California Assemblymen Kevin Kiley and James Gallagher have sued to stop California Governor Gavin Newsom’s “one man rule,” as California Globe has reported. They were in Sutter County Superior Court Wednesday largely arguing that Gov. Gavin Newsom has exceeded his emergency powers in issuing Executive Orders having nothing to do with the coronavirus pandemic crisis.
“Our trial against Governor Newsom has just concluded, and the Judge said she will issue a ruling ‘in very short order,’” Kiley wrote after the trial. “That probably means by the end of the week.”
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 say.
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.”
California is in its eighth month of Gov. Newsom-ordered lockdown under the COVID-19 pandemic, and still with no apparent end in sight.
Their recent Trial Brief, along with Gov. Gavin Newsom’s, were addressed Wednesday, October 21, 2020 in Sutter County Superior Court.
Kiley and Gallagher asked the court for two things:
(1) “a judgment that the Governor’s 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.”
Superior Court Judge Sarah H. Heckman opened Wednesday’s trial granting Gallagher/Kiley’s Motion to Deny two exhibits by the Governor’s legal team saying, “if we had a jury, I wouldn’t allow Exhibits 3 and 17 to go to a jury.” They were letters by two lawmakers which had not been authenticated.
Gov. Newsom’s attorneys argued that the governor does have the “”plenary” authority, alogn with “broad police powers” during a declared State of Emergency, and under the California Emergency Services Act (ESA).
The judge asked “what constitutes this broad police power?” And said “plenary authority can mean many things, particularly when mobilizing police power.”
”It seems like a leap of police power to legislative power.”
Judge Heckman also challenged the Governor’s attorneys on the specific powers the governor has under the ESA. She said the ESA “speaks really specifically about amending, rescindings, orders, regulations, and notice given to all such orders, and is in many, many places” in the ESA. “But I didn‘t see anywhere writing law or enacting statutes.”
“‘Making orders’ is what it says,” the governor’s attorneys said.
The Judge asked if that included amending statutes… “your view is he can do this,”she added.
”In this case, the legislation did that,” the governor’s attorneys said, conflating Assembly Bill 860 and Senate Bill 423, with the governor’s Executive Order altering California Election Law. AB 860 and SB 423 were passed by the Legislature and signed into law in June and August respectively. The governor’s Executive Order was issued in May.
Assemblyman Gallagher said 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.
Gallagher said this is very clear in the very plain reading of the Emergency Services Act.
Another argument by the governor’s attorneys is that because the Legislature cannot pass legislation quickly during a State of Emergency, the governor can accomplish this through Executive Orders.
However, this argument does not fly. The Legislature not only has the ability to pass legislation quickly, they do this at the end of every legislative session through “gut and amend” bills, where they replace the language in a bill which has already passed the committee process with new, preferred language, and they do this in record time. This typically is used for legislation they could not pass through the committee process, but it could be done on an emergency basis as well, if they could not agree on the swift passage of emergency legislation.
Assemblyman Kiley said the Legislature makes new policies every yearand has the ability to act quickly enough. “There is no precedence of the Legislature handing over powers,” he said.
Kiley said the core legal principles are the separation of powers. “Even a willing Legislature cannot give the Governor its powers.”
”Why are we here today?” Assemblyman Gallagher asked. “This is an important case. It goes to who we are as Americans… our system of government… separate powers, checks and balances. It is important and not a minor thing to deviate from this.”
”Process matters in a Republic and in a free society,” Gallagher said, “and that is what they want to do… say ‘it doesn’t really matter.’ But it does matter, even more so in an emergency. Some of the most egregious human rights violations stem from when we deviated.”
The judge is expected to issue a tentative decision “in short order,” and will issue a statement of decision after.
California Globe was the only media present at the hearing.
The Globe will report back when the judge issues her decision.
You can watch Kiley’s opening statement here.