The California Third District Court of Appeal is set to begin an appeal process next month involving a lawsuit filed by local state legislators against Gov. Gavin Newsom challenging his use of emergency powers during the COVID-19 State of Emergency.

Last year, Assemblyman James Gallagher (R-Yuba City) and Assemblyman Kevin Kiley (R-Rocklin) filed a lawsuit challenging an executive order issued by the governor that changed several portions of the election code in response to the ongoing pandemic.

A Sutter County Superior Court judge sided with the plaintiffs in a Nov. 14, 2020, ruling that overturned Newsom’s executive order (N-67-20) and imposed a permanent injunction on the governor from exercising certain powers under emergency circumstances. Newsom’s legal team filed a writ of mandate asking for the appellate court to overturn the judge’s decision and temporarily stay the injunction, which was granted.

Now, the two sides will meet in Sacramento on April 20 to present oral arguments.

“We are very much looking forward to arguing our case in front of the appellate court. It’s been a long time coming,” Gallagher said. “We feel the law is on our side, we are hoping for a bright-line decision that reins in the governor’s executive power.”

Gallagher and Kiley argued 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. Newsom’s legal team argued the CESA did give him the power to unilaterally amend existing statutory law.

Following the superior court judge’s ruling, Newsom’s press team stated they felt the decision was wrong and threatened California’s COVID-19 emergency response efforts.

“The governor looks forward to defending the state’s emergency response to COVID-19 in the Court of Appeal, which has already stayed the Sutter County Superior Court’s erroneous ruling in this case,” said Daniel Lopez, press secretary for the governor’s office, on Friday.

On March 22, Gallagher and Kiley introduced a resolution in the Assembly (ACR 57) that, if signed by other state lawmakers, would express their support of the ruling in the Gallagher v. Newsom lawsuit and urge the governor to comply with the superior court’s directive not to exercise legislative powers.

“It’s really just asking our legislative colleagues to weigh in and protect their powers by essentially agreeing with the judgment of the superior court, that we retain control over all legislative acts and that even in an emergency, the governor doesn’t have the ability to amend statutory law,” Gallagher said.

The appellate court will listen to oral arguments from both the plaintiffs and defense before issuing a written decision, which would be the first to address the limits of a governor’s emergency powers. Either side would have the ability to further challenge that decision by appealing to the California Supreme Court.

The hearing is set to begin at 9:30 a.m. on April 20 at the Third District Court of Appeal — 914 Capitol Mall, Sacramento.

“I just think this is fundamental to our system of government, that we ensure there is representative government; that each branch retains sovereignty over its power and they are able to check one another; that there is a system of checks and balances,” Gallagher said. “Absent a real clear rule from the judicial branch, I fear this governor and perhaps future governors will feel like during an emergency they can devolve us into a dictatorship, and that should concern everyone.”

Recommended for you