FILE - California Gov. Gavin Newsom

California Gov. Gavin Newsom visits the Cal Fire McClellan Reload Base in Sacramento, Calif., Thursday, July 9, 2020, to discuss the state's new efforts to protect emergency personnel and evacuees from COVID-19 during wildfires. 

(The Center Square) – A superior court judge has denied a request by the Pacific Legal Foundation for a preliminary injunction in a lawsuit challenging Gov. Gavin Newsom’s executive order requiring some businesses to remain closed while others remain fully open as state lawmakers wait to hear from the Third Circuit Court of Appeals in their case also filed against the governor.

Plaintiffs in both cases argued in December before in different courts that Newsom’s executive orders are unconstitutional. Only the legislature, not the governor, can make, amend or suspend laws, they argue.

In their lawsuit against Newsom, state Reps. James Gallagher and Kevin Kiley argue their “case concerns a limited point of law: whether the California Constitution countenances a dictatorship. Gavin Newsom is no Caesar, but his legal theory in this case and ruling philosophy this year are that of dictator legibus faciendis. The Executive can make laws at will, and the participation of the Legislature is at his discretion.

“Given the modern multiplication of ‘emergencies’ and their cascading effects across the landscape of California life, a mandate for executive lawmaking would confer unbridled control over the economic and social character of the state. It would be a reversion to the Roman model, destroying the separation of powers as we know it.”

The Pacific Legal Foundation, which filed an amicus brief in support of the legislators’ lawsuit, also sued the governor on behalf of the owners of Ghost Golf, a miniature golf and entertainment center, and Sol y Luna, a Mexican restaurant. On Dec. 15, Superior Court Judge Tyler Tharpe heard oral arguments from foundation attorneys, who argued Newsom’s Blueprint violates two provisions of Article III, Section 3 of the California Constitution.

“A state legislature cannot hand open-ended power to a governor or a state agency, even during an emergency,” foundation attorneys argued. “A governor cannot design an entire regulatory regime, such as California’s color codes, that restricts business operations and forces business closures indefinitely without violating separation of powers.”

Newsom said he would continue to make changes to the Blueprint as he deems appropriate, meaning that counties can expect him to change how and when their color is reclassified. Changing restrictions for any given industry within any color-coded county at any time, PLF and numerous plaintiffs who have also sued the governor argue, is unconstitutional.

Tharpe denied the foundation's request, arguing it had not carried its burden of proof.

While the ruling was frustrating, Kiley said, “There’s a silver lining: the Fresno Court is acknowledging that our victory over Newsom, if upheld on appeal, is potentially a precedent for ending the lockdowns throughout California.”

The delayed ruling by the Court of Appeals in the legislators’ case may be a good sign, he adds. If the court were going to dismiss the case on a technicality, as Newsom requested, the opinion might have already been written.

But if the “court were to issue the first precedent-setting decision in California history restraining a governor’s emergency powers, that would be a longer and carefully worded opinion,” Kiley notes. “If the Court of Appeal were to go a step further, and strike down the entire Emergency Services Act, that opinion would likely be written with even greater care.”

In response to questions by reporters about the numerous lawsuits he's facing, Newsom replied, “We’re winning.”

In response to questions about reopening, the governor said, “We want to do it safely and a lot of great data has been provided by the same groups that are suing us. If I was concerned about lawsuits, I would have collapsed a year ago. We receive dozens of them every week.”

Within the past month, according to one poll, Newsom’s approval rating plummeted to 31 percent. Last week, a recall petition to remove Newsom from office surpassed 1.4 million signatures.

In response to Newsom saying he’s winning, Kiley said, “I actually had no idea what he was talking about, but to be honest that’s often the case.”

If Newsom is winning, “then who’s losing?” Kiley asked. “Student-athletes, parents, small business owners, faith leaders, salon owners, restaurateurs – those are the plaintiffs in these cases. Newsom apparently views them as adversaries to be defeated, not constituents to be served.”

Kiley and Gallagher argue their case isn’t about them winning and Newsom losing but about representative government and the proper role of the court to “not to control our lives but to stop anyone else from doing so; To protect our personal freedoms as individuals and our collective freedom as a self-governing community.”

CalMatters has tallied 67 lawsuits filed after March last year against Newsom over his shutdown orders, including those filed by PLF.

In the response to Judge Tharpe’s ruling, PLF attorney Luke Wake told The Center Square, “While we are disappointed with the Superior Court's decision denying our motion for preliminary injunction, we are moving forward undeterred in our appeal.

“We've also weighed-in on Assemblymen Kiley and Gallagher's lawsuit challenging the Governor's emergency powers with an amicus filing in December. Both cases challenge the Governor's authority to make law. This unchecked assertion of lawmaking power is especially problematic given that it’s now been almost a year since Newsom shut-down Ghost Golf and since he began imposing crippling restrictions on Sol y Luna.”