Newsom’s mail ballot for all order upheld by 3rd District Court of Appeal

The 3rd District Court of Appeal has overturned a lower-court ruling against Gov. Gavin Newsom's executive order that every voter receive a vote by mail ballot last year.

Republican Assemblymen James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin, brought the case. Both are attorneys. They quickly announced Wednesday they would appeal to the California Supreme Court. They won a favorable ruling in November. Sutter County Superior Court Judge Sarah H. Heckman ruled Newsom exceeded his authority and usurped the power of the Legislature when he issued the order in June.

Heckman found Newsom effectively amended the state's Elections Code and she issued an injunction barring him from exercising powers under the Emergency Services Act.

Newsom appealed and quickly convinced the appellate court to place a stay on the injunction pending a hearing of the case.

Gallagher and Kiley received a considerably colder welcome at the April 20 hearing on the appeal. Presiding Justice Vance W. Raye overturned the lower court on largely technical grounds in Newsom v. Superior Court, C093006 (Cal. App. 3d, filed Nov. 16, 2020).

"We will grant the governor's petition and direct the superior court to dismiss as moot real parties' claim for declaratory relief that the executive order is void as an unconstitutional exercise of legislative power," Raye wrote for the unanimous panel, which also included Justices Jonathan K. Renner and Ronald B. Robie. "The executive order was superseded by legislation and was directed only at the Nov. 3, 2020 general election, which had occurred before the judgment was entered."

In a joint statement, Gallagher and Kiley focused on what they said were positive aspects to the ruling.

"The 3rd District Court of Appeal rejected Governor Newsom's attempt to dismiss our case as moot, recognizing that it raises 'matters of great public concern regarding the governor's orders in the ongoing COVID-19 pandemic emergency,'" they said.

The statement also pointed to areas where the court agreed with them. For instance, Vance's ruling states the Emergency Services Act gives the governor a "negative power to suspend unhelpful statutes in an emergency, not an affirmative power to create helpful ones."

"Unfortunately, the court then proceeded to a startling conclusion: that a state of emergency gives a California governor 'the power to legislate,'" the statement said.

Raye largely focused on the actions -- and inaction -- of the Democrat dominated Legislature. For instance, lawmakers passed AB 860 shortly after Newsom's order, codifying the order to send every voter a ballot. It later instituted more rules designed to ease voting during the pandemic when it passed SB 423. Both bills were urgency measures that overcame a two-thirds vote requirement and went into effect immediately. Raye noted the Legislature could have ended Newsom's initial state of emergency order at any time by concurrent resolution.

"The governor's obligation under the Emergency Services Act to terminate the emergency and thereby nullify orders issued under his emergency powers as soon as conditions warrant, as well the Legislature's authority to terminate the emergency at any time with the same effect, provides a safeguard for the delegation of quasi-legislative authority," Raye wrote.

Raye also rejected the idea that some sections of the Emergency Services Act are an unconstitutional delegation of authority to the executive branch.

The ruling remanded the case back to Sutter County and ordered the judge to enter a judgment in favor of the governor. The panel also awarded Newsom his costs on appeal. He was represented by the California Department of Justice, which declined to comment. Newsom's representatives did not respond to an email seeking comment.

The case drew several amicus curiae briefs. Santa Clara County, now former Secretary of State Alex Padilla and attorneys with the California Constitution Center weighed in for Newsom. Placer County, the Pacific Legal Foundation and attorneys with Bell, McAndrews & Hiltachk LLP, writing on behalf of several Republican lawmakers, submitted briefs supporting Gallagher and Kiley.