On the heels of a federal judge in Pennsylvania ruling that Gov. Tom Wolf’s lockdown orders are unconstitutional, violating both the First and 14th Amendments, back in California, Assemblymen James Gallagher (R-Yuba City) and Kevin Kiley (R-Rocklin) just filed their brief with the California Superior Court setting the clear legal argument against Gavin Newsom’s one-man rule.
States sill laboring under lockdown orders are pushing to get back some normalcy, and using the courts to achieve this.
Kiley and Gallagher explain:
“We are asking the court for two things: (1) “a judgment that the Executive Order so issued is null and void”; (2), a court order stopping the Governor from further exercising any “legislative powers in violation of the California Constitution.”
We were limited to 15 pages, although we are also filing a separate 15-page Opposition to the Governor’s own brief. Here’s how ours begins:
“In the case before the Court, Defendant Gavin Newsom declares that the six-month-and-counting State of Emergency centralizes the State’s powers in the hands of the Governor. This disquieting claim belies California law and defies America’s first principles.”
We then set forth the constitutional basis for the Court to step in:
“The authors of California’s Constitution learned the lesson of America’s founding even better than the Founders themselves, enshrining an explicit separation-of-powers provision. A California Governor is constitutionally forbidden from doing the very thing Gov. Newsom has done here: exercise legislative powers.”
Our brief then turns to the unprecedented abuses of this year:
“California has entered its seventh month of the COVID-19 pandemic, with no apparent end in sight. In addition to sweeping ‘guidance documents’ that close schools and shutter businesses, Governor Gavin Newsom has issued 53 Executive Orders that span 15 different California Codes and change over 400 state laws.”
And here is the crux of the legal argument: the Emergency Services Act does not authorize Newsom’s unconstitutional actions.
“Contrary to the Governor’s claim, the Emergency Services Act does not and could not inaugurate an autocracy in the State of California. Such a wild misapprehension of his own authority is precisely why this case demands a resolution on the merits.“
In June, Sutter County Superior Court Judge Perry Parker granted a temporary restraining order on Governor Gavin Newsom’s Executive Order that requires all registered California voters to receive a mail-in ballot for the upcoming November election. Kiley and Gallagher had petitioned Judge Parker for the TRO citing that Governor Newsom had overstepped the bounds of his emergency powers when he was the sole lawmaker in Sacramento capable of making laws during the two months of the coronavirus pandemic when the state Legislature couldn’t meet.
The Federalist reported:
In the Pennsylvania case, U.S. District Court Judge William Stickman struck down Gov. Wolf’s limits on indoor and outdoor gatherings of up 25 and 250 people, respectively. The limitations, Stickman wrote, violate “the right of assembly enshrined in the First Amendment.”
Stickman ruled that the governor’s stay-home order and mandatory closure of businesses, which were deemed non-essential to curb the spread of the novel Wuhan coronavirus, infringed on citizen freedoms and discriminated based upon arbitrary “life sustaining” and “non-life sustaining” standards breaching 14th Amendment protections.
Kiley and Gallagher’s entire brief is available HERE.
The New York Times has a map of the 50 U.S. States in varying stages of re-opening, and some, like California, reversing re-opening plans.
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