The California Supreme Court on Wednesday declined to consider reining in Gov. Gavin Newsom’s emergency powers during the coronavirus pandemic, leaving in place a lower court’s ruling that the governor acted within his authority.
The justices unanimously denied the petition for review filed by Republican Assemblymen James Gallagher and Kevin Kiley, without giving an explanation beyond the one-line order.
The lawmakers had wanted the high court to overturn a decision in May by three judges from the 3rd District Court of Appeal in Sacramento who ruled unanimously that Newsom did not illegally usurp the Legislature’s power with his broad use of emergency powers to make far-reaching policies during the pandemic.
Newsom, a Democrat, faces a Sept. 14 recall election driven largely by anger over his handling of the pandemic, including his unilateral imposing of restrictions such as the nation’s first stay-at-home order in March 2020.
Kiley is one of the 46 candidates who will be listed on the ballot to replace him if a majority of voters decide to oust the governor in mid-term.
Gallagher tweeted that “it means that the highest court in CA has taken a pass on providing any legal review of perhaps the greatest example of executive overreach in modern history. They literally have nothing to say about it. Sad.”
But Newsom spokeswoman Erin Mellon called their lawsuit “a misguided attack” on a state law signed by then-Gov. Ronald Reagan, a Republican, that governors of both parties have relied on for a half-century while responding to emergencies.
“It’s a law that carefully balances the Legislature’s and Governor’s roles, and we’re glad the state Supreme Court recognized there was no need to entertain fringe legal theories that sought to upset that balance,” she said in an email.
The governor used his emergency powers to suspend school deadlines, block evictions, suspend medical privacy rules and push back tax filing deadlines, amid dozens of other decisions. They ranged from allowing grocery stores to once again hand out free single-use plastic bags to allowing marriages to be conducted by video or teleconference.
The lawsuit itself centered on just one executive order, where Newsom required election officials to open hundreds of locations statewide where voters could cast ballots.
The appeals court said that portion of the claim was moot because the governor’s order was superseded by a subsequent state law that was in turn directed at an election that has already occurred.
The appellate judges twice rejected findings by two Sutter County superior court judges that Newsom had done too much unilaterally. Both judges had more broadly attempted to bar the governor from issuing any orders under the California Emergency Services Act that amended state laws or legislative policy.
The appeals court relied on a section of the law that gives the governor “complete authority over all agencies of the state government and the right to exercise within the area designated all police power vested in the state by the Constitution and laws of the State of California.”
Kiley and Gallagher said then that the ruling essentially gave the governor “the power to legislate” in what they said was a violation of the state Constitution.