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Gov. Gavin Newsom. (Photo: Kevin Sanders for California Globe)

Court of Appeal Rules on Governor’s Emergency Powers Challenge

The decision is expected to be appealed to the California Supreme Court

By Chris Micheli, May 5, 2021 3:58 pm

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The Third District Court of Appeal noted that the Executive Order was superseded by legislation and was directed only at the November 3, 2020 general election, which had occurred before the judgment was entered.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.”

appellate court decision on Kiley:Gallagher suit
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8 thoughts on “Court of Appeal Rules on Governor’s Emergency Powers Challenge

  1. I would like to know how Newsom can self declare people are not entitled to their constitution rights and be subjects to the whims of government. This was not anywhere near a free society.

  2. 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.”

    This ruling gives me very LITTLE confidence that citizens have ANY protection against the Governor’s abuse of power, at ALL. Who determines when “the conditions warrant” termination of the emergency? The Governor? The CDC? The Democrat controlled Legislature? In fact, in the case of this pandemic, any recurrence or appearance of mutant varieties could be used to justify an ENDLESS EMERGENCY.

  3. The appeals court “conveniently” chose to ignore the “pandemic politicization” that has been introduced by the Governor and Legislature. Is this what “blind justice” means?

  4. The governor has the power to legislate? The power to legislate belongs to the legislature, not the executive branch. A state of emergency, by California Constitution, is for a short time-period, not a year or more. The Third District is writing pure fiction!

    1. No doubt!!!

      What is this, some nascent carryover from the days of the alcaldes, where they were basically kings over their little fiefdoms???

      As one of the earlier posters said, this BS could go on forever, given the highly politicized nature of the plandemic, and its political underpinnings, especially given its 99.8% survivability rate, and highly inflated and suspect fatality counts…

  5. A subversive way to abolish a Right – any Right – is to simply suspend them, into perpetuity. The “casas belli” in the instant matter is an alleged “emergency” setting. But without an unambiguous resolution end-point, the emergency simply never ends (see 911). What is the (unspoken) resolution end-point we are to infer here? “Herd immunity” theory through vaccination, with-or-without the consent of those being vaccinated. Nice try. Richard Pan/Ben Allen played this trick (PSYOPS) back in 2015 with SB277. Separate-but-equal is illegal based only on RACE — not on vaccine status. The legal remedy then, as now, compels Calif not to infringe upon the Rights of one group to pander to the whims and beliefs of another. The legislative liability protections afforded “everything COVID” means there no “COVID facts” but rather, self-serving opinion masquerading as objective fact. Make Newsom declare, with specificity what the “resolution end-point” is and attack that. COVID = PSYOPS … a nefarious way to force-vaccinate an entire population.

  6. Randy Kelton (Tx) has published a good format on “Rule of Law Radio.” Newsom, Dem Legislature, and corrupt courts will only bend to fear of Criminal Charges (ie. Nursing Home deaths; illegal Election Law changes, constitutional violations).

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