GAVIN NEWSOM, as Governor, etc., Petitioner, v. THE SUPERIOR COURT OF SUTTER COUNTY, Respondent; JAMES GALLAGHER et al., Real Parties in Interest.
C093006
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT
Filed 5/5/21
CERTIFIED FOR PUBLICATION; (Sutter); (Super. Ct. No. CVCS200912)
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.
James R. Williams, County Counsel (Santa Clara), Hannah M. Kieschnick, Stephanie L. Safdi 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 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, 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.
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 (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
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 (
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
“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
“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, 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
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.)
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 voting opportunities for those who need them despite the vote-by-mail mandates of the Executive Order and Assembly Bill No. 860. (Stats. 2020, ch. 31, §§ 1-4.)
In September 2020, real parties and the Governor filed motions for judgment on the pleadings, both of which the superior court denied.
On September 30, 2020, the Governor issued a news release that included the following statement: “[T]he Legislature passed a number of bills that build on the Governor‘s executive actions in response to COVID-19. Some of these bills replace certain executive orders entirely. Legislation has superseded the following executive orders, which have no further force or effect as of that legislation‘s effective date: [¶] ... [¶] Executive Order N-64-20 and Executive Order N-67-20 (elections) -- superseded by AB 860 and SB 423.”
On October 21, 2020, the superior conducted a trial in which stipulated documentary evidence was introduced but no witnesses called.
On November 13, 2020, the court issued a statement of decision addressing five issues. First, the court found that the case was not moot because plaintiffs requested
Second, the superior court determined that the Emergency Services Act is not unconstitutional. The court analyzed
Third, applying these principles, the superior court concluded that the Executive Order amended provisions of the Elections Code and exceeded the Governor‘s authority under the Emergency Services Act. The court rejected the Governor‘s contention that the separation of powers was preserved by the Legislature‘s ability to terminate the state of emergency -- which would have the effect of terminating any change in statutory law by executive order -- as “not a realistic or effective manner to address an unconstitutional
Fourth, the superior court determined that declaratory relief that the Emergency Services Act does not give the Governor power to amend or make statutory law was a matter of broad public interest particularly suited to determination by judicial declaration. The court found and declared that the Executive Order is void as an unconstitutional exercise of legislative power and the Emergency Services Act does not authorize the Governor to amend or make statutory law.
Fifth, the superior court found that a permanent injunction was warranted to prohibit the Governor from issuing executive orders that amend or make statutory laws. The court noted that the Governor had issued “a multitude of executive orders under the purported authority of the [Emergency Services Act], many of which have amended statutory law.” Further, the court observed the state of emergency declared by the Governor due to the COVID-19 pandemic continues indefinitely and the Governor “continues to issue executive orders which create legislative policy.” The court also reasoned that the amendments to the Elections Code in Assembly Bill No. 860 and Senate Bill No. 423 pertained only to the November 2, 2020 election and there was a reasonable likelihood that a special election would occur in 2021. In sum, the court was persuaded by the evidence the Governor would continue to issue executive orders amending statutes under the Emergency Services Act in violation of the California Constitution, which would lead to a multiplicity of lawsuits unless restrained by a permanent injunction. The court found good cause to issue a permanent injunction prohibiting the Governor from issuing an executive order under the Emergency Services Act “which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.”
On November 25, 2020, the superior court entered judgment in accordance with its statement of decision (but added a proviso that the Governor “may suspend statutes consistent with”
The previous day this court had stayed any further proceedings in the superior court and issued an alternative writ of mandate.
DISCUSSION
Mootness
By the time the superior court issued the statement of decision on November 13, 2020, real parties’ claim for declaratory relief that the Executive Order was null and void as an unconstitutional exercise of legislative authority was unquestionably moot.
“‘[A]n appeal is moot if “the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.” [Citations.]” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590.) “Subsequent legislation can render a pending appeal moot.” (van‘t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 560; see also Equi v. San Francisco (1936) 13 Cal.App.2d 140, 141-142; Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 636.) “It is well settled that an appellate court will decide only actual controversies. Consistent therewith, it has been said that an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.” (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 (Finnie); see also Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128, 132 (Lenahan).)
This court observed in Newsom that the parties agreed “the issue of whether the Governor‘s Executive Order exceeds his authority” was made “partially but not entirely
By contrast, the superior court‘s declaratory relief order that the Emergency Services Act does not give the Governor authority to make or amend statutory law by executive order, and the permanent injunction prohibiting the Governor from doing so was not directed at the Executive Order but any order issued under the Emergency Services Act. In particular, the declaratory relief order and permanent injunction apply to the Governor‘s orders issued in connection with the ongoing COVID-19 state of emergency that the Governor declared in March 2020. The superior court referred to, but did not specifically identify, the “50 different executive orders changing numerous California statutes [issued] since the state of emergency was declared” in the statement of decision. However, the court cited plaintiffs’ exhibit offered as an “[o]verview” of the Governor‘s executive action since the COVID-19 state of emergency was declared. The
Thus, the superior court‘s declaratory relief order and permanent injunction may govern existing and future emergency executive orders and are not moot. (See California Charter Schools Assn. v. Los Angeles Unified School Dist. (2015) 60 Cal.4th 1221, 1233-1234 (California Charter Schools).) Moreover, this court has “‘discretion to decide a case which, although technically moot, poses an issue of broad public interest that is likely to recur.‘” (Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd. (2020) 58 Cal.App.5th 396, 409.) Given that the COVID-19 crisis is not over and the efforts to combat it are of statewide concern, there can be no doubt that this appeal falls within our discretion. (See Brown v. Chiang (2011) 198 Cal.App.4th 1203, 1219; California Medical Assn. v. Brian (1973) 30 Cal.App.3d 637, 650.)
We are mindful that, “[i]n passing judgment on cases requesting declaratory relief, we decide only actual controversies and refrain from issuing advisory opinions.” (California Charter Schools, supra, 60 Cal.4th at p. 1234; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170.) However, we conclude there is an actual controversy regarding the scope of the Governor‘s authority to issue and implement executive orders under the Emergency Services Act, which the Governor clearly intends to continue to do during the COVID-19 state of emergency. (See Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 886.)
Section 8627 Is Not an Unconstitutional Delegation of Legislative Power
The superior court concluded that the Emergency Services Act did not authorize the Governor to issue an executive order that amends or makes statutory law. In doing so, the court declined to reach plaintiffs’ argument that if the Emergency Services Act granted the Governor the power to amend statutory law during an emergency, the act
The court relied on the rule that “‘statutes are to be so construed, if their language permits, as to render them valid and constitutional rather than invalid and unconstitutional.‘” This rule of statutory interpretation, called the canon of constitutional doubt, applies to ambiguous statutes, i.e., statutes reasonably susceptible of two interpretations.2 (California Chamber of Commerce v. State Air Resources Bd., supra, 10 Cal.App.5th at pp. 630-631; see also City of Los Angeles v. Belridge Oil Co. (1954) 42 Cal.2d 823, 832; Siskiyou County Farm Bureau v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 445.) In that circumstance, “‘the court will adopt the construction which, without doing violence to the reasonable meaning of the language used, will render it valid in its entirety, or free from doubt as to its constitutionality, even though the other construction is equally reasonable.‘” (Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1153; People v. Gutierrez (2014) 58 Cal.4th 1354, 1373.) But, in this instance as we explain, the court erred in applying the canon “because there was no ambiguity to resolve” in
That said, we agree that two out of the three provisions of the Emergency Services Act the court examined do not by their terms refer to the Governor‘s powers in an emergency as including amending or making law.
In contradistinction,
While the superior court attempted to interpret
Accordingly, the plain language of
In People v. Wright (1982) 30 Cal.3d 705 (Wright), the California Supreme Court articulated the applicable principles: “An unconstitutional delegation of legislative power occurs when the Legislature confers upon an administrative agency unrestricted authority
In Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118 (Gerawan), the court said: “‘[A]lthough it is charged with the formulation of policy, the Legislature ‘properly may delegate some quasi-legislative or rulemaking authority.’ [Citation.] ‘For the most part, delegation of quasi-legislative authority . . . is not considered an unconstitutional abdication of legislative power.’ [Citation.] ‘The doctrine prohibiting delegations of legislative power does not invalidate reasonable grants of power to an administrative agency, when suitable safeguards are established to guide the power‘s use and to protect against misuse.’ [Citation.] Accordingly, ‘[a]n unconstitutional delegation of authority occurs only when a legislative body (1) leaves the resolution of fundamental policy issues to others or (2) fails to provide adequate direction for the implementation of that policy.’ [Citations.]” (Id. at pp. 1146-1147, quoting Carson Mobilehome Park Owners’ Assn. v. City of Carson (1983) 35 Cal.3d 184, 190; see also Sims v. Kernan (2018) 30 Cal.App.5th 105, 110 (Sims).)
“Only in the event of a total abdication of power, through failure either to render basic policy decisions or to assure that they are implemented as made, will this court intrude on legislative enactment because it is an ‘unlawful delegation’ . . . .” (Kugler v. Yocum (1968) 69 Cal.2d 371, 384 (Kugler); Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 816 [“An unconstitutional delegation of power
Thus, the Legislature does not unconstitutionally delegate legislative power when the statute provides standards to direct implementation of legislative policy. (Gerawan, supra, 3 Cal.5th at p. 1148.) Here,
The purpose of the Emergency Services Act does furnish standards to guide implementation of
Thus, in issuing orders under
Here, an important safeguard is set forth in the Emergency Services Act.
We find instructive the decisions of federal courts interpreting the International Emergency Economic Powers Act (IEEPA),
Consistent with this authority, the Kentucky Supreme Court upheld its governor‘s declaration of state of emergency regarding the COVID-19 pandemic and issuance of orders and regulation to address the disease. (Beshear v. Acree (Ky. 2020) 615 S.W.3d 780.) The court rejected the contention that the statute under which the governor declared an emergency was an unconstitutional delegation of authority. (Id. at pp. 805-813.) The court enumerated “procedural safeguards to prevent abuses,” all of which are present in the Emergency Services Act, i.e., written orders and regulations, public notice, and the requirement that the governor state when the emergency has ceased and provision for the legislature to make that determination if the governor does not. (Beshear, supra, at pp. 811-812.)
Real parties argue the more apposite authority is In re Certified Questions from the United States District Court, Western District Court of Michigan, Southern Division (Mich. Oct. 2, 2020, No. 161492) 958 N.W.2d 1. In that case, the Supreme Court of Michigan examined a statute giving the governor power to declare a state of emergency and promulgate orders, rules and regulations to bring the emergency under control, which would cease to have effect when the governor declared that the emergency no longer existed. (Id. at p. 9.) The court considered both the subject matter and the duration of the emergency powers conferred on the governor in determining whether the nondelegation doctrine was satisfied. (Id. at p. 15.) The court interpreted the statute to be “of indefinite duration.” (Id. at p. 16.) The court said, “the state‘s legislative authority, including its police powers, may conceivably be delegated to the state‘s executive authority for an indefinite period.” (Ibid.) The court concluded the statute‘s “expansiveness, its indefinite duration, and its inadequate standards” were insufficient to sustain the delegation. (Id. at p. 18.)
By contrast, the Emergency Services Act is not a statute of indefinite duration. Unlike the Michigan statute, the Emergency Services Act obligates the governor to declare the state of emergency terminated as soon as conditions warrant, and, more significantly, empowers the Legislature to declare the emergency terminated. This
We conclude the Emergency Services Act, and specifically
DISPOSITION
Let a peremptory writ of mandate issue directing Sutter County Superior Court to dismiss as moot the portion of the judgment awarding declaratory relief that the Executive Order is null and void. The superior court is further directed to vacate the remainder of the judgment and enter a new and different judgment in favor of the Governor. The alternative writ is discharged. The stay previously issued by this court on November 24, 2020, will be vacated upon finality of this opinion. The Governor shall recover his costs in this proceeding. (Cal. Rules of Court, rule 8.493.)
RAYE, P.J.
We concur:
ROBIE, J.
RENNER, J.