Home>Articles>Court Declares Gov. Newsom’s Abuse of Power Unconstitutional

Assemblymen Kiley and Gallagher. (Photo: Katy Grimes for California Globe)

Court Declares Gov. Newsom’s Abuse of Power Unconstitutional

Judge issues injunction restraining the Gov. from any more unconstitutional orders

By Katy Grimes, November 2, 2020 3:26 pm

California Assemblymen Kevin Kiley and James Gallagher sued to stop California Governor Gavin Newsom’s “one man rule,” as California Globe has reported over several months. They were in Sutter County Superior Court October 21st, arguing that Gov. Gavin Newsom has exceeded his emergency powers in issuing Executive Orders having nothing to do with the coronavirus pandemic crisis.

Monday, State Superior Court Judge Sarah Heckman tentatively ruled in favor of Gallagher (R-Yuba City) and Kiley (R-Rocklin) in their abuse of power lawsuit against Governor Newsom.

In the tentative ruling, Judge Heckman declared the Governor’s recent Executive Order N-67-20 unconstitutional. More importantly, Judge Heckman’s tentative ruling places a permanent injunction against the Governor which prevents him from unilaterally making or changing state law moving forward.

Assemblyman Kiley wrote:

The Judge ruled Newsom violated the Constitution. She also issued an injunction restraining the Governor from issuing any more unconstitutional orders. You can read the ruling here.

This marks an end to Gavin Newsom’s one-man rule. It makes clear that the laws of the State of California do not countenance an autocracy under any circumstances – not for a single day, and certainly not for eight months with no end in sight.

The ruling is “tentative,” meaning Newsom has a few days to try to persuade the Judge to change her mind, but it’s rare for a tentative ruling to change. While Newsom can appeal, we are confident the decision is on solid legal ground and will stand.

Kiley and Gallagher argue 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 said.

Gov. Newsom’s Executive Order to create an all-vote-by-mail-election suspends and substantively changes California’s Elections Code. Gov. Newsom contends that the order “fits comfortably within the Governor’s broad grant of authority under the Emergency Services Act.”

Gov. Newsom’s attorneys argued that the governor does have the “”plenary” authority, along with “broad police powers” during a declared State of Emergency, and under the California Emergency Services Act (CESA).

In her ruling, Judge Heckman explains:

The Governor takes the position the California Emergency Services Act’s grant of authority to exercise “all police power vested in the state,” allowing him to “promulgate, issue, and enforce such orders and regulations as he deems necessary” authorizes him to legislate by unilaterally amending existing statutory law. Not only is this an active and ongoing controversy between the parties, but it is a critically important one for the Judicial Branch to resolve.

The Governor has issued three executive orders during the current state of emergency specifically regarding the November 3,2020 general election (Def. Exs. 4 and 5; Pl. Ex. D) and has issued more than 50 different executive orders changing numerous Califomia statutes since the state of emergency was declared. (Pl. Ex. F) Further, despite representations by the Governor’s legal counsel that Executive Order N-67- 20 dated June 3,2020 is “withdrawn,” there is no evidence it has been formally rescinded, and the Executive Order includes provisions controlling the election process for the November 3, 2020 General Election which were not superseded by the subsequently enacted legislation.

Specifically, despite the subsequent legislation, the Executive Order remained in effect requiring all county election officials to use the Secretary of State’s barcode tracking system for all mail ballots and altered the statutorily required outreach in Voter’s Choice Act counties to provide noticed, public meetings allowing for public comment on voting access for California voters with disabilities or limited English proficiency.

Judge Heckman also found “The plain meaning of the CESA does not delegate to the Governor the power to legislate, and therefore does not violate the separation of powers under California Constitution.”

Importantly, Judge Heckman did rule “On the issue of whether Executive Order N.67-20 was authorized by the California Emergency Services Act, the court finds the executive order was NOT authorized by the CESA because it improperly amended existing statutory law, exceeding the governor’s authority and violating the separation of powers.”

