Arguments heard in appeal hearing

Apr. 21—Local legislators and Gov. Gavin Newsom's legal representatives presented oral arguments in the California Third District Court of Appeal on Tuesday morning involving a lawsuit challenging the governor's use of emergency powers during the COVID-19 State of Emergency.

A Sutter County Superior Court judge sided with the plaintiffs — Assemblyman James Gallagher (R-Yuba City) and Assemblyman Kevin Kiley (R-Rocklin) — in a ruling late last year following a trial.

The judge ruled that the governor's executive order involving several changes to the state's election code in response to the ongoing pandemic was not authorized by the California Emergency Services Act because the order improperly amended existing statutory law, exceeding the governor's authority and violating the separation of powers. She also issued a permanent injunction prohibiting Newsom from exercising any power under the CESA to modify existing statutory law or make new statutory law or legislative policy.

Following the ruling, the defense appealed the decision in the California Third District Court of Appeal, which was the subject of Thursday's hearing.

The defense, Deputy Attorney General John Killeen from the California Department of Justice, argued on Tuesday that the CESA does in fact give the governor quasi-legislative authority. He said governors have routinely taken similar steps in the past.

"The trial court's order creates serious practical problems," Killeen said.

Gallagher argued that the governor amended and changed state statutes, which is the responsibility of the State Legislature. While the CESA designates all police power to the governor during a state of emergency, Gallagher argued that doesn't include legislative power.

Kiley said the plaintiffs were simply asking the court to fulfill its constitutional role to ensure the governor or future governors don't use a state of emergency as a way to exercise powers outside the representative process of the Legislature.

Both the plaintiffs and the defense pleaded their cases to three justices of the appellate court via video conferencing. Each party had 15 minutes to address the panel and answer any questions the justices had. Once each side provided their arguments, the justices took the comments under submission and adjourned the hearing.

Following the hearing, Gallagher questioned where the governor's power would end if the defense's argument held up; what other laws could be changed during an emergency.

"The Gov taking our powers and then saying 'nothing precludes the Legislature from exercising its power" is like someone taking a bite out of your birthday cake and then offering it back to you," Gallagher said in a series of social media posts. "...Affirming the Gov's actions here would be a very bad precedent."

The court is expected to release a written decision at a later date. Either side would then have the ability to further challenge that decision by appealing to the California Supreme Court.