Monday, July 13, 2020
Court of Appeal:
Opinion Says Challenge to In-Person Voting Procedures Should Not Have Been Heard Ex Parte, Without Notice to the Governor, and in the Absence of a Need for Emergency Relief
By a MetNews Staff Writer
A judge in Northern California’s sparsely populated County of Sutter jumped the gun in suspending an emergency executive order relating to polling places in the November election without giving Gov. Gavin Newsom the opportunity to be heard, the Third District Court of Appeal declared Friday.
Acting in response to an ex parte application by two Northern California members of the Assembly, Superior Court Judge Perry Parker on June 12 granted a temporary restraining order against implementation of Executive Order N-67-20, issued by Newsom on June 3. That order relates to in-person voting and does not affect Executive Order N-64-20, signed by Newsom on May 8, requiring that a vote-by-mail ballot be sent to every registered voter, in light of the COVID-19 epidemic.
On June 17, Presiding Justice Vance W. Raye issued an order staying Parker’s temporary restraining order and specifying that “the court is precluded from issuing further injunctive relief, pending the receipt of opposition and further order of this court.”
In yesterday’s opinion, Raye said:
“Having not been properly notified of the ex parte hearing, the Governor did not appear in respondent superior court. Nevertheless, without any evidence that would support the immediate need to act at that time and without consideration of the Governor’s position, the superior court simply signed the proposed order presented by real parties in interest.”
Those real parties are Assembly members James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin. They contend that the governor’s emergency powers do not extend to overriding state law.
Under Newsom’s June 3 order, the polls would be open for four days, county elections officials would be required to use the Office of Secretary of State’s vote-by-mail ballot tracking system, and there would have to be at least one polling place per 10,000 registered voters.
Raye noted that legislation has now been passed requiring that ballots be sent to all voters, and that a bill—SB 423—is pending which would govern in-person voting in connection with the Nov. 3 general election. If that bill passes and the governor signs it, he observed, issues relating to the June 3 executive order will become moot.
“As the Executive Order stated by its own terms, pending legislation was meant to ultimately govern the election. If, for some reason, a substantive conflict does arise between the Governor’s emergency authority and the Legislature, that could present issues requiring careful consideration and ultimate resolution by the courts. However, the superior court’s order was not the product of such consideration.”
The jurist said that aside from the lack of notice to the governor, the plaintiffs “failed to make the requisite substantive showing for use of an ex parte proceeding,” explaining that they “failed to present competent evidence establishing imminent harm from the Governor’s executive order requiring immediate action.”
Gallagher’s declaration in support of the motion, he noted, “did not reference anything the Executive Order would immediately compel,” adding:
“Gallagher did not point to any impending election timelines or deadlines affected by the Executive Order, which is not surprising since the ballot materials had not been finalized and the Executive Order did not shorten the timeline for doing so.”
The opinion directs issuance of a peremptory writ in the first instance, commanding the Sutter Superior Court to vacate its temporary restraining order and deny ex parte relief.
The case is Newsom v. Superior Court (Gallagher), C092070.
Gallagher and Kiley, who are both members of the State Bar, represented themselves.
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