California Gov. Gavin Newsom (D-PrivateJet) was Whitmered in spectacular fashion by a Sutter County Superior Court Judge in a just-released ruling; an Executive Order Newsom issued June 3 that amended sections of the state’s Elections Code was declared unconstitutional and a permanent injunction has been issued, barring Newsom from issuing additional Executive Orders that amend, change, alter, or create new statutory law or legislative policy.
As we previously reported, Newsom was sued by two Republican Assemblymembers, Kevin Kiley and James Gallagher over his one-man rule. A trial was held October 21, and Judge Sarah H. Heckman issued her tentative decision today.
Asm. Kiley tweeted out the good news:
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
In the 9-page ruling, the Court found that the cause was not moot, as Newsom’s attorneys had argued; that the California Emergency Services Act (CESA) is not unconstitutional, in part because it does not “delegate to the Governor the power to legislate”; that Newsom’s Executive Order N-67-20 regarding the November 2020 general election was not authorized by CESA because it amended sections of the Elections Code; and that Plaintiffs are entitled to both declaratory and injunctive relief.
Regarding the CESA, the Court had this to say:
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 Califomia Constitution Article Three, Section 3. Article Three of the CESA (Gov’t Code $8565 -8574) enumerates the powers of the Governor during a declared state of emergency.
But, the Court found that according to the plain language in Sections 8567 and 8571 of CESA limits the Governor’s power, only allowing him to “make, amend, and rescind orders and regulations” and to “suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules or regulations of any state agency.”
The ruling continues:
“The Governor does not have the power or authority to assume the Legislature’s role of creating legislative policy and enactments. Because Executive Order N-67-20 amended sections of the Elections Code it exceeds the Governor’s authority under CESA and renders Executive Order N-67-20 invalid.”
The Court also found it necessary to grant declaratory relief,
It is the Court’s determination that a declaration…is necessary and proper at this time to provide certainty as to the correct interpretation of Sections 8567, 8571, and 8627 of the CESA, not only to identify Executive Order N-67-20 specifically, as unconstitutional but also to avoid further violations of the CESA and the California Constitution during the ongoing state of emergency by clarifying that the CESA does not give the Governor the power or authority to amend statutory law or create new statutory law even during a state of emergency.
The actual declaration reads:
Executive Order N-67-20 issued by the Governor on June 3, 2020 is void as an unconstitutional exercise of legislative power and shall be of no further force or effect. [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.
Noting that “it is reasonably probable the Governor will continue issuing executive orders which amend statutory law…violating the California Constitution…and giving rise to a multiplicity of judicial proceedings,” the Court issued a permanent injunction against Newsom:
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…which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.
The Court’s decision doesn’t impact protocol for the election that’s already underway.
Gallagher and Kiley issued a statement saying:
“This is a victory for separation of powers. The Governor has continued to create and change state law without public input and without the deliberative process provided by the Legislature. Today the judicial branch again gave him the check that was needed and that the Constitution requires.”
“Nobody disputes that there are actions that should be taken to keep people safe during an emergency. But that doesn’t mean that we put our Constitution and free society on hold by centralizing all power in the hands of one man.”
In the days following the election, Gavin Newsom can expect there to be legal challenges to a number of his Executive Orders that are essentially legislation by executive fiat.