The judge explains:

The CESA allows the Governor, during a state of emergency, to issue orders and regulations and to suspend certain statutes, but the plain and unambiguous language of CESA does not permit the Governor to amend statutes or make new statutes. The Governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments. Because Executive Order N-67-20 amended sections of the Elections Code it exceeds the Governor’s authority under CESA and renders Executive Order N-67-2O invalid.

Kiley and Gallagher argued the Governor may not exercise legislative powers unless permitted by the Constitution, while the governor’s attorneys argued, “Making orders’ is what it says,” and that the legislation took care of overriding the governor’s orders.

Gallagher and Kiley argued in court that there is a very clear distinction in the California Governor’s emergency powers as it pertains to legislation: he cannot create legislation or new laws, but the emergency powers allow the governor to remove legislation that is a roadblock to making decisions during the emergency. He can suspend any regulatory statute if it is getting in the way of facilitating emergency procedures.

It appears Judge Heckman agreed with them:

The Court finds good cause to issue a permanent injunction consistent with the request set forth in paragraph 2l of plaintiffs’ complaint (Def. Ex. l), as follows: 8 Gavin Newsom, in his official capacity as Governor of the State of California is enjoined and prohibited from exercising any power under the California Emergency Services Act (Government Code $ 8550 et seq.) which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.

“Nobody disputes that there are actions that should be taken to keep people safe during an emergency. But that doesn’t mean that we put our Constitution and free society on hold by centralizing all power in the hands of one man,” Gallagher and Kiley said in a press statement.

The Court’s decision does not impact any of the election protocols for the 2020 election.

California Globe was the only Capitol media present at the trial.

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78 thoughts on “Court Declares Gov. Newsom’s Abuse of Power Unconstitutional

    1. NOW WE NEED ALL TO GET HIM OUT. WE ALL NEED TO TAKE OFF THE DOG MUZZLES. IT IS AGAINST THE LAW BAY AREA BUSINESSES!!!! TRADER JOE’S, SAFEWAY, DRAEGERS, NOBHILL WALMART ETC. SHOULD ALL BE BOYCOTTED.

      1. Why Boycott Trader Joe’s? The Management does allow people in to shop without Masks, where I am. If asked to wear a Mask, you may claim your Medical Exemption; if asked for proof of it, you may say that your Medical Records are protected under the HIPPA Laws. Only suggestions, instead of Legal Advice.

  1. “California Globe was the only Capitol media present at the trial.”
    Amazing that this should be. Think of it. Thank you so much Katy Grimes and The Globe!

  2. “Because Executive Order N-67-20 amended sections of the Elections Code it exceeds the Governor’s authority under CESA and renders Executive Order N-67-2O invalid.”

    “The Court’s decision does not impact any of the election protocols for the 2020 election.”

    Aren’t these two statements inconsistent?

    1. It’s too late to change protocols for the election but maybe the ruling will come into play later to apply to any voting funny business that is documented.

  3. So Good!!! Burn your mask Nov 4th!! Support Kevin Kiley and James Gallagher there are other lawsuits to come!! I’m so dang happy!! This took so long but it’s so worth the wait….

  4. Thank You! To the hardest working men…Kevin Kiley and James Gallagher….they represent their constituents WELL! Our future Gov. and LT.Gov…..A Shoutout to California Globe for reporting…where are the fake MSM from CA?

  5. End the masks! Stop allowing stores to discriminate against people not wearing masks!

    This was the worst I have seen. I can not believe a freaking mask mandate ever got passed. Newsom you are such a creep. Hope you get sued for many years jerk.

  6. About time someone reigns in little Hitler! Kim Jong Newsome has been ruling from his bully pulpit since this manufactured pandemic began! I signed the recall Newsome petition, have you???

