The fate of a temporary restraining order against an executive order issued by Gov. Gavin Newsom that was granted by a Sutter County Superior Court judge is in the hands of the California Third District Court of Appeal.

On June 17, Judge Vance Raye stayed the order of Sutter County Superior Court Judge Perry Parker, who halted an executive order by Newsom about how the November election will take place.

The order lays out guidelines about how in-person voting can take place and builds on a previous order that said all registered voters in California must receive a vote-by-mail ballot.

Assemblyman James Gallagher (R-Yuba City) and Kevin Kiley (R-Rocklin) filed the request for the restraining order on June 12 and Parker granted the request that day. A representative from the governor’s office was not present in court on June 12, according to Gallagher.

“He’s taking over our legislative functions and that’s unconstitutional,” Gallagher said of Newsom’s order.

The governor’s office appealed the decision in a 39-page document that asked for Parker's ruling to be overturned. The governor’s office argued that the superior court “abused its discretion” in making the ruling and that Gallagher and Kiley did not provide enough notification that the restraining order would be filed.

Gallagher said he emailed the attorney general’s office, which said at the time of the communication it had not been retained by the governor to represent him in the case.

In addition, the governor’s office said in its appeal that the order was a “necessary component of California’s efforts to ensure a fair and safe presidential election in November.” The appeal claimed the order did not infringe upon the legislature’s authority because the chairs of the Senate and Assembly committees responsible for election legislation asked the governor to act by executive order.

Gallagher and Kiley filed a 27-page opposition to the appeal that said the pandemic did not give Newsom the power to go against the constitution by making new laws or changing existing ones.

“This whole case is about separation of powers,” Gallagher said.

Gallagher said he expects a decision from the appellate court sometime next week, which will come from the same judge who stayed the superior court’s order or from a three-judge panel. The stay does not mean the restraining order has been overturned, only that it is frozen until the court of appeal rules.

A hearing was originally scheduled for today (Friday) in Sutter County Superior Court for representatives of the governor to make their case as to why the order was constitutional. That hearing was vacated when the appellate court stayed the superior court’s decision.

“I feel confident,” Gallagher said. “The law is very clear, and we made the required showing.”

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