Plaintiffs’ lawyers ready to use new ruling to challenge Newsom’s orders

Gov. Gavin Newsom wasn't on the ballot, but events this week could still limit his powers. After many attempts in multiple venues, on Monday a judge finally ruled Newsom overstepped his authority with one of his executive orders.

The ruling in a challenge over the governor's directive to send a vote-by-mail ballot to every registered voter in California came too late to affect Tuesday's election. Nearly 12.1 million Californians had already cast their ballots by Monday night, according to Political Data Inc., which says it is a nonpartisan voter research company.

The ruling from Sutter County Judge Sarah H. Heckman could curtail Newsom's authority from now on if it stands.

Attorneys who have not yet been successful in challenging the constitutionality of Newsom's restrictions on First Amendment rights such as freedom to worship and assemble, say they will be using the new ruling in future court actions.

In her tentative ruling, Heckman found the case was not moot because "the legal controversy for which plaintiffs have requested declaratory relief is not limited to the validity of Executive Order N-67-20."

She then voided the June 3 order. Gallagher v. Newsom, CVCS20-0912 (Sutter Super. Ct., filed June 12, 2020).

"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 (Government Code $ 8550 et seq.) which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy," Heckman wrote.

"The tentative ruling makes clear that the governor's statutory emergency authority is broad, and constitutional, and that the governor has the authority, necessary in emergencies, to suspend statutes and issue orders to protect Californians," said Newsom spokesman Jesse Melgar in a statement. "Additionally, this ruling has absolutely no effect whatsoever on the current election."

Republican Assemblymen Kevin P. Kiley, R-Rocklin, and James Gallagher, R-Yuba City, filed and argued the case. Both are attorneys.

The 3rd District Court of Appeal has already reversed Heckman once in this case. In June, Heckman granted a temporary restraining order against Newsom's order. On July 10, a unanimous panel led by Justice Vance W. Raye wrote the ruling suffered from procedural deficiencies and the plaintiffs failed to show imminent harm.

Raye wrote that a then-pending bill laid out many of the same procedures. Newsom signed SB 423 on Aug. 6, codifying his vote by mail order. Newsom v. The Superior Court of Sutter County, C092070 (3rd DCA, filed June 15, 2020).

"As the executive order stated by its own terms, pending legislation was meant to ultimately govern the election," Raye wrote.

But attorney Charles S. LiMandri said his side plans to cite Heckman's ruling in future filings. The partner with LiMandri & Jonna LLP in Rancho Santa Fe has filed many complaints on behalf of churches opposing Newsom's orders banning, then limiting in-person religious services.

"We think the court does lay it out pretty clearly," LiMandri said. "The governor can't take on these types of powers for himself that are normally reserved for the Legislature, particularly when it comes to setting policy for the entire state for an extended period of time."

LiMandri added that an emergency of this length -- eight months and counting -- "was never contemplated when they passed the Emergency Services Act."

"We will definitely be citing the case," said Robert H. Tyler, a partner with Tyler & Bursch LLP in Murrieta who has sued Newsom on behalf of churches and businesses. "I think there's a very strong argument to be made that the orders are so extensive that to call them anything besides legislation would be ignoring the obvious."

The plaintiffs might have a stronger case than many that filed against Newsom during the pandemic, said Leslie G. Jacobs, director of the Capital Center for Law & Policy at McGeorge School of Law. Jacobs has consistently said Newsom is on firm ground when issuing orders directly concerned with public safety. But orders relating to elections were potentially "a step beyond COVID restrictions" where his "authority is clear."

Still, she said, plaintiffs have a real problem showing Newsom circumvented the will of the Legislature -- specifically the Democratic-dominated Legislature. She noted the policies quickly became state law.

"We have a Legislature that is inclined to authorize the things that a Democratic governor does," she said.

Meanwhile, the sides will continue to litigate statutory language of the Emergency Services Act.

"There are certainly ways of reading it that would give the governor the power to do what he did in terms of the election," Jacobs said. "It's a judgment call about reading language that is necessarily ambiguous. There is also a question about whether the governor was amending a statute or just suspending a statute, which he is allowed to do....The words could be read either way."

Attorney General Xavier Becerra could also soon find himself in court in a different COVID-related case. A Virginia-based conservative free speech organization recently sued under the California Public Records Act.

They are seeking statistics, scientific studies and other data "upon which the state of California and/or CHHS based its decision to issue any and all 'shelter in place'" orders. Center for American Liberty v. California Department of Health and Human Services, 34-2020-80003512-CU-WM-GDS (Sac. Super. Ct., filed Oct. 22, 2020).