FILE - California Gov. Gavin Newsom

California Gov. Gavin Newsom

(The Ceter Square) – California Superior Court Judge Sarah Heckman has ruled in favor of Republican Assemblymen James Gallagher, R-Yuba City, and Kevin Kiley, R-Rocklin, who sued Gov. Gavin Newsom over an executive order he issued in June to change election procedures.

The order, which directed the state to send more than 20 million ballots by mail and change several election guidelines for polling and mail ballot drop-off locations, was halted until the court issues an official ruling.

Heckman ruled that the order violated both the California Constitution and the California Emergency Services Act (CESA).

She also issued a permanent injunction, prohibiting the governor “from exercising any power under the California Emergency Services Act (Government Code $ 8550 et seq.), which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.”

“This marks an end to Gavin Newsom’s one-man rule,” Kiley and Gallagher said in a joint statement. “It makes clear that the laws of the State of California do not countenance an autocracy under any circumstances – not for a single day, and certainly not for eight months with no end in sight.”

Newsom has changed, halted, amended or created more than 400 laws using CESA.

“Executive Order N-67-20 issued by the Governor on June 3, 2020 is void as an unconstitutional exercise of legislative power and shall be of no further force or effect,” Heckman wrote in her 9-page decision. The CESA “does not authorize or empower the governor of the state of California to amend statutory law or make new statutory law, which is exclusively a legislative function not delegated to the Governor under the CESA.”

The ruling is “tentative,” meaning Newsom has a few days to try and persuade Heckman to change her mind before she announces the official ruling. But Kiley says it’s rare for a tentative ruling to change.

“While Newsom can appeal, we are confident the decision is on solid legal ground and will stand,” he said in a statement.

In her decision released Monday, Heckman ruled that a governor “unilaterally amending, altering, or changing existing statutory law or making new statutory law” through the issuance of executive orders “is a critically important one for the Judicial Branch to resolve.”

Since March 4, Newsom issued three executive orders during the current state of emergency specifically regarding the Nov. 3 general election and issued more than 50 different executive orders changing numerous California statutes, Heckman states.

On the issue of CESA being unconstitutional, Heckner ruled it is not.

“The plain meaning of the CESA does not delegate to the governor the power to legislate, and therefore does not violate the separation of powers under California Constitution Article Three, Section 3,” she wrote.

She also notes that Section 8567 of the law does not empower the governor to make or amend statutes. It empowers him to "suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules or regulations of any state agency.

“The Constitution gives the legislative branch the exclusive authority to make law and the executive branch the power to see that the law is faithfully executed,” which is why she ruled that the executive order being challenged violated CESA and the state constitution.

The order “improperly amended existing statutory law, exceeding the governor's authority and violating the separation of powers,” she wrote.

The governor’s attorneys argued that prior governors had issued executive orders to demonstrate "’the Legislature's longtime acquiescence’ in the practice of amending statutory law, in particular the Elections Code, during a state of emergency.”

But the examples they gave “do not support his argument, nor are they legal precedent, as none of the historical executive orders presented by the governor amended or created statutory law,” the judge ruled.

“To the contrary, the orders are all very limited in scope to suspend specific statutes, as the governor is expressly permitted to do under the CESA, but do not amend statutory law or create new statutes. The distinction is key.”

It was not immediately clear if the governor’s office plans to appeal Heckman’s decision. His media office did not immediately respond to a request for comment.