Decision by superior court to overturn governor’s executive order put on hold

A decision by a Sutter County Superior Court judge last month to overturn an executive order and issue a permanent injunction on Calif. Gov. Gavin Newsom from exercising certain powers under emergency circumstances was put on hold temporarily while the defense attempts to reverse the decision in the California Third District Court of Appeal.

The decision by Judge Sarah Heckman followed a trial for a lawsuit filed by Assemblyman James Gallagher (R-yuba City) and Assemblyman Kevin Kiley (R-rocklin), who requested a temporary restraining order against Executive Order N-67-20.

The order had to do with the November elections and how they would operate due to the ongoing pandemic.

Newsom’s legal team filed a writ of mandate asking for the appeals court to overturn Heckman’s decision and temporarily stay the injunction. Gallagher and Kiley have until Friday to provide a legal brief and response as to why they believe Heckman’s ruling should be upheld.

“I still feel very confident in our position because it is backed by the law,” Gallagher said on Tuesday.

The plaintiffs argued that the governor’s executive order was not authorized by the California Emergency Services Act because the order amended existing statutory law, exceeding the governor’s authority and violating the separation of powers. T

he defense argued the CESA did give him the power to unilaterally amend existing statutory law, though Heckman disagreed.

“We believe the court ruling is wrong and threatens California’s COVID-19 emergency response efforts,” said Jesse Melgar, press secretary to Newsom, following last month’s ruling. “We are asking for an emergency stay with our appeal.”

While the appeals court put a stay on the governor’s injunction, it also declined Newsom’s request to summarily overrule Heckman’s judgment against him.

That means the court will listen to oral arguments and issue a written decision, which will be the first to address the limits of a governor’s emergency powers.

“If we win, it will be the first time a Court of Appeals has ever ruled a governor’s emergency action unconstitutional,” Kiley said in a recent statement. “Such a decision will be binding on any Superior Court in any of California’s 58 counties. It would be the key precedent for direct challenges to any of Newsom’s other emergency orders, including the lockdown.”

After Gallagher and Kiley file their brief this week, the defense will have 10 days to file a response.

Oral arguments in court will likely follow before the appeals court makes a ruling.

Depending on the ruling, the next step would be an appeal in the California Supreme Court.

“We continue to adamantly fight against one-man rule in California and to protect the separation of powers that are cornerstones of our government,” Gallagher said. “We will take this as far as we have to. Hopefully the Third District Court of Appeal will be the final word on this and put in their ruling what should be clear to everyone, that the Constitution doesn’t allow the governor to legislate.”