  7. Katy…thank you for covering this critical news! Unbelievable this ruling hasn’t made it to prime time. Also, a huge thank you to Kevin Kiley and James Gallagher for your hard work and commitment to California citizens. We thank you both!!

    Recall Newsom.

  8. In a one party state he thinks he can do whatever he wants. He needs to be held responsible for dragging out this pandemic and the unintended consequences of lockdown. He’s a jackass unworthy of being dog catcher.

  9. Katy Grimes is the investigator, journalist, fact checker, photographer, editor, and moving force behind CalGlobe. God bless you, Katy. You are appreciated and loved.

      1. Is he still able to enforce the Purple Tier?? Or is this another abuse of power he is demanding? I know of a TON of businesses and churches that are staying open. This dictator needs to get fired! How is he still even able to have this position when he has been illegally mandating and changing laws continuously?

  10. Gop Voter Suppression. That is the only way they get to win. They want to take away peoples votes.. by either voter intimidation, not delivering ballots mailed, I hope tomorrow is the end of all the hate and cult-like followers. It is dividing our country. Not American. We have a dictator in the WH. Trump should be tried for treason not be re-elected.

      1. @ tom dooley

        I thought your comment was for me but I have a feeling that was not the case, and if not I apologize for my last comment to you.

        Mia Culpa

    1. Would you mind sharing your list of “dictator” Trump grievances with the rest of us? You may be correct but I would like to be pointed toward the tyrannical policies and actions so I may look for myself. The only reason I question your allegation is because I distinctly remember Trump not ruling with an iron fist in any of the “peaceful protest” zones. In fact he told every governor that had allowed police precincts and millions (possibly billions) in property damage that when they wanted help all they needed to do was ask. A dictator would literally have tanks in the streets and would have forced anyone standing opposed to submit or be permanently silenced, yes? A dictator might also order a drone strike against an American citizen without a trial or due process that would allow that citizen their day in court and to be judged by a jury of his peers, yes? Any idea which American president ordered the drone strike?

  11. Maybe now people of this Great State will realize what we have been saying since this planned destruction of California began. Newsalliini cannot make law. The mandate was not only unconstitutional it was illegal and immoral. Wake up people this State belongs to us not some rich political elite whose part of his Aunt Nancy Pelosies CABAL which has its one goal of taking away your freedoms. Read their playbook. Rules for Radicals
    by Communist Sal Alinsky!

  12. Our Church & Prayer Teams have prayed for this for quite sometime now I am so thankful to God for answering our prayers but we cannot stop here we must continue to get N. Pelosi out of office & help clean up our State No more do we want sanctuary states or cities we want justice & to live in peace. No more higher taxes no more ungodly Bill’s being passed that are destroying our children no more in Jesus Name I thank God for the judge as well as our congressman.

  13. I find it strangely curious that we have heard absolutely nothing about this on any of the typical news sources, local or otherwise. Gotta love the liberal coverup media…

  14. On October 30th, I voted in Los Angeles County California without a mask 😁 and b4 I did, the POLL WORKERS tried to disenfranchise me 😠 and even tried to intimidate me. Even threatened to not give me my ballot if I declined to use hand sanitizer and gloves. While I was voting, they threatened to “cancel” my ballot if I did not put my mask on, and 2 young lady poll workers even tried to start a chant of “Put your mask on! Put your mask on!”
    The workers were commenting out loud, “he’s selfish,” “he’s spreading his germs,” “record him,” and other brainwashed nonsense. Another poll worker even tried to get in my face and I had to remind them that I have a right to a private ballot. Fucking amazing.
    Maybe all this happened because I wore a red Angels baseball team hat, because I do not own a Trump hat, and they thought it was a Trump hat anyway 😂🤣😂🤣🤣😂
    After I was done voting, I wanted my “I voted” sticker, but the poll worker said she would not give me one without the mask. So I put it on, took my sticker, took my mask off, told her about the CDC study of how 85% of dutiful mask wears get catch Covid19 anyway and loudly said “bye commies!!” in the polling place doorway b4 I walked back to the parking lot 😁
    I’ve reported the election intimidation to a bunch of agencies in California and have had to resort to calling the FBI, because my local sheriffs station WONT take a proper report, The watch Commander has bought Gavin newsom’s lie hook line and sinker. Any tips on who to call or contact would be greatly appreciated

