GOP lawmakers’ challenge to emergency order gets icy hearing at court of appeal

Two Republican Assembly members brought their fight with Gov. Gavin Newsom to the 3rd District Court of Appeal on Tuesday. But one justice all but told them they were in the wrong place.

Assemblymen James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin, sued last year to block Newsom's executive order requiring the state to send a vote by mail ballot to every California voter. The case didn't affect the election, but a Sutter County judge ruled in November that the governor's order overstepped his authority.

During the morning hearing, the justices appeared to reject this limited interpretation of Newsom's powers under the California Emergency Services Act. Justice Ronald B. Robie suggested their real dispute may be with a Legislature that so far has not moved to end the state of emergency that made the orders possible. Newsom v. Superior Court of Sutter County, C093006 (Cal. App. 3rd, filed Nov. 16, 2020).

"That's up to the Legislature," Robie said near the end of the half-hour hearing. "You're part of the Legislature. Go do it."

Gallagher based his arguments in part on the idea that Newsom unilaterally changed election rules at a time when the Legislature was considering a bill on the same topic. Lawmakers codified the vote-by-mail rules after Newsom's order.

Arguing for Newsom, Deputy Attorney General John W. Killeen said that Sutter County Superior Court Judge Sarah H. Heckman was "operating under an antiquated view of the separation of powers" when she ruled the governor's Executive Order N-67-20 usurped the Legislature's powers.

"The trial court erred by focusing on minor differences between the order and the legislation instead of the relevant inquiry, which was whether there was an actual, practical conflict between the branches," Killeen said. "Here, there was not."

The justices had a few tough, technical questions for Killeen. But they were much tougher on Gallagher and Kiley -- particularly when Gallagher attempted to draw a historical parallel.

"It is because of a long and troubled history of abuses during emergencies that it is of the utmost importance that emergency powers be strictly construed," Gallagher said. "It took Fred Korematsu challenging an executive order that established Japanese internment."

"Mr. Gallagher, what are the abuses you're talking about?" Robie interrupted. "You're throwing a lot of words around in defense of your position and I think you ought to explain what you're talking about."

"He changed our elections at a time when our Legislature was currently considering changes for the elections," Gallagher said of Newsom. "He completely usurped legislative power."

"Why isn't the ability to conduct quasi-legislative action something that is within that scope of the state's police powers, something the act gives to the governor," Justice Jonathan K. Renner interjected.

Gallagher replied that the governor misinterpreted the underlying law by ignoring "important caveats." He argued Newsom went beyond his police powers and control over state agencies.

"Mr. Gallagher, we're talking about the language of the statute, so why don't I read you the language of the statute?" said Presiding Justice Vance W. Raye. He then read portions of the statute, which grants the governor "all police powers" and includes the caveat "the extent he deems necessary."

This led to an exchange with Kiley, who acknowledged the Legislature could end the state of emergency but has chosen not to.