Judge Limits California Governor's Emergency Rule-Making
A California judge on Friday sided with Republican legislators who said Gov. Gavin Newsom overstepped his powers with dozens of emergency orders during the coronavirus crisis that changed everything from how public meetings are conducted to when tenants can be evicted.
Sutter County Superior Court Judge Perry Parker only halted one of the orders, involving the November election, but ordered Newsom to refrain from new orders that might be interpreted as usurping the Legislature's responsibilities.
The judge appeared to adopt without changes a proposed order submitted to him by GOP Assemblymen James Gallagher and Kevin Kiley, who challenged the election order.
Parker barred Newsom “from further exercising any legislative powers in violation of the California Constitution and applicable statute, specifically from unilaterally amending, altering, or changing existing statutory law or making new statutory law.” He scheduled a hearing for June 26 to consider issuing a preliminary injunction.
“This is a victory for separation of powers,” the lawmakers said in a joint statement. “The governor has continued to brazenly legislate by fiat without public input and without the deliberative process provided by the Legislature. Today the judicial branch finally gave him the check that was needed and that the Constitution requires.”
The state attorney general’s office referred questions to the governor’s office because he is their client in the case.
Newsom spokesman Jesse Melgar said in a statement that, “We are disappointed in this initial ruling and look forward to the opportunity to brief the Court on the issues.”
Newsom broadly and repeatedly used his executive and emergency authority during the first weeks of the pandemic to virtually shut down the state and its economy. He's had the backing of federal and state courts that have blocked previous challenges to his efforts to slow the spread of the coronavirus.
Richard Hasen, a professor of law and political science at the University of California, Irvine, said Parker's order appears to block executive orders “that would suspend or alter statutory law or further exercise ‘legislative powers.’"
“There can of course be disagreements about what that means in the context of particular executive orders,” he said.
Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, said the judge's order “says only that the governor cannot issue orders that violate the law.”
“The paragraph in the order is vague, but I think it clearly does not forbid all executive orders, just those that are unconstitutional or violate statutes,” he said.
Lawmakers of both political parties have criticized Newsom, a Democrat, for not sufficiently including them in his sweeping declarations and budget decisions since the pandemic began. The governor has issued more than 40 executive orders, according to a court filing by Gallagher.
They include halting evictions, delaying late fees for paying taxes or renewing drivers licenses, allowing grocery stores to once again hand out single-use bags for free — even allowing couples to be married by video or teleconference, with marriage licenses and certificates digitally signed and sent by email.
They are in a 28-page list submitted by Kiley of Newsom's orders that alter existing state laws.
They also include allowing local and state governments to hold public telephone meetings instead of meeting in person; extending deadlines for various businesses to pay fees, file reports or renew licenses; suspending rules intended to protect patients' medical privacy; suspending deadlines and instructional requirements for local school districts; and suspending election deadlines and procedures.
Parker's broad language forbidding future orders was at the end of a five-paragraph ruling specifically halting a June 3 executive order requiring county election officials to establish hundreds of locations around the state where voters can cast ballots in person in the November election.
Parker temporarily blocked that order, calling it “an impermissible use of legislative powers in violation of the California Constitution and the laws of the State of California.”
Newsom previously had ordered officials to send every registered voter a mail-in ballot for the election as one of many responses to the coronavirus pandemic. Republicans from President Donald Trump on down have criticized that move as allowing for potential voter fraud, but Parker's ruling did not address that earlier order.
Separately, however, the conservative group Judicial Watch said it has filed a motion in its own federal lawsuit seeking a preliminary injunction against Newom's order that ballots be sent to every voter.
State lawmakers, meanwhile, are advancing their own bills that would direct counties to send mail-in ballots to every registered voter. The Assemblymen's lawsuit notes that they have been back in session since May 4, including when Newsom issued the elections order, despite having suspended the legislative session at the start of the pandemic.