Judge rules Governor Newsom overstepped constitutional boundaries

SACRAMENTO – A judge on Monday preliminarily ordered California Gov. Gavin Newsom to stop issuing directives related to the coronavirus. She more broadly barred him "from exercising any power under the California Emergency Services Act (CESA) which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy."

It was a win for Republican Assemblymen Kevin Kiley and James Gallagher, who filed a lawsuit against Governor Newsom, a Democrat. 

Governor Newsom, according to the complaint filed, has overstepped his constitutional boundaries with 53 Executive Orders and by single-handedly, without the legislature, amending, suspending and overhauling over 400 laws since declaring his State of Emergency on March 4. 

According to Rep. Kiley, "Each one was duly enacted through the legislative process set out in the Constitution. And each one was undone by Newsom with the stroke of a pen."

Sutter County Superior Court Judge Sarah Heckman tentatively ruled that Newsom had overstepped his authority and IT was "an unconstitutional exercise of legislative power."

"This is a victory for separation of powers," the lawmakers said in a joint statement. Newsom "has continued to create and change state law without public input and without the deliberative process provided by the Legislature."

Heckman wrote in a nine-page decision that the California Emergency Services Act "does not permit the Governor to amend statutes or make new statutes. The Governor does not have the power or authority to assume the Legislature's role of creating legislative policy and enactments."

Newsom used his emergency powers to virtually shut down the state and its economy in the early weeks of the pandemic.

Heckman's decision will become final in 10 days unless Newsom's attorneys can raise new challenges.

Newsom's administration is evaluating its next steps and strongly disagrees with the order's specific limitations, said spokesman Jesse Melgar.

The judge found the California Emergency Services Act itself to be constitutional, and made it clear that Newsom "has the authority, necessary in emergencies, to suspend statutes and issue orders to protect Californians," he said in a statement. However, the issue is not suspending statutes, but rather creating new ones or amending statutes. 

The judge ruled "Section 8567 only allows the Governor to 'make, amend, and rescind orders and regulations.' Clearly the legislature understands the distinction between an order or regulation on the one hand, and a statute on the other. Section 8567 does not empower the Governor to make or amend statutes."

"Nobody disputes that there are actions that should be taken to keep people safe during an emergency," the lawmakers said. "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."

One Executive Order N-67-20 which changed California elections was found unlawful in that it amended sections of the Elections code and exceeded the Governor's authority under the CESA and so this decision rendered Executive Order N-67-20 invalid. 

Kiley compiled a 28-page list of Newsom's orders that alter existing state laws, from halting evictions to how public meetings are conducted.

The governor also extended deadlines for businesses to renew licenses, file reports, or pay taxes; delayed consumers' late fees for paying taxes or renewing drivers licenses; suspended school districts' deadlines and instructional requirements; suspended medical privacy rules; and allowed grocery stores to hand out free single-use bags.

Lawmakers of both political parties have criticized Newsom for not properly consulting with them before issuing sweeping orders and budget decisions.

The question as to whether the CSEA is Constitutional itself is still going through the courts. In addition to a precedent-setting decision in Pennsylvania this summer, the Michigan Supreme Court issued a decision two days after Plaintiffs filed their Reply Brief, which held that an emergency powers law similar to California's violates a constitutional separation-of-powers provision virtually identical to California's. 

The Court there found "an unlawful delegation of legislative power to the executive branch," just as Plaintiffs here argue that "lawmaking power cannot be constitutionally delegated" to the executive branch. 

The Court there relied on the proposition that a Legislature cannot give the Executive Branch "a roving commission to repeal or amend by executive order unspecified provisions included anywhere in the entire body of state law," just as plaintiffs here argue that our Legislature cannot "give the Executive Branch a roving authority to create any and all new laws in any California code." As noted in their reply brief, plaintiffs' primary legal theory in this case does not require a finding that the Emergency Services Act is unconstitutional. However, both sides agree that the question of whether it is constitutional is before the Court.

    Don Thompson from the Associated Press contributed to this story.