Newsom v. Superior Court of Sutter Cnty.

• Decision Date: 10 July 2020
• Docket Number: C092070
• Citation: 265 Cal.Rptr.3d 582,51 Cal.App.5th 1093
• Parties: Gavin NEWSOM, as Governor, etc., Petitioner, v. The SUPERIOR COURT OF SUTTER COUNTY, Respondent; James Gallagher et al., Real Parties in Interest.
• Court: California Court of Appeals Court of Appeals

51 Cal.App.5th 1093

265 Cal.Rptr.3d 582

Gavin NEWSOM, as Governor, etc., Petitioner,

v. The SUPERIOR COURT OF SUTTER COUNTY, Respondent;James Gallagher et al., Real Parties in Interest.

C092070

Court of Appeal, Third District, California.

Filed July 10, 2020

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Benjamin M. Glickman, Jay C. Russell and John W. Killeen, Deputy Attorneys General, for Petitioner.

No appearance for Respondent.

James Gallagher, in pro. per., and Kevin Kiley, in pro. per., for Real Parties in Interest.

RAYE, P.J.

This petition for writ of mandate by Governor Gavin Newsom challenges a decision by respondent Sutter County Superior Court granting a temporary restraining order and suspending an executive order of the Governor entered pursuant to his emergency powers. This petition does not, however, require this court to weigh in on the scope or breadth of the Governor's emergency powers. Rather, it raises narrow issues concerning an expedited, "ex parte" proceeding for interim declaratory relief and a temporary restraining order initiated by two members of the California State Assembly, real parties in interest James Gallagher and Kevin Kiley.

As we shall explain, there was no basis for the superior court to grant real parties in interest relief using ex parte procedures prescribed by California law. The hearing on the ex parte application, conducted only one day after the underlying action was filed in superior court, was held without proper notice to the Governor or his appearance. Apart from these procedural deficiencies, real parties in interest also failed to make the requisite substantive showing for use of an ex parte proceeding. In short, the real parties in interest failed to present competent evidence establishing imminent harm from the Governor's executive order requiring immediate action.

BACKGROUND

In May the chairs of the Assembly and Senate committees that consider election-related matters prepared a formal letter to the Governor indicating they were working on legislation to ensure Californians could vote by mail in light of the emergency occasioned by COVID-19.¹ The letter indicated the legislation would ensure adequate ballot drop-off locations and regulate safe in-person voting while ensuring a minimum standard of one polling location per 10,000 voters open for four days statewide. The committee chairs encouraged the Governor to issue an executive order allowing all Californians to vote by mail, noting: "Three-quarters of California voters already receive a mail ballot. Let's mail a ballot to the rest."

The Governor issued Executive Order No. N-64-20 on May 8, 2020, which required all voters to be provided vote-by-mail ballots. That order affirmed, however, that the administration continued to work "in partnership with the Secretary of State and the Legislature on requirements for in-person voting opportunities and how other details of the November election will be implemented" and "[n]othing in this Order is intended, or shall be construed, to limit the enactment of legislation on that subject."

On June 3, 2020, the Governor signed the order at issue here, Executive Order No. N-67-20, which will be referenced throughout as simply the "Executive Order." The Executive Order affirms that all counties would mail eligible voters vote-by-mail ballots and provides for the use the Secretary of State's vote-by-mail ballot tracking system. It also provides additional terms related to the number and operation of polling places (including opening at least one polling place per 10,000 registered voters for four days) and vote-by-mail ballot drop-off locations, and it states in-person public participation in public meetings or workshops would not be required. The Executive Order identifies statutory provisions that are displaced pursuant to its provisions. But it also affirms the administration is "working in partnership" with the Legislature and Secretary of State and "[n]othing in this Order is intended, or shall be construed, to limit in any way the enactment of legislation concerning the November 3, 2020 General Election."

At the time the Governor issued the Executive Order, two bills pending in the Legislature addressed the substance of the Governor's Executive Order: Assembly Bill No. 860 (2019-2020 Reg. Sess.), which would ensure all California voters were provided ballots in advance of the election to vote by mail, and Senate Bill No. 423 (2019-2020 Reg. Sess.), which would govern those remaining aspects of the election that are yet to occur.² We take judicial notice of the versions of these bills from the Legislature's official records, which are attached as exhibits to the petition.

The issue presented concerns an order of the Sutter County Superior Court, entered on June 12, 2020, granting a temporary restraining order against the Executive Order, finding it constituted "an impermissible use of legislative powers in violation of the California Constitution and the laws of the State of California." The remaining factual and procedural background pertinent to our disposition of this matter, namely the legal proceedings initiated by real parties in interest to challenge the Executive Order and the instant petition, are incorporated in the following discussion.

DISCUSSION

Real parties in interest filed a complaint for declaratory judgment and injunctive relief in Sutter County Superior Court on June 11, 2020, challenging the Executive Order. Real parties in interest also filed an ex parte application seeking interim declaratory relief and a temporary restraining order.

Various court rules govern ex parte proceedings, which are designed to afford relief on an essentially emergency basis. "A court will not grant ex parte relief ‘in any but the plainest and most certain of cases.’ " ( People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257, 249 Cal.Rptr.3d 500 ( People ex rel. Allstate Ins. Co. ).) Substantively, "[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." ( Cal. Rules of Court, rule 3.1202(c) [further undesignated rule references are to the California Rules of Court]; see also Code Civ. Proc., § 527.) "A trial court should deny an ex parte application absent the requisite showing." ( People ex rel. Allstate Ins. Co. , at p. 257, 249 Cal.Rptr.3d 500.) Further, entry of any type of injunctive relief has been described as a delicate judicial power, to be exercised with great caution. ( Ancora-Citronelle Corp. v. Green (1974) 41 Cal.App.3d 146, 148, 115 Cal.Rptr. 879.) This is doubly true when granting relief on an expedited basis using an ex parte request for a temporary restraining order rather than a properly noticed preliminary injunction.

In his declaration supporting the request for ex parte relief, real party in interest James Gallagher did not reference anything the Executive Order would immediately compel. Rather, he broadly asserted it created "confusion as to what rules will be applicable to the November 3, 2020 election: the Executive Order, existing statutory law on the books, or the provisions of [bills] pending in the Legislature. Elections officials need to begin planning so that they can conduct the election accordingly."

Gallagher did not point to any impending election timelines or deadlines affected by the Executive Order, which is not surprising since the ballot materials had not been finalized and the Executive Order did not shorten the timeline for doing so. (See, e.g., Cal. Const., art. II, § 8, subd. (c); Elec. Code, § 9040 ; Gov. Code, § 88006.) Nor did Gallagher reference particular election preparations that were ongoing in Sutter County or in any other county that would be impacted by the Executive Order. Rather, he asserted ambiguously and without elaboration: "I am aware, through both conversations and letters I have received, that elections officials in my legislative district have concerns over how elections are to be conducted in the November 3, 2020 election. They are hoping to have these concerns addressed in the legislative process." Real parties in interest failed to attach any supporting declarations from these "election officials," nor did Gallagher describe specific information provided by election officials. The only supporting declaration included with the ex parte request for a temporary restraining order was devoid of "competent testimony based on [Gallagher's] personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." ( Rule 3.1202(c).)

Compounding the lack of competent evidence of irreparable harm or immediate danger, real parties in interest did not properly notify the Governor of the ex parte hearing. Rule 3.1203(a) provides that a party wishing to use the expedited ex parte hearing process must notify all parties no later than 10:00 a.m. the day before, absent a showing of exceptional circumstances justifying a shorter time for notice. Real parties in interest sent an e-mail to attorneys at the Department of Justice the morning before the hearing; they concede the e-mail was sent just a few minutes before 10:00 a.m. Later that morning, an attorney for the Department of Justice responded that the ...