office. Assembly Members James Gallagher and Kevin Kiley argued their side of the case. Several other legislators filed formal briefs in the case including Senators Tom Umberg, Shannon Grove, Brian Dahle, and Jim Nielsen, as well as Assembly Members Marc Berman, Marie Waldron, Megan Dahle, and Jordan Cunningham. The California State Association of Counties and League of California Cities, Secretary of State, also filed amicus curiae briefs.

The case was before the Third District Court of Appeal on petition for writ of mandate by Governor Newsom relating to his Executive Order N-67-20. The trial court had granted declaratory relief that the Executive Order is void as unconstitutional and that the California Emergency Services Act (Gov. Code, § 8550 et seq. (CESA)) does not authorize the Governor to issue an executive order that amends or makes statutory law.

The trial court issued a permanent injunction prohibiting the Governor from exercising any powers under CESA “which amend, alter, or change existing statutory law or make new statutory law or legislative policy.” The Third District Court of Appeal, on the other hand, granted the Governor’s petition and directed the superior court to dismiss as moot the claim for declaratory relief that the Executive Order is void as an unconstitutional exercise of legislative power.

The Third District Court of Appeal noted that the Executive Order was superseded by legislation and was directed only at the November 3, 2020 general election, which had occurred before the judgment was entered. However, the appellate court noted that the case raised “matters of great public concern regarding the Governor’s orders in the ongoing COVID-19 pandemic emergency.” As a result, the court considered the merits of the case.

The court of appeal ruled that the trial court had “erred in interpreting (CESA) to prohibit the Governor from issuing quasi-legislative orders in an emergency. We conclude the issuance of such orders did not constitute an unconstitutional delegation of legislative power.”

The appellate court first addressed the issue of mootness. Here the court’s decision was that the real parties’ claim for declaratory relief that the Executive Order was null and void as an unconstitutional exercise of legislative authority was “unquestionably moot.” However, the appellate court noted that it has discretion in cases such of this to decide the merits of the matter. So, the Third District Court of Appeal concluded that 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.”

Next, the court of appeal ruled that Government Code Section 8627 is not an unconstitutional delegation of legislative power. The superior court concluded that CESA did not authorize the Governor to issue an executive order that amends or makes law. Interestingly, the court of appeal wrote, “That said, 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.”

For example, in reviewing Government Code Section 8571, the Governor argued that it would be “absurd” to interpret Section 8571 as limited to suspending statutes whole cloth without allowing the Governor to alter them or replace them with orders containing requirements tailored to the emergency. The court of appeal, however, noted that the phrasing of Section 8571 that the Governor may “suspend” a statute where “strict compliance” with the statute would interfere with mitigating the emergency is clear that 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 Third District Court of Appeal then reviewed whether there was an unlawful delegation of legislative power because “the plain language of section 8627 [gives] the executive the state’s “police power,” i.e., quasi-legislative power, in an emergency.”  As the appellate court noted in its written decision, the general rule as determined by the courts in this state is that, “An unconstitutional delegation of power occurs when the Legislature confers upon an administrative agency unrestricted authority to make fundamental policy determinations.”

In this regard, the court of appeal said that, “The purpose of the Emergency Services Act does furnish standards to guide implementation of section 8627.” Here the appellate court used the broad language of CESA to explain its decision: “Thus, in issuing orders under section 8627, the Governor is charged by the Emergency Services Act with the responsibility to provide a coordinated response to the emergency. This statutory purpose while broad gives the Governor sufficient guidance, i.e., to issue orders that further a coordinated emergency response.”

More importantly, the appellate court ruled that there is an overarching protection built into CESA: “The Governor’s obligation under the Emergency Services Act to terminate the emergency and thereby nullify orders issued under his emergency powers as soon as conditions warrant, as well the Legislature’s authority to terminate the emergency at any time with the same effect, provides a safeguard for the delegation of quasi-legislative authority in section 8627.” The court then relief upon federal court decisions related to a federal statute to further explain its ruling, as well as rulings by the Kentucky and Pennsylvania Supreme Courts.

As a result, the court of appeal held that Government Code Section 8627 of the Emergency Services Act is not an unconstitutional delegation of legislative power. Section 8627 provides: “During a state of emergency the Governor shall, to the extent he deems necessary, have complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California in order to effectuate the purposes of this chapter. In exercise thereof, he shall promulgate, issue, and enforce such orders and regulations as he deems necessary, in accordance with the provisions of Section 8567.”