Newsom v. Superior Court of Sutter Cnty.

• Citation: 63 Cal.App.5th 1099,278 Cal.Rptr.3d 397
• Decision Date: 05 May 2021
• Docket Number: C093006
• Court: California Court of Appeals
• Parties: Gavin NEWSOM, as Governor, etc., Petitioner, v. The SUPERIOR COURT OF SUTTER COUNTY, Respondent; James Gallagher et al., Real Parties in Interest.

63 Cal.App.5th 1099

278 Cal.Rptr.3d 397

Gavin NEWSOM, as Governor, etc., Petitioner,

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

C093006

Court of Appeal, Third District, California.

Filed May 5, 2021

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

Aaron D. Silva, Chief Deputy Legislative Counsel and Benjamin R. Herzberger, Deputy Legislative Counsel, for Senator Tom Umberg and Assemblymember Marc Berman as Amici Curiae on behalf of Petitioner.

David A. Carrillo, Martinez, and Brandon V. Stracener for California Constitution Center as Amicus Curiae on behalf of Petitioner.

James R. Williams, County Counsel (Santa Clara), Hannah M. Kieschnick, Stephanie L. Safdi, San Francisco, and Karun Tilak, Deputy County Counsel; Corrie Manning ; and Jennifer Henning for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Petitioner.

Boersch & Illovsky and Kevin Calia, Roseville, for Secretary of State Alex Padilla as Amicus Curiae on behalf of Petitioner.

No appearance for Respondent.

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

Karin E. Schwab, County Counsel (Placer), Brett D. Holt, Chief Deputy County Counsel, Renju Jacob and Emily F. Taylor, Deputy County Counsel, for the County of Placer as Amicus Curiae on behalf of Real Parties in Interest.

Pacific Legal Foundation, Luke A. Wake and Daniel M. Ortner for Ghost Golf, Inc., Daryn Coleman, Sol y Luna Mexican Cuisine and Nieves Rubio as Amici Curiae on behalf of Real Parties in Interest.

Bell, McAndrews & Hiltachk, Thomas W. Hiltachk,Sacramento, Brian T. Hildretch and Katherine C. Jenkins, for Senators Shannon Grove, Brian Dahle and Jim Nielsen, and Assemblymembers Marie Waldron, Megan Dahle, and Jordan Cunningham as Amici Curiae on behalf of Real Parties in Interest.

RAYE, P.J.

This petition for writ of mandate by Governor Gavin Newsom concerns the same parties and the same Executive Order No. N-67-20 (which we refer to as before as the "Executive Order") at issue in this court's decision in Newsom v. Superior Court (2020) 51 Cal.App.5th 1093, 265 Cal.Rptr.3d 582 ( Newsom ). In that decision we granted the Governor's petition challenging a temporary restraining order suspending the Executive Order that the superior court issued in an expedited, "ex parte" proceeding. We held that there was no basis for the superior court to grant real parties’ ex parte application at a hearing conducted one day after the action was filed, without proper notice to the Governor or his appearance, and without the substantive showing required for an ex parte proceeding.

Following our decision in Newsom , the case was reassigned to a different judge who conducted a trial on documentary exhibits without live witnesses and entered a judgment granting declaratory relief that the Executive Order is void as unconstitutional and that the California Emergency Services Act ( Gov. Code, § 8550 et seq. (Emergency Services Act))¹ does not authorize the Governor to issue an executive order that amends or makes statutory law. The court issued a permanent injunction prohibiting the Governor from exercising any powers under the Emergency Services Act "which amend, alter, or change existing statutory law or make new statutory law or legislative policy."

We will grant the Governor's petition and direct the superior court to dismiss as moot real parties’ claim for declaratory relief that the Executive Order is void as an unconstitutional exercise of legislative power. The Executive Order was superseded by legislation and was directed only at the November 3, 2020 general election, which had occurred before the judgment was entered. However, the declaratory relief and accompanying permanent injunction regarding executive orders issued under the Emergency Services Act raise matters of great public concern regarding the Governor's orders in the ongoing COVID-19 pandemic emergency. The superior court erred in interpreting the Emergency Services Act to prohibit the Governor from issuing quasi-legislative orders in an emergency. We conclude the issuance of such orders did not constitute an unconstitutional delegation of legislative power. We will direct the superior court to vacate this portion of the judgment and enter a new and different judgment in favor of the Governor.

BACKGROUND

In Newsom , we set forth the background of the filing of this action: "In May [2020] 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. The letter indicated the legislation would ensure adequate ballot dropoff 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 dropoff 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." ( Newsom, supra , 51 Cal.App.5th at pp. 1095-1097, 265 Cal.Rptr.3d 582, fn. omitted.)

On June 11, 2020, real parties filed a complaint for declaratory and injunctive relief seeking a declaratory judgment that the Executive Order "is null and void as it is an unconstitutional exercise of legislative powers reserved only to the Legislature, nor is it a permitted action" under the Emergency Services Act and an injunction against the Governor implementing the Executive Order. The complaint also sought an injunction against the Governor "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."

On June 12, 2020, the superior court granted real parties’ ex parte application for a temporary restraining order suspending the Executive Order and issued an order to show cause why the Governor should not be enjoined from implementing the Executive Order and exercising legislative power to amend, alter or change existing statutory law or make new statutory law.

On June 18, 2020, the Governor signed Assembly Bill No. 860 (2019-2020 Reg. Sess.), which took effect immediately as an urgency statute. Assembly Bill No. 860 declared that the general election to be held in November 3, 2020, raised health concerns about in-person voting due to the COVID-19 pandemic. The statute required county election officials to mail a ballot to every registered voter for the November 3, 2020 election, permit voters to cast a ballot using a certified remote accessible vote-by-mail system in the election, and use the Secretary of State's system or its equivalent to allow voters to track their votes. The act also made changes to certain deadlines associated with the November 3, 2020 election. (Stats. 2020, ch. 860, §§ 1 - 8.)

On July 10, 2020, in Newsom , this court issued a peremptory writ of mandate directing the superior court to vacate its order granting real parties’ ex parte application and issue an order denying it. ( Newsom, supra , 51 Cal.App.5th at p. 1100, 265 Cal.Rptr.3d 582.)

On August 6, 2020, the Governor approved Senate Bill No. 423 (2019-2020 Reg. Sess.), also as an urgency statute effective immediately. Senate Bill No. 423 shortened the time for vote centers to open before the November 3, 2020 election, allowed election officials to establish consolidated precinct boards for multiple precincts in the same polling place, and provided for a number of other measures for a safe election. The declared purpose of Senate Bill No. 423 was to provide safe in-person...