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Court of Appeal:
Governor Validly Exercised Emergency Powers in Pandemic
By a MetNews Staff Writer
The Third District held yesterday that there was no constitutional impediment to Gov. Gavin Newsom issuing sweeping executive orders in response to the current pandemic, reversing a judgment which granted declaratory relief and a permanent injunction.
It declared that the California Emergency Services Act (“CESA”), enacted in 1970—and, specifically, Government Code §8627, a part of that act—confers on the governor “police power” in emergencies, authorizing orders that conflict with statutes.
Presiding Justice Vance W. Raye authored the opinion which grants a peremptory writ of mandate, sought by Newsom. The court earlier stayed orders issued by Sutter Superior Court Judge Sarah H. Heckman.
Her view was that the CESA “does not authorize or empower the Governor of the state of California to amend statutory law or make new statutory law, which is exclusively a legislative function not delegated to the Governor under the CESA.”
Portion Moot
Raye said that Heckman’s Nov. 13 determination that Newsom unlawfully issued an executive order mandating that absentee ballots for the Nov. 3 election be sent to all registered voters is moot—having been superseded by legislation and pertained to an election that had already occurred—but that the balance of her judgment is not.
“[T]he superior court’s declaratory relief order and permanent injunction may govern existing and future emergency executive orders and are not moot,” Raye wrote, adding:
“Given that the COVID-19 crisis is not over and the efforts to combat it are of statewide concern, there can be no doubt that this appeal falls within our discretion.”
Raye said the CESA does not invalidly confer legislative powers on the state’s chief executive because he is not given carte blanche authority to issue decrees. Rather, the act sets standards, such as requiring coordination with state, local, and federal entities, he noted.
Safeguards Noted
“[O]f greater significance than ‘standards’ is the requirement that legislation provide ‘safeguards’ against the arbitrary exercise of quasi-legislative authority.” Raye wrote, elaborating:
“Here, an important safeguard is set forth in the Emergency Services Act. Section 8629 provides: ‘The Governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant. All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.’ ”
He also pointed out that §8567 provides:
“Whenever the state of war or state of emergency has been terminated, the orders and regulations shall be of no further force or effect.”
These provisions, the jurist opined, provide “a safeguard for the delegation of quasi-legislative authority in section 8627” and that “the Emergency Services Act, and specifically section 8627 of the Emergency Services Act, is not an unconstitutional delegation of legislative power.”
The challenge to Newsom’s authority was brought by Assembly members James Gallagher and Kevin Kiley who said yesterday they would seek review in the California Supreme Court.
July 10 Decision
Yesterday was the second time Raye wrote an opinion in the case. On July 10, he wrote for the court in declaring:
“This petition for writ of mandate by Governor Gavin Newsom challenges a decision by respondent Sutter County Superior Court granting a temporary restraining order and suspending an executive order of the Governor entered pursuant to his emergency powers. This petition does not, however, require this court to weigh in on the scope or breadth of the Governor’s emergency powers. Rather, it raises narrow issues concerning an expedited, ‘ex parte’ proceeding for interim declaratory relief and a temporary restraining order initiated by two members of the California State Assembly, real parties in interest James Gallagher and Kevin Kiley.”
He continued:
“[T]here was no basis for the superior court to grant real parties in interest relief using ex parte procedures prescribed by California law. The hearing on the ex parte application, conducted only one day after the underlying action was filed in superior court, was held without proper notice to the Governor or his appearance. Apart from these procedural deficiencies, real parties in interest also failed to make the requisite substantive showing for use of an ex parte proceeding. In short, the real parties in interest failed to present competent evidence establishing imminent harm from the Governor’s executive order requiring immediate action.”
Yesterday’s decision came in Newsom v. Superior Court (Gallagher), 2021 S.O.S. 1973.
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