63 Cal.App.5th 1099
Cal. Ct. App.2021Background:
- Gov. Newsom issued Executive Order N-67-20 (June 3, 2020) directing universal mail ballots and other election measures for the Nov. 3, 2020 election during the COVID-19 emergency.
- Real parties sued (June 11, 2020) seeking declaratory and injunctive relief that the Executive Order (EO) was an unconstitutional exercise of legislative power and beyond authority under the Emergency Services Act (ESA).
- Superior Court issued an ex parte TRO (June 12); this court in Newsom vacated that TRO for procedural defects, but the trial court later conducted a documentary trial and declared the EO void and enjoined the Governor from issuing orders that amend or make statutory law under the ESA.
- Meanwhile the Legislature enacted urgency statutes (AB 860 and SB 423) addressing the same election matters and the Governor announced they superseded EO N-67-20; the November 2020 election occurred under those laws.
- This Court held the EO invalidation claim as moot (it only applied to the past election) but considered the broader question whether ESA §8627 permits the Governor to issue quasi-legislative orders and whether that delegation is constitutional.
- The Court concluded §8627 is constitutional (not an unlawful delegation), directed the superior court to dismiss as moot the EO invalidation, vacate the remainder of its judgment, and enter judgment for the Governor.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of EO invalidation | EO still in effect; declaratory relief needed | EO was superseded by AB 860/SB 423 and only applied to Nov. 3, 2020 | EO invalidation claim moot and must be dismissed |
| Whether ESA authorizes quasi-legislative orders (§8627) | ESA does not authorize making or amending statutes via executive order | §8627 grants "police power" to issue orders and effectuate emergency needs | §8627 authorizes emergency quasi-legislative orders (police-power orders), and §8567 cross-reference imposes procedural limits, not a bar |
| Nondelegation challenge to §8627 | Granting police power to Governor is an unconstitutional delegation of legislative power | Statutory purpose, safeguards (termination requirement, legislative concurrent resolution) and procedural limits supply adequate guidance and checks | §8627 is not an unconstitutional delegation; purpose and statutory safeguards provide sufficient standards and protections |
| Remedy and scope of injunction | Broad permanent injunction needed to prevent future EO-based statute changes | Injunction addressing this EO only; broader injunction improper given legislative checks and mootness | Superior court erred: vacate broad declaratory/injunctive relief, dismiss EO claim as moot, enter judgment for Governor |
Key Cases Cited
- Newsom v. Superior Court, 51 Cal.App.5th 1093 (2020) (appellate vacatur of ex parte TRO and procedural ruling)
- People v. Wright, 30 Cal.3d 705 (1982) (nondelegation principles; need for standards and safeguards)
- Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., 3 Cal.5th 1118 (2017) (quasi-legislative delegation analysis)
- Kugler v. Yocum, 69 Cal.2d 371 (1968) (safeguards as alternative to explicit standards)
- Birkenfeld v. City of Berkeley, 17 Cal.3d 129 (1976) (legislative purpose can imply standards)
- Macias v. State of California, 10 Cal.4th 844 (1995) (purpose of Emergency Services Act: coordinated emergency response)
- California Charter Schools Assn. v. Los Angeles Unified School Dist., 60 Cal.4th 1221 (2015) (limitations on advisory opinions and mootness for declaratory relief)