Judge Cracks Down on Gavin Newsom's 'Unconstitutional Exercise of Legislative Power'
A judge in California ruled Monday that Democratic Gov. Gavin Newsom has overstepped his bounds with his coronavirus executive orders and invalidated one of them pertaining to Tuesday’s election.
The Associated Press reported that Sutter County Superior Court Judge Sarah Heckman issued a preliminary ruling against Newsom that bars him from creating more directives under the California Emergency Services Act that could construct new or amend current laws, stating one of his orders especially did not protect individuals with disabilities or those with limited command of the English language.
According to Heckman’s order in the case of James Gallagher and Kevin Kiley vs. Gavin Newsom, the judge sided with the plaintiffs — California Republican assemblymen — offering them declaratory and injunctive reliefs specifically for Executive Order N-67-20, which Newsom signed on June 3.
“It’s the second time a judge in the county has reached the same conclusion, which runs counter to other state and federal court decisions backing the governor’s emergency powers,” the AP reported. “An appeals court quickly stayed the earlier order in June.”
Heckman said that though Newsom’s legal counsel asserted Executive Order N-67-20 was reportedly “withdrawn,” she found “there is no evidence that it has been formally rescinded and the Executive Order includes provisions controlling the election process for the Nov. 3, 2020 General Election, which were not superseded by subsequently enacted legislation.”
As part of her declaratory relief for the plaintiffs, Heckman called Executive Order N-67-20 “void as an unconstitutional exercise of the legislative power and shall be of no further force or effect.”
The injunctive relief, the judge explained, was “tentative” and would convert to a “statement of decision” in 10 days if not appealed.
“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,” Heckman wrote.
“This is a victory for separation of powers,” Gallagher and Kiley said in a joint statement.
In Tentative Ruling, Court Declares Governor’s Abuse of Power Unconstitutional pic.twitter.com/t5fNQdbTXh
— James Gallagher (@J_GallagherAD3) November 2, 2020
“Newsom ‘has continued to create and change state law without public input and without the deliberative process provided by the Legislature,'” they said.
Gallagher said Monday on Twitter that the ruling is “about respecting that balance of power and the fundamental separation of powers that is fundamental to our system of government.”
This was never political; it was never partisan. This ruling will affect whoever is governor, not just this governor, but those in the future. It’s about respecting that balance of power and the fundamental separation of powers that is fundamental to our system of government.
— James Gallagher (@J_GallagherAD3) November 2, 2020
The best way to celebrate the end of one-man rule in California is to get out and exercise your right to vote!
— James Gallagher (@J_GallagherAD3) November 2, 2020
The heart of our lawsuit should be well received by Reps & Dems in the #CALeg ? “The Governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments.”
— James Gallagher (@J_GallagherAD3) November 3, 2020
Kiley also weighed in on the case.
The Judge has ruled in our case against Gavin Newsom. We won. The Judge found good cause to issue a permanent injunction restraining the Governor from issuing further unconstitutional orders.
— Kevin Kiley (@KevinKileyCA) November 2, 2020
Newsom press secretary Jesse Melgar said in a statement that the administration “strongly” disagreed with “specific limitations the ruling places on the exercise” of the governor’s emergency authority and was considering whether to appeal, Politico reported.
“The tentative ruling makes clear that the Governor’s statutory emergency authority is broad, and constitutional, and that the Governor has the authority, necessary in emergencies, to suspend statutes and issue orders to protect Californians,” Melgar said. “Additionally, this ruling has absolutely no effect whatsoever on the current election.”
Newsom didn’t address the ruling on Twitter, instead posting general comments about voting on Tuesday:
CALIFORNIA: the polls are officially OPEN!
Polls close at 8:00PM tonight.
You can STILL register to vote in person at your polling place.
Bring your mask.
If you’re in line by 8:00PM stay in line — you will be able to vote.
Find your polling place: https://t.co/XlF6WVh2yE
— Gavin Newsom (@GavinNewsom) November 3, 2020
The judge determined the June 3 Executive Order remained on the books, dictating to all California county election officials to implement the secretary of state’s “barcode tracking system for all mail ballots.”
Heckman also said the executive order “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.”
She disagreed with the plaintiffs’ interpretation that the California Emergency Services Act is unconstitutional.
“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 Article Three, Section 3,” Heckman wrote.
She clarified that during a declared state of emergency, Newsom was permitted only to “make, amend and rescind orders and regulations,” under Section 8567 of Article 3.
Heckman wrote that the executive order was “not authorized by the CESA because it improperly amended existing statutory law, exceeding the Governor’s authority and violating separation of powers.”
She addressed Newsom’s argument that orders from past California governors show “the Legislature’s longtime acquiescence” in the practice of amending statutory law, stating they “do not support his argument, nor are they legal precedent.”
Many on Twitter were happy with the case’s outcome:
He’s my rep!!! So thankful for Kevin Kiley in a state of maddening, ridiculous leadership!
— cindy cleveland (@cindy_cleveland) November 2, 2020
Kevin Kiley takes Newsom out at the knees. #RecallGavin2020 https://t.co/wI4JUHsIcV pic.twitter.com/WJmgkDcGtN
— Marilyn Suzanne (@msmerlo916) November 2, 2020
“God bless James Gallagher and Kevin Kiley for fighting the good fight!!” one person tweeted.
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