    1. B pr: What I experienced in DTLA was utter fraud, intimidation, harassment and impeding my right to vote the way I deemed I wanted to vote. Will respond with further detail. Gruesome has claimed a false emergency act, has not publicly ended it within 60-days and continues to collect federal funds under a false emergency order. I heard that is 130 years in prison! (Please throw the key away if he is ever held accountable.) Major international lawsuit has been filed, the largest tort case in history including using testing that its very creator (noble prize winner) said it is never to be used diagnostically, it can’t diagnosis, identify, quantify, etc. It was designed for laboratory use one.

  15. The emergency? Answer: Covid 1984. Time for Armageddon. We – those of us who are still human and who care – can’t fight this darkness and beat it. The world is ruined. It has been for a long time. But with the amassing of anti-God forces directly attacking God and nature (including human beings) and calling out to him, by their trampling of his standards, to “Bring it!,” we who have faith (based on knowledge) see no reason why he wouldn’t. Everyone, good and bad, is being attacked. Among the good are a tiny, tiny handful of loyal servants of God, who, if God doesn’t intervene, are going to be disappeared. Others may welcome genetic modification and (for those who don’t survive that) death, but God’s people wish for and deserve life.

    *I did not enjoy the abusive captcha. Never do.

    1. Correction: B pr: What I experienced in DTLA was utter fraud, intimidation, harassment and impeding my right to vote the way I deemed I wanted to vote. Will respond with further detail. Gruesome has claimed a false emergency act, has not publicly ended it within 60-days and continues to collect federal funds under a false emergency order. I heard that is 130 years in prison! (Please throw the key away if he is ever held accountable.) Major international lawsuit has been filed, the largest tort case in history including using testing that its very creator (Nobel Prize winner) said it is never to be used diagnostically, it cannot diagnosis, identify, quantify, etc. It was designed for laboratory use only.

  16. B pr: What I experienced in DTLA was utter fraud, intimidation, harassment and impeding my right to vote the way I deemed I wanted to vote. Will respond with further detail. Gruesome has claimed a false emergency act, has not publicly ended it within 60-days and continues to collect federal funds under a false emergency order. I heard that is 130 years in prison! (Please throw the key away if he is ever held accountable.) Major international lawsuit has been filed, the largest tort case in history including using testing that its very creator (noble prize winner) said it is never to be used diagnostically, it can’t diagnosis, identify, quantify, etc. It was designed for laboratory use one.

  17. You seem to fail to grasp some basic concepts. 1. You don’t get to vote “The way I deemed I wanted to vote.” There are rules and regulations regarding the proper way to vote, for example if you have a mail in ballot you must use black or blue ink, you can’t choose to use red because it’s the way you want to vote. Similarly if you vote in person you can not be armed or naked. The mask mandate is Constitutional under the Health and Safety Code. It is not an election issue. You are required to wear a mask whenever you leave your home or car, unless you are outside exercising, period. You may be fined for failing to abide by the health mandate and you are to be denied entrance into any establishment. This includes polling stations.

    1. The California Department of Public Health did not issue a mask mandate, it issued guidelines; that is to say, masks are not required on a statewide level. The only people who have compelled individuals to wear a mask are the local public health officials, either on the county or city levels. Therefore, whether or not you are subjected to a mask mandate depends on the county or city you’re in. Also, the public health officials have to clearly spell out which statutes give them that power and which statutes you will be charged with should you not comply; if they do not specify those statutes, then despite whatever strong language used in their health orders, they issued guidance only.

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