Gavin Newsom’s COVID emergency powers upheld by California court

A California appeals court affirmed Gov. Gavin Newsom’s use of emergency powers on Wednesday, shooting down a challenge by Republican lawmakers who said the Democrat acted illegally when he issued an executive order laying out procedures for a mail-in election.

The decision by the 3rd District Court of Appeal on Wednesday overturned an earlier ruling at the Sutter County Superior Court that sided with the Republican lawmakers who brought the suit against the governor.

The appeals court found that Newsom’s order complied with the state’s Emergency Services Act, which gives the governor expanded powers in extreme circumstances.

“We conclude the issuance of such orders did not constitute an unconstitutional delegation of legislative power,” the justices wrote in a decision led by led by Presiding Justice Vance W. Raye.

Newsom has faced criticism for what some said were unilateral decisions during the pandemic, such as directives that limited indoor gatherings. Republicans refer to the orders Newsom’s “one-man-rule,” and have cited the emergency decisions in the campaign to recall him from office.

Assemblymen Kevin Kiley, R-Rocklin and James Gallagher, R-Yuba City filed the suit last year, claiming Newsom had unconstitutionally used executive action under the California Emergency Services Act when he changed how the state would conduct elections that year. The lawmakers, who represented themselves in court, claimed Newsom was not allowed to create legislation, even in times of emergency.

Sutter County Superior Court Judge Sarah Heckman sided with the lawmakers last fall, prohibiting the governor from exercising any powers under the Emergency Services Act which “amend, alter, or change existing statutory law or make new statutory law or legislative policy.”

But the higher court on Wednesday ruled that Heckman’s injunction raises “matters of great public concern regarding the Governor’s orders in the ongoing COVID-19 pandemic emergency.”

The superior court erred in interpreting that the Emergency Services Act prohibits the governor from issuing quasi-legislative orders in an emergency, wrote the justices.

Kiley and Gallagher argued that, under a state of emergency, the California constitution only gives the governor power to suspend unhelpful laws, not amend them or create new ones. But the court disagreed, saying that the Emergency Services Act requires Newsom to provide a “coordinated response to the emergency.”

“This statutory purpose, while broad, gives the governor sufficient guidance, i.e., to issue orders that further a coordinated emergency response,” the justices wrote.

In a joint statement, Kiley and Gallagher described the court’s conclusion regarding emergency powers as “startling,” and criticized justices for relying upon a federal case from outside California.

“We have said from the beginning that this case will be decided by the California Supreme Court,” the lawmakers said. “The issue now squarely presented for the high court is whether the separation of powers still exists in California. We are confident it will uphold this bedrock principle of constitutional government.”

A spokesperson for the governor’s office said the court’s ruling is “a win for public safety and all Californians.”

“Today’s ruling upholds the state’s ability to save lives and protect Californians in response to a disaster – whether an earthquake, wildfire, or this unprecedented pandemic,” Newsom’s office said in a statement. “California’s emergency response efforts have been critical to protecting public health during the pandemic, and we will continue to lead with science and health as the state’s recovery progresses.”

This story was originally published May 5, 2021 at 12:23 PM.