GOP lawsuit over Newsom’s COVID powers faces tough questions from California judges

Republican lawmakers faced tough questions from appeals court judges on Tuesday in a case where they argue Gov. Gavin Newsom overstepped his executive power when issuing orders related to the pandemic.

Newsom’s attorneys are seeking to have the Third District Court of Appeal overturn a lower court’s ruling that found the governor misused his emergency authority with an executive order related to mail-in elections during the coronavirus pandemic.

Republican Assemblymen Kevin Kiley and James Gallagher, who filed the lawsuit, sparred with appeals court judges or talked over them during a contentious oral argument.

At one point, Judge Ronald B. Robie told Kiley that if he isn’t satisfied with the way the governor is acting under the COVID-19 state of emergency, the lawmakers should act to end it.

“Kiley, maybe this is the time for the Legislature to end the emergency if that’s what you think has happened and it’s gone too far,” Robie said. “That’s up to the Legislature. You’re part of the Legislature, go do it.”

The crux of the disagreement is whether the California Emergency Services Act, or CESA, gave Newsom the power to not only suspend certain statues, but also prescribe rules. Newsom declared a statewide emergency because of the coronavirus outbreak on March 4, 2020, and he’s used that power to hand down safety guidelines and move quickly on contracts.

The GOP lawmakers say Newsom overreached when he issued an executive order that required counties to take certain steps leading up to the 2020 election. That measure was later codified into law by the Legislature.

Kiley and Gallagher argue that Newsom was creating law with that executive order, and the Emergency Service Act does not give the governor the authority to effectively legislate. Doing so, the plaintiffs said, would violate separation of powers doctrines between the branches of government.

“The governor changed and amended state statute, which he is not authorized to do, that is a legislative power,” Gallagher said. “It changed our elections at a time when our Legislature was currently considering changes for the upcoming election.”

California Deputy Attorney General John Killeen, who represented the administration, argued that under the state’s Emergency Services Act, the governor is granted temporary police powers, which includes the ability to create quasi-legislation.

“As a practical matter, governors have routinely suspended and prescribed,” Killeen said, pointing to executive orders issued by Gov. Jerry Brown during the Paradise wildfire. “No one viewed that as problematic.”

Sutter County Superior Court Judge Sarah Heckman sided with Gallagher and Kiley in a November ruling. Heckman’s order also prohibited the governor from issuing any other such orders in the future.

It is not clear when the appeals court will issue its ruling.

This story was originally published April 20, 2021 at 12:41 PM.