Appeals Court Rules Newsom’s Use of Emergency Powers Was Constitutional

Vote-by-mail ballots were sent to all California registered voters during the pandemic ahead of the 2020 general election.

California Gov. Gavin Newsom delivers his State of the State address from Dodger Stadium March 9, in Los Angeles. (AP Photo/Mark J. Terrill)

(CN) — California Governor Gavin Newsom did not abuse his powers when his office required all voters be sent vote-by-mail ballots for the 2020 general election, the Third District Court of Appeal ruled on Wednesday.

In March 2020, Newsom declared a state of emergency in the early days of the pandemic and just days after voters headed to the polls during primary election season. Newsom issued an executive order to send vote-by-mail ballots to all registered voters ahead of the November general election.

Newsom’s election orders were made under the California Emergency Services Act (CESA), which gives the governor complete authority over state government agencies and the right to police power under state law and the Constitution during a state of emergency. Republican lawmakers argued Newsom completely sidestepped the state Legislature and the governor unconstitutionally changed California’s election laws. Assemblymen James Gallagher, a Republican from Yuba City, and Kevin Kiley, a Republican from Rocklin, sued Newsom in Sutter County Superior Court. Superior Court Judge Sarah Heckman ruled in their favor, finding that CESA does not authorize a governor to amend or make new statutory laws.

But a three-judge panel from the Third District Court of Appeal said timing is everything and ruled that Newsom did not overstep his authority. Presiding Judge Vance Raye, Judge Ronald Robie and Judge Jonathan Renner made up the panel and wrote the unanimous 21-page opinion.

Two Assembly bills superseded Newsom’s executive orders, but Heckman ruled that Newsom’s mandates were not formally rescinded. While Heckman agreed that Newsom’s orders only extended to the Nov. 3, 2020 election, she still ruled that his order was null and void 10 days after voters cast their ballots.

The panel wrote this had no effect and was moot.

On the flip side, Heckman did issue a permanent injunction that applied to all orders issued by the governor during the pandemic and under the CESA powers.

The crux of the legal argument made in the lawsuit focused on whether a part of the CESA gives unconstitutional delegation of the Legislature’s power to a governor. The admitted 2 out of 3 provisions examined by the Superior Court did not explicitly refer to the governor’s powers in an emergency to amend or make new laws.

But the CESA does say a governor may suspend any statutes that impede the response to an emergency, the panel wrote. Newsom argues that Section 8571 does not make sense if it only allows a governor to suspend statutes, but not to replace them with new orders that are tailored to the emergency.

“Nonetheless, the phrasing of section 8571 that the governor may ‘suspend’ a statute where ‘strict compliance’ with the statute would interfere with mitigating the emergency is clear that this provision of the Emergency Services Act is addressed to the Governor’s negative power to suspend unhelpful statutes in an emergency, not an affirmative power to create helpful ones,” the panel wrote.

The CESA grants a governor “police power” to follow through with their response to an emergency. The Sutter County Superior Court said this doesn’t give Newsom quasi-legislative orders. Citing the California Supreme Court, the panel maintains the CESA gives the governor the authority to coordinate the response to an emergency.

“To further that end, the governor is charged with the responsibility to coordinate the emergency plans and programs of all local agencies, ‘such plans and programs to be integrated into and coordinated with the State Emergency Plan and the plans and programs of the federal government and of other states to the fullest possible extent,’” wrote the panel.

While this section of the CESA is broad, it gives a governor guidance to issue orders to coordinate. The panel also considered guidelines to keep in check these broad powers.

The Legislature can pass a resolution to end a state of emergency and a governor can do the same. Congress can also exercise a similar authority to end a president’s emergency declaration, wrote the panel.

“Consistent with this authority, the Kentucky Supreme Court upheld its governor’s declaration of state of emergency regarding the Covid-19 pandemic and issuance of orders and regulation to address the disease,” wrote the panel. “The court rejected the contention that the statute under which the governor declared an emergency was an unconstitutional delegation of authority.”

The panel cites a similar case, Friends of Danny DeVito v. Wolf, where the Pennsylvania Supreme Court took up a challenge to a governor’s orders issued during the pandemic. They also considered a case where the Michigan Supreme Court ruled that the powers given to the governor’s office during an emergency were expansive, indefinite and insufficient to sustain the state’s delegation.

“By contrast, the Emergency Services Act is not a statute of indefinite duration. Unlike the Michigan statute, the Emergency Services Act obligates the governor to declare the state of emergency terminated as soon as conditions warrant, and, more significantly, empowers the Legislature to declare the emergency terminated,” wrote the panel. “We conclude the Emergency Services Act, and specifically section 8627 of the Emergency Services Act, is not an unconstitutional delegation of legislative power.”

A spokesperson for the governor’s office called the court’s opinion a “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,” the spokesperson said.

In a joint statement, Gallagher and Kiley said they were pleased that the court did not accept all of Newsom’s “far-fetched statutory arguments he made aimed at enlarging his emergency powers.”

“Unfortunately, the Court then proceeded to a startling conclusion: that a State of Emergency gives a California Governor ‘the power to legislate.’ The California Supreme Court has repeatedly held this is forbidden by our State Constitution,” the assemblymen said.

They plan to submit their case to the California Supreme Court.

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