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State appeals court upholds Gov. Newsom’s emergency powers during pandemic

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A state appeals court decided unanimously Wednesday that Gov. Gavin Newsom has the legal right to modify or make new state laws during the COVID-19 pandemic.

The three-judge panel of the Sacramento-based 3rd District Court of Appeal said the California Emergency Services Act grants the governor such powers during a crisis. The panel also decided the 1970 emergency services act was constitutional.

The ruling stemmed from a Sutter County Superior Court judge’s decision in November to issue a preliminary injunction blocking Newsom from issuing executive orders that make new law. Newsom has issued about 50 such orders since declaring a state of emergency for the pandemic in March 2020.

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Judge Sarah Heckman, who was first elected to the bench in 2012, said the Emergency Services Act gave governors the power to suspend laws but not to make new laws or amend existing ones.

The Court of Appeal temporarily blocked the Heckman’s injunction in November pending an appeal.

Deciding that appeal on Wednesday, the 3rd District court interpreted the 1970 Act differently. It noted that the law gave governors “police power” during an emergency and that term meant the authority to enact laws.

“The superior court erred in interpreting the Emergency Services Act to prohibit the Governor from issuing quasi-legislative orders in an emergency,” wrote Presiding Justice Vance W. Raye, appointed to the court by former Gov. George Deukmejian, a Republican.
“We conclude the issuance of such orders did not constitute an unconstitutional delegation of legislative power.”

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The California Constitution gives only the Legislature the power to create laws. But the appeals court said the Act was constitutional because it provided only temporary powers and contained “an important safeguard.”

That safeguard was a requirement that the governor proclaim an end to the emergency at the earliest possible date, the court said. Once the governor or the Legislature decide an emergency is over, the executive orders issued by the governor are nullified.

Raye distinguished the California act from a Michigan law granting the governor emergency powers during a crisis. The Michigan Supreme Court overturned the law last year.

“Unlike the Michigan statute, the Emergency Services Act obligates the governor to declare the state of emergency terminated as soon as conditions warrant, and, more significantly, empowers the Legislature to declare the emergency terminated,” the court said.

The legal challenge against Newsom was filed by two Republican state assemblymen, James Gallagher of Yuba City and Kevin Kiley of Rocklin, over an executive order requiring vote-by-mail ballots to be sent to the state’s more than 22 million registered voters before the Nov. 3 election.

The judge ruled against Newsom, but the decision did not affect the election because the California Legislature voted in favor of the vote-by-mail policy after Newsom’s order.

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