Gallagher v. Newsom – California’s Third District Court of Appeal Upholds Governor Newsom’s Broad Authority to Issue Executive Orders During the COVID-19 Emergency

On May 5, 2021, California’s Third Appellate District struck down a superior court injunction that sought to narrowly limit Governor Newsom’s authority to issue Executive Orders under the Emergency Services Act (“the Act”).  What began as California Assemblymen James Gallagher and Kevin Kiley’s challenge to an Executive Order requiring vote-by-mail ballots to be sent to all California voters evolved into a dispute that challenged the very power of the Governor to issue Executive Orders under emergency authority during the extended COVID-19 pandemic.

The case’s initial focus was Governor Newsom’s Executive Order requiring all voters be provided a vote-by-mail ballot for the November 2020 election, along with other measures intended to ensure voting access during the COVID-19 pandemic.  Assemblymen Gallagher and Kiley filed suit challenging the Executive Order as an unconstitutional exercise of powers reserved for the Legislature.  Sutter County Superior Court Judge Sarah Heckman ruled that the Governor had exceeded his authority under the Act, finding that the Governor had the power to suspend laws but not to make new laws or amend existing laws.  Judge Heckman enjoined the Governor from issuing any executive orders that amend or make statuory law, noting that the Governor had issued at least 50 executive orders under the Act and would likely continue to issue more executive orders relating to the COVID-19 pandemic.

Just one day after the Governor sought a writ challenging the ruling, the Third Appellate District stayed the injunction.  Now, the Court has issued its decision holding that the Emergency Services Act permitted the Governor to amend or make new laws.  The Court went on to explain that Government Code § 8627 authorized the use of “all police powers,” which includes the power to legislate by enacting laws that promote the public health, safety, and welfare.  The Court recognized the Act’s purpose of empowering the Governor to deal with a wide variety of differing emergencies from wildfires to floods to a pandemic.  As well, the Court found no violation of the separation of powers doctrine nor any improper delegation of legislative authority to the Governor.  Rather, the Court concluded that the Act provided guidance in how to implement the Act by requiring that their be a coordinated emergency response.  More crucially, the Act included a key safeguard that any orders pursuant to the Act cease to have effect once the emergency is over, and the Legislature itself has the authority to declare an end to the emergency.

Gallagher offers the strongest support yet for the Governor’s authority to use Executive Orders to address the COVID-19 pandemic.  The petitioners have gone on record that they will be seeking review by the California Supreme